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Title: Jurisprudence : Fourth Edition
Author: Salmond, John W.
Language: English
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JURISPRUDENCE
_SALMOND_
_BY THE SAME AUTHOR_
THE LAW OF TORTS
A TREATISE ON THE ENGLISH LAW OF LIABILITY FOR CIVIL INJURIES
THIRD EDITION
1912
A SUMMARY OF THE LAW OF TORTS
BEING AN ABRIDGEMENT, FOR THE USE OF STUDENTS, OF THE SAME AUTHOR’S
TREATISE ON THE LAW OF TORTS
1912
LONDON
STEVENS AND HAYNES
JURISPRUDENCE
BY
JOHN W. SALMOND
SOLICITOR-GENERAL FOR NEW ZEALAND
=FOURTH EDITION=
LONDON
STEVENS AND HAYNES
BELL YARD, TEMPLE BAR
1913
PRINTED AT
THE BALLANTYNE PRESS
LONDON
PREFACE TO THE FIRST EDITION
I have endeavoured to make this book useful to more than one class of
readers. It is written primarily for the use of those students of the
law who are desirous of laying a scientific foundation for their legal
education; yet I hope that it will not be found destitute of interest by
those lawyers whose academic studies lie behind them, but who have not
wholly ceased to concern themselves with the theoretical and scientific
aspects of the law. Further, a great part of what I have written is
sufficiently free from the technicalities and details of the concrete
legal system to serve the purposes of those laymen who, with no desire
to adventure themselves among the repellent mysteries of the law, are
yet interested in those more general portions of legal theory which
touch the problems of ethical and political science.
It will be noticed that occasional passages of the text are printed in
smaller type. These are of lesser importance, of greater difficulty, or
of a controversial or historical character, and are not essential to the
continuity of the exposition.
Certain parts of this book have already been published in the Law
Quarterly Review, and I have also incorporated in it the substance of a
much smaller work published by me some years ago under the title of “The
First Principles of Jurisprudence.” I have not thought it necessary to
allude in the text to certain discrepancies in matters of detail between
my earlier and later views, and it will be understood that the present
work wholly supersedes the earlier, as containing a re-statement of the
substance of it in a more comprehensive form.
J. W. S.
ADELAIDE,
_March 1902_
PREFACE TO THE FOURTH EDITION
This edition is substantially a reprint of the third, which was
published in 1910.
J. W. S.
LONDON,
_May 1913_
CONTENTS
CHAPTER I
THE SCIENCE OF JURISPRUDENCE
PAGE
§ 1. Jurisprudence as the Science of Law 1
§ 2. Jurisprudence as the Science of Civil Law 3
§ 3. Theoretical Jurisprudence 4
§ 4. English and Foreign Jurisprudence 7
CHAPTER II
CIVIL LAW
§ 5. The Definition of Law 9
§ 6. The Administration of Justice 10
§ 7. Law logically subsequent to the Administration of Justice 12
§ 8. Law and Fact 15
§ 9. The Justification of the Law 19
§ 10. The Defects of the Law 23
§ 11. General and Special Law 28
§ 12. Common Law 32
§ 13. Law and Equity 34
CHAPTER III
OTHER KINDS OF LAW
§ 14. Law in General—A Rule of Action 40
§ 15. Physical or Scientific Law 41
§ 16. Natural or Moral Law 43
§ 17. Imperative Law 47
§ 18. Conventional Law 54
§ 19. Customary Law 55
§ 20. Practical Law 56
§ 21. International Law 56
§ 22. The Law of Nations as Natural Law 59
§ 23. The Law of Nations as Customary Law 60
§ 24. The Law of Nations as Imperative Law 61
CHAPTER IV
THE ADMINISTRATION OF JUSTICE
§ 25. Necessity of the Administration of Justice 65
§ 26. Origin of the Administration of Justice 67
§ 27. Civil and Criminal Justice 70
§ 28. The Purposes of Criminal Justice: Deterrent Punishment 75
§ 29. Preventive Punishment 75
§ 30. Reformative Punishment 76
§ 31. Retributive Punishment 80
§ 32. Civil Justice: Primary and Sanctioning Rights 84
§ 33. A Table of Legal Remedies 87
§ 34. Penal and Remedial Proceedings 88
§ 35. Secondary Functions of Courts of Law 89
CHAPTER V
THE STATE
§ 36. The Nature and Essential Functions of the State 93
§ 37. Secondary Functions of the State 98
§ 38. The Territory of the State 99
§ 39. The Membership of the State 99
§ 40. The Constitution of the State 105
§ 41. The Government of the State 110
§ 42. Independent and Dependent States 111
§ 43. Unitary and Composite States 114
CHAPTER VI
THE SOURCES OF LAW
§ 44. Formal and Material Sources 117
§ 45. Legal and Historical Sources 117
§ 46. A List of Legal Sources 120
§ 47. The Sources of Law as Constitutive and Abrogative 123
§ 48. Sources of Law and Sources of Rights 124
§ 49. Ultimate Legal Principles 125
CHAPTER VII
LEGISLATION
§ 50. The Nature of Legislation 127
§ 51. Supreme and Subordinate Legislation 129
§ 52. Relation of Legislation to other Sources 132
§ 53. Codification 136
§ 54. The Interpretation of Enacted Law 137
CHAPTER VIII
CUSTOM
§ 55. The Early Importance of Customary Law 143
§ 56. Reasons for the Reception of Customary Law 144
§ 57. The Requisites of a Valid Custom 146
§ 58. Conventional Custom 153
§ 59. Theories of Customary Law 154
§ 60. Custom and Prescription 157
CHAPTER IX
PRECEDENT
§ 61. The Authority of Precedents 159
§ 62. Declaratory and Original Precedents 160
§ 63. Authoritative and Persuasive Precedents 163
§ 64. The Absolute and Conditional Authority of Precedents 164
§ 65. The Disregard of a Precedent 165
§ 66. Precedents Constitutive, not Abrogative 168
§ 67. Grounds of the Authority of Precedents 170
§ 68. The Sources of Judicial Principles 174
§ 69. Respective Functions of Judges and Juries 176
CHAPTER X
LEGAL RIGHTS
§ 70. Wrongs 179
§ 71. Duties 180
§ 72. Rights 181
§ 73. The Elements of a Legal Right 185
§ 74. Legal Rights in a wider sense of the term 190
§ 75. Libertie 190
§ 76. Powers 192
§ 77. Duties, Disabilities, and Liabilities 194
CHAPTER XI
THE KINDS OF LEGAL RIGHTS
§ 78. Perfect and Imperfect Rights 197
§ 79. The Legal Nature of Rights against the State 199
§ 80. Positive and Negative Rights 201
§ 81. Real and Personal Rights 202
§ 82. Proprietary and Personal Rights 207
§ 83. Rights in re propria and Rights in re aliena 212
§ 84. Principal and Accessory Rights 216
§ 85. Legal and Equitable Rights 217
CHAPTER XII
OWNERSHIP
§ 86. The Definition of Ownership 220
§ 87. Corporeal and Incorporeal Ownership 221
§ 88. Corporeal and Incorporeal Things 225
§ 89. Sole Ownership and Co-ownership 226
§ 90. Trust and Beneficial Ownership 227
§ 91. Legal and Equitable Ownership 231
§ 92. Vested and Contingent Ownership 232
CHAPTER XIII
POSSESSION
§ 93. Introduction 236
§ 94. Possession in Fact and in Law 237
§ 95. Corporeal and Incorporeal Possession 239
§ 96. Corporeal Possession 240
§ 97. The Animus Possidendi 242
§ 98. The Corpus of Possession 244
§ 99. Relation of the Possessor to other Persons 244
§ 100. Relation of the Possessor to the Thing Possessed 250
CHAPTER XIV
POSSESSION (_continued_)
§ 101. Immediate and Mediate Possession 252
§ 102. Concurrent Possession 256
§ 103. The Acquisition of Possession 256
§ 104. Possession not essentially the Physical Power of Exclusion 258
§ 105. Incorporeal Possession 261
§ 106. Relation between Possession and Ownership 264
§ 107. Possessory Remedies 267
CHAPTER XV
PERSONS
§ 108. The Nature of Personality 272
§ 109. The Legal Status of the Lower Animals 273
§ 110. The Legal Status of Dead Men 275
§ 111. The Legal Status of Unborn Persons 277
§ 112. Double Personality 278
§ 113. Legal Persons 279
§ 114. Corporations 281
§ 115. The Agents, Beneficiaries, and Members of a Corporation 285
§ 116. The Acts and Liabilities of a Corporation 287
§ 117. The Uses and Purposes of Incorporation 289
§ 118. The Creation and Extinction of Corporations 293
§ 119. The State as a Corporation 294
CHAPTER XVI
TITLES
§ 120. Vestitive Facts 299
§ 121. Acts in the Law 301
§ 122. Agreements 305
§ 123. The Classes of Agreements 307
§ 124. Void and Voidable Agreements 309
CHAPTER XVII
LIABILITY
§ 125. The Nature and Kinds of Liability 319
§ 126. The Theory of Remedial Liability 320
§ 127. The Theory of Penal Liability 321
§ 128. Acts 323
§ 129. Two Classes of Wrongful Acts 327
§ 130. Damnum sine Injuria 329
§ 131. The Place and Time of an Act 330
§ 132. Mens Rea 332
CHAPTER XVIII
INTENTION AND NEGLIGENCE
§ 133. The Nature of Intention 335
§ 134. Intention and Motive 338
§ 135. Malice 340
§ 136. Relevance and Irrelevance of Motives 341
§ 137. Criminal Attempts 343
§ 138. Other Exceptions to the Irrelevance of Motives 346
§ 139. Jus necessitatis 347
§ 140. Negligence 348
§ 141. Objection Considered 352
§ 142. The Standard of Care 354
§ 143. Degrees of Negligence 358
§ 144. Other Theories of Negligence 361
CHAPTER XIX
LIABILITY (_continued_)
§ 145. Wrongs of Absolute Liability 366
§ 146. Mistake of Law 368
§ 147. Mistake of Fact 369
§ 148. Accident 371
§ 149. Vicarious Responsibility 374
§ 150. The Measure of Criminal Liability 377
§ 151. The Measure of Civil Liability 382
CHAPTER XX
THE LAW OF PROPERTY
§ 152. Meanings of the term Property 385
§ 153. Kinds of Property 387
§ 154. The Ownership of Material Things 387
§ 155. Movable and Immovable Property 390
§ 156. Real and Personal Property 394
§ 157. Rights in re propria in Immaterial Things 395
§ 158. Leases 397
§ 159. Servitudes 400
§ 160. Securities 402
§ 161. Modes of Acquisition: Possession 406
§ 162. Prescription 408
§ 163. Agreement 412
§ 164. Inheritance 416
CHAPTER XXI
THE LAW OF OBLIGATIONS
§ 165. The Nature of Obligations 422
§ 166. Solidary Obligations 424
§ 167. The Sources of Obligations 427
§ 168. Obligations arising from Contracts 427
§ 169. Obligations arising from Torts 428
§ 170. Obligations arising from Quasi-Contracts 432
§ 171. Innominate Obligations 435
CHAPTER XXII
THE LAW OF PROCEDURE
§ 172. Substantive Law and the Law of Procedure 437
§ 173. Evidence 440
§ 174. The Valuation of Evidence 444
§ 175. The Production of Evidence 449
§ 176. Criticism of the Law of Evidence 452
APPENDICES
I. THE NAMES OF THE LAW 457
II. THE THEORY OF SOVEREIGNTY 467
III. THE MAXIMS OF THE LAW 474
IV. THE DIVISIONS OF THE LAW 481
V. THE LITERATURE OF JURISPRUDENCE 487
INDEX 497
JURISPRUDENCE.
CHAPTER I.
THE SCIENCE OF JURISPRUDENCE.
§ 1. =Jurisprudence as the Science of Law.=
In the widest of its applications the term jurisprudence means the
science of law, using the word law in that vague and general sense in
which it includes all species of obligatory rules of human action. Of
jurisprudence in this sense, there are as many divisions as there are
kinds of law which have been deemed sufficiently important and well
developed to serve as the subject-matter of distinct branches of
learning. They are at least three in number:
1. _Civil Jurisprudence._—This is the science of civil law, that is to
say, the law of the land. Its purpose is to give a complete and
systematic account of that complex body of principles which is received
and administered in the tribunals of the state.
2. _International Jurisprudence._—This is the science of international
law or the law of nations. It is concerned not with the rules which are
in force _within_ states, but with those which prevail _between_ states.
Just as the conduct of the subjects of a single state is governed by the
civil law, so international law regulates the conduct of states
themselves in their relations towards each other.
3. _Natural Jurisprudence._—This is the science of that which our
forefathers termed natural law or the law of nature (_jus naturale_). By
this they meant the principles of natural justice—justice as it is in
itself, in deed and in truth, as contrasted with those more or less
imperfect and distorted images of it which may be seen in civil and
international law. Whether these principles of natural justice are
rightly entitled to the name of law—whether natural law, so called, can
be rightly classed along with civil and international law as a species
of the same genus—is a question which it is not needful for us here to
discuss. It is sufficient for our present purpose to note the historical
fact, that there is a very extensive literature in which the law of
nature is given a place side by side with civil law and the law of
nations (_jus naturale_, _jus civile_, and _jus gentium_), and in which
the resulting threefold division of jurisprudence into natural, civil,
and international, is recognised as valid.
Books of natural jurisprudence are in their essence books of ethics or
moral philosophy, limited, however, to that department which is
concerned with _justice_, as opposed to the other forms of right, while
the method and the point of view are those of the lawyer rather than of
the moral philosopher. Experience has shown, however, that this abstract
theory of justice in itself, this attempt to work out _in abstracto_ the
principles of natural right, is a sufficiently unprofitable form of
literature. In England both name and thing have become in recent years
all but obsolete. Yet there are not wanting even at this day examples of
the earlier way of thought. The most notable of these is the late
Professor Lorimer’s _Institutes of Law, a Treatise of the Principles of
Jurisprudence as determined by Nature_. On the Continent, on the other
hand, the literature of natural law, though no longer as flourishing as
it was, is still of importance. One of the best known works of this
class is Ahrens’ _Cours de Droit Naturel_. A typical example from an
earlier epoch is Pufendorf’s once celebrated but now neglected work, _De
Jure Naturae et Gentium_ (1672).[1]
§ 2. =Jurisprudence as the Science of Civil Law.=
In a second and narrower sense, jurisprudence, instead of including all
three of the foregoing divisions, is limited to one only, namely, that
which we have distinguished as civil. It is the science of civil law. A
similar specific application belongs to the term law also, for when we
speak of law without any qualifying epithet, we commonly mean that
particular form which is administered in the tribunals of the state. So
when we speak of jurisprudence without more, we usually intend the
science of this special kind of law and this alone.[2]
Civil jurisprudence is divisible into three branches, which may be
distinguished as _Systematic_, _Historical_, and _Critical_. The first
deals with the present; its purpose is the exposition of the legal
system as it now is. The second deals with the past; it is concerned
with the legal system in the process of its historical development. The
third deals with the ideal future; it expounds the law not as it is or
has been, but as it ought to be. Systematic jurisprudence is legal
exposition; historical jurisprudence is legal history; while critical
jurisprudence is commonly known as the science of legislation.
§ 3. =Theoretical Jurisprudence.=
There is yet a third and still narrower sense, in which jurisprudence
includes not the whole science of civil law, but only a particular part
of it. In this limited signification it may be termed abstract,
theoretical, or general, to distinguish it from the more concrete,
practical, and special departments of legal study. It is with this form
only that we are concerned in the present treatise. How, then, shall we
define it, and how distinguish it from the residue of the science of the
civil law? It is _the science of the first principles of the civil law_.
It is not possible, indeed, to draw any hard line of logical division
between these first principles and the remaining portions of the legal
system. The distinction is one of degree rather than of kind.
Nevertheless it is expedient to set apart, as the subject-matter of a
special department of study, those more fundamental conceptions and
principles which serve as the basis of the concrete details of the law.
This introductory and general portion of legal science, cut off for
reasons of practical convenience from the special portions which come
after it, constitutes the subject-matter of our inquiry. It comprises
the first principles of civil jurisprudence in all its three divisions,
systematic, historical, and critical. The fact that its boundaries are
not capable of being traced with logical precision detracts in no degree
from the advantages to be derived from its recognition and separate
treatment as a distinct department of juridical science. Practical legal
exposition acknowledges no call to rise to first principles, or to
proceed to ultimate analysis. From the point of view of law as an art,
the importance of conceptions and principles varies inversely with their
abstractness or generality. Practical jurisprudence proceeds from below
upward, and ascends no further than the requirements of use and practice
demand. Theoretical jurisprudence, on the contrary, attributes value to
the abstract and the general, rather than to the concrete and the
particular. Even when these two departments of knowledge are coincident
in their subject-matter, they are far apart in their standpoints,
methods, and purposes. The aim of the abstract study is to supply that
theoretical foundation which the _science_ of law demands, but of which
the art of law is careless.
Opinions may well differ to some extent as to the matters which are fit,
by reason of their generality or their theoretic and scientific
interest, to find a place among the contents of abstract jurisprudence.
Speaking generally, however, it may be said that this science
appropriately deals with such matters as the following:
1. An analysis of the conception of civil law itself, together with an
examination of the relations between this and other forms of law.
2. An analysis of the various subordinate and constituent ideas of which
the complex idea of the law is made up; for example, those of the state,
of sovereignty, and of the administration of justice.
3. An account of the sources from which the law proceeds, with an
investigation into the theory of legislation, precedent, and customary
law.
4. An examination of the general principles of legal development, as
contrasted with the historic details of the growth of the individual
legal system, this last pertaining to legal history.
5. An inquiry into the scientific arrangement of the law, that is to
say, the logical division of the _corpus juris_ into distinct
departments, together with an analysis of the distinctions on which the
division is based.
6. An analysis of the conception of legal rights together with the
division of rights into various classes, and the general theory of the
creation, transfer, and extinction of rights.
7. An investigation of the theory of legal liability, civil and
criminal.
8. An examination of any other juridical conceptions which by reason of
their fundamental character, or their theoretical interest,
significance, or difficulty, deserve special attention from the abstract
point of view; for example, property, possession, obligations, trusts,
incorporation, and many others.[3]
It may avoid misconceptions, and assist us in understanding what
theoretical jurisprudence _is_, if we state shortly what it _is not_.
1. In the first place it is not an elementary outline of the concrete
legal system. It deals not with the outlines of the law, but with its
ultimate conceptions. It is concerned not with the simplest and easiest,
but with some of the most abstruse and difficult portions of the legal
system. Theoretical jurisprudence is not elementary law, any more than
metaphysics is elementary science.
2. In the second place it is not, as the name _general_ jurisprudence
suggests, and as some writers have held,[4] the science of those
conceptions and principles which all or most systems of law have in
common. It is true, indeed, that a great part of the matter with which
it is concerned is to be found in all mature legal systems. All these
have the same essential nature and purposes, and therefore agree to a
large extent in their fundamental principles. But it is not because of
this universal reception, that such principles pertain to theoretical
jurisprudence. Were it a rule of every country in the world that a man
could not marry his deceased wife’s sister, the rule would not for that
reason be entitled to a place in this department of legal science.
Conversely, as universal reception is not sufficient, so neither is it
necessary. Even if no system in the world, save that of England,
recognised the legislative efficacy of precedent, the theory of case-law
would none the less be a fit and proper subject of the science in
question.
3. Finally, this branch of knowledge has no exclusive claim to the name
of jurisprudence or of legal science. It is not, as some say, the
science of law, but is simply the introductory portion of it. As we have
already seen, it is not even capable of definite and logical separation
from the residue of legal learning. The division is one suggested by
considerations of practical convenience, not demanded by the
requirements of logic.
The divisions of legal science, as they have been stated and explained
in the foregoing pages, may be exhibited in tabular form as follows:
{ Theoretical. The Theory of Civil Law—The Science
{ of the First Principles of Civil Law.
{
{ Civil { { Systematic—Legal Exposition.
{ { {
{ { Practical { Historical—Legal History.
{ {
{ { Critical—The Science of Legislation.
JURISPRUDENCE, {
or the Science {
of Law in { International. The Science of the Law of Nations.
General. {
{
{
{ Natural. The Science of Natural Law and Justice.
§ 4. =English and Foreign Jurisprudence.=
The use of the term jurisprudence to indicate exclusively that special
branch of knowledge which we have termed theoretical jurisprudence, is a
peculiarity of English nomenclature. In foreign literature jurisprudence
and its synonyms include the whole of legal science and are never used
in this specific and limited signification. The foreign works which
correspond most accurately to the English literature of this subject are
of three different kinds:—
1. Works devoted to the subject known as _Juridical Encyclopædia_, one
of the best known examples of which is that of Arndts. He defines this
department of legal science as comprising “a scientific and systematic
outline or general view of the whole province of jurisprudence
(_Rechtswissenschaft_), together with the general data of that science.”
“Its purpose,” he adds, “is to determine the compass and limits of
jurisprudence, its relations to other sciences, its internal divisions,
and the mutual relations of its constituent parts.”[5]
2. Books of _Pandektenrecht_ (that is to say, Modern Roman Law), and
more especially the Introductory or General Part of these works. German
jurists have devoted extraordinary energy and acumen to the analysis and
exposition of the law of the Pandects, in that modern form in which it
was received in Germany until superseded by recent legislation. Much of
the work so done bears too special a reference to the details of the
Roman system to be in point with respect to the theory of English law.
The more general portions, however, are admirable examples of the
scientific analysis of fundamental legal conceptions. Special mention
may be made of the unfinished _System of Modern Roman Law_ by Savigny,
and of the similar works of Windscheid and Dernburg.
3. A third form of foreign literature which corresponds in part to our
English books of jurisprudence, consists of those works of
_jurisprudentia naturalis_ which have been already referred to. These
contain the theory of natural law and natural justice, while English
jurisprudence is concerned with civil law, and with the civil or legal
justice which that law embodies. Yet the relation between natural and
civil law, natural and civil justice, is so intimate that the theory of
the one is implicitly, if not explicitly, that of the other also.
Widely, therefore, as they differ in aspect, we may place the French
_Philosophie du droit naturel_ and the German _Naturrechtswissenschaft_
side by side with our own theoretical jurisprudence. It is, indeed, from
the earlier literature of natural law, as represented by Pufendorf,
Burlamaqui, Heineccius, and others,[6] that the modern English
literature of jurisprudence is directly descended.[7]
CHAPTER II.
CIVIL LAW.
§ 5. =The Definition of Law.=
The law is 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 will be noticed that this is a definition, not of _a_ law, but of
_the_ law, and our first concern is to examine the significance of this
distinction. The term law is used in two senses, which may be
conveniently distinguished as the abstract and the concrete. In its
abstract application we speak of the law of England, the law of libel,
criminal law, and so forth. Similarly we use the phrases law and order,
law and justice, courts of law. It is to this usage that our definition
is applicable. In its concrete sense, on the other hand, we say that
Parliament has enacted or repealed a law. We speak of the by-laws of a
railway company or municipal council. We hear of the corn laws or the
navigation laws. The distinction demands attention for this reason, that
the concrete term is not co-extensive with the abstract in its
application. Law or the law does not consist of the total number of laws
in force. The constituent elements of which the law is made up are not
laws but rules of law or legal principles. That a will requires two
witnesses is not rightly spoken of as a law of England; it is a rule of
English law. A law means a statute, enactment, ordinance, decree, or any
other exercise of legislative authority. It is one of the sources of law
in the abstract sense. A law produces statute law, just as custom
produces customary law, or as a precedent produces case-law.
This ambiguity is a peculiarity of English speech. All the chief
Continental languages possess distinct expressions for the two meanings.
Law in the concrete is _lex_, _loi_, _gesetz_, _legge_. Law in the
abstract is _jus_, _droit_, _recht_, _diritto_. It is not the case,
indeed, that the distinction between these two sets of terms is always
rigidly maintained, for we occasionally find the concrete word used in
the abstract sense. Medieval Latin, for example, constantly uses _lex_
as equivalent to _jus_, and the same usage is not uncommon in the case
of the French _loi_. The fact remains, however, that the Continental
languages possess, and in general make use of, a method of avoiding the
ambiguity inherent in the single English term.
Most English writers have, in defining law, defined it in the concrete,
instead of in the abstract sense. They have attempted to answer the
question: “What is a law?” while the true inquiry is: “What is law?” The
central idea of juridical theory is not _lex_ but _jus_, not _gesetz_
but _recht_. To this inverted and unnatural method of procedure there
are two objections. In the first place it involves a useless and
embarrassing conflict with legal usage. In the mouths of lawyers the
concrete signification is quite unusual. They speak habitually of law,
of the law, of rules of law, of legal principles, but rarely of a law or
of the laws. When they have occasion to express the concrete idea, they
avoid the vague generic expression, and speak of some particular species
of law—a statute, Act of Parliament, by-law, or rule of Court. In the
second place, this consideration of laws instead of law tends almost
necessarily to the conclusion that statute law is the type of all law
and the form to which all of it is reducible in the last analysis. It
misleads inquirers by sending them to the legislature to discover the
true nature and origin of law, instead of to the courts of justice. It
is consequently responsible for much that is inadequate and untrue in
the juridical theory of English writers.[8]
§ 6. =The Administration of Justice.=
We have defined law by reference to the administration of justice. It is
needful, therefore, to obtain here some understanding of the essential
nature of that function of the state, though a complete analysis of it
must be deferred to a later period of our inquiry. That some form of
compulsion and control is essential for the realization in human conduct
of the idea of justice, experience has made sufficiently manifest.
Unfortunately for the welfare of the world, men are not so constituted
that to know the right is to do it. In the nature of things there is a
conflict, partly real, partly only apparent, between the interests of
man and man, and between those of individuals and those of society at
large; and to leave every man free to do that which is right in his own
eyes, would fill the world with fraud and violence. “We have seen,” says
Spinoza, at the commencement of his Treatise on Politics,[9] “that the
way pointed out by Reason herself is exceeding difficult, insomuch so
that they who persuade themselves that a multitude of men ... can be
induced to live by the rule of Reason alone, are dreamers of dreams and
of the golden age of the poets.” If, therefore, we would maintain
justice, it is necessary to add compulsion to instruction. It is not
enough to point out the way; it is needful to compel men to walk in it.
Hence the existence of various regulative or coercive systems, the
purpose of which is the upholding and enforcement of right and justice
by some instrument of external constraint. One of the most important of
these systems is the administration of justice by the state. Another is
the control exercised over men by the opinion of the society in which
they live. A third is that scheme of coercion established within the
society of states for the enforcement of the principles of international
justice.
The administration of justice may therefore be defined as the
maintenance of right within a political community by means of the
physical force of the state.
The instrument of coercion employed by any regulative system is called a
sanction, and any rule of right supported by such means is said to be
sanctioned. Thus physical force, in the various methods of its
application, is the sanction applied by the state in the administration
of justice. Censure, ridicule, contempt, are the sanctions by which
society (as opposed to the state) enforces the rules of morality. War is
the last and the most formidable of the sanctions which in the society
of nations maintain the law of nations. Threatenings of evils to flow
here or hereafter from divine anger are the sanctions of religion, so
far as religion assumes the form of a regulative or coercive system.[10]
A sanction is not necessarily a punishment or penalty. To punish
wrongdoers is a very effectual way of maintaining the right, but it is
not the only way. We enforce the rule of right, not only by imprisoning
the thief, but by depriving him of his plunder, and restoring it to its
true owner; and each of these applications of the physical force of the
state is equally a sanction. The examination and classification of the
different forms of sanction made use of by the state will claim our
attention in a later chapter on the administration of justice.
§ 7. =Law Logically Subsequent to the Administration of Justice.=
We have defined law as the body of principles observed and acted on by
the state in the administration of justice. To this definition the
following objection may be made. It may be said: “In defining law by
reference to the administration of justice, you have reversed the proper
order of ideas, for law is the first in logical order, and the
administration of justice second. The latter, therefore, must be defined
by reference to the former, and not _vice versa_. Courts of justice are
essentially courts of law, justice in this usage being merely another
name for law. The administration of justice is essentially the
enforcement of the law. The laws are the commands laid by the state upon
its subjects, and the law courts are the organs through which these
commands are enforced. Legislation, direct or indirect, must precede
adjudication. Your definition of law is therefore inadequate, for it
runs in a circle. It is not permissible to say that the law is the body
of rules observed in the administration of justice, since this function
of the state must itself be defined as the application and enforcement
of the law.”
This objection is based on an erroneous conception of the essential
nature of the administration of justice. The primary purpose of this
function of the state is that which its name implies—to maintain right,
to uphold justice, to protect rights, to redress wrongs. Law is
secondary and unessential. It consists of the fixed principles in
accordance with which this function is exercised. It consists of the
pre-established and authoritative rules which judges apply in the
administration of justice, to the exclusion of their own free will and
discretion. For good and sufficient reasons the courts which administer
justice are constrained to walk in predetermined paths. They are not at
liberty to do that which seems right and just in their own eyes. They
are bound hand and foot in the bonds of an authoritative creed which
they must accept and act on without demur. This creed of the courts of
justice constitutes the law, and so far as it extends, it excludes all
right of private judgment. The law is the wisdom and justice of the
organized commonwealth, formulated for the authoritative direction of
those to whom the commonwealth has delegated its judicial functions.
What a litigant obtains in the tribunals of a modern and civilized state
is doubtless justice according to law, but it is essentially and
primarily justice and not law. Judges are appointed, in the words of the
judicial oath, “to do right to all manner of people, after the laws and
usages of this realm.” Justice is the end, law is merely the instrument
and the means; and the instrument must be defined by reference to its
end.
It is essential to a clear understanding of this matter to remember that
the administration of justice is perfectly possible without law at all.
Howsoever expedient it may be, howsoever usual it may be, it is not
necessary that the courts of the state should, in maintaining right and
redressing wrong, act according to those fixed and predetermined
principles which are called the law. A tribunal in which right is done
to all manner of people in such fashion as commends itself to the
unfettered discretion of the judge, in which equity and good conscience
and natural justice are excluded by no rigid and artificial rules, in
which the judge does that which he deems just in the particular case,
regardless of general principles, may not be an efficient or trustworthy
tribunal, but is a perfectly possible one. It is a court of justice,
which is not also a court of law.
Moreover, even when a system of law exists, the extent of it may vary
indefinitely. The degree in which the free discretion of a judge in
doing right is excluded by predetermined rules of law, is capable of
indefinite increase or diminution. The total exclusion of judicial
discretion by legal principle is impossible in any system. However great
is the encroachment of the law, there must remain some residuum of
justice which is not according to law—some activities in respect of
which the administration of justice cannot be defined or regarded as the
enforcement of the law. Law is a gradual growth from small beginnings.
The development of a legal system consists in the progressive
substitution of rigid pre-established principles for individual
judgment, and to a very large extent these principles grow up
spontaneously within the tribunals themselves. That great aggregate of
rules which constitutes a developed legal system is not a condition
precedent of the administration of justice, but a product of it.
Gradually from various sources—precedent, custom, statute—there is
collected a body of fixed principles which the courts apply to the
exclusion of their private judgment. The question at issue in the
administration of justice more and more ceases to be, “What is the right
and justice of this case?” and more and more assumes the alternative
form, “What is the general principle already established and accepted,
as applicable to such a case as this?” Justice becomes increasingly
justice according to law, and courts of justice become increasingly
courts of law.
§ 8. =Law and Fact.=
The existence of law is, as has been said, marked and measured by the
exclusion, in courts of justice, of individual judgment by authority, of
free discretion by rule, of liberty of opinion by pre-established
determinations. The remarkable extent to which this exclusion is
permitted is a very characteristic feature of the administration of
justice; but it is not and cannot be complete. Judicial action is
accordingly divisible into two provinces; one being that of law, and the
other that of fact. All matters that come for consideration before
courts of justice are either matters of law or matters of fact. The
former are those falling within the sphere of pre-established and
authoritative principle, while the latter are those pertaining to the
province of unfettered judicial discretion. In other words, every
question which requires an answer in a court of justice is either one of
law or one of fact. The former is one to be answered in accordance with
established principles—one which has been already authoritatively
answered, explicitly or implicitly, by the law. A question of fact, on
the other hand, is one which has not been thus predetermined—one on
which authority is silent—one which the court may and must answer and
determine in accordance with its own individual judgment.
It must be clearly understood that by a question of fact, as we have
used the expression, is meant any question whatever except one of law,
whether that question is, or is not, one of fact in the other senses of
this equivocal term. We are not concerned, for example, with the
distinction between matters of fact and matters of _right_, or with that
between matters of fact and matters of _opinion_. Everything is fact for
us which is not predetermined by legal principles. It is clear that this
is the sense in which this term must inevitably be used, if the
distinction between questions of fact and questions of law is to be
exhaustive and logical.
The distinction may be illustrated by the following examples:—
Whether a contractor has been guilty of unreasonable delay in building
a house is a question of fact; the law contains no rules for its
determination. But whether the holder of a bill of exchange has been
guilty of unreasonable delay in giving notice of dishonour, is a
question of law to be determined in accordance with certain fixed
principles laid down in the Bills of Exchange Act.
Whether verbal or written evidence of a contract is the better, is a
question of law, the superiority of the latter being the subject of a
pre-existing and authoritative generalisation. But whether the oral
testimony of A. or that of B. is the better evidence, is a question of
fact, left entirely to the untrammelled judgment of the court.
What is the proper and reasonable punishment for murder is a question
of law, individual judicial opinion being absolutely excluded by a
fixed rule. What is the proper and reasonable punishment for theft is
(save so far as judicial discretion is limited by the statutory
appointment of a maximum limit) a question of fact, on which the law
has nothing to say.
The question whether a child accused of crime has sufficient mental
capacity to be criminally responsible for his acts, is one of fact, if
the accused is over the age of seven years, but one of law (to be
answered in the negative) if he is under that age.
The point in issue is the meaning of a particular clause in an Act of
Parliament. Whether this is a question of fact or of law, depends on
whether the clause has already been the subject of authoritative
judicial interpretation. If not, it is one of fact for the opinion of
the court. If, however, there has already been a decision on the
point, the question is one of law to be decided in accordance with the
previous determination. The conclusion may seem paradoxical that a
question of statutory interpretation may be one of fact, but a little
consideration will show that the statement is correct. It is true,
indeed, that the question is one as to what the law is, but a question
of law does not mean one as to what the law is, but one to be
determined in accordance with a rule of law.
A question is very often both one of fact and one of law, and is then
said to be a mixed question of law and of fact. It is to be answered
partly in accordance with fixed legal principles, and as to the residue
in accordance with free judicial opinion. That is to say, it is not a
simple, but a composite question, resolvable into a greater or less
number of simple factors, some of which pertain to the sphere of the law
and the others to that of fact. Let us take, for example, the question
as to the proper term of imprisonment for a certain convicted criminal.
This may, according to circumstances, be a pure question of fact, a pure
question of law, or a mixed question of law and of fact. It belongs to
the first of these classes, if the law contains no provision whatever on
the matter, the court having in consequence a perfectly free hand. It
belongs to the second class, if the matter is definitely predetermined
by a fixed rule, appointing the exact length of imprisonment to be
awarded. It belongs to the third class, if the law has fixed a minimum
or maximum term, but has left the court with full liberty within the
appointed limits. Similarly, whether the defendant has been guilty of
fraud is a mixed question of law and of fact, because it is resolvable
into two elements, one of law and the other of fact; what acts the
defendant has done, and with what intent he did them, are pure questions
of fact; but whether such acts, done with such an intent, amount to
fraud is a pure question of law. So the question whether a partnership
exists between A. and B. is partly one of fact (viz., what agreement has
been made between these persons), and partly one of law (viz., whether
such an agreement constitutes the relation of partnership). Similar
composite questions are innumerable.
The distinction between matters of fact and matters of law is thrown
into great prominence by the composite character of the typical English
tribunal and the resulting division of functions between judge and jury.
The general rule is that questions of law are for the judge and
questions of fact for the jury. This rule is subject, however, to
numerous and important exceptions. Though there are no cases in which
the law is left to the jury, there are many questions of fact which are
withdrawn from the cognisance of the jury and answered by the judge. The
interpretation of a written document, for example, may be, and very
often is, a pure matter of fact, and nevertheless falls within the
province of the judge. So the question of reasonable and probable cause
for prosecution—which arises in actions for malicious prosecution—is one
of fact and yet one for the judge himself. So it is the duty of the
judge to decide whether there is any sufficient evidence to justify a
verdict for the plaintiff, and if he decides that there is not, the case
is withdrawn from the jury altogether; yet in the majority of cases this
is a mere matter of fact, undetermined by any authoritative
principles.[11]
The validity of a legal principle is entirely independent of its truth.
It is a valid principle of law, not because it is true, but because it
is accepted and acted on by the tribunals of the state. The law is the
theory of things, as received and acted on within the courts of justice,
and this theory may or may not conform to the reality of things outside.
The eye of the law does not infallibly see things as they are. Nor is
this divergence of law from truth and fact necessarily, and in its full
extent, inexpedient. The law, if it is to be an efficient and workable
system, must needs be blind to many things, and the legal theory of
things must be simpler than the reality. Partly by deliberate design,
therefore, and partly by the errors and accidents of historical
development, law and fact, legal theory and the truth of things, are far
from complete coincidence. We have ever to distinguish that which exists
in deed and in truth, from that which exists in law. Fraud in law, for
example, may not be fraud in fact, and _vice versa_. That is to say,
when the law lays down a principle determining, in any class of cases,
what shall be deemed fraud, and what shall not, this principle may or
may not be true, and so far as it is untrue, the truth of things is
excluded by the legal theory of things. In like manner, that which is
considered right or reasonable by the law may be far from possessing
these qualities in truth and fact. Legal justice may conflict with
natural justice; a legal wrong may not be also a moral wrong, nor a
legal duty a moral duty.
§ 9. =The Justification of the Law.=
We have seen that the existence of law is not essential to the
administration of justice. Howsoever expedient, it is not necessary that
this function of the state should be exercised in accordance with those
rigid principles which constitute a legal system. The primary purpose of
the judicature is not to enforce law, but to maintain justice, and this
latter purpose is in its nature separable from the former and
independent of it. Even when justice is administered according to law,
the proportion between the sphere of legal principle and that of
judicial discretion is different in different systems, and varies from
time to time. This being so, it is well to make inquiry into the uses
and justification of the law—to consider the advantages and
disadvantages of this substitution of fixed principles for the
_arbitrium judicis_ in the administration of justice—in order that we
may be enabled to judge whether this substitution be good or evil, and
if good within what limits it should be confined.
That it is on the whole expedient that courts of justice should become
courts of law, no one can seriously doubt. Yet the elements of evil
involved in the transformation are too obvious and serious ever to have
escaped recognition. Laws are in theory, as Hooker says, “the voices of
right reason”; they are in theory the utterances of Justice speaking to
men by the mouth of the state; but too often in reality they fall far
short of this ideal. Too often they “turn judgment to wormwood,” and
make the administration of justice a reproach. Nor is this true merely
of the earlier and ruder stages of legal development. At the present day
our law has learnt, in a measure never before attained, to speak the
language of sound reason and good sense; but it still retains in no
slight degree the vices of its youth, nor is it to be expected that at
any time we shall altogether escape from the perennial conflict between
law and justice. It is needful, therefore, that the law should plead and
prove the ground and justification of its existence.
The chief uses of the law are three in number. The first of these is
that it imparts uniformity and certainty to the administration of
justice. It is vitally important not only that judicial decisions should
be correct, distinguishing accurately between right and wrong, and
appointing fitting remedies for injustice, but also that the subjects of
the state should be able to know beforehand the decision to which on any
matter the courts of justice will come. This prevision is impossible
unless the course of justice is uniform, and the only effectual method
of procuring uniformity is the observance of those fixed principles
which constitute the law. It would be well, were it possible, for the
tribunals of the state to recognise and enforce the rules of absolute
justice; but it is better to have defective rules than to have none at
all. For we expect from the coercive action of the state not merely the
maintenance of abstract justice, but the establishment within the body
politic of some measure of system, order, and harmony, in the actions
and relations of its members. It is often more important that a rule
should be definite, certain, known, and permanent, than that it should
be ideally just. Sometimes, indeed, the element of order and certainty
is the only one which requires consideration, it being entirely
indifferent what the rule is, so long as it exists and is adhered to.
The rule of the road is the best and most familiar example of this, but
there are many other instances in which justice seems dumb, and yet it
is needful that a definite rule of some sort should be adopted and
maintained.
For this reason we require in great part to exclude judicial discretion
by a body of inflexible law. For this reason it is, that in no civilised
community do the judges and magistrates to whom is entrusted the duty of
maintaining justice, exercise with a free hand the _viri boni
arbitrium_. The more complex our civilisation becomes, the more needful
is its regulation by law, and the less practicable the alternative
method of judicial procedure. In simple and primitive communities it is
doubtless possible, and may even be expedient, that rulers and
magistrates should execute judgment in such manner as best commends
itself to them. But in the civilisation to which we have now attained,
any such attempt to substitute the deliverances of natural reason for
predetermined principles of law would lead to chaos. “Reason,” says
Jeremy Taylor,[12] “is such a box of quicksilver that it abides no
where; it dwells in no settled mansion; it is like a dove’s neck; ...
and if we inquire after the law of nature” (that is to say, the
principles of justice) “by the rules of our reason, we shall be as
uncertain as the discourses of the people or the dreams of disturbed
fancies.”
It is to be observed in the second place that the necessity of
conforming to publicly declared principles protects the administration
of justice from the disturbing influence of improper motives on the part
of those entrusted with judicial functions. The law is necessarily
impartial. It is made for no particular person, and for no individual
case, and so admits of no respect of persons, and is deflected from the
straight course by no irrelevant considerations peculiar to the special
instance. Given a definite rule of law, a departure from it by a
hair’s-breadth is visible to all men; but within the sphere of
individual judgment the differences of honest opinion are so manifold
and serious that dishonest opinion can pass in great part unchallenged
and undetected. Where the duty of the judicature is to execute justice
in accordance with fixed and known principles, the whole force of the
public conscience can be brought to the enforcement of that duty and the
maintenance of those principles. But when courts of justice are left to
do that which is right in their own eyes, this control becomes to a
great extent impossible, public opinion being left without that definite
guidance which is essential to its force and influence. So much is this
so, that the administration of justice according to law is rightly to be
regarded as one of the first principles of political liberty. “The
legislative or supreme authority,” says Locke,[13] “cannot assume to
itself a power to rule by extemporary, arbitrary decrees, but is bound
to dispense justice, and to decide the rights of the subject by
promulgated, standing laws, and known, authorized judges.” So in the
words of Cicero,[14] “We are the slaves of the law that we may be free.”
It is to its impartiality far more than to its wisdom (for this latter
virtue it too often lacks) that are due the influence and reputation
which the law has possessed at all times. Wise or foolish, it is the
same for all, and to it, therefore, men have ever been willing to submit
their quarrels, knowing, as Hooker[15] says, that “the law doth speak
with all indifferency; that the law hath no side-respect to their
persons.” Hence the authority of a judgment according to law. The
reference of international disputes to arbitration, and the loyal
submission of nations to awards so made, are possible only in proportion
to the development and recognition of a definite body of international
law. The authority of the _arbitrators_ is naught; that of the _law_ is
already sufficient to maintain in great part the peace of the world. So
in the case of the civil law, only so far as justice is transformed into
law, and the love of justice into the spirit of law-abidingness, will
the influence of the judicature rise to an efficient level, and the
purposes of civil government be adequately fulfilled.
Finally, the law serves to protect the administration of justice from
the errors of individual judgment. The establishment of the law is the
substitution of the opinion and conscience of the community at large for
those of the individuals to whom judicial functions are entrusted. The
principles of justice are not always clearly legible by the light of
nature. The problems offered for judicial solution are often dark and
difficult, and there is great need of guidance from that experience and
wisdom of the world at large, of which the law is the record. The law is
not always wise, but on the whole and in the long run it is wiser than
those who administer it. It expresses the will and reason of the body
politic, and claims by that title to overrule the will and reason of
judges and magistrates, no less than those of private men. “To seek to
be wiser than the laws,” says Aristotle,[16] “is the very thing which is
by good laws forbidden.”
§ 10. =The Defects of the Law.=
These then are the chief advantages to be derived from the exclusion of
individual judgment by fixed principles of law. Nevertheless these
benefits are not obtained save at a heavy cost. The law is without doubt
a remedy for greater evils, yet it brings with it evils of its own. Some
of them are inherent in its very nature, others are the outcome of
tendencies which, however natural, are not beyond the reach of effective
control.
The first defect of a legal system is its rigidity. A general principle
of law is the product of a process of abstraction. It results from the
elimination and disregard of the less material circumstances in the
particular cases falling within its scope, and the concentration of
attention upon the more essential elements which these cases have in
common. We cannot be sure that in applying a rule so obtained, the
elements so disregarded may not be material in the particular instance;
and if they are so, and we make no allowance for them, the result is
error and injustice. This possibility is fully recognised in departments
of practice other than the law. The principles of political economy are
obtained by the elimination of every motive save the desire for wealth;
but we do not apply them blindfold to individual cases, without first
taking account of the possibly disturbing influence of the eliminated
elements. In law it is otherwise, for here a principle is not a mere
guide to the due exercise of a rational discretion, but a substitute for
it. It is to be applied without any allowance for special circumstances,
and without turning to the right hand or to the left. The result of this
inflexibility is that, however carefully and cunningly a legal rule may
be framed, there will in all probability be some special instances in
which it will work hardship and injustice, and prove a source of error
instead of a guide to truth. So infinitely various are the affairs of
men, that it is impossible to lay down general principles which will be
true and just in every case. If we are to have general rules at all, we
must be content to pay this price.
The time-honoured maxim, _Summum jus est summa injuria_, is an
expression of the fact that few legal principles are so founded in truth
that they can be pushed to their extremest logical conclusions without
leading to injustice. The more general the principle, the greater is
that elimination of immaterial elements of which it is the result, and
the greater therefore is the chance that in its rigid application it may
be found false. On the other hand, the more carefully the rule is
qualified and limited, and the greater the number of exceptions and
distinctions to which it is subject, the greater is the difficulty and
uncertainty of its application. In attempting to escape from the evils
which flow from the rigidity of the law, we incur those due to its
complexity, and we do wisely if we discover the golden mean between the
two extremes.
Analogous to the vice of rigidity is that of conservatism. The former is
the failure of the law to conform itself to the requirements of special
instances and unforeseen classes of cases. The latter is its failure to
conform itself to those changes in circumstances and in men’s views of
truth and justice, which are inevitably brought about by the lapse of
time. In the absence of law, the administration of justice would
automatically adapt itself to the circumstances and opinions of the
time; but fettered by rules of law, courts of justice do the bidding,
not of the present, but of the times past in which those rules were
fashioned. That which is true to-day may become false to-morrow by
change of circumstances, and that which is taken to-day for wisdom may
to-morrow be recognised as folly by the advance of knowledge. This being
so, some method is requisite whereby the law, which is by nature
stationary, may be kept in harmony with the circumstances and opinions
of the time. If the law is to be a living organism, and not a mere
petrification, it is necessary to adopt and to use with vigilance some
effective instrument of legal development, and the quality of any legal
system will depend on the efficiency of the means so taken to secure it
against a fatal conservatism. Legislation—the substitution of new
principles for old by the express declaration of the state—is the
instrument approved by all civilised and progressive races, none other
having been found comparable to this in point of efficiency. Even this,
however, is incapable of completely counteracting the evil of legal
conservatism. However perfect we may make our legislative machinery, the
law will lag behind public opinion, and public opinion behind the truth.
Another vice of the law is formalism. By this is meant the tendency to
attribute undue importance to form as opposed to substance, and to exalt
the immaterial to the level of the material. It is incumbent on a
perfect legal system to exercise a sound judgment as to the relative
importance of the matters which come within its cognisance; and a system
is infected with formalism in so far as it fails to meet this
requirement, and raises to the rank of the material and essential that
which is in truth unessential and accidental. Whenever the importance of
a thing in law is greater than its importance in fact, we have a legal
formality. The formalism of ancient law is too notorious to require
illustration, but we are scarcely yet in a position to boast ourselves
as above reproach in this matter. Much legal reform is requisite if the
maxim _De minimis non curat lex_ is to be accounted anything but irony.
The last defect that we shall consider is undue and needless complexity.
It is not possible, indeed, for any fully developed body of law to be
such that he who runs may read it. Being, as it is, the reflection
within courts of justice of the complex facts of civilised existence, a
very considerable degree of elaboration is inevitable. Nevertheless the
gigantic bulk and bewildering difficulties of our own labyrinthine
system are far beyond anything that is called for by the necessities of
the case. Partly through the methods of its historical development, and
partly through the influence of that love of subtilty which has always
been the besetting sin of the legal mind, our law is filled with
needless distinctions, which add enormously to its bulk and nothing to
its value, while they render great part of it unintelligible to any but
the expert. This tendency to excessive subtilty and elaboration is one
that specially affects a system which, like our own, has been largely
developed by way of judicial decisions. It is not, however, an
unavoidable defect, and the codes which have in modern times been
enacted in European countries prove the possibility of reducing the law
to a system of moderate size and intelligible simplicity.
From the foregoing considerations as to the advantages and disadvantages
which are inherent in the administration of justice according to law, it
becomes clear that we must guard against the excessive development of
the legal system. If the benefits of law are great, the evils of too
much law are not small. The growth of a legal system consists in the
progressive encroachment of the sphere of law upon that of fact, the
gradual exclusion of judicial discretion by predetermined legal
principles. All systems do to some extent, and those which recognise
precedent as a chief source of law do more especially, show a tendency
to carry this process of development too far. Under the influence of the
spirit of authority the growth of law goes on unchecked by any effective
control, and in course of time the domain of legal principle comes to
include much that would be better left to the _arbitrium_ of courts of
justice. At a certain stage of legal development, varying according to
the particular subject-matter, the benefits of law begin to be
outweighed by those elements of evil which are inherent in it.
Bacon has said, after Aristotle:[17] _Optima est lex quae minimum
relinquit arbitrio judicis_. However true this may be in general, there
are many departments of judicial practice to which no such principle is
applicable. Much has been done in recent times to prune the law of
morbid growths. In many departments judicial discretion has been freed
from the bonds of legal principle. Forms of action have been abolished;
rules of pleading have been relaxed; the credibility of witnesses has
become a matter of fact, instead of as formerly one of law; a
discretionary power of punishment has been substituted for the terrible
legal uniformity which once disgraced the administration of criminal
justice; and the future will see further reforms in the same direction.
We have hitherto taken it for granted that legal principles are
necessarily inflexible—that they are essentially peremptory rules
excluding judicial discretion so far as they extend—that they must of
necessity be followed blindly by courts of justice even against their
better judgment. There seems no reason, however, in the nature of things
why the law should not, to a considerable extent, be flexible instead of
rigid—should not aid, guide, and inform judicial discretion, instead of
excluding it—should not be subject to such exceptions and qualifications
as in special circumstances the courts of justice shall deem reasonable
or requisite. There is no apparent reason why the law should say to the
judicature: “Do this in all cases, whether you consider it reasonable or
not,” instead of: “Do this except in those cases in which you consider
that there are special reasons for doing otherwise.” Such flexible
principles are not unknown even at the present day, and it seems
probable that in the more perfect system of the future much law that is
now rigid and peremptory will lapse into the category of the
conditional. It will always, indeed, be found needful to maintain great
part of it on the higher level, but we have not yet realised to what an
extent flexible principles are sufficient to attain all the good
purposes of the law, while avoiding much of its attendant evil. It is
probable, for instance, that the great bulk of the law of evidence
should be of this nature. These rules should for the most part guide
judicial discretion, instead of excluding it. In the former capacity,
being in general founded on experience and good sense, they would be
valuable aids to the discovery of truth; in the latter, they are too
often the instruments of error.
§ 11. =General and Special Law.=
The whole body of legal rules is divisible into two parts, which may be
conveniently distinguished as General law and Special law. The former
includes those legal rules of which the courts will take judicial
notice, and which will therefore be applied as a matter of course in any
case in which the appropriate subject-matter is present. Special law, on
the other hand, consists of those rules which, although they are true
rules of law, the courts will not recognise and apply as a matter of
course, but which must be specially proved and brought to the notice of
the courts by the parties interested in their recognition. In other
words, the general law is that which is generally applicable; it is that
which will be applied in all cases in which it is not specially excluded
by proof that some other set of principles has a better claim to
recognition in the particular instance. Special law, on the contrary, is
that which has only a special or particular application, excluding and
superseding the general law in those exceptional cases in which the
courts are informed of its existence by evidence produced for that
purpose.
The test of the distinction is judicial notice. By this is meant the
knowledge which any court, _ex officio_, possesses and acts on, as
contrasted with the knowledge which a court is bound to acquire through
the appointed channel of evidence formally produced by the parties. A
judge may know much in fact of which in law he is deemed ignorant, and
of which, therefore, he must be informed by evidence legally produced.
Conversely he may be ignorant in fact of much that by law he is entitled
judicially to notice, and in such a case it is his right and duty to
inform himself by such means as seem good to him. The general rule on
the matter is that courts of justice know the law, but are ignorant of
the facts. The former may and must be judicially noticed, while the
latter must be proved. To each branch of this rule there are, however,
important exceptions. There are certain exceptional classes of facts, of
which, because of their notoriety, the law imputes a knowledge to the
courts. Similarly there are certain classes of legal rules of which the
courts may, and indeed must, hold themselves ignorant, until due proof
of their existence has been produced before them. These, as we have
said, constitute special, as opposed to the general law.
By far the larger and more important part of the legal system is general
law. Judicial notice—recognition and application as a matter of
course—is the ordinary rule. As to this branch of the law we need say
nothing more in this place, but the rules of special law call for
further consideration. They fall for the most part into five distinct
classes. A full account of these must wait until we come to deal with
the sources of law in a subsequent chapter, but in the meantime it is
necessary to mention them as illustrating the distinction with which we
are here concerned.
1. _Local customs._—Immemorial custom in a particular locality has there
the force of law. Within its own territorial limits it prevails over,
and derogates from, the general law of the land. But the courts are
judicially ignorant of its existence. If any litigant will take
advantage of it, he must specially plead and prove it; otherwise the
general law will be applied.
2. _Mercantile customs._—The second kind of special law consists of that
body of mercantile usage which is known as the law merchant. The general
custom of merchants in the realm of England has in mercantile affairs
the force of law. It may make, for example, an instrument negotiable,
which by the general law of the land is not so. This customary law
merchant is, like local customary law, special and not general; but,
unlike local customary law, it has the capacity of being absorbed by, or
taken up into the general law itself. When a mercantile usage has been
sufficiently established by evidence and acknowledged as law by judicial
decision, it is thereafter entitled to judicial notice. The process of
proof need not be repeated from time to time.[18] The result of this
doctrine is a progressive transformation of the rules of the special law
merchant into rules of the general law. The law of bills of exchange,
for example, was formerly part of the special law merchant, requiring to
be pleaded and proved as a condition precedent to its recognition and
application; but successive judicial decisions, based upon evidence of
this special law, have progressively transmuted it into general law,
entitled to judicial notice and to application as a matter of course.
3. _Private legislation._—Statutes are of two kinds, distinguishable as
public and private. The distinguishing characteristic of a public Act is
that judicial notice is taken of its existence, and it is therefore one
of the sources of the general law. A private Act, on the other hand, is
one which, owing to its limited scope, does not fall within the ordinary
cognisance of the courts of justice, and will not be applied by them
unless specially called to their notice by the parties interested.
Examples of private legislation are acts incorporating individual
companies and laying down the principles on which they are to be
administered, acts regulating the navigation of some river, or the
construction and management of some harbour, or any other enactments
concerned, not with the interests of the realm or the public at large,
but with those of private individuals or particular localities.[19]
Private legislation is not limited to acts of Parliament. In most cases,
though not in all, the delegated legislation of bodies subordinate to
Parliament is private, and is therefore a source, not of general, but of
special law. The by-laws of a railway company, for example, or of a
borough council, are not entitled to judicial notice, and form no part
of the general law of the land. Rules of court, on the other hand,
established by the judges under statutory authority for the regulation
of the procedure of the courts, are constituent parts of the ordinary
law.
4. _Foreign law._—The fourth kind of special law consists of those rules
of foreign law, which upon occasion are applied even in English courts
to the exclusion of English law. Experience has shown that justice
cannot be efficiently administered by tribunals which refuse on all
occasions to recognise any law but their own. It is essential in many
cases to take account of some system of foreign law, and to measure the
rights and liabilities of litigants by it, rather than by the indigenous
or territorial law of the tribunal itself. If, for example, two men make
a contract in France, which they intend to be governed by the law of
France, and one of them sues on it in an English court, justice demands
that the validity and effect of the contract shall be determined by
French, rather than by English law. French, rather than English law will
therefore be applied in such a case even by English judges. The
principles which determine and regulate this exclusion of local by
foreign law constitute the body of legal doctrine known as private
international law.
Foreign law, so far as it is thus recognised in English courts, becomes,
by virtue of this recognition, in a certain sense English law. French
law is French as being applied in France, but English as being applied
in England. Yet though it is then part of English law, as being
administered in English courts, it is not part of the general law, for
English courts have no official knowledge of any law save their own.
5. _Conventional law._—The fifth and last form of special law is that
which has its source in the agreement of those who are subject to it.
Agreement is a juridical fact having two aspects, and capable of being
looked at from two points of view. It is both a source of legal rights
and a source of law. The former of these two aspects is the more
familiar and in ordinary cases the more convenient, but in numerous
instances the latter is profitable and instructive. The rules laid down
in a contract, for the determination of the rights, duties, and
liabilities of the parties, may rightly be regarded as rules of law
which these parties have agreed to substitute for, or add to the rules
of the general law. Agreement is a law for those who make it, which
supersedes, supplements, or derogates from the ordinary law of the land.
_Modus et conventio vincunt legem._ To a very large extent, though not
completely, the general law is not peremptory and absolute, but consists
of rules whose force is conditional on the absence of any other rules
agreed upon by the parties interested. The articles of association of a
company, for example, are just as much true rules of law, as are the
provisions of the Companies Acts, or those statutory regulations which
apply in the absence of any articles specially agreed upon. So articles
of partnership fall within the definition of law, no less than the
provisions of the Partnership Act which they are intended to supplement
or modify, for both sets of rules are authoritative principles which the
courts will apply in all litigation affecting the affairs of the
partnership.
We have made the distinction between general and special law turn
wholly upon the fact that judicial notice is taken of the former but
not of the latter. It may be objected that this is a merely external
and superficial view of the matter. General law, it may be argued, is
so called because it is common to the whole realm and to all persons
in it, while special law is that which has a special and limited
application to particular places or classes of persons. In this
contention there is an element of truth, but it falls short of a
logical analysis of the distinction in question. It is true that the
general law is usually wider in its application than special law. It
is chiefly for this reason, indeed, that the former is, while the
latter is not, deemed worthy of judicial notice. But we have here no
logical basis for a division of the legal system into two parts. Much
of the general law itself applies to particular classes of persons
only. The law of solicitors, of auctioneers, or of pawnbrokers, is of
very restricted application; yet it is just as truly part of the
ordinary law of the land as is the law of theft, homicide, or libel,
which applies to all mankind. The law of the royal prerogative is not
special law, by reason of the fact that it applies only to a single
individual; it is a constituent part of the general law. On the other
hand, mercantile usage is dependent for its legal validity on its
generality; it must be the custom of the realm, not that of any
particular part of it; yet until, by judicial proof and recognition,
it becomes entitled for the future to judicial notice, it is the
special law merchant, standing outside the ordinary law of the land.
The law of bills of exchange is no more general in its application
now, than it ever was; yet it has now ceased to be special, and has
become incorporated into the general law. The element of truth
involved in the argument now under consideration is no more than this,
that the comparative generality of their application is one of the
most important matters to be taken into consideration in determining
whether judicial notice shall or shall not be granted to rules of law.
§ 12. =Common Law.=
The term common law is used by English lawyers with unfortunate
diversities of meaning. It is one of the contrasted terms in at least
three different divisions of the legal system:
1. _Common law and statute law._—By the common law is sometimes meant
the whole of the law except that which has its origin in statutes or
some other form of legislation. It is the unenacted law that is produced
by custom or precedent, as opposed to the enacted law made by Parliament
or subordinate legislative authorities.
2. _Common law and equity._—In another sense common law means the whole
of the law (enacted or unenacted) except that portion which was
developed and administered exclusively by the old Court of Chancery, and
which is distinguished as equity.[20] It is in this sense, for example,
that we speak of the Court of King’s Bench or Exchequer as being a court
of common law.
3. _Common law and special law._—In yet a third sense common law is a
synonym of what we have already called general law, the ordinary law of
the land, as opposed to the various forms of special law, such as local
customs, which will not be applied as a matter of course in the
administration of justice, but only when specially pleaded and proved.
The expression common law (_jus commune_) was adopted by English
lawyers from the canonists, who used it to denote the general law of
the Church as opposed to those divergent usages (_consuetudines_)
which prevailed in different local jurisdictions, and superseded or
modified within their own territorial limits the common law of
Christendom.[21] This canonical usage must have been familiar to the
ecclesiastical judges of the English law courts of the twelfth and
thirteenth centuries, and was adopted by them. We find the distinction
between common law and special law (_commune ley_ and _especial ley_)
well established in the earliest Year Books.[22] The common law is the
ordinary system administered by the ordinary royal courts, and is
contrasted with two other forms of law. It is opposed, in the first
place, to that which is not administered in the ordinary royal courts
at all, but by special tribunals governed by different systems. Thus
we have the common law in the Court of King’s Bench, but the canon law
in the Ecclesiastical Courts, the civil law in the Court of Admiralty,
and, at a later date, the law which was called equity in the Court of
Chancery.
In the second place the common law was contrasted with those various
forms of special law which were recognised even in the King’s ordinary
courts in derogation of the general law of the land. Thus it is
opposed to local custom (_la commune ley_ and _le usage del
pays_);[23] to the law merchant (_la commune ley_ and _la ley
merchaunde_);[24] to statute law;[25] and to conventional law
(_specialis conventio contra jus commune_).[26] The opposition of
common and statute law is noteworthy. Statute law is conceived
originally as special law, derogating from the ordinary law of the
King’s courts. It was _contra jus commune_, just as contracts and
local customs and the law merchant were _contra jus commune_. Such a
point of view, indeed, is not logically defensible. A public and
general statute does not bear the same relation to the rest of the law
as a local or mercantile custom bears to it. Logically or not,
however, statutes were classed side by side with the various forms of
special law which derogated from the _jus commune_. Hence the modern
usage by which the common law in one of its senses means unwritten or
unenacted law, as opposed to all law which has its origin in
legislation.
§ 13. =Law and Equity.=
Until the year 1873 England presented the extremely curious spectacle of
two distinct and rival systems of law, administered at the same time by
different tribunals. These systems were distinguished as common law and
equity, or merely as law and equity (using the term law in a narrow
sense as including one only of the two systems). The common law was the
older, being coeval with the rise of royal justice in England, and it
was administered in the older Courts, namely the King’s Bench, the Court
of Common Pleas, and the Exchequer. Equity was the more modern body of
legal doctrine, developed and administered by the Chancellor in the
Court of Chancery as supplementary to, and corrective of, the older law.
To a large extent the two systems were identical and harmonious, for it
was a maxim of the Chancery that equity follows the law (_Aequitas
sequitur legem_); that is to say, the rules already established in the
older courts were adopted by the Chancellors and incorporated into the
system of equity, unless there was some sufficient reason for their
rejection or modification. In no small measure, however, law and equity
were discordant, applying different rules to the same subject-matter.
The same case would be decided in one way, if brought before the Court
of King’s Bench, and in another, if adjudged in Chancery. The Judicature
Act, 1873, put an end to this anomalous state of things, by the
abolition of all portions of the common law which conflicted with
equity, and by the consequent fusion of the two systems into a single
and self-consistent body of law.
The distinction between law and equity has thus become historical
merely, but it has not for that reason ceased to demand attention. It is
not only a matter of considerable theoretical interest, but it has so
left its mark upon our legal system, that its comprehension is still
essential even in the practical study of the law.
1. The term equity possesses at least three distinct though related
senses. In the first of these, it is nothing more than a synonym for
natural justice. _Aequitas_ is _aequalitas_—the fair impartial, or equal
allotment of good and evil—the virtue which gives to every man his own.
This is the popular application of the term, and possesses no special
juridical significance.
2. In a second and legal sense equity means natural justice, not simply,
but in a special aspect; that is to say, as opposed to the rigour of
inflexible rules of law. _Aequitas_ is contrasted with _summum jus_, or
_strictum jus_, or the _rigor juris_. For the law lays down general
principles, taking of necessity no account of the special circumstances
of individual cases in which such generality may work injustice. So
also, the law may with defective foresight have omitted to provide at
all for the case in hand, and therefore supplies no remedy for the
aggrieved suitor. In all such cases in order to avoid injustice, it is
needful to go beyond the law, or even contrary to the law, and to
administer justice in accordance with the dictates of natural reason.
This it is that is meant by administering equity as opposed to law; and
so far as any tribunal possesses the power of thus supplementing or
rejecting the rules of law in special cases, it is, in this sense of the
term, a court of equity, as opposed to a court of law.
The distinction thus indicated was received in the juridical theory both
of the Greeks and the Romans. Aristotle defines equity as the correction
of the law where it is defective on account of its generality,[27] and
the definition is constantly repeated by later writers. Elsewhere he
says:[28] “An arbitrator decides in accordance with equity, a judge in
accordance with law: and it was for this purpose that arbitration was
introduced, namely, that equity might prevail.” In the writings of
Cicero we find frequent reference to the distinction between _aequitas_
and _jus_. He quotes as already proverbial the saying, _Summum jus summa
injuria_,[29] meaning by _summum jus_ the rigour of the law untempered
by equity. Numerous indications of the same conception are to be met
with in the writings of the Roman jurists.[30]
The doctrine passed from Greek and Latin literature into the traditional
jurisprudence of the Middle Ages. We may see, for example, a discussion
of the matter in the _Tractatus de Legibus_ of Aquinas.[31] It was well
known, therefore, to the lawyers who laid the foundations of our own
legal system, and like other portions of scholastic doctrine, it passed
into the English law courts of the thirteenth century. There is good
reason for concluding that the King’s courts of that day did not
consider themselves so straitly bound by statute, custom, or precedent,
as to be incapable upon occasion of doing justice that went beyond the
law.[32] It was not until later that the common law so hardened into an
inflexible and inexpansive system of _strictum jus_, that _aequitas_
fled from the older courts to the newly established tribunal of the
Chancellor.
The Court of Chancery, an offshoot from the King’s Council, was
established to administer the equity which the common law had rejected,
and of which the common law courts had declared themselves incapable. It
provided an appeal from the rigid, narrow, and technical rules of the
King’s courts of law, to the conscience and equity of the King himself,
speaking by the mouth of his Chancellor. The King was the source and
fountain of justice. The administration of justice was part of the royal
prerogative, and the exercise of it had been delegated by the King to
his servants, the judges. These judges held themselves bound by the
inflexible rules established in their courts, but not so the King. A
subject might have recourse, therefore, to the natural justice of the
King, if distrustful of the legal justice of the King’s courts. Here he
could obtain _aequitas_, if the _strictum jus_ of the law courts was
insufficient for his necessities. This equitable jurisdiction of the
Crown, after having been exercised for a time by the King’s Council, was
subsequently delegated to the Chancellor, who, as exercising it, was
deemed to be the keeper of the royal conscience.
3. We have now reached a position from which we can see how the term
equity acquired its third and last signification. In this sense, which
is peculiar to English nomenclature, it is no longer opposed to law, but
is itself a particular kind of law. It is that body of law which is
administered in the Court of Chancery, as contrasted with the other and
rival system administered in the common law courts. Equity is Chancery
law as opposed to the common law. The equity of the Chancery has changed
its nature and meaning. It was not originally law at all, but natural
justice. The Chancellor, in the first days of his equitable
jurisdiction, did not go about to set up and administer a new form of
law, standing side by side with that already recognised in the Court of
Common Pleas. His purpose was to administer justice without law, and
this purpose he in fact fulfilled for many a day. In its origin the
jurisdiction of the Chancellor was unfettered by any rules whatever. His
duty was to do that “which justice, and reason, and good faith, and good
conscience require in the case.”[33] And of such requirements he was in
each particular case to judge at his own good pleasure. In due time,
however, there commenced that process of the encroachment of established
principle upon judicial discretion, which marks the growth of all legal
systems. By degrees the Chancellor suffered himself to be restricted by
rule and precedent in his interpretation and execution of the dictates
of the royal conscience. Just in so far as this change proceeded, the
system administered in Chancery ceased to be a system of equity in the
original sense, and became the same in essence as the common law itself.
The final result was the establishment in England of a second system of
law, standing over against the older law, in many respects an
improvement on it, yet no less than it, a scheme of rigid, technical,
predetermined principles. And the law thus developed was called equity,
because it was in equity that it had its source.
Closely analogous to this equity-law of the English Chancellor is the
_jus praetorium_ of the Roman praetor. The praetor, the supreme judicial
magistrate of the Roman republic, had much the same power as the
Chancellor of supplying and correcting the deficiencies and errors of
the older law by recourse to _aequitas_. Just as the exercise of this
power gave rise in England to a body of Chancery law, standing by the
side of the common law, so in Rome a _jus praetorium_ grew up distinct
from the older _jus civile_. “Jus praetorium,” says Papinian,[34] “est
quod praetores introduxerunt, adjuvandi vel supplendi vel corrigendi
juris civilis gratia, propter utilitatem publicam.” The chief
distinction between the Roman and the English cases is that at Rome the
two systems of law coexisted in the same court, the _jus praetorium_
practically superseding the _jus civile_ so far as inconsistent with it;
whereas in England, as we have seen, law and equity were administered by
distinct tribunals. Moreover, although the _jus praetorium_ had its
source in the _aequitas_ of the praetor, it does not seem that this body
of law was ever itself called _aequitas_. This transference of meaning
is peculiar to English usage.[35]
CHAPTER III.
OTHER KINDS OF LAW.
§ 14. =Law in General—A Rule of Action.=
Having considered in the foregoing chapter the nature of civil law
exclusively, we now proceed to examine certain other kinds of law which
need to be distinguished from this and from each other. In its widest
and vaguest sense the term law includes any rule of action: that is to
say, any standard or pattern to which actions (whether the acts of
rational agents or the operations of nature) are or ought to be
conformed. In the words of Hooker,[36] “we term any kind of rule or
canon whereby actions are framed a law.” So Blackstone says:[37] “Law,
in its most general and comprehensive sense, signifies a rule of action,
and is applied indiscriminately to all kinds of action, whether animate
or inanimate, rational or irrational. Thus we say, the laws of motion,
of gravitation, of optics or mechanics, as well as the laws of nature
and of nations.”
Of law in this sense there are many kinds, and the following are
sufficiently important and distinct to deserve separate mention and
examination: (1) Physical or Scientific law, (2) Natural or Moral law,
(3) Imperative law, (4) Conventional law, (5) Customary law, (6)
Practical law, (7) International law, (8) Civil law. Before proceeding
to analyse and distinguish these, there are the following introductory
observations to be made:—
(1) This list is not based on any logical scheme of division and
classification, but is a mere _simplex enumeratio_ of the chief forms of
law.
(2) There is nothing to prevent the same rule from belonging to more
than one of these classes.
(3) Any discussion as to the rightful claims of any of these classes of
rules to be called law—any attempt to distinguish law properly so called
from law improperly so called—would seem to be nothing more than a
purposeless dispute about words. Our business is to recognise the fact
that they _are_ called law, and to distinguish accurately between the
different classes of rules that are thus known by the same name.
§ 15. =Physical or Scientific Law.=
Physical laws or the laws of science are expressions of the uniformities
of nature—general principles expressing the regularity and harmony
observable in the activities and operations of the universe. It is in
this sense that we speak of the law of gravitation, the laws of the
tides, or the laws of chemical combination. Even the actions of human
beings, so far as they are uniform, are the subject of law of this
description: as, for example, when we speak of the laws of political
economy, or of Grimm’s law of phonetics. These are rules expressing not
what men ought to do, but what they do.
Physical laws are also, and more commonly, called natural laws, or the
laws of nature; but these latter terms are ambiguous, for they signify
also the moral law; that is to say the principles of natural right and
wrong.
This use of the term law to connote nothing more than uniformity of
action is derived from law in the sense of an _imperative_ rule of
action, by way of the theological conception of the universe as governed
in all its operations (animate and inanimate, rational and irrational)
by the will and command of God. The primary source of this conception is
to be found in the Hebrew scriptures, and its secondary and immediate
source in the scholasticism of the Middle Ages—a system of thought which
was formed by a combination of the theology of the Hebrews with the
philosophy of the Greeks. The Bible constantly speaks of the Deity as
governing the universe, animate and inanimate, just as a ruler governs a
society of men; and the order of the world is conceived as due to the
obedience of all created things to the will and commands of their
Creator. “He gave to the sea his decree, that the waters should not pass
his commandment.”[38] “He made a decree for the rain, and a way for the
lightning of the thunder.”[39] The schoolmen made this same conception
one of the first principles of their philosophic system. The _lex
aeterna_, according to St. Thomas Aquinas, is the ordinance of the
divine wisdom, by which all things in heaven and earth are governed.
“There is a certain eternal law, to wit, reason, existing in the mind of
God and governing the whole universe.... For law is nothing else than
the dictate of the practical reason in the ruler who governs a perfect
community.”[40] “Just as the reason of the divine wisdom, inasmuch as by
it all things were created, has the nature of a type or idea; so also,
inasmuch as by this reason all things are directed to their proper ends,
it may be said to have the nature of an eternal law.... And accordingly
the law eternal is nothing else than the reason of the divine wisdom
regarded as regulative and directive of all actions and motions.”[41]
This _lex aeterna_ was divided by the schoolmen into two parts. One of
these is that which governs the actions of men: this is the moral law,
the law of nature, or of reason. The other is that which governs the
actions of all other created things: this is that which we now term
physical law, or natural law in the modern and prevalent sense of that
ambiguous term.[42] This latter branch of the eternal law is perfectly
and uniformly obeyed; for the irrational agents on which it is imposed
can do no otherwise than obey the dictates of the divine will. But the
former branch—the moral law of reason—is obeyed only partially and
imperfectly; for man by reason of his prerogative of freedom may turn
aside from that will to follow his own desires. Physical law, therefore,
is an expression of actions as they actually are; moral law, or the law
of reason, is an expression of actions as they ought to be.
This scholastic theory of law finds eloquent expression in the writings
of Hooker in the sixteenth century. “His commanding those things to be
which are, and to be in such sort as they are, to keep that tenure and
course which they do, importeth the establishment of nature’s law....
Since the time that God did first proclaim the edicts of his law upon
it, heaven and earth have hearkened unto his voice, and their labour
hath been to do his will.... See we not plainly that the obedience of
creatures unto the law of nature is the stay of the whole world.”[43]
“Of law there can be no less acknowledged, than that her seat is the
bosom of God, her voice the harmony of the world, all things in heaven
and earth do her homage.”[44]
The modern use of the term law, in the sense of physical or natural law,
to indicate the uniformities of nature, is directly derived from this
scholastic theory of the _lex aeterna_; but the theological conception
of divine legislation on which it was originally based is now eliminated
or disregarded. The relation between the physical law of inanimate
nature and the moral or civil laws by which men are ruled has been
reduced accordingly to one of remote analogy.
§ 16. =Natural or Moral Law.=
By natural or moral law is meant the principles of natural right and
wrong—the principles of natural justice, if we use the term justice in
its widest sense to include all forms of rightful action. Right or
justice is of two kinds, distinguished as natural and positive. Natural
justice is justice as it is in deed and in truth—in its perfect idea.
Positive justice is justice as it is conceived, recognised, and
expressed, more or less incompletely and inaccurately, by the civil or
some other form of human and positive law. Just as positive law,
therefore, is the expression of positive justice, so philosophers have
recognised a natural law, which is the expression of natural justice.
This distinction between natural and positive justice, together with the
corresponding and derivative distinction between natural and positive
law, comes to us from Greek philosophy. Natural justice is φυσικὸν
δίκαιον; positive justice is νομικὸν δίκαιον; and the natural law which
expresses the principles of natural justice is φυσικὸς νόμος. When Greek
philosophy passed from Athens to Rome, φυσικὸν δίκαιον appeared there as
_justitia naturalis_ and φυσικὸς νόμος as _lex naturae_ or _jus
naturale_.
This natural law was conceived by the Greeks as a body of imperative
rules imposed upon mankind by Nature, the personified universe. The
Stoics, more particularly, thought of Nature or the Universe as a living
organism, of which the material world was the body, and of which the
Deity or the Universal Reason was the pervading, animating, and
governing soul; and natural law was the rule of conduct laid down by
this Universal Reason for the direction of mankind.
Natural law has received many other names expressive of its divers
qualities and aspects. It is Divine Law (_jus divinum_)—the command of
God imposed upon men—this aspect of it being recognised in the pantheism
of the Stoics, and coming into the forefront of the conception, so soon
as natural law obtained a place in the philosophical system of Christian
writers. Natural law is also the Law of Reason, as being established by
that Reason by which the world is governed, and also as being addressed
to and perceived by the rational nature of man. It is also the Unwritten
Law (_jus non scriptum_), as being written not on brazen tablets or on
pillars of stone, but solely by the finger of nature in the hearts of
men. It is also the Universal or Common Law (κοινος νόμος, _jus
commune_, _jus gentium_), as being of universal validity, the same in
all places and binding on all peoples, and not one thing at Athens and
another at Rome, as are the civil laws of states (ἴδιος νόμος, _jus
civile_). It is also the Eternal Law (_lex aeterna_), as having existed
from the commencement of the world, uncreated and immutable. Lastly, in
modern times we find it termed the Moral Law, as being the expression of
the principles of morality.
The term natural law, in the sense with which we are here concerned, is
now fallen almost wholly out of use. We speak of the principles of
natural justice, or of the rules of natural morality, but seldom of the
law of nature, and for this departure from the established usage of
ancient and medieval speech there are at least two reasons. The first is
that the term natural law has become equivocal; for it is now used to
signify physical law—the expression of the uniformities of nature. The
second is that the term law, as applied to the principles of natural
justice, brings with it certain misleading associations—suggestions of
command, imposition, external authority, legislation—which are not in
harmony with the moral philosophy of the present day.
The following quotations illustrate sufficiently the ancient and
medieval conceptions of the law of nature:—
_Aristotle._—“Law is either universal (κοινος νόμος) or special (ἴδιος
νόμος). Special law consists of the written enactments by which men
are governed. The universal law consists of those unwritten rules
which are recognised among all men.”[45] “Right and wrong have been
defined by reference to two kinds of law.... Special law is that which
is established by each people for itself.... The universal law is that
which is conformable merely to Nature.”[46]
_Cicero._—“There is indeed a true law (_lex_), right reason, agreeing
with nature, diffused among all men, unchanging, everlasting.... It is
not allowable to alter this law, nor to derogate from it, nor can it
be repealed. We cannot be released from this law, either by the
praetor or by the people, nor is any person required to explain or
interpret it. Nor is it one law at Rome and another at Athens, one law
to-day and another hereafter; but the same law, everlasting and
unchangeable, will bind all nations at all times; and there will be
one common lord and ruler of all, even God the framer and proposer of
this law.”[47]
_Philo Judaeus._—“The unerring law is right reason; not an ordinance
made by this or that mortal, a corruptible and perishable law, a
lifeless law written on lifeless parchment, or engraved on lifeless
columns; but one imperishable, and impressed by immortal Nature on the
immortal mind.”[48]
_Gaius._—“All peoples that are ruled by laws and customs observe
partly law peculiar to themselves and partly law common to all
mankind. That which any people has established for itself is called
_jus civile_, as being law peculiar to that state (_jus proprium
civitatis_). But that law which natural reason establishes among all
mankind is observed equally by all peoples, and is for that reason
called _jus gentium_.”[49]
_Justinian._—“Natural law (_jura naturalia_), which is observed
equally in all nations, being established by divine providence,
remains for ever settled and immutable; but that law which each state
has established for itself is often changed, either by legislation or
by the tacit consent of the people.”[50]
_Hooker._—“The law of reason or human nature is that which men by
discourse of natural reason have rightly found out themselves to be
all for ever bound unto in their actions.”[51]
_Christian Thomasius._—“Natural law is a divine law, written in the
hearts of all men, obliging them to do those things which are
necessarily consonant to the rational nature of mankind, and to
refrain from those things which are repugnant to it.”[52]
THE JUS GENTIUM OF THE ROMAN LAWYERS.
It is a commonly received opinion, that _jus gentium_, although
identified as early as the time of Cicero with the _jus naturale_ of
the Greeks, was in its origin and primary signification something
quite distinct—a product not of Greek philosophy but of Roman law. It
is alleged that _jus gentium_ meant originally that system of civil
and positive law which was administered in Rome to aliens
(_peregrini_), as opposed to the system which was the exclusive
birthright and privilege of Roman citizens (_jus civile_ or _jus
quiritium_); that this _jus gentium_, being later in date than the
_jus civile_, was so much more reasonable and perfect that it came to
be identified with the law of reason itself, the _jus naturale_ of the
Greeks, and so acquired a double meaning, (1) _jus gentium_, viz. _jus
naturale_, and (2) _jus gentium_, viz. that part of the positive law
of Rome which was applicable to aliens, and not merely to citizens.
That the term _jus gentium_ did possess this double meaning cannot be
doubted; but it may be gravely doubted whether the true explanation of
the fact is that which has just been set forth. It would seem more
probable that _jus gentium_ was in its very origin synonymous with
_jus naturale_—a philosophical or ethical, and not a technical legal
term—the Roman equivalent of the κοινος νόμος of Aristotle and the
Greeks; and that the technical significance of the term is secondary
and derivative. _Jus gentium_ came to mean not only the law of
nature—the principles of natural justice—but also a particular part of
the positive law of Rome, namely, that part which was derived from and
in harmony with those principles of natural justice, and which
therefore was applicable in Roman law courts to all men equally,
whether _cives_ or _peregrini_. In the same way in England, the term
equity, although originally purely ethical and the mere equivalent of
natural justice or _jus naturae_, acquired a secondary, derivative,
and technical use to signify a particular portion of the civil law of
England, namely, that portion which was administered in the Court of
Chancery, and which was called equity because derived from equity in
the original ethical sense.
This, however, is not the place in which to enter into any detailed
examination of this very interesting and difficult problem in the
history of human ideas.[53]
§ 17. =Imperative Law.=
Imperative law means any rule of action imposed upon men by some
authority which enforces obedience to it. In other words an imperative
law is a command which prescribes some general course of action, and
which is imposed and enforced by superior power. The instrument of such
enforcement—the sanction of the law—is not necessarily physical force,
but may consist in any other form of constraint or compulsion by which
the actions of men may be determined. _Lex_, says Pufendorf,[54] _est
decretum quo superior sibi subjectum obligat, ut ad istius praescriptum
actiones suas componat_. “A law,” says Austin,[55] “is a command which
obliges a person or persons to a course of conduct.”
Laws of this kind are to be classified by reference to the authority
from which they proceed. They are in the first place either divine or
human. Divine laws consist of the commands imposed by God upon man and
enforced by threats of punishment in this world or in the next: for
example, the Ten Commandments.[56] Human laws consist of imperative
rules imposed by men upon men, and they are of three chief kinds,
namely, civil law, the law of positive morality, and the law of nations.
Civil law consists (in part at least, and in one of its aspects) of
commands issued by the state to its subjects, and enforced by its
physical power. Positive morality—the law of opinion or of reputation,
as Locke[57] calls it—consists of the rules imposed by society upon its
members and enforced by public censure or disapprobation. The law of
nations or international law consists (in part at least, and in one
aspect) of rules imposed upon states by the society of states, and
enforced partly by international opinion and partly by the threat of
war.
Many writers are content to classify the civil law as being, essentially
and throughout its whole compass, nothing more than a particular form of
imperative law. They consider that it is a sufficient analysis and
definition of civil law, to say that it consists of the commands issued
by the state to its subjects, and enforced, if necessary, by the
physical power of the state. This may be termed the imperative or more
accurately the purely imperative theory of the civil law. “The civil
laws,” says Hobbes,[58] “are the command of him, who is endued with
supreme power in the city” (that is, the state, _civitas_) “concerning
the future actions of his subjects.” Similar opinions are expressed by
Bentham[59] and Austin,[60] and have in consequence been widely, though
by no means universally, accepted by English writers.
This imperative theory, though it falls short of an adequate analysis,
does undoubtedly express a very important aspect of the truth. It
rightly emphasises the central fact that law is based on physical force.
For law exists only as an incident of the administration of justice by
the state, and this consists essentially in the imperative and coercive
action of the state in imposing its will, by force if need be, upon the
members of the body politic. “It is men and arms,” says Hobbes,[61]
“that make the force and power of the laws.” Law has its sole source,
not in custom, not in consent, not in the spirit of the people, as some
would have us believe, but in the will and the power of him, who in a
commonwealth beareth not the sword in vain.
This, then, may be accepted as the central truth contained in the
imperative theory of law, and if this is so there is no weight to be
attributed to that which may be termed the historical argument against
this theory. It is objected by some, that though the definition of law
as the command of the state is plausible, and at first sight sufficient,
as applied to the developed political societies of modern times, it is
quite inapplicable to more primitive communities. Early law, it is said,
is not the command of the state; it has its source in custom, religion,
opinion, not in any authority vested in a political superior; it is not
till a comparatively late stage of social evolution that law assumes its
modern form, and is recognised as a product of supreme power; law,
therefore, is prior to, and independent of political authority and
enforcement; it is enforced by the state, because it is already law, not
_vice versa_.[62]
To this argument the advocates of the imperative theory can give a valid
reply. If there are any rules prior to, and independent of the state,
they may greatly resemble law; they may be the primeval substitutes for
law; they may be the historical source from which law is developed and
proceeds; but they are not themselves law. There may have been a time in
the far past, when a man was not distinguishable from an anthropoid ape,
but that is no reason for now defining a man in such wise as to include
an ape. To trace two different things to a common origin in the
beginnings of their historical evolution is not to disprove the
existence or the importance of an essential difference between them as
they now stand. This is to confuse all boundary lines, to substitute the
history of the past for the logic of the present, and to render all
distinction and definition vain. The historical point of view is
valuable as a supplement to the logical and analytical, but not as a
substitute for it. It must be borne in mind that in the beginning the
whole earth was without form and void, and that science is concerned not
with chaos but with cosmos.
The plausibility of the historical argument proceeds from the failure
adequately to comprehend the distinction, hereafter to be noticed by us,
between the formal and the material sources of law. Its formal source is
that from which it obtains the nature and force of law. This is
essentially and exclusively the power and will of the state. Its
material sources, on the other hand, are those from which it derives its
material contents. Custom and religion may be the material sources of a
legal system no less than that express declaration of new legal
principles by the state, which we term legislation. In early times,
indeed, legislation may be unknown. No rule of law may as yet have been
formulated in any declaration of the state. It may not yet have occurred
to any man, that such a process as legislation is possible, and no ruler
may ever yet have made a law. Custom and religion may be all-powerful
and exclusive. Nevertheless if any rule of conduct has already put on
the true nature, form, and essence of the civil law, it is because it
has already at its back the power of the organised commonwealth for the
maintenance and enforcement of it.
Yet although the imperative theory contains this element of the truth,
it is not the whole truth. It is one-sided and inadequate—the product of
an incomplete analysis of juridical conceptions. In the first place it
is defective inasmuch as it disregards that _ethical_ element which is
an essential constituent of the complete conception. As to any special
relation between law and justice, this theory is silent and ignorant. It
eliminates from the implication of the term law all elements save that
of force. This is an illegitimate simplification, for the complete idea
contains at least one other element which is equally essential and
permanent. This is right or justice. If rules of law are from one point
of view commands issued by the state to its subjects, from another
standpoint they appear as the principles of right and wrong so far as
recognised and enforced by the state in the exercise of its essential
function of administering justice. Law is not right alone, or might
alone, but the perfect union of the two. It is justice speaking to men
by the voice of the state. The established law, indeed, may be far from
corresponding accurately with the true rule of right, nor is its legal
validity in any way affected by any such imperfection. Nevertheless in
_idea_ law and justice are coincident. It is for the expression and
realisation of justice that the law has been created, and like every
other work of men’s hands, it must be defined by reference to its end
and purpose. A purely imperative theory, therefore, is as one-sided as a
purely ethical or non-imperative theory would be. It mistakes a part of
the connotation of the term defined for the whole of it.
We should be sufficiently reminded of this ethical element by the usages
of popular speech. The terms law and justice are familiar associates.
Courts of law are also courts of justice, and the administration of
justice is also the enforcement of law. Right, wrong, and duty are
leading terms of law, as well as of morals. If we turn from our own to
foreign languages, we find that law and right are usually called by the
very same name. _Jus_, _droit_, _recht_, _diritto_, have all a double
meaning; they are all ethical, as well as juridical; they all include
the rules of justice, as well as those of law. Are these facts, then, of
no significance? Are we to look on them as nothing more than accidental
and meaningless coincidences of speech? It is this that the advocates of
the theory in question would have us believe. We may, on the contrary,
assume with confidence that these relations between the names of things
are but the outward manifestation of very real and intimate relations
between the things named. A theory which regards the law as the command
of the state and nothing more, and which entirely ignores the aspect of
law as a public declaration of the principles of justice, would lose all
its plausibility, if expressed in a language in which the term for law
signifies justice also.
Even if we incorporate the missing ethical element in the
definition—even if we define the law as the sum of the principles of
justice recognised and enforced by the state—even if we say with
Blackstone[63] that law is “a rule of civil conduct, prescribed by the
supreme power in a state, commanding what is right and prohibiting what
is wrong”—we shall not reach the whole truth. For although the idea of
command or enforcement is an essential implication of the law, in the
sense that there can be no law where there is no coercive administration
of justice by the state, it is not true that every legal principle
assumes, or can be made to assume, the form of a command. Although the
imperative rules of right and wrong, as recognised by the state,
constitute a part, and indeed the most important part of the law, they
do not constitute the whole of it. The law includes the whole of the
principles accepted and applied in the administration of justice,
whether they are imperative principles or not. The only legal rules
which conform to the imperative definition are those which create legal
obligations, and no legal system consists exclusively of rules of this
description. All well-developed bodies of law contain innumerable
principles which have some other purpose and content than this, and so
fall outside the scope of the imperative definition. These
non-imperative legal principles are of various kinds. There are, for
example, permissive rules of law, namely those which declare certain
acts not to be obligatory, or not to be wrongful; a rule, for instance,
declaring that witchcraft or heresy is no crime, or that damage done by
competition in trade is no cause of action. It cannot be denied that
these are rules of law, as that term is ordinarily used, and it is plain
that they fall within the definition of the law as the principles acted
on by courts of justice. But in what sense are they enforced by the
state? They are not commands, but permissions; they create liberties,
not obligations. So also the innumerable rules of judicial procedure are
largely non-imperative. They are in no proper sense rules of conduct
enforced by the state. Let us take for example the principles that
hearsay is no evidence, that written evidence is superior to verbal,
that a contract for the sale of land cannot be proved except by writing,
that judicial notice will be taken of such and such facts, that matters
once decided are decided once for all as between the same parties, that
the interpretation of written documents is the office of the judge and
not of the jury, that witnesses must be examined on oath or affirmation,
that the verdict of a jury must be unanimous. Is it not plain that all
these are in their true nature rules in accordance with which judges
administer justice to the exclusion of their personal judgment, and not
rules of action appointed by the state for observance by its subjects,
and enforced by legal sanctions?
There are various other forms of non-imperative law, notably those which
relate to the existence, application, and interpretation of other rules.
The illustrations already given, however, should be sufficient to render
evident the fact that the purely imperative theory not merely neglects
an essential element in the idea of law, but also falls far short of the
full application or denotation of the term. All legal principles are not
commands of the state, and those which are such commands, are at the
same time and in their essential nature something more, of which the
imperative theory takes no account.
Some writers have endeavoured to evade the foregoing objection by
regarding rules of procedure and all other non-imperative principles
as being in reality commands addressed, not to the ordinary subjects
of the state, but to the judges. The rule, they say, that murder is a
crime, is a command addressed to all persons not to commit murder; and
the rule that the punishment of murder is hanging, is a command to the
judges to inflict that punishment.[64] With respect to this
contention, it is to be observed in the first place, that no
delegation of its judicial functions by the supreme authority of the
state is essential. There is no reason of necessity, why a despotic
monarch or even a supreme legislature should not personally exercise
judicial functions. In such a case the rules of procedure could not be
enforced upon the judicature, yet it could scarcely be contended that
they would for that reason cease to be true rules of law. And in the
second place, even when the judicial functions of the state are
delegated to subordinate judges, it is in no way necessary that they
should be amenable to the law for the due performance of their duties.
Are the rules of evidence, for example, entitled to the name of law,
only because of the fact, if fact it be, that the judges who
administer them may be legally punished for their disregard of them?
It is surely sufficiently obvious that the legal character of all such
rules is a consequence of the fact that they are _actually observed_
in the administration of justice, not of the fact, if it is a fact,
that the judicature is bound by legal sanctions to observe them.
§ 18. =Conventional Law.=
By conventional law is meant any rule or system of rules agreed upon by
persons for the regulation of their conduct towards each other.
Agreement is a law for the parties to it. Examples are the rules and
regulations of a club or other society, and the laws of whist, cricket,
or any other game. What are the laws of whist, except the rules which
the players expressly or tacitly agree to observe in their conduct of
the game?
In many cases conventional law is also civil law; for the rules which
persons by mutual agreement lay down for themselves are often enforced
by the state. But whether or not these conventional rules thus receive
recognition and enforcement as part of the law of the land, they
constitute law in the wide sense of a rule of human action.[65]
The most important branch of conventional law is the law of nations,
which, as we shall see later, consists essentially of the rules which
have been agreed upon by states, as governing their conduct and
relations to each other.
§ 19. =Customary Law.=
By customary law is here meant any rule of action which is actually
observed by men—any rule which is the expression of some actual
uniformity of voluntary action. Custom is a law for those who observe
it—a law or rule which they have set for themselves, and to which they
voluntarily conform their actions. It is true that custom is very often
obligatory; that is to say, it is very often enforced by some form of
imperative law, whether the civil law or the law of positive morality;
but, irrespective of any such enforcement, and by reason solely of its
_de facto_ observance, it is itself a law in that wide sense in which
law means a rule of action.[66]
Some writers regard international law as a form of customary law. They
define it as consisting of the rules actually observed by states in
their conduct towards each other. We shall consider this opinion in a
later section of the present chapter. Civil law, as we have defined it,
is a form of customary law, inasmuch as it consists of the rules
actually observed by the state in the administration of justice. It is
the custom of the judicature. The relation between _popular_ custom and
the civil law is an important matter which will be considered in a later
chapter. It is sufficient here to make the following remarks with regard
to it:—
(1) Popular custom has not in itself the nature of civil law; for the
essence of civil law lies in its recognition by the state in the
administration of justice.
(2) Popular custom is one of the primitive substitutes for civil law,
men being governed by custom before the state has been established or
has undertaken the function of making and administering law.
(3) Popular custom is one of the sources of the civil law; for that law,
when it comes into existence, is largely modelled on the pre-existing
customs of the community. Civil law, which is the custom of the state,
is based to a large extent on that precedent customary law which is
merely the custom of the society.
§ 20. =Practical Law.=
Yet another kind of law is that which consists of rules for the
attainment of some practical end, and which, for want of a better name,
we may term practical law. These laws are the rules which guide us to
the fulfilment of our purposes; which inform us as to what we ought to
do, or must do, in order to attain a certain end.[67] Examples of such
are the laws of health, the laws of musical and poetical composition,
the laws of style, the laws of architecture, the rules for the efficient
conduct of any art or business. The laws of a game, such as whist, are
of two kinds: some are conventional, being the rules agreed upon by the
players; others are practical, being the rules for the successful
playing of the game.
§ 21. =International Law.=
International law or the law of nations consists of those rules which
govern sovereign states in their relations and conduct towards each
other. All men agree that such a body of law exists, and that states do
in fact act in obedience to it; but when we come to inquire what is the
essential nature and source of this law, we find in the writings of
those who deal with it a very curious absence of definiteness and
unanimity. The opinion which we shall here adopt as correct is that the
law of nations is essentially a species of _conventional_ law—that it
has its source in international agreement—that it consists of the rules
which sovereign states have agreed to observe in their dealings with
each other.
This law has been defined by Lord Russell of Killowen[68] as “the
aggregate of the rules to which nations have agreed to conform in their
conduct towards one another.” “The law of nations,” says Lord Chief
Justice Coleridge,[69] “is that collection of usages which civilised
states have agreed to observe in their dealings with each other.” “The
authorities seem to me,” says Lord Esher,[70] “to make it clear that the
consent of nations is requisite to make any proposition part of the law
of nations.” “To be binding,” says Lord Cockburn,[71] “the law must have
received the assent of the nations who are to be bound by it. This
assent may be express, as by treaty or the acknowledged concurrence of
governments, or may be implied from established usage.”
The international agreement which thus makes international law is of two
kinds, being either express or implied. Express agreement is contained
in treaties and international conventions, such as the Declaration of
Paris or the Convention of the Hague. Implied agreement is evidenced
chiefly by the custom or practice of states. By observing certain rules
of conduct in the past, states have impliedly agreed to abide by them in
the future; by claiming the observance of such customs from other
states, they have impliedly agreed to be bound by them themselves.
International law derived from express agreement is called in a narrow
sense the conventional law of nations, although in a wider sense the
whole of that law is conventional; that part which is based on implied
agreement is called the customary law of nations. The tendency of
historical development is for the whole body of the law to be reduced to
the first of these two forms—to be codified and expressed in the form of
an international convention, to which all civilised states have given
their express consent. Just as customary civil law tends to be absorbed
in enacted law, so customary international law tends to be merged in
treaty law.
International law is further divisible into two kinds, which may be
distinguished as the common law of nations and the particular law of
nations. The common law is that which prevails universally or at least
generally among all civilised states, being based on their unanimous or
general agreement, express or implied. The particular law is that which
is in force solely between two or more states, by virtue of an agreement
made between them alone, and derogating from the common law.
International law exists only between those states which have expressly
or impliedly agreed to observe it. Those states (which now include all
civilised communities and some which are as yet only imperfectly
civilised) are said to constitute the family or society of nations—an
international society governed by the law of nations, just as each
national society is governed by its own civil law. New states are
received into this society by mutual agreement, and thereby obtain the
rights and become subject to the duties created and imposed by
international law.
Writers are, however, as we have already indicated, far from being
unanimous in their analysis of the essential nature of the law of
nations, and the various competing theories may be classified as
follows:—
(1) That the law of nations is, or at least includes, a branch of
_natural_ law, namely, the rules of natural justice as applicable to the
relations of states _inter se_.
(2) That it is a kind of _customary_ law, namely the rules actually
observed by states in their relations to each other.
(3) That it is a kind of _imperative_ law, namely the rules enforced
upon states by international opinion or by the threat or fear of war.
(4) That it is a kind of _conventional_ law, as already explained.
Having accepted the last of these theories as correct, let us shortly
consider the nature and claims of the three others.
§ 22. =The Law of Nations as Natural Law.=
All writers on international law may be divided into three classes by
reference to their opinions as to the relation between this law and the
principles of natural justice. The first class consists of those who
hold that the law of nations is wholly included within the law of
nature—that it consists merely of the principles of natural justice so
far as applicable to sovereign states in their relations and conduct
towards each other—that the study of international law is simply a
branch of moral philosophy—and that there is no such thing as a positive
law of nations, consisting of a body of artificial rules established by
states themselves. Thus Hobbes says:[72] “As for the law of nations, it
is the same with the law of nature. For that which is the law of nature
between man and man, before the constitution of commonwealth, is the law
of nations between sovereign and sovereign after.” The same opinion is
expressed by Christian Thomasius,[73] Pufendorf,[74] Burlamaqui,[75] and
others, but is now generally discredited, though it is not destitute of
support even yet.
A second opinion is that international law is both natural and
positive—that it is divisible into two parts, distinguished as the
natural law of nations, which consists of the rules of natural justice
as between states, and the positive law of nations, consisting of rules
established by states by agreement, custom, or in some other manner, for
the government of their conduct towards each other. The natural law of
nations is supplementary or subsidiary to the positive law, being
applicable only when no positive rule has been established on the point.
Representatives of this opinion are Grotius, Wolf, Vattel, Blackstone,
Halleck, Wheaton, Phillimore, Fiore, Twiss, and others. The third
opinion is that international law is wholly positive—that it consists
exclusively of a set of rules actually established in some way by the
action of sovereign states themselves—and that the rules of natural
justice are not in themselves rules of international law at all, but
pertain to that law only if, and only so far as, they have been actually
incorporated into the established system of positive law. This is now
the prevalent opinion, and we have here accepted it as the correct
one.[76] By those who maintain it the rules of natural justice as
between states are called international morality, and are distinguished
by this name from international law. These two bodies of rules are
partly coincident and partly discordant. The conduct of a state may be a
breach of international morality but not of international law, or a
breach of law though in accordance with morality, or it may be both
immoral and illegal.
The question whether rules of natural justice are to be included as a
part of international law is, indeed, in one aspect, a mere question of
words. For these rules exist, and states are in honour bound by them,
and the question is merely as to the name to be given to them.
Nevertheless, questions of words are often questions of practical
importance, and it is of undoubted importance to emphasise by a
difference of nomenclature the difference between rules of international
morality, by which, indeed, states are bound whether they have agreed to
them or not, but which are uncertain and subject to endless dispute, and
those rules of international law, which by means of international
agreement have been defined and established and removed from the sphere
of the discussions and insoluble doubts of moral casuistry.
§ 23. =The Law of Nations as Customary Law.=
Even those writers who agree in the opinion that international law is or
at least includes a system of positive law, differ among themselves as
to the essential nature and source of these rules; and we proceed to
consider the various answers that have been given to this question. Some
writers consider that international law has its source in international
custom—that it consists essentially and exclusively of the rules which
are actually observed by sovereign states in their dealings with one
another.[77] This view, however, is not prevalent, and is, it is
believed, unsound. International custom is not in itself international
law; it is nothing more than one kind of evidence of the international
agreement in which all such law has its source. There are many customs
which, because they are based on no such underlying agreement, have not
the force of law, states being at liberty to depart from them when they
please. Conversely there is much law which is not based on custom at
all, but on express international conventions. These conventions, if
observed, will of course create a custom in conformity with the law; but
they constitute law themselves from the time of their first making, and
do not wait to become law until they have been embodied in actual
practice. New rules of warfare established by convention in time of
peace are law already in time of peace.
§ 24. =The Law of Nations as Imperative Law.=
By some writers international law is regarded as a form of imperative
law; it consists, they say, of rules enforced upon states by the general
opinion of the society of states, and also in extreme cases by war waged
against the offender by the state injured or by its allies. Thus Austin
says:[78] “Laws or rules of this species, which are imposed upon nations
or sovereigns by opinions current among nations, are usually styled the
law of nations or international law.” In considering this view it is to
be admitted that in many cases the rules of the law of nations are thus
sanctioned and enforced by international opinion and force. But the
question to be answered is whether this sanction is of the essence of
the matter; because, if it is so, all rules so sanctioned must be, and
no others can be, rules of international law. It is clear, however, that
the sanction of war cannot be the essential test; for in the first place
this sanction is but seldom applied even to undoubted violations of
international law, and in the second place it is at least as often
resorted to when there is no violation of such law at all. What then
shall be said of the alternative sanction of international opinion? Is
this the test and essence of a rule of international law? For the
following reasons it is submitted that it is not:—
(1) Many forms of state action are censured by public opinion, which are
admittedly no violation of the law of nations. A state may act within
its legal rights, and yet so oppressively or unjustly as to excite the
adverse opinion of other nations.
(2) There may be violations of international law which are in the
particular circumstances regarded as excusable, and approved by
international opinion.
(3) Public opinion is variable from day to day—dependent on the special
circumstances of the individual case—not uniform as we pass from state
to state—not uniform even throughout the population of the same state.
International law, on the other hand, is a permanent, uniform system of
settled rules, independent of the fickle breath of public approbation or
censure—made and unmade by the express or implied agreements of
sovereign governments, and not by the mere opinions and prejudices which
for the moment are in public favour. International law is one thing,
international positive morality is another thing; but the doctrine here
criticised identifies and confounds them as one. International law is
made, as has been said, by the acts and contracts of governments;
international opinion is made chiefly by journalists and the writers of
books. Opinion, if sufficiently uniform and sufficiently permanent, will
doubtless in time constrain the law into conformity with it; but it is
not the same thing.
(4) Public opinion cannot be made the basis of any rational or
scientific body of rules or legal doctrines. For such opinion is simply
the belief of the public that certain forms of conduct are in conformity
with natural justice. So far as this belief is well founded, the law
based upon it is simply the law of nature; so far as it is erroneous,
the law based on it is simply a mistake which disappears _ipso facto_ on
being recognised as such. It is impossible to recognise as a subject of
scientific interpretation and investigation any international law based
on erroneous public opinion; and if based on true opinion, it is nothing
save the principles of natural justice.
Certain writers seek to avoid the first of these objections by so
defining international law as to include only one portion of the body of
rules approved and sanctioned by international opinion, the remaining
portion constituting international positive morality. According to this
opinion international law consists of those rules which international
opinion not merely approves, but also regards as rightly enforceable by
way of war. International positive morality, on the other hand, consists
of those rules of which opinion approves, but of the enforcement of
which by way of war it would not approve. That is to say, international
law is distinguished from international morality by an application of
the distinction familiar to the older moralists between duties of
perfect and duties of imperfect obligation.[79]
This view would seem to be exposed to all the objections already made to
the cruder theory which we have just considered, with the exception of
the first; and it is also exposed to this further criticism, that it is
impossible thus to divide public opinion sharply into two parts by
reference to the justification of war or any other kind of forcible
compulsion. Whether such compulsion is right is a matter to be
determined not by the application of any fixed or predetermined rules,
but by a consideration of all the circumstances of the individual
instance; and even then opinion will in most cases be hopelessly
discordant. Moreover, there are forms of state action which are not the
violation of any established rule of international law, and which
nevertheless are so contrary to the rightful interests of another state
that they would be held to be rightly prevented or redressed by way of
war. Conversely there are rules of undoubted law which are of such minor
importance, that a war for the vindication of them would be viewed by
international opinion as a folly and a crime.
CHAPTER IV.
THE ADMINISTRATION OF JUSTICE
§ 25. =Necessity of the Administration of Justice.=
“A herd of wolves,” it has been said,[80] “is quieter and more at one
than so many men, unless they all had one reason in them, or have one
power over them.” Unfortunately they have not one reason in them, each
being moved by his own interests and passions; therefore the other
alternative is the sole resource. For the cynical emphasis with which he
insists upon this truth, the name and reputation of the philosopher
Hobbes have suffered much. Yet his doctrine, however hyperbolically
expressed, is true in substance. Man is by nature a fighting animal, and
force is the _ultima ratio_, not of kings alone, but of all mankind.
Without “a common power to keep them all in awe,” it is impossible for
men to cohere in any but the most primitive forms of society. Without
it, civilisation is unattainable, injustice is unchecked and triumphant,
and the life of man is, as the author of _Leviathan_ tells us,
“solitary, poor, nasty, brutish, and short.”[81] However orderly a
society may be, and to whatever extent men may appear to obey the law of
reason rather than that of force, and to be bound together by the bonds
of sympathy rather than by those of physical constraint, the element of
force is none the less present and operative. It has become partly or
wholly latent, but it still exists. A society in which the power of the
state is never called into actual exercise marks not the disappearance
of governmental control, but the final triumph and supremacy of it.
It has been thought and said by men of optimistic temper, that force as
an instrument for the coercion of mankind is merely a temporary and
provisional incident in the development of a perfect civilisation. We
may well believe, indeed, that with the progress of civilisation we
shall see the gradual cessation of the actual exercise of force, whether
by way of the administration of justice or by way of war. To a large
extent already, in all orderly societies, this element in the
administration of justice has become merely latent; it is now for the
most part sufficient for the state to declare the rights and duties of
its subjects, without going beyond declaration to enforcement. In like
manner the future may see a similar destiny overtake that international
litigation which now so often proceeds to the extremity of war. The
overwhelming power of the state or of the international society of
states may be such as to render its mere existence a sufficient
substitute for its exercise. But this, as already said, would be the
perfection, not the disappearance, of the rule of force. The
administration of justice by the state must be regarded as a permanent
and essential element of civilisation, and as a device that admits of no
substitute. Men being what they are, their conflicting interests, real
or apparent, draw them in diverse ways; and their passions prompt them
to the maintenance of these interests by all methods possible, notably
by that method of private force to which the public force is the only
adequate reply.
The constraint of public opinion is a valuable and indeed indispensable
supplement to that of law, but an entirely insufficient substitute for
it. The relation between these two is one of mutual dependence. If the
administration of justice requires for its efficiency the support of a
healthy national conscience, that conscience is in its turn equally
dependent on the protection of the law and the public force. A coercive
system based on public opinion alone, no less than one based on force
alone, contains within itself elements of weakness that would be
speedily fatal to efficiency and permanence. The influence of the public
censure is least felt by those who need it most. The law of force is
appointed, as all law should be, not for the just, but for the unjust;
while the law of opinion is set rather for the former than for the
latter, and may be defied with a large measure of impunity by determined
evildoers. The rewards of successful iniquity are upon occasion very
great; so much so that any law which would prevail against it, must have
sterner sanctions at its back than any known to the public censure. It
is also to be observed that the influence of the national conscience,
unsupported by that of the national force, would be counteracted in any
but the smallest and most homogeneous societies by the internal growth
of smaller societies or associations possessing separate interests and
separate antagonistic consciences of their own. It is certain that a man
cares more for the opinion of his friends and immediate associates, than
for that of all the world besides. The censure of ten thousand may be
outweighed by the approval of ten. The honour of thieves finds its
sanction and support in a law of professional opinion, which is opposed
to, and prevails over that of national opinion. The social sanction,
therefore, is an efficient instrument only so far as it is associated
with, and supplemented by the concentrated and irresistible force of the
incorporate community. Men being what they are—each keen to see his own
interest and passionate to follow it—society can exist only under the
shelter of the state, and the law and justice of the state is a
permanent and necessary condition of peace, order, and civilisation.
§ 26. =Origin of the Administration of Justice.=
The administration of justice is the modern and civilised substitute for
the primitive practices of private vengeance and violent self-help. In
the beginning a man redressed his wrongs and avenged himself upon his
enemies by his own hand, aided, if need be, by the hands of his friends
and kinsmen; but at the present day he is defended by the sword of the
state. For the expression of this and other elements involved in the
establishment of political government, we may make use of the contrast,
familiar to the philosophy of the seventeenth and eighteenth centuries,
between the civil state and the state of nature. This state of nature is
now commonly rejected as one of the fictions which nourished in the era
of the social contract, but such treatment is needlessly severe. The
term certainly became associated with much false or exaggerated doctrine
touching the golden age on the one hand and the _bellum omnium contra
omnes_ of Hobbes on the other, but in itself it nevertheless affords a
convenient mode for the expression of an undoubted truth. As long as
there have been men, there has probably been some form of human society.
The state of nature, therefore, is not the absence of society, but the
absence of a society so organised on the basis of physical force, as to
constitute a state. Though human society is coeval with mankind, the
rise of political society, properly so called, is an event in human
history.
One of the most important elements, then, in the transition from the
natural to the civil state is the substitution of the force of the
incorporate community for the force of individuals, as the instrument of
the redress and punishment of injuries. Private vengeance is transmuted
into the administration of criminal justice; while civil justice takes
the place of violent self-help. As Locke says,[82] in the state of
nature the law of nature is alone in force, and every man is in his own
case charged with the execution of it. In the civil state, on the other
hand, the law of nature is supplemented by the civil law, and the
maintenance of the latter by the force of the organised community
renders unnecessary and impermissible the maintenance of the former by
the forces of private men. The evils of the earlier system were too
great and obvious to escape recognition even in the most primitive
communities. Every man was constituted by it a judge in his own cause,
and might was made the sole measure of right. Nevertheless the
substitution was effected only with difficulty and by slow degrees. The
turbulent spirits of early society did not readily abandon the liberty
of fighting out their quarrels, or submit with good grace to the
arbitrament of the tribunals of the state. There is much evidence that
the administration of justice was in the earlier stages of its
development merely a choice of peaceable arbitration, offered for the
voluntary acceptance of the parties, rather than a compulsory substitute
for self-help and private war. Only later, with the gradual growth of
the power of government, did the state venture to suppress with the
strong hand the ancient and barbarous system, and to lay down the
peremptory principle that all quarrels shall be brought for settlement
to the courts of law.
All early codes show us traces of the hesitating and gradual method in
which the voice and force of the state became the exclusive instruments
of the declaration and enforcement of justice. Trial by battle, which
endured in the law of England until the beginning of the nineteenth
century,[83] is doubtless a relic of the days when fighting was the
approved method of settling a dispute, and the right and power of the
state went merely to the regulation, not to the suppression, of this
right and duty of every man to help and guard himself by his own hand.
In later theory, indeed, this mode of trial was classed with the ordeal
as _judicium Dei_—the judgment of Heaven as to the merits of the case,
made manifest by the victory of the right. But this explanation was an
afterthought; it was applied to public war, as the litigation of
nations, no less than to the judicial duel, and it is not the root of
either practice. Among the laws of the Saxon kings we find no absolute
prohibition of private vengeance, but merely its regulation and
restriction.[84] In due measure and in fitting manner it was the right
of every man to do for himself that which in modern times is done for
him by the state. As royal justice grows in strength, however, the law
begins to speak in another tone, and we see the establishment of the
modern theory of the exclusive administration of justice by the
tribunals of the state.[85]
§ 27. =Civil and Criminal Justice.=
The administration of justice has been already defined as the
maintenance of right within a political community by means of the
physical force of the state. It is the application by the state of the
sanction of force to the rule of right. We have now to notice that it is
divisible into two parts, which are distinguished as the administration
of civil and that of criminal justice. In applying the sanction of
physical force to the rules of right, the tribunals of the state may act
in one or other of two different ways. They may either enforce rights,
or punish wrongs. In other words, they may either compel a man to
perform the duty which he owes, or they may punish him for having failed
to perform it. Hence the distinction between civil and criminal justice.
The former consists in the enforcement of rights, the latter in the
punishment of wrongs. In a civil proceeding the plaintiff claims a
right, and the court secures it for him by putting pressure upon the
defendant to that end; as when one claims a debt that is due to him, or
the restoration of property wrongfully detained from him, or damages
payable to him by way of compensation for wrongful harm, or the
prevention of a threatened injury by way of injunction. In a criminal
proceeding, on the other hand, the prosecutor claims no right, but
accuses the defendant of a wrong. He is not a claimant, but an accuser.
The court makes no attempt to constrain the defendant to perform any
duty, or to respect any right. It visits him, instead, with a penalty
for the duty already disregarded and for the right already violated; as
where he is hanged for murder, or imprisoned for theft.
Both in civil and in criminal proceedings there is a _wrong_ (actual or
threatened) complained of. For the law will not enforce a right except
as against a person who has already violated it, or who has at the least
already shown an intention of doing so. Justice is administered only
against wrongdoers, in act or in intent. Yet the complaint is of an
essentially different character in civil and in criminal cases. In civil
justice it amounts to a claim of right; in criminal justice it amounts
merely to an accusation of wrong. Civil justice is concerned primarily
with the plaintiff and his rights; criminal justice with the defendant
and his offences. The former gives to the plaintiff, the latter to the
defendant, that which he deserves.
A wrong regarded as the subject-matter of civil proceedings is called a
civil wrong; one regarded as the subject-matter of criminal proceedings
is termed a criminal wrong or a crime. The position of a person who has,
by actual or threatened wrongdoing, exposed himself to legal
proceedings, is termed liability or responsibility, and it is either
civil or criminal according to the nature of the proceedings to which
the wrongdoer is exposed.
The same act may be both a civil injury and a crime, both forms of legal
remedy being available. Reason demands that in general these two
remedies shall be concurrent, and not merely alternative. If possible,
the law should not only compel men to perform their disregarded duties,
but should by means of punishment guard against the repetition of such
wrongdoing in the future. The thief should not only be compelled to
restore his plunder, but should also be imprisoned for having taken it,
lest he and others steal again. To this duplication of remedies,
however, there are numerous exceptions. Punishment is the sole resource
in cases where enforcement is from the nature of things impossible, and
enforcement is the sole remedy in those cases in which it is itself a
sufficient precautionary measure for the future. Not to speak of the
defendant’s liability for the costs of the proceedings, the civil remedy
of enforcement very commonly contains, as we shall see later, a penal
element which is sufficient to render unnecessary or unjustifiable any
cumulative criminal responsibility.
We have defined a criminal proceeding as one designed for the punishment
of a wrong done by the defendant, and a civil proceeding as one designed
for the enforcement of a right vested in the plaintiff. We have now to
consider a very different explanation which has been widely accepted. By
many persons the distinction between crimes and civil injuries is
identified with that between public and private wrongs. By a public
wrong is meant an offence committed against the state or the community
at large, and dealt with in a proceeding to which the state is itself a
party. A private wrong is one committed against a private person, and
dealt with at the suit of the individual so injured. The thief is
criminally prosecuted by the Crown, but the trespasser is civilly sued
by him whose right he has violated. Criminal libel, it is said, is a
public wrong, and is dealt with as such at the suit of the Crown; civil
libel is a private wrong and is dealt with accordingly by way of an
action for damages by the person libelled. Blackstone’s statement of
this view may be taken as representative: “Wrongs,” he says,[86] “are
divisible into two sorts or species, private wrongs and public wrongs.
The former are an infringement or privation of the private or civil
rights belonging to individuals, considered as individuals, and are
thereupon frequently termed civil injuries; the latter are a breach and
violation of public rights and duties which affect the whole community
considered as a community; and are distinguished by the harsher
appellation of crimes and misdemeanours.”[87]
But this explanation is insufficient. In the first place all public
wrongs are not crimes. A refusal to pay taxes is an offence against the
state, and is dealt with at the suit of the state; but it is a civil
wrong for all that, just as a refusal to repay money lent by a private
person is a civil wrong. The breach of a contract made with the state is
no more a criminal offence than is the breach of a contract made with a
subject. An action by the state for the recovery of a debt, or for
damages, or for the restoration of public property, or for the
enforcement of a public trust, is purely civil, although in each case
the person injured and suing is the state itself.
Conversely, and in the second place, all crimes are not public wrongs.
Most of the very numerous offences that are now punishable on summary
conviction may be prosecuted at the suit of a private person; yet the
proceedings are undoubtedly criminal none the less.
We must conclude, therefore, that the divisions between public and
private wrongs and between crimes and civil injuries are not coincident
but cross divisions. Public rights are often enforced, and private
wrongs are often punished. The distinction between criminal and civil
wrongs is based not on any difference in the nature of the right
infringed, but on a difference in the nature of the remedy applied.
The plausibility of the theory in question is chiefly attributable to a
certain peculiarity in the historical development of the administration
of justice. Where the criminal remedy of punishment is left in the hands
of the individuals injured, to be claimed or not as they think fit, it
invariably tends to degenerate into the civil remedy of pecuniary
compensation. Men barter their barren rights of vengeance for the more
substantial solatium of coin of the realm. Offenders find no difficulty
in buying off the vengeance of those they have offended, and a system of
money payments by way of composition takes the place of a system of true
punishments. Hence it is, that in primitive codes true criminal law is
almost unknown. Its place is taken by that portion of civil law which is
concerned with pecuniary redress. Murder, theft, and violence are not
crimes to be punished by loss of life, limb, or liberty, but civil
injuries to be paid for. This is a well-recognised characteristic of the
early law both of Rome and England. In the Jewish law we notice an
attempt to check this process of substitution, and to maintain the law
of homicide, at least, as truly criminal. “Ye shall take no satisfaction
for the life of a murderer, which is guilty of death: but he shall be
surely put to death.”[88] Such attempts, however, will be for the most
part vain, until the state takes upon itself the office of prosecutor,
and until offences worthy of punishment cease to be matters between
private persons, and become matters between the wrongdoer and the
community at large. Only when the criminal has to answer for his deed to
the state itself, will true criminal law be successfully established and
maintained. Thus at Rome the more important forms of criminal justice
pertained to the sovereign assemblies of the people, while civil justice
was done in the courts of the praetor and other magistrates. So in
England indictable crimes are in legal theory offences against “the
peace of our Lord the King, his crown and dignity,” and it was only
under the rule of royal justice that true criminal law was superadded to
the more primitive system of pecuniary compensation. Even at the present
day, for the protection of the law of crime, it is necessary to prohibit
as itself a crime the compounding of a felony, and to prevent in courts
of summary jurisdiction the settlement of criminal proceedings by the
parties without the leave of the court itself. Such is the historical
justification of the doctrine which identifies the distinction between
civil injuries and crimes with that between public and private wrongs.
The considerations already adduced should be sufficient to satisfy us
that the justification is inadequate.
§ 28. =The Purposes of Criminal Justice; Deterrent Punishment.=
The ends of criminal justice are four in number, and in respect of the
purposes so served by it, punishment may be distinguished as (1)
Deterrent, (2) Preventive, (3) Reformative, and (4) Retributive. Of
these aspects the first is the essential and all-important one, the
others being merely accessory. Punishment is before all things
deterrent, and the chief end of the law of crime is to make the evildoer
an example and a warning to all that are like-minded with him. Offences
are committed by reason of a conflict between the interests, real or
apparent, of the wrongdoer and those of society at large. Punishment
prevents offences by destroying this conflict of interests to which they
owe their origin—by making all deeds which are injurious to others
injurious also to the doers of them—by making every offence, in the
words of Locke, “an ill bargain to the offender.” Men do injustice
because they have no sufficient motive to seek justice, which is the
good of others rather than that of the doer of it. The purpose of the
criminal law is to supply by art the motives which are thus wanting in
the nature of things.
§ 29. =Preventive Punishment.=
Punishment is in the second place preventive or disabling. Its primary
and general purpose being to deter by fear, its secondary and special
purpose is, wherever possible and expedient, to prevent a repetition of
wrongdoing by the disablement of the offender. We hang murderers not
merely that we may put into the hearts of others like them the fear of a
like fate, but for the same reason for which we kill snakes, namely,
because it is better for us that they should be out of the world than in
it. A similar secondary purpose exists in such penalties as
imprisonment, exile, and forfeiture of office.
§ 30. =Reformative Punishment.=
Punishment is in the third place reformative. Offences are committed
through the influence of motives upon character, and may be prevented
either by a change of motives or by a change of character. Punishment as
deterrent acts in the former method; punishment as reformative in the
latter. This curative or medicinal function is practically limited to a
particular species of penalty, namely, imprisonment, and even in this
case pertains to the ideal rather than to the actual. It would seem,
however, that this aspect of the criminal law is destined to increasing
prominence. The new science of criminal anthropology would fain identify
crime with disease, and would willingly deliver the criminal out of the
hands of the men of law into those of the men of medicine. The feud
between the two professions touching the question of insanity threatens
to extend itself throughout the whole domain of crime.
It is plain that there is a necessary conflict between the deterrent and
the reformative theories of punishment, and that the system of criminal
justice will vary in important respects according as the former or the
latter principle prevails in it. The purely reformative theory admits
only such forms of punishment as are subservient to the education and
discipline of the criminal, and rejects all those which are profitable
only as deterrent or disabling. Death is in this view no fitting
penalty; we must cure our criminals, not kill them. Flogging and other
corporal inflictions are condemned as relics of barbarism by the
advocates of the new doctrine; such penalties are said to be degrading
and brutalizing both to those who suffer and to those who inflict them,
and so fail in the central purpose of criminal justice. Imprisonment,
indeed, as already indicated, is the only important instrument available
for the purpose of a purely reformative system. Even this, however, to
be fitted for such a purpose, requires alleviation to a degree quite
inadmissible in the alternative system. If criminals are sent to prison
in order to be there transformed into good citizens by physical,
intellectual, and moral training, prisons must be turned into
dwelling-places far too comfortable to serve as any effectual deterrent
to those classes from which criminals are chiefly drawn. A further
illustration of the divergence between the deterrent and the reformative
theories is supplied by the case of incorrigible offenders. The most
sanguine advocate of the curative treatment of criminals must admit that
there are in the world men who are incurably bad, men who by some vice
of nature are even in their youth beyond the reach of reformative
influences, and with whom crime is not so much a bad habit as an
ineradicable instinct. What shall be done with these? The only logical
inference from the reformative theory is that they should be abandoned
in despair as no fit subjects for penal discipline. The deterrent and
disabling theories, on the other hand, regard such offenders as being
pre-eminently those with whom the criminal law is called upon to deal.
That they may be precluded from further mischief, and at the same time
serve as a warning to others, they are justly deprived of their liberty,
and in extreme cases of life itself.
The application of the purely reformative theory, therefore, would lead
to astonishing and inadmissible results. The perfect system of criminal
justice is based on neither the reformative nor the deterrent principle
exclusively, but is the result of a compromise between them. In this
compromise it is the deterrent principle which possesses predominant
influence, and its advocates who have the last word. This is the primary
and essential end of punishment, and all others are merely secondary and
accidental. The present tendency to attribute exaggerated importance to
the reformative element is a reaction against the former tendency to
neglect it altogether, and like most reactions it falls into the
falsehood of extremes. It is an important truth, unduly neglected in
times past, that to a very large extent criminals are not normal and
healthy human beings, and that crime is in great measure the product of
physical and mental abnormality and degeneracy. It has been too much the
practice to deal with offenders on the assumption that they are ordinary
types of humanity. Too much attention has been paid to the crime, and
too little to the criminal. Yet we must be careful not to fall into the
opposite extreme. If crime has become the monopoly of the abnormal and
the degenerate or even the mentally unsound, the fact must be ascribed
to the selective influence of a system of criminal justice based on a
sterner principle than that of reformation. The more efficient the
coercive action of the state becomes, the more successful it is in
restraining all normal human beings from the dangerous paths of crime,
and the higher becomes the proportion of degeneracy among those who
break the law. Even with our present imperfect methods the proportion of
insane persons among murderers is very high; but if the state could
succeed in making it impossible to commit murder in a sound mind without
being indubitably hanged for it afterwards, murder would become, with
scarcely an exception, limited to the insane.
If, after this consummation had been reached, the opinion were advanced
that inasmuch as all murderers are insane, murder is not a crime which
needs to be suppressed by the strong arm of the penal law, and pertains
to the sphere of medicine rather than to that of jurisprudence, the
fallacy of the argument would be obvious. Were the state to act on any
such principle, the proposition that all murderers are insane would very
rapidly cease to be true. The same fallacy, though in a less obvious
form, is present in the more general argument that, since the proportion
of disease and degeneracy among criminals is so great, the reformative
function of punishment should prevail over, and in a great measure
exclude, its deterrent and coercive functions. For it is chiefly through
the permanent influence and operation of these latter functions, partly
direct in producing a fear of evildoing, partly indirect in establishing
and maintaining those moral habits and sentiments which are possible
only under the shelter of coercive law, that crime has become limited,
in such measure as it has, to the degenerate, the abnormal, and the
insane. Given an efficient penal system, crime is too poor a bargain to
commend itself, save in exceptional circumstances, to any except those
who lack the self-control, the intelligence, the prudence, or the moral
sentiments of the normal man. But apart from criminal law in its sterner
aspects, and apart from that positive morality which is largely the
product of it, crime is a profitable industry, which will flourish
exceedingly, and be by no means left as a monopoly to the feebler and
less efficient members of society.
Although the general substitution of the reformative for the deterrent
principle would lead to disaster, it may be argued that the substitution
is possible and desirable in the special case of the abnormal and
degenerate. Purely reformative treatment is now limited to the insane
and the very young; should it not be extended to include all those who
fall into crime through their failure to attain to the standard of
normal humanity? No such scheme, however, seems practicable. In the
first place, it is not possible to draw any sharp line of distinction
between the normal and the degenerate human being. It is difficult
enough in the only case of degeneracy now recognised by the law, namely
insanity; but the difficulty would be a thousand-fold increased had we
to take account of every lapse from the average type. The law is
necessarily a rough and ready instrument, and men must be content in
general to be judged and dealt with by it on the basis of their common
humanity, and not on that of their special idiosyncrasies. In the second
place, even in the case of those who are distinctly abnormal, it does
not appear, except in the special instance of mental unsoundness, that
the purely deterrent influences of punishment are not effective and
urgently required. If a man is destitute of the affections and social
instincts of humanity, the judgment of common sense upon him is not that
he should be treated more leniently than the normal evildoer—not that
society should cherish him in the hope of making him a good citizen—but
that by the rigour of penal discipline his fate should be made a terror
and a warning to himself and others. And in this matter sound science
approves the judgment of common sense. Even in the case of the abnormal
it is easier and more profitable to prevent crime by the fear of
punishment than to procure by reformative treatment the repentance and
amendment of the criminal.
It is needful, then, in view of modern theories and tendencies, to
insist on the primary importance of the deterrent element in criminal
justice. The reformative element must not be overlooked, but neither
must it be allowed to assume undue prominence. To what extent it may be
permitted in particular instances to overrule the requirements of a
strictly deterrent theory is a question of time, place, and
circumstance. In the case of youthful criminals the chances of effective
reformation are greater than in that of adults, and the rightful
importance of the reformative principle is therefore greater also. In
orderly and law-abiding communities concessions may be safely made in
the interests of reformation, which in more turbulent societies would be
fatal to the public welfare.
§ 31. =Retributive Punishment.=
We have considered criminal justice in three of its aspects—namely as
deterrent, disabling, and reformative—and we have now to deal with it
under its fourth and last aspect as retributive. Retributive punishment,
in the only sense in which it is admissible in any rational system of
administering justice, is that which serves for the satisfaction of that
emotion of retributive indignation which in all healthy communities is
stirred up by injustice. It gratifies the instinct of revenge or
retaliation, which exists not merely in the individual wronged, but also
by way of sympathetic extension in the society at large. Although the
system of private revenge has been suppressed, the emotions and
instincts that lay at the root of it are still extant in human nature,
and it is a distinct though subordinate function of criminal justice to
afford them their legitimate satisfaction. For although in their lawless
and unregulated exercise and expression they are full of evil, there is
in them none the less an element of good. The emotion of retributive
indignation, both in its self-regarding and its sympathetic forms, is
even yet the mainspring of the criminal law. It is to the fact that the
punishment of the wrongdoer is at the same time the vengeance of the
wronged, that the administration of justice owes a great part of its
strength and effectiveness. Did we punish criminals merely from an
intellectual appreciation of the expediency of so doing, and not because
their crimes arouse in us the emotion of anger and the instinct of
retribution, the criminal law would be but a feeble instrument.
Indignation against injustice is, moreover, one of the chief
constituents of the moral sense of the community, and positive morality
is no less dependent on it than is the law itself. It is good,
therefore, that such instincts and emotions should be encouraged and
strengthened by their satisfaction; and in civilised societies this
satisfaction is possible in any adequate degree only through the
criminal justice of the state. There can be little question that at the
present day the sentiment of retributive indignation is deficient rather
than excessive, and requires stimulation rather than restraint.
Unquestionable as have been the benefits of that growth of altruistic
sentiment which characterises modern society, it cannot be denied that
in some respects it has taken a perverted course and has interfered
unduly with the sterner virtues. A morbid sentimentality has made of the
criminal an object of sympathetic interest rather than of healthy
indignation, and Cain occupies in our regards a place that is better
deserved by Abel. We have too much forgotten that the mental attitude
which best becomes us, when fitting justice is done upon the evildoer,
is not pity, but solemn exultation.[89]
The foregoing explanation of retributive punishment as essentially an
instrument of vindictive satisfaction is by no means that which receives
universal acceptance. It is a very widely held opinion that retribution
is in itself, apart altogether from any deterrent or reformative
influences exercised by it, a right and reasonable thing, and the just
reward of iniquity. According to this view, it is right and proper,
without regard to ulterior consequences, that evil should be returned
for evil, and that as a man deals with others so should he himself be
dealt with. An eye for an eye and a tooth for a tooth is deemed a plain
and self-sufficient rule of natural justice. Punishment as so regarded
is no longer a mere instrument for the attainment of the public welfare,
but has become an end in itself. The purpose of vindictive satisfaction
has been eliminated without any substitute having been provided. Those
who accept this view commonly advance retribution to the first place
among the various aspects of punishment, the others being relegated to
subordinate positions.
This conception of retributive justice still retains a prominent place
in popular thought. It flourishes also in the writings of theologians
and of those imbued with theological modes of thought, and even among
the philosophers it does not lack advocates. Kant, for example,
expresses the opinion that punishment cannot rightly be inflicted for
the sake of any benefit to be derived from it either by the criminal
himself or by society, and that the sole and sufficient reason and
justification of it lies in the fact that evil has been done by him who
suffers it.[90] Consistently with this view, he derives the measure of
punishment, not from any elaborate considerations as to the amount
needed for the repression of crime, but from the simple principle of the
_lex talionis_: “Thine eye shall not pity; but life shall go for life,
eye for eye, tooth for tooth, hand for hand, foot for foot.”[91] No such
principle, indeed, is capable of literal interpretation; but subject to
metaphorical and symbolical applications it is in Kant’s view the
guiding rule of the ideal scheme of criminal justice.
It is scarcely needful to observe that from the utilitarian point of
view hitherto taken up by us such a conception of retributive punishment
is totally inadmissible. Punishment is in itself an evil, and can be
justified only as the means of attaining a greater good. Retribution is
in itself not a remedy for the mischief of the offence, but an
aggravation of it. The opposite opinion may be regarded as a product of
the incomplete transmutation of the conception of revenge into that of
punishment. It results from a failure to appreciate the rational basis
of the instinct of retribution—a failure to refer the emotion of
retributive indignation to the true source of its rational
justification—so that retaliation is deemed an end in itself, and is
regarded as the essential element in the conception of penal justice.
A more definite form of the idea of purely retributive punishment is
that of expiation. In this view, crime is done away with, cancelled,
blotted out, or expiated, by the suffering of its appointed penalty. To
suffer punishment is to pay a debt due to the law that has been
violated. Guilt _plus_ punishment is equal to innocence. “The wrong,” it
has been said,[92] “whereby he has transgressed the law of right, has
incurred a debt. Justice requires that the debt be paid, that the wrong
be expiated.... This is the first object of punishment—to make
satisfaction to outraged law.” This conception, like the preceding,
marks a stage in the transformation of revenge into criminal justice.
Until this transformation is complete, the remedy of punishment is more
or less assimilated to that of redress. Revenge is the right of the
injured person. The penalty of wrongdoing is a debt which the offender
owes to his victim, and when the punishment has been endured the debt is
paid, the liability is extinguished, innocence is substituted for guilt,
and the _vinculum juris_ forged by crime is dissolved. The object of
true redress is to restore the position demanded by the rule of right,
to substitute justice for injustice, to compel the wrongdoer to restore
to the injured person that which is his own. A like purpose is assigned
to punishment, so long as it is imperfectly differentiated from that
retributive vengeance which is in some sort a reparation for wrongdoing.
The fact that in the expiatory theory satisfaction is conceived as due
rather to the outraged majesty of the law, than to the victim of the
offence, merely marks a further stage in the refinement and purification
of the primitive conception.
§ 32. =Civil Justice; Primary and Sanctioning Rights.=
We proceed now to the consideration of civil justice and to the analysis
of the various forms assumed by it. It consists, as we have seen, in the
enforcement of rights, as opposed to the punishment of wrongs. The first
distinction to be noticed is that the right so enforced is either a
Primary or a Sanctioning right. A sanctioning right is one which arises
out of the violation of another right. All others are primary; they are
rights which have some other source than wrongs. Thus my right not to be
libelled or assaulted is primary; but my right to obtain pecuniary
compensation from one who has libelled or assaulted me is sanctioning.
My right to the fulfilment of a contract made with me is primary; but my
right to damages for its breach is sanctioning.
The administration of civil justice, therefore, falls into two parts,
according as the right enforced belongs to the one or the other of these
two classes. Sometimes it is impossible for the law to enforce the
primary right; sometimes it is possible but not expedient. If by
negligence I destroy another man’s property, his right to this property
is necessarily extinct and no longer enforceable. The law, therefore,
gives him in substitution for it a new and sanctioning right to receive
from me the pecuniary value of the property that he has lost. If on the
other hand I break a promise of marriage, it is still possible, but it
is certainly not expedient, that the law should specifically enforce the
right, and compel me to enter into that marriage; and it enforces
instead a sanctioning right of pecuniary satisfaction. A sanctioning
right almost invariably consists of a claim to receive money from the
wrongdoer, and we shall here disregard any other forms, as being quite
exceptional.
The enforcement of a primary right may be conveniently termed specific
enforcement. For the enforcement of a sanctioning right there is no very
suitable generic term, but we may venture to call it sanctional
enforcement.
Examples of specific enforcement are proceedings whereby a defendant is
compelled to pay a debt, to perform a contract, to restore land or
chattels wrongfully taken or detained, to refrain from committing or
continuing a trespass or nuisance, or to repay money received by mistake
or obtained by fraud. In all these cases the right enforced is the
primary right itself, not a substituted sanctioning right. What the law
does is to insist on the specific establishment or re-establishment of
the actual state of things required by the rule of right, not of another
state of things which may be regarded as its equivalent or substitute.
Sanctioning rights may be divided into two kinds by reference to the
purpose of the law in creating them. This purpose is either (1) the
imposition of a pecuniary penalty upon the defendant for the wrong which
he has committed, or (2) the provision of pecuniary compensation for the
plaintiff in respect of the damage which he has suffered from the
defendant’s wrongdoing. Sanctioning rights, therefore, are either (1)
rights to exact and receive a pecuniary penalty, or (2) rights to exact
and receive damages or other pecuniary compensation.
The first of these kinds is rare in modern English law, though it was at
one time of considerable importance both in our own and in other legal
systems. But it is sometimes the case even yet, that the law creates and
enforces a sanctioning right which has in it no element of compensation
to the person injured, but is appointed solely as a punishment for the
wrongdoer. For example, a statute may make provision for a pecuniary
penalty payable to a common informer, that is to say, to any one who
shall first sue the offender for it. Such an action is called a penal
action, as being brought for the recovery of a penalty. But it is none
the less a purely civil, and in no respect a criminal proceeding.
Primarily and immediately, it is an action for the enforcement of a
right, not for the punishment of a wrong. It pertains, therefore, to the
civil administration of justice, no less than an ordinary action for the
recovery of a debt. The mere fact that the sanctioning right thus
enforced is created by the law for the purpose of punishment does not
bring the action within the sphere of criminal justice. In order that a
proceeding should be criminal it is necessary that its direct and
immediate purpose should be punishment; it is not enough that its
purpose should be the enforcement of a right which has been created by
way of punishment. A proceeding is civil if it is one for the
enforcement of a right, and the source, nature, and purpose of the right
so enforced are irrelevant.[93]
The second form of sanctioning right—the right to pecuniary compensation
or damages—is in modern law by far the more important. It may be stated
as a general rule, that the violation of a private right gives rise, in
him whose right it is, to a sanctioning right to receive compensation
for the injury so done to him. Such compensation must itself be divided
into two kinds, which may be distinguished as Restitution and Penal
Redress. In respect of the person injured, indeed, these two are the
same in their nature and operation; but in respect of the wrongdoer they
are very different. In restitution the defendant is compelled to give up
the pecuniary value of some benefit which he has wrongfully obtained at
the expense of the plaintiff; as when he who has wrongfully taken or
detained another’s goods is made to pay him the pecuniary value of them,
or when he who has wrongfully enriched himself at another’s expense is
compelled to account to him for all money so obtained.
Penal redress, on the other hand, is a much more common and important
form of legal remedy than mere restitution. The law is seldom content to
deal with a wrongdoer by merely compelling him to restore all benefits
which he has derived from his wrong; it commonly goes further, and
compels him to pay the amount of the plaintiff’s loss; and this may far
exceed the profit, if any, which he has himself received. It is clear
that compensation of this kind has a double aspect and nature; from the
point of view of the plaintiff it is compensation and nothing more, but
from that of the defendant it is a penalty imposed upon him for his
wrongdoing. The compensation of the plaintiff is in such cases the
instrument which the law uses for the punishment of the defendant, and
because of this double aspect we call it penal redress. Thus if I burn
down my neighbour’s house by negligence, I must pay him the value of it.
The wrong is then undone with respect to him, indeed, for he is put in
as good a position as if it had not been committed. Formerly he had a
house, and now he has the worth of it. But the wrong is not undone with
respect to me, for I am the poorer by the value of the house, and to
this extent I have been punished for my negligence.
§ 33. =A Table of Legal Remedies.=
The result of the foregoing analysis of the various forms assumed by the
administration of justice, civil and criminal, may be exhibited in a
tabular form as follows:—
{SPECIFIC ENFORCEMENT—
{ enforcement of a primary right:
{ _e.g._, payment of debt,
{ or return of property
{ detained. I.
{CIVIL— { {RESTITUTION—return
Legal { Enforcement{ { of profit unlawfully
Proceedings{ of rights { { made. II.
{ { {COMPENSATION{
{ { { {PENAL REDRESS—
{ {SANCTIONAL { { payment for loss
{ { ENFORCEMENT— { { unlawfully
{ { enforcement { { inflicted. III.
{ { of a {
{ { sanctioning {PENALTY: _e.g._, action by
{ { right { informer for statutory
{ { penalty. IV.
{
{CRIMINAL—Punishment of wrongs: _e.g._, imprisonment for
{ theft. V.
§ 34. =Penal and Remedial Proceedings.=
It will be noticed that in the foregoing Table legal proceedings have
been divided into five distinct classes, namely: (1) actions for
specific enforcement, (2) actions for restitution, (3) actions for penal
redress, (4) penal actions, and (5) criminal prosecutions. It must now
be observed that the last three of these contain a common element which
is absent from the others, namely the idea of punishment. In all these
three forms of procedure the ultimate purpose of the law is in whole or
in part the punishment of the defendant. This is equally so, whether he
is imprisoned, or compelled to pay a pecuniary penalty to a common
informer, or is held liable in damages to the person injured by him. All
these proceedings, therefore, may be classed together as _penal_, and as
the sources of _penal liability_. The other forms, namely specific
enforcement and restitution, contain no such penal element; the idea of
punishment is entirely foreign to them; and they may be classed together
as _remedial_, and as the sources of _remedial liability_. From the
point of view of legal theory this distinction between penal and
remedial liability is, as we shall see, of even greater importance than
that between criminal and civil liability. It will be noted that all
criminal proceedings are at the same time penal, but that the converse
is not true, some civil proceedings being penal while others are merely
remedial.
It may be objected that this explanation fails to distinguish between
penal liability and criminal, inasmuch as punishment is stated to be the
essential element in each. The answer to this objection is that we must
distinguish between the ulterior and the immediate purposes of the law.
Proceedings are classed as criminal or civil in respect of their
immediate aim; they are distinguished as penal or remedial in respect of
their entire purpose, remote as well as immediate. One way of punishing
a wrongdoer is to impose some new obligation upon him, and to enforce
the fulfilment of it. He may be compelled to pay a penalty or damages.
Whenever this course is adopted, the immediate design of the law is the
enforcement of the right to the penalty or damages, but its ulterior
design is the punishment of the wrong out of which this right arose. In
respect of the former the proceedings are civil, not criminal; while in
respect of the latter they are penal, not remedial. Penal proceedings,
therefore, may be defined as those in which the object of the law,
immediate or ulterior, is or includes the punishment of the defendant.
All others are remedial, the purpose of the law being nothing more than
the enforcement of the plaintiff’s right, and the idea of punishment
being irrelevant and inapplicable.
§ 35. =Secondary Functions of Courts of Law.=
Hitherto we have confined our attention to the administration of justice
in the narrowest and most proper sense of the term. In this sense it
means, as we have seen, the application by the state of the sanction of
physical force to the rules of justice. It is the forcible defence of
rights and suppression of wrongs. The administration of justice properly
so called, therefore, involves in every case two parties, the plaintiff
and the defendant, a right claimed or a wrong complained of by the
former as against the latter, a judgment in favour of the one or the
other, and execution of this judgment by the power of the state if need
be. We have now to notice that the administration of justice in a wider
sense includes all the functions of courts of justice, whether they
conform to the foregoing type or not. It is to administer justice in the
strict sense that the tribunals of the state are established, and it is
by reference to this essential purpose that they must be defined. But
when once established, they are found to be useful instruments, by
virtue of their constitution, procedure, authority, or special
knowledge, for the fulfilment of other more or less analogous functions.
To these secondary and non-essential activities of the courts, no less
than to their primary and essential functions, the term administration
of justice has been extended. They are miscellaneous and indeterminate
in character and number, and tend to increase with the advancing
complexity of modern civilisation. They fall chiefly into four groups:
(1) _Petitions of Right._—The courts of law exercise, in the first
place, the function of adjudicating upon claims made by subjects against
the state itself. If a subject claims that a debt is due to him from the
Crown, or that the Crown has broken a contract with him, or wrongfully
detains his property, he is at liberty to take proceedings by way of
petition of right in a court of law for the determination of his rights
in the matter. The petition is addressed to the Crown itself, but is
referred for consideration to the courts of justice, and these courts
will investigate the claim in due form of law, and pronounce in favour
of the petitioner or of the Crown, just as in an action between two
private persons. But this is not the administration of justice properly
so called, for the essential element of coercive force is lacking. The
state is the judge in its own cause, and cannot exercise constraint
against itself. Nevertheless in the wider sense the administration of
justice includes the proceedings in a petition of right, no less than a
criminal prosecution or an action for debt or damages against a private
individual.
(2) _Declarations of Right._—The second form of judicial action which
does not conform to the essential type is that which results, not in any
kind of coercive judgment, but merely in a declaration of right. A
litigant may claim the assistance of a court of law, not because his
rights have been violated, but because they are uncertain. What he
desires may be not any remedy against an adversary for the violation of
a right, but an authoritative declaration that the right exists. Such a
declaration may be the ground of subsequent proceedings in which the
right, having been violated, receives enforcement, but in the meantime
there is no enforcement nor any claim to it. Examples of declaratory
proceedings are declarations of legitimacy, declarations of nullity of
marriage, advice to trustees or executors as to their legal powers and
duties, and the authoritative interpretation of wills.
(3) _Administrations._—A third form of secondary judicial action
includes all those cases in which courts of justice undertake the
management and distribution of property. Examples are the administration
of a trust, the liquidation of a company by the court, and the
realisation and distribution of an insolvent estate.
(4) _Titles of Right._—The fourth and last form includes all those cases
in which judicial decrees are employed as the means of creating,
transferring, or extinguishing rights. Instances are a decree of divorce
or judicial separation, an adjudication of bankruptcy, an order of
discharge in bankruptcy, a decree of foreclosure against a mortgagor, an
order appointing or removing trustees, a grant of letters of
administration, and vesting or charging orders. In all these cases the
judgment or decree operates not as the remedy of a wrong, but as the
title of a right.
These secondary forms of judicial action are to be classed under the
head of the _civil_ administration of justice. Here, as in its other
uses, the term civil is merely residuary; civil justice is all that is
not criminal.
We have defined the law as consisting of the rules observed in the
administration of justice. We have now seen that the latter term is
used in a double sense, and the question therefore arises whether it
is the strict or the wide sense that is to be adopted in our
definition of the law. There can be no doubt, however, that logic
admits, and convenience requires, the adoption of the wider
application. We must recognise as law the sum total of the rules that
are applied by courts of justice in the exercise of any of their
functions, whether these are primary and essential or secondary and
accidental. The principles in accordance with which the courts
determine a petition of right, decree a divorce, or grant letters of
administration, are as truly legal principles as those which govern an
action of debt or a suit for specific performance.
SUMMARY.
The administration of justice by the state a permanent necessity.
The origin of the administration of justice.
Justice {Criminal—The punishment of wrongs.
{Civil—The enforcement of rights.
Crimes not necessarily public wrongs.
Purposes of punishment:—
1. Deterrent.
2. Preventive.
3. Reformative.
4. Retributive.
{Enforcement of primary rights—Specific enforcement.
Civil Justice {Enforcement of sanctioning rights—Sanctional enforcement.
{Compensation {Restitution.
Sanctional enforcement { {Penal redress.
{Penalty
{Remedial—independent of the idea of punishment—always civil.
Justice {Penal—involving the idea of punishment—civil or criminal.
Subsidiary functions of courts of justice:—
1. Petitions of right.
2. Declarations of right.
3. Administration of property.
4. Creation, transfer, and extinction of rights.
CHAPTER V.
THE STATE.
§ 36. =The Nature and Essential Functions of the State.=
A complete analysis of the nature of law involves an inquiry into the
nature of the state, for it is in and through the state alone that law
exists. Jurisprudence is concerned, however, only with the elements and
first principles of this matter. An exhaustive theory of political
government pertains not to jurisprudence, but to the allied science of
politics. From the lawyer nothing more is required than such an
understanding of the essential nature of the state, as is sufficient and
necessary for the establishment of sound juridical theory.
A state or political society is an association of human beings
established for the attainment of certain ends by certain means. It is
the most important of all the various kinds of society in which men
unite, being indeed the necessary basis and condition of peace, order,
and civilisation. What then is the essential difference between this and
other forms of association? In what does the state essentially differ
from such other societies as a church, a university, a joint-stock
company, or a trade union? The difference is clearly one of _function_.
The state must be defined by reference to such of its activities and
purposes as are essential and characteristic.
But the modern state does many things, and different things at different
times and places. It is a common carrier of letters and parcels, it
builds ships, it owns and manages railways, it conducts savings banks,
it teaches children, and feeds the poor. All these cannot be of its
essence. It is possible, however, to distinguish, among the
multitudinous operations of government, two which are set apart as
primary and essential. These two are _war_ and the _administration of
justice_. The fundamental purpose and end of political society is
defence against external enemies, and the maintenance of peaceable and
orderly relations within the community itself. It would be easy to show
by a long succession of authorities that these two have always been
recognised as the essential duties of governments. The Israelites
demanded a king, that he “may judge us, and go out before us, and fight
our battles;”[94] and this conception of the primary end and aim of
sovereignty obtains recognition still as true and adequate. Leviathan,
as Hobbes[95] tells us, carries two swords, the sword of war and that of
justice. This is the irreducible minimum of governmental action. Every
society which performs these two functions is a political society or
state, and none is such which does not perform them. How much activity
in other directions may be profitably combined with them is a question
with which we are not here concerned. We are dealing with the
definition, and therefore with the essence, not with the accidents of
political society.[96]
It is not difficult to show that war and the administration of justice,
however diverse in appearance, are merely two different species of a
single genus. The essential purpose of each is the same, though the
methods are different. Each consists in the exercise of the organised
physical force of the community, and in each case this force is made use
of to the same end, namely, the maintenance of the just rights of the
community and its members. We have already seen that in administering
justice the state uses its physical power to enforce rights and to
suppress and punish wrongs. Its purpose in waging war—that is to say,
_just_ war, which is the only kind which can be regarded as an essential
form of state activity—is the same. These two primary functions are
simply the two different ways in which a political society uses its
power in the defence of itself and its members against external and
internal enemies. They are the two methods in which a state fulfils its
appointed purpose of establishing right and justice by physical force.
What, then, is the essential difference between these two functions? It
lies apparently in this, that the administration of justice is the
_judicial_, while war is the _extrajudicial_ use of the force of the
state in the maintenance of right. Force is judicial, when it is applied
by or through a tribunal, whose business it is to judge or arbitrate
between the parties who are at issue. It is extrajudicial when it is
applied by the state directly, without the aid or intervention of any
such judge or arbitrator. Judicial force involves trial and
adjudication, as a condition precedent to its application; extrajudicial
force does not. Judicial force does not move to the maintenance of
rights or the suppression of wrongs, until these rights and wrongs have
been authoritatively declared and ascertained by the formal judgment of
a court. The primary purpose of judicial force is to _execute judgment_
against those who will not voluntarily yield obedience to it. Only
indirectly, and through such judgment, does it enforce rights and punish
wrongs. But extrajudicial force strikes directly at the offender. It
recognises no trial or adjudication as a condition of its exercise. It
requires no authoritative judicial declaration of the rights protected
or of the wrongs punished by it. When a rebellion or a riot is
suppressed by troops, this is the extrajudicial use of force; but when,
after its suppression, the rebels or rioters are tried, sentenced, and
punished by the criminal courts, the force so used is judicial. To shoot
a man on the field of battle or at a barricade is war; to shoot him
after capture and condemnation by a court martial is the administration
of justice.[97]
In addition to the essential difference which we have just noticed,
there are several minor and unessential differences, which are commonly,
though not invariably present. The chief of these are the following:
1. Judicial force is regulated by law, while the force of arms is
usually exempt from such control. Justice is according to law; war is
according to the good pleasure of those by whom it is carried on. _Inter
arma leges silent_ is a maxim which is substantially, though not wholly,
true. The civil law has little to say as to the exercise by the state of
its military functions. As between the state and its external enemies,
it is absolutely silent; and even as to the use of extrajudicial force
within the body politic itself, as in the suppression of riots,
insurrections, or forcible crimes, the law lays down no principle save
this, that such force is allowable when, and only when, it is necessary.
_Necessitas non habet legem._ Within the community the law insists that
all force shall be judicial if possible. This protection against
extrajudicial force—this freedom from all constraint save that which
operates through the courts of law and justice—is one of the chief
privileges of the members of the body politic. We accept it now as a
matter of course, but in older and more turbulent days it was recognised
as a benefit to be striven for and maintained with anxious
vigilance.[98]
2. In the second place judicial force is commonly exercised against
private persons, extrajudicial force against states. It is clear,
however, that this is not necessarily or invariably the case. It is not
impossible that one state should administer justice between two others,
or between another state and itself. And on the other hand, it may wage
war with its own subjects, or with pirates or other persons who do not
constitute a political society.
3. Thirdly, the administration of justice is generally the internal,
while war is generally the external exercise of the power of the state.
In other words, the state commonly proceeds against internal enemies by
way of judicial, and against external enemies by way of extrajudicial
force. The administration of justice is the right and privilege of the
members of the body politic itself. Those who stand outside the
community—whether they are individuals or states—have no claim to the
impartial arbitrament of judicial tribunals, and may be struck at
directly by the armed and heavy hand of the state. Yet this also is
merely a general, and not an invariable rule.
4. Fourthly and lastly, in the administration of justice the element of
force is commonly latent or dormant, whereas in war it is seen in actual
exercise. Those persons against whom the state administers justice are
commonly so completely within its power, that they have no choice save
voluntary submission and obedience. It is enough that the state
possesses irresistible force and threatens to use it; its actual use is
seldom called for. In war, on the other hand, there is commonly no such
overwhelming disparity of power, and a state which in this fashion seeks
to impose its will on others must usually go beyond threats to their
actual execution. Hence it is, that in the administration of justice the
element of trial and adjudication is in appearance far more predominant
and important than that of force. Viewed externally and superficially,
this function of the state looks like the elimination of force as a
method of the settlement of controversies, and the substitution of
peaceful arbitration. But it is not so. Force is the essence of the
administration of justice, no less than of war; but for the most part it
lies latent and concealed. The establishment of courts of justice marks
not the substitution of arbitration for force, but the substitution of
one kind of force for another—of public force for private, of judicial
force for extrajudicial, of latent and threatened force for that which
is actually exercised. As states increase in power, this difference
between their two essential functions is intensified. In feeble,
turbulent, and ill-governed states the element of force in the
administration of justice tends to come to the surface. The will of the
state no longer receives implicit obedience from those that are subject
to its jurisdiction. It may be necessary to execute the judgments of the
courts by military force, and there may be little difference of external
aspect between the use of judicial force in the execution of a judgment,
and the use of extrajudicial force in the suppression of riot,
rebellion, or civil war.[99]
§ 37. =Secondary Functions of the State.=
The secondary functions of the state may be divided into two classes.
The first consists of those which serve to secure the efficient
fulfilment of the primary functions, and the chief of these are two in
number, namely legislation and taxation. Legislation is the formulation
of the principles in accordance with which the state intends to fulfil
its function of administering justice. Taxation is the instrument by
which the state obtains that revenue which is the essential condition of
all its activities. The remaining class of secondary functions comprises
all other forms of activity which are for any reason deemed specially
fit to be undertaken by the state. This special fitness may proceed from
various sources. It is derived partly from the fact that the state
represents the whole population of an extensive territory; partly from
the fact that it possesses, through the organised physical force at its
command, powers of coercion which are non-existent elsewhere; and partly
from the fact that its financial resources (due to the exercise of its
coercive powers by way of taxation) are immensely beyond those of all
other persons and societies. Considerations such as these have,
especially in modern times, induced the state to assume a great number
of secondary and unessential functions which, in a peaceful and
law-abiding community, tend even to overshadow and conceal from view
those primary functions in which the essential nature of the state is to
be found.
§ 38. =The Territory of the State.=
The territory of a state is that portion of the earth’s surface which is
in its exclusive possession and control. It is that region throughout
which the state makes its will permanently supreme, and from which it
permanently excludes all alien interference. This exclusive possession
of a defined territory is a characteristic feature of all civilised and
normal states. It is found to be a necessary condition of the efficient
exercise of governmental functions. But we cannot say that it is
essential to the existence of a state. A state without a fixed
territory—a nomadic tribe for example—is perfectly possible. A
non-territorial society may be organised for the fulfilment of the
essential functions of government, and if so, it will be a true state.
Such a position of things is, however, so rare and unimportant, that it
is permissible to disregard it as abnormal. It is with the territorial
state that we are alone concerned, and with reference to it we may
accordingly define a state as _a society of men established for the
maintenance of peace and justice within a determined territory by way of
force_.
§ 39. =The Membership of the State.=
Who then are the members of this society, and by what title do men
obtain entrance into it? In all civilised communities the title of
state-membership is twofold, and the members of the body politic are of
two classes accordingly. These two titles are citizenship and residence.
The former is a personal, the latter merely a territorial bond between
the state and the individual. The former is a title of permanent, the
latter one of temporary membership of the political community. The
state, therefore, consists, in the first place, of all those who by
virtue of this personal and permanent relationship are its citizens or
subjects, and in the second place, of all those who for the time being
reside within its territory, and so possess a temporary and territorial
title to state-membership. Both classes are equally members of the body
politic, so long as their title lasts; for both have claims to the
protection of the laws and government of the state, and to such laws and
government both alike owe obedience and fidelity. They are alike subject
to the dominion of the state, and it is in the interests of both that
the state exists and fulfils its functions.
These two titles of state-membership are to a great extent united in the
same persons. Most British subjects inhabit British territory, and most
inhabitants of that territory are British subjects. Yet the coincidence
is far from complete, for many men belong to the state by one title
only. They are British subjects, but not resident within the dominions
of the Crown; or they are resident within those dominions, but are not
British subjects. In other words, they are either non-resident subjects
or resident aliens. Non-resident aliens, on the other hand, possess no
title of membership, and stand altogether outside the body politic. They
are not within the power and jurisdiction of the state; they owe no
obedience to the laws, nor fidelity to the government; it is not for
them or in their interests that the state exists.[100]
The practical importance of the distinction between the two forms of
state-membership lies chiefly in the superior privileges possessed by
citizens or subjects. Citizenship is a title to rights which are not
available for aliens. Citizens are members _optimo jure_, while aliens
stand on a lower level in the scale of legal right. Thus British
subjects alone possess political as opposed to merely civil rights;[101]
until a few years ago they alone were capable of inheriting or holding
land in England; to this day they alone can own a British ship or any
share in one; they alone are entitled when abroad to the protection of
their government against other states, or to the protection of English
courts of law against illegal acts of the English executive; they alone
can enter British territory as of right; they alone are entitled to the
benefit of certain statutes from the operation of which aliens are
expressly or by implication excluded. It is true, indeed, that we must
set off against these special privileges certain corresponding burdens
and liabilities. Subjects alone remain within the power and jurisdiction
of the Crown, even when they are outside its dominions. Wheresoever they
are, they owe fidelity and obedience to the laws and government of their
own state, while an alien may release himself at will from all such ties
of subjection. Nevertheless the status of a subject is a privilege and
not a disability, a benefit and not a burden. Citizenship is the
superior, residence the inferior title of state-membership.
Viewing the matter historically, we may say that citizenship is a legal
conception the importance of which is continuously diminishing. The
consistent tendency of legal development is to minimise the peculiar
rights and liabilities of subjects, and to make residence rather than
citizenship the essential and sufficient title of state-membership. The
acquisition and loss of citizenship are being gradually made easier,
while the legal effects of its acquisition and loss are being gradually
made less. The present state of things is, indeed, a compromise between
two fundamentally different ideas as to the constitution of a political
society. Citizenship and its remaining privileges are the outcome of the
primitive conception of the state as a personal and permanent union of
determinate individuals, for whose exclusive benefit the laws and
government of the state exist. Residence, regarded as a title of
membership and protection, is the product of the more modern conception
of the state, as consisting merely of the inhabitants for the time being
of a certain territory. The personal idea is gradually giving place to
the territorial, and the present twofold title of membership is the
outcome of a compromise between these two coexistent and competing
principles. It is not suggested, indeed, that the final issue of legal
development will be the total disappearance of personal in favour of
territorial membership. A compromise between the two extreme principles,
in some such form as that which has now been attained to, may well prove
permanent. In the present condition of international relations it is
clearly necessary.
We have seen that citizens are those members of a state, whose relation
to it is personal and permanent, and who by virtue of this relation
receive from the state special rights, powers, and privileges. If we ask
further, what is the title of citizenship, or how this special bond of
union is constituted, no general answer is possible. This is a matter of
law, varying in different systems, and from time to time in the same
system. English law claims as subjects all who are born within the
dominions of the Crown, regardless of their descent; while French law,
on the contrary, attaches French citizenship to French blood and
descent, regardless in general of the place of birth.[102] Viewed,
however, in respect of its historical origin and primitive form, we may
say that citizenship has its source in _nationality_. Fellow citizens
are those who belong not merely to the same state but also to the same
nation.
It is quite common to use the term citizenship and nationality as
synonymous, and this usage, though incorrect, is significant of a very
real connexion between the two ideas. Nationality is membership of a
nation; citizenship is one kind of membership of a state. A nation is a
society of men united by common blood and descent, and by the various
subsidiary bonds incidental thereto, such as common speech, religion,
and manners. A state, on the other hand, is a society of men united
under one government. These two forms of society are not necessarily
coincident. A single nation may be divided into several states, and
conversely a single state may comprise several nations or parts of
nations. The Hellenes were of one blood, but formed many states, while
the Roman empire included many nations, but was one state. Nevertheless
nations and states tend mutually to coincidence. The ethnic and the
political unity tend to coalesce. In every nation there is an impulse,
more or less powerful, to develop into a state—to add to the subsisting
community of descent a corresponding community of government and
political existence. Conversely every state tends to become a nation;
that is to say, the unity of political organisation eliminates in course
of time the national diversities within its borders, infusing throughout
all its population a new and common nationality, to the exclusion of all
remembered relationship with those beyond the limits of the state.
The historical origin of the conception of citizenship is to be found in
the fact that the state has grown out of the nation. Speaking generally
we may say that the state is in its origin the nation politically
organised. It is the nation incorporated for the purposes of government
and self-defence. The citizens are the members of a nation which has
thus developed into a state. Citizenship is nationality that has become
political. Men become united as fellow-citizens, because they are, or
are deemed to be, already united by the bond of common kinship. It is
for their benefit and protection that the body politic has been
established, and they are its only members. Their citizenship is simply
a legal and artificial bond of union superimposed upon the pre-existing
bond of a common nationality. With aliens this national state has no
concern. It was not created on their behalf, and they have no part or
lot in it, for its law and government are the exclusive birthright of
its citizens. Only by slow degrees does the notion of territorial
membership arise and make good its claim to legal recognition. Gradually
the government and the laws cease to be exclusively national and
personal, and become in part territorial also. The new principle makes
its way, that the state exists for the benefit and protection of the
whole population of a certain territory, and not merely on behalf of a
certain nationality. The law becomes more and more that of a country,
rather than that of a people. State-membership becomes twofold,
residence standing side by side with citizenship. It becomes possible to
belong to the Roman state without being a Roman. The citizens consent to
share their rights with outsiders, but the two classes never reach
equality, and the personal union stands permanently on a higher level
than the territorial. The special privileges retained by citizens at the
present day are the scanty relics of the once exclusive claims of the
nation to the protection and activities of the state.[103]
The relation between a state and its members is one of reciprocal
obligation. The state owes protection to its members, while they in turn
owe obedience and fidelity to it. Men belong to a state in order that
they may be defended by it against each other and against external
enemies. But this defence is not a privilege to be had for nothing, and
in return for its protection the state exacts from its members services
and sacrifices to which outsiders are not constrained. From its members
it collects its revenue; from them it requires the performance of public
duties; from them it demands an habitual submission to its will, as the
price of the benefits of its guardianship. Its members, therefore, are
not merely in a special manner under the protection of the state, but
are also in a special manner under its coercion.
This special duty of assistance, fidelity, and obedience, is called
_allegiance_, and is of two kinds, corresponding to the two classes of
members from whom it is required. Subjects owe _permanent_ allegiance to
the state, just as they are entitled to its permanent protection.
Resident aliens owe _temporary_ allegiance during the period of their
residence, just as their title to state protection is similarly limited.
An alien, when in England, must be faithful to the state, must submit to
its will, and obey its laws, even as an Englishman; but when he leaves
English shores, he leaves behind him his obligation of allegiance,
together with his title to protection. A British subject, on the other
hand, takes both of these things with him on his travels. The hand of
the state is still upon him for good and evil. If he commits treason
abroad he will answer for it in England. The courts of justice will
grant him redress even against the agents of the Crown itself; while the
executive will see that no harm befalls him at the hands of foreign
governments.[104]
§ 40. =The Constitution of the State.=
In the definition of a state as a society with a special end and
function, there is implied a permanent and definite organisation—a
determinate and systematic form, structure, and operation. A body
politic is not constituted by a temporary and casual union of
individuals, for the purpose of repelling an external enemy, or of
executing judgment on some domestic evildoer. The transition from
natural to political society is effected only when the union of
individuals has assumed a certain measure of permanence and
organisation, and when their combined operations in pursuit of their
common end have become in a certain degree systematic and definite. It
is only when a society has acquired such an organisation, whether by way
of agreement, custom, forcible imposition, or otherwise, that it takes
on the nature of a body politic or state. It is only then, that there
comes into existence the _organ_ which is essential to the performance
of those _functions_ which constitute political government.
The organisation of a modern state is of extraordinary complexity, and
it is usual to regard it as divisible into two distinct parts. The first
consists of its fundamental or essential elements; the second consists
of its secondary elements—the details of state structure and state
action. The first, essential, and basal portion is known as the
_constitution_ of the state. The second has no generic title.
Constitutional law is, as its name implies, the body of those legal
rules which determine the constitution of the state. It is not possible
to draw any hard and fast line between the constitution and the
remaining portions of the state’s organisation; neither, therefore, is
it possible to draw any such line between constitutional law and other
branches of the legal system. The distinction is one of degree, rather
than one of kind, and is drawn for purposes of practical convenience,
rather than in obedience to any logical requirement. The more important,
fundamental, and far-reaching any principle or practice is, the more
likely it is to be classed as constitutional. Conversely, the more
special, detailed, and limited in its application, the less likely it is
to find a place in any exposition of the law and practice of the
constitution. The structure of the supreme legislature and the methods
of its action pertain to constitutional law; the structure and
operations of subordinate legislatures, such as those possessed by the
colonies, are justly entitled to the same position; but those of such
subordinate legislatures as a borough council would by general consent
be treated as not sufficiently important and fundamental to be deemed
part of the constitution. So the organisation and powers of the Supreme
Court of Judicature, treated in outline and not in detail, pertain to
constitutional law; while it is otherwise with courts of inferior
jurisdiction, and with the detailed structure and practice of the
Supreme Court itself.
In some states, though not in England, the distinction between
constitutional law and the remaining portions of the legal system is
accentuated and made definite by the embodiment of the former in a
special and distinct enactment, the terms of which cannot be altered
by the ordinary forms of legislation. Such constitutions are said to
be _rigid_, as opposed to those which are _flexible_. That of the
United States of America, for example, is set forth in a document
agreed upon by the founders of the Commonwealth as containing all
those principles of state structure and action sufficiently important
to be deemed fundamental and therefore constitutional. The provisions
of this document cannot be altered without the consent of
three-fourths of the legislatures of the different states. The English
constitution on the other hand is flexible; it is defined and set
apart in no distinct document, and is not distinguishable from the
residue of the law in respect of the methods of its alteration.
We have defined constitutional law as the body of those legal principles
which determine the constitution of a state—which determine, that is to
say, the essential and fundamental portions of the state’s organisation.
We have here to face an apparent difficulty and a possible objection.
How, it may be asked, can the constitution of a state be determined by
law at all? There can be no law unless there is already a state whose
law it is, and there can be no state without a constitution. The state
and its constitution are therefore necessarily prior to the law. How
then does the law determine the constitution? Is constitutional law in
reality law at all? Is not the constitution a pure matter of _fact_,
with which the law has no concern? The answer is, that the constitution
is both a matter of fact and a matter of law. The constitution as it
exists _de facto_ underlies of necessity the constitution as it exists
_de jure_. Constitutional law involves concurrent constitutional
practice. It is merely the reflection, within courts of law, of the
external objective reality of the _de facto_ organisation of the state.
It is the theory of the constitution, as received by courts of justice.
It is the constitution, not as it is in itself, but as it appears when
looked at through the eye of the law.
The constitution as a matter of fact is logically prior to the
constitution as a matter of law. In other words constitutional practice
is logically prior to constitutional law. There may be a state and a
constitution without any law, but there can be no law without a state
and a constitution. No constitution, therefore, can have its source and
basis in the law. It has of necessity an extra-legal origin, for there
can be no talk of law, until some form of constitution has already
obtained _de facto_ establishment by way of actual usage and operation.
When it is once established, but not before, the law can and will take
notice of it. Constitutional facts will be reflected with more or less
accuracy in courts of justice as constitutional law. The law will
develop for itself a theory of the constitution, as it develops a theory
of most other things which may come in question in the administration of
justice.
As an illustration of the proposition that every constitution has an
extra-legal origin, we may take the United States of America. The
original constituent states achieved their independence by way of
rebellion against the lawful authority of the English Crown. Each of
these communities thereupon established a constitution for itself, by
way of popular consent expressed directly or through representatives. By
virtue of what legal power or authority was this done? Before these
constitutions were actually established, there was no law in these
colonies save that of England, and it was not by the authority of this
law, but in open and forcible defiance of it, that these colonial
communities set up new states and new constitutions. Their origin was
not merely extra-legal; it was illegal. Yet so soon as these
constitutions succeeded in obtaining _de facto_ establishment in the
rebellious colonies, they received recognition as legally valid from the
courts of those colonies. Constitutional law followed hard upon the
heels of constitutional fact. Courts, legislatures, and law had alike
their origin in the constitution, therefore the constitution could not
derive its origin from them. So also with every constitution that is
altered by way of illegal revolution. By what legal authority was the
Bill of Rights passed, and by what legal title did William III. assume
the Crown? Yet the Bill of Rights is now good law, and the successors of
King William have held the Crown by valid titles. _Quod fieri non debet,
factum valet._
Constitutional law, therefore, is the judicial theory, reflection, or
image of the constitution _de facto_, that is to say, of constitutional
practice. Here, as elsewhere, law and fact may be more or less
discordant. The constitution as seen by the eye of the law may not agree
in all points with the objective reality. Much constitutional doctrine
may be true in law but not in fact, or true in fact but not in law.
Power may exist _de jure_ but not _de facto_, or _de facto_ but not _de
jure_. In law, for example, the consent of the Crown is no less
necessary to legislation, than is that of the two houses of Parliament.
Yet in fact the Crown has no longer any power of refusing its consent.
Conversely, the whole system of cabinet government, together with the
control exercised by the House of Commons over the executive, is as
unknown in law as it is well established in fact. Even in respect of the
boundaries of the state’s territories the law and the fact may not
agree. A rebellious province may have achieved its _de facto_
independence, that is to say, it may have ceased to be in the _de facto_
possession and control of the state, long before this fact receives _de
jure_ recognition.
Nowhere is this discordance between the constitution in fact and in law
more serious and obvious than in England. A statement of the strict
legal theory of the British constitution would differ curiously from a
statement of the actual facts. Similar discrepancies exist, however, in
most other states. A complete account of a constitution, therefore,
involves a statement of constitutional custom as well as of
constitutional law. It involves an account of the organised state as it
exists in practice and in fact, as well as of the reflected image of
this organisation as it appears in legal theory.
Although the constitution _de jure_ and the constitution _de facto_ are
not necessarily the same, they nevertheless tend towards coincidence.
Constitutional law and practice react upon each other, each striving to
assimilate the other to itself. The objective facts of state
organisation tend to mould legal theory into conformity with themselves.
They seek expression and recognition through legislation, or through the
law-creating functions of the courts. Conversely, the accepted legal
theory endeavours to realise itself in the facts. The law, although it
necessarily involves a pre-existing constitution, may nevertheless react
upon and influence the constitution from which it springs. It cannot
create a constitution _ex nihilo_, but it may modify to any extent one
which already exists. Constitutional practice may alter, while
constitutional law remains the same, and _vice versa_, but the most
familiar and effective way of altering the practice is to alter the law.
The will of the body politic, as expressed through the legislature and
the courts, will commonly realise itself in constitutional fact no less
than in constitutional theory.
§ 41. =The Government of the State.=
_Political_ or _civil power_ is the power vested in any person or body
of persons of exercising any function of the state. It is the capacity
of evoking and directing the activities of the body politic. It is the
ability to make one’s will effective in any department of governmental
action. The aggregate of all the persons or groups of persons who
possess any share of this civil power constitutes the _Government_ of
the state. They are the agents through whom the state, as a corporate
unity, acts and moves and fulfils its end.
_Legislative, judicial, and executive power._—In respect of its
subject-matter, civil power is of three kinds, distinguished as
legislative, judicial, and executive; and the government is similarly
divisible into three great departments, namely, the legislature, the
judicature, and the executive. The functions which pertain to the first
and second of these departments have been already sufficiently
explained. The executive is simply the residue of the government, after
deducting the legislature and the judicature.
_Sovereign and subordinate power._—In respect of its extent civil power,
whether legislative, judicial, or executive, is of two kinds, being
either sovereign or subordinate. Sovereign or supreme power is that
which is absolute and uncontrolled within its own sphere. Within its
appointed limits, if any, its exercise and effective operation are not
dependent on or subject to the power of any other person. An act of
sovereign power is one which cannot be prevented or annulled by any
other power recognised by the constitution of the state. Subordinate
power, on the other hand, is that which, even in its own sphere of
operation, is in some degree subject to external control. There exists
some other constitutional power which is superior to it, and which can
prevent, restrict, or direct its exercise, or annul its operation.[105]
§ 42. =Independent and Dependent States.=
States may be classified in two different ways: (1) with respect to
their external relations to other states and (2) with respect to their
internal composition. The former mode has regard to their international,
the latter to their constitutional position and structure. Classified
internationally or externally, all states are of two kinds, being either
_independent_ or _dependent_. Classified constitutionally or internally,
they are also of two kinds, being either _unitary_ or _composite_.
An independent or sovereign state is one which possesses a separate
existence, being complete in itself, and not merely a part of a larger
whole to whose government it is subject. A dependent or non-sovereign
state, on the other hand, is one which is not thus complete and
self-existent, but is merely a constituent portion of a greater state
which includes both it and others, and to whose government it is
subject. The British Empire, the United States of America, and the
Kingdom of Italy are independent states. But the Commonwealth of
Australia, the Dominion of Canada, and the States of California and New
York are dependent, for they are not self-existent, but merely parts of
the British Empire and of the United States of America respectively, and
subject to their control and government.
It is maintained by some writers that a dependent state is not, properly
speaking, a state at all—that the constituent and dependent parts of an
independent state may be termed colonies, provinces, territories, and so
on, but have no valid claim to the name of state. This objection,
however, seems unfounded. It is contrary to the received usage of
speech, and that usage seems capable of logical justification. Whether a
part of a thing is entitled to the same name as the whole depends on
whether the whole and the part possess the same essential nature. A part
of a rope is itself a rope, if long enough to serve the ordinary
purposes of one; but part of a shilling is not itself a shilling.
Whether, therefore, any territorial division of a state is to be classed
as itself a state depends on whether, in itself and in isolation, it
possesses and fulfils the essential functions of one. This in its turn
depends on the extent of the autonomy or independent activity which is
permitted to it by the constitution. Speaking generally, we may say that
any such division which possesses a separate legislature, judicature,
and executive, and is thus separately organised for the maintenance of
peace and justice, is entitled to be regarded as itself a state. The
Commonwealth of Australia is a true state, though merely a part of the
larger state of the British Empire, for it conforms to the definition of
a state, as a society established and organised for the administration
of justice and for external defence. Were it to become independent, it
could, without altering its constitution, or taking upon itself any
further function than those which it now possesses, stand alone as a
distinct and self-sufficient political community. But a municipal
corporation or a district council has not in itself the nature of a
political society, for it does not in itself fulfil the essential ends
of one.
International law takes account only of independent or sovereign states,
for it consists of the rules which regulate the relations of such states
to one another. A dependent state is not an international unit, and
possesses no international personality. Internationally regarded, its
existence is simply a detail of the internal constitution of the larger
and independent state of which it forms a part. This internal structure
pertains exclusively to the constitutional law of the state itself, and
the law of nations is not concerned with it. The existence of the
Dominion of Canada or of the State of Victoria is a constitutional, not
an international fact, for in the eye of the law of nations the whole
British Empire is a single undivided unit.[106]
Independent states are themselves of two kinds, distinguished as _fully
sovereign_ and _semi-sovereign_. A fully sovereign state is, as its name
imports, one whose sovereignty is in no way derogated from by any
control exercised over it by another state. It is possessed of absolute
and complete autonomy. A semi-sovereign state, on the other hand, is one
which is to a greater or less extent subordinate to some other, its
sovereignty or autonomy being imperfect by reason of external control.
The authority so exercised over it is termed a protectorate or sometimes
suzerainty. Most independent states are fully sovereign, the others
being few in number and anomalous in character. An example is Zanzibar,
which stands in this relation to the British Empire.
It is carefully to be noticed that semi-sovereign states are
independent, in the sense already explained. They are self-existent,
international units, and not merely parts of the state under whose
control they are. Zanzibar is not part of the British Empire. These are
two distinct states, bearing towards each other a relation which is
international and external, and not merely constitutional and internal.
In order that a state should be dependent or non-sovereign, it is not
enough that it should be under the control of another state; it must
also be a constituent part of the state under whose control it is. The
mere exercise of a partial dominion by one state over another does not
of necessity incorporate the two into a higher unity. The establishment
of a protectorate is not equivalent to annexation. The acts of the one
state are not imputed to the other; the property and territory of the
one are not those of the other also; the subjects of the one are not
those of the other; one may be at peace while the other is at war. The
Ionian Islands were formerly a protected state under the control of
Great Britain; but during the Crimean War they remained neutral and at
peace.
A semi-sovereign state is in a position of unstable equilibrium. It is
the outcome of a compromise between dependence and independence, which,
save in exceptional circumstances, is not likely to be permanent. The
control exercised by one independent state over another is in most cases
destined either to disappear altogether, so that the semi-sovereign
state becomes fully sovereign, or to develop until the separate
international existence of the inferior is merged in that of the
superior, the semi-sovereign state descending to the lower level of
dependency, and becoming merely a constitutional subdivision of the
state to which it is subordinate.
§ 43. =Unitary and Composite States.=
Classified constitutionally, in respect of their internal structure,
instead of internationally, in respect of their external relations,
states are of two kinds, being either _unitary_ or _composite_. A
unitary or simple state is one which is not made up of territorial
divisions which are states themselves. A composite state on the other
hand is one which is itself an aggregate or group of constituent states.
The British Empire is composite, because many of its territorial
divisions are possessed of such autonomy as to be states themselves.
Some of these constituent states are also composite in their turn,
Australia and Canada, for example, being composed of unitary states such
as Queensland and Quebec.
Composite states (whether dependent or independent) are of two kinds,
which may be distinguished as _imperial_ and _federal_. The difference
is to be found in the nature of that common government which is the
essential bond of union between the constituent states. In an imperial
state the government of one of the parts is at the same time the common
government of the whole. In a federal state, on the contrary, the common
government is not that of one of the parts, but a central government in
which all the constituent states participate. The constitution of the
British Empire is imperial; that of the United States of America is
federal. In the former, one of the parts, namely, Great Britain and
Ireland, is preferred before the others, as supplying the authority
which binds all of them into a single whole. The government of the
United Kingdom possesses a double capacity, local and imperial. In its
local capacity it administers the affairs of England, Scotland, and
Ireland, just as the government at Cape Town administers the affairs of
Cape Colony. But in another capacity it is the government of the whole
empire, and provides the bond of common authority which unites all the
constituent states of the empire into a single body politic. In a
federal, as contrasted with an imperial constitution, there is no such
predominance of one of the constituent states. The government of the
whole is one in which all the parts have their allotted shares. The
unity of an imperial state is a relation of all the other parts to one
of them; the unity of a federal state is a relation of all the parts to
a central and common authority.[107]
SUMMARY
Definition of the State.
Functions of the State { Essential { Administration of Justice.
{ { War.
{ Secondary.
Relations between the two essential functions.
The judicial and extrajudicial use of force.
Minor differences.
The territory of the State.
The members of the State { Citizens or subjects.
{ Resident aliens.
Citizenship in its historical aspect.
Citizenship and nationality.
Allegiance { Personal and permanent.
{ Local and temporary.
The constitution of the State.
Constitutional law.
Its nature.
Its relation to constitutional fact.
The government of the State.
Civil power.
Legislative, judicial, and executive power.
Sovereign and subordinate power.
The classification of States:
{ Independent { Fully Sovereign.
{ Externally or { { Semi-Sovereign.
{ Internationally {
States { { Dependent.
{
{ Internally { Unitary.
{ or Constitutionally { Composite { Imperial.
{ { Federal.
CHAPTER VI.
THE SOURCES OF LAW.
§ 44. =Formal and Material Sources.=
The expression source of law (_fons juris_) has several meanings which
it is necessary to distinguish clearly. We must distinguish in the first
place between the formal and the material sources of the law. A formal
source is that from which a rule of law derives its force and validity.
It is that from which the authority of the law proceeds. The material
sources, on the other hand, are those from which is derived the matter,
not the validity of the law. The material source supplies the substance
of the rule to which the formal source gives the force and nature of
law.
The formal source of the whole body of the civil law is one and the
same, namely, the will and power of the state as manifested in courts of
justice. Whatever rules have the sanction and authority of the body
politic in the administration of justice have thereby the force of law;
and in such force no other rules whatever have any share. The matter of
the law may be drawn from all kinds of material sources, but for its
legal validity it must look to the tribunals of the state and to them
alone. Customary law, for example, has its material source in the usages
of those who are subject to it; but it has its formal source in the will
of the state, no less than statutory law itself.
§ 45. =Legal and Historical Sources.=
Though the formal source of the law is one, its material sources are
many, and they are divisible into two classes which may be distinguished
as legal and historical. The former are those sources which are
recognised as such by the law itself. The latter are those sources which
are such in fact, but are nevertheless destitute of legal recognition.
This is an important distinction which calls for careful consideration.
In respect of its material origin a rule of law is often of long
descent. The immediate source of it may be the decision of an English
court of justice. But that court may have drawn the matter of its
decision from the writings of some lawyer, let us say the celebrated
Frenchman, Pothier; and Pothier in his turn may have taken it from the
compilations of the Emperor Justinian, who may have obtained it from the
praetorian edict. In such a case all these things—the decision, the
works of Pothier, the _corpus juris civilis_, and the _edictum
perpetuum_—are the successive material sources of the rule of English
law. But there is a difference between them, for the precedent is the
legal source of the rule, and the others are merely its historical
sources. The precedent is its source not merely in fact, but in law
also; the others are its sources in fact, but obtain no legal
recognition as such. Our law knows well the nature and effect of
precedents, but it knows nothing of Pothier, or of Tribonian, or of the
Urban Praetor. The proposition that every principle embodied in a
judicial decision has for the future the force of law is not merely a
statement of historical fact as to the growth of English law; it is
itself a rule of law. But the proposition that much of the law of Rome
has become incorporated into the law of England is simply a statement of
fact, which has in law no relevance or recognition.
The legal sources of law are authoritative, the historical are
unauthoritative. The former are allowed by the law courts as of right;
the latter have no such claim; they influence more or less extensively
the course of legal development, but they speak with no authority. No
rule of law demands their recognition. Thus both the statute-book and
the works of Jeremy Bentham are material sources of English law. The
historians of that system have to take account of both of them. Much
that is now established law has its source in the ponderous volumes of
the great law-reformer. Yet there is an essential difference between the
two cases. What the statute-book says becomes law forthwith and _ipso
jure_; but what Bentham says may or may not become law, and if it does,
it is by no claim of right but solely through the unconstrained good
pleasure of the legislature or the courts. So the decisions of English
courts are a legal and authoritative source of English law, but those of
American courts are in England merely an historical and unauthoritative
source. They are treated with respect by English judges, and are in fact
the ground and origin of an appreciable portion of English law, but
their operation is persuasive merely, not authoritative, and no rule of
English law extends recognition to them.
The legal sources are the only gates through which new principles can
find entrance into the law. Historical sources operate only mediately
and indirectly. They are merely the various precedent links in that
chain of which the ultimate link must be some legal source to which the
rule of law is directly attached.
We are here concerned solely with the legal sources of the law. Its
formal source is involved in the definition of the law itself, and has
been already sufficiently dealt with. Its historical sources pertain to
legal history, not to legal theory. Hereafter, when we speak of the
sources of law, we shall mean by that term the legal sources
exclusively.
It may help us to attain a clearer understanding of a somewhat difficult
matter if we attempt to reach a definition of these sources from another
standpoint. In every progressive community the law undergoes a
continuous process of growth and change. This process of legal evolution
does not proceed by haphazard. It is not left to the discretion of the
judges to apply one law to-day and another to-morrow, for the growth of
the law is itself a matter governed by the law. Every legal system
contains certain rules determining the establishment of new law and the
disappearance of old. That is to say, it contains certain rules to this
effect: that all new principles which conform to such and such
requirements are to be recognised as new principles of law, and applied
accordingly in substitution for, or as supplementary to the old. Thus it
is itself a principle of English law that any principle involved in a
judicial decision has the force of law. Similar legal recognition is
extended to the law-producing effect of statutes and immemorial customs.
Rules such as these establish the sources of the law. A source of law,
then, is any fact which in accordance with the law determines the
judicial recognition and acceptance of any new rule as having the force
of law. It is the legal cause of the admittance by the judicature of any
new principle as one which will be observed for the future in the
administration of justice.
§ 46. =A List of Legal Sources.=
We cannot deduce from the nature of law the nature of its sources, for
these are merely contingent, not necessary; they differ in different
systems and even in the same system at different periods of its growth.
It is possible, however, to distinguish five sources which in England or
elsewhere have possessed predominant influence. These are Legislation,
Custom, Precedent, Professional Opinion, and Agreement. Legislation is
the declaration or enunciation of a principle by some adequate authority
in the body politic; custom is the realisation or embodiment of a
principle in a uniformity of practice; precedent is the judicial
application of a principle to its appropriate facts; professional or
expert opinion is the approval or recognition of a principle by the
general voice of those whose business it is to know the law; agreement
is the adoption of a principle by the consent of those whose interests
are affected by it. Such declaration, realisation, application,
approval, and adoption determine in each case the judicial recognition
as law of the principle so dealt with, and therefore constitute the
sources of the law.
Law which has its source in legislation is called statute, enacted, or
written law. That which is based on custom is customary law. Precedent
produces case-law, and agreement conventional law. That which is created
by professional or expert opinion has no recognised title, but in
analogy to German usage we may call it juristic law (_Juristenrecht_).
There are two chief reasons for allowing law-creative operation to these
various sources. In the first place there is a presumption that
principles proceeding from them are principles of truth and justice,
worthy of adoption by the judicature. A statute is an attempt made by
the legislature to formulate the rules of right for the use and
direction of the judicature. This attempt is not always successful, for
law and justice are sometimes far apart; yet no better device has been
discovered, and the courts accept the rules so formulated as
authoritative and final. A similar presumption of truth and justice is
one of the grounds of the operation of precedent also. When one of the
superior courts of law has, after solemn argument and full
consideration, laid down a certain principle as one fit to be applied to
the case in hand, there is a reasonable presumption that this decision
is correct, and that the principle is a just one fit to be applied to
all similar cases in the future, that is to say, fit to receive
permanent recognition as a new rule of law. _Res judicata pro veritate
accipitur._[108] So also in the case of custom. Customary law has as one
of its foundations the presumption that whatever is customary is just
and expedient. The popular conscience embodies itself in popular usage,
and the law courts accept as authoritative the principles so sanctioned
and approved. Professional opinion—the opinion of lawyers—is merely an
historical, not a legal source of English law. In other systems,
however, and chiefly in that of Rome, it has shown itself capable of
serving as one of the most important of legal sources. Almost all that
is of special value in Roman law has this as its origin; the Digest of
Justinian consists wholly of extracts from the writings of Roman
lawyers. It is clear that one of the grounds for the allowance of such
opinion as a source of law is to be found in a reasonable confidence in
the skill and knowledge of the expert. _Cuique in sua arte credendum
est._ Finally we may see the same influence at work in the case of the
fifth and last source, namely agreement. Every man may be trusted to see
to his own interests and to claim his own rights. Whatever rule,
therefore, is freely agreed upon by two or more persons as defining
their mutual rights and obligations may be confidently accepted by the
law courts as a true and just rule between those who have so consented
to it. As to them, it is fit and proper to be applied as law.
There is, however, a second ground of not less importance on which the
efficacy of these legal sources rests. They are not merely presumptive
evidence of the justice and truth of the principles proceeding from
them, but they are the basis of a rational expectation on the part of
all persons concerned that these principles will be consistently acted
on in the future. Justice demands that such expectations shall be
fulfilled. Even when a rule does not accurately conform to the ideal
standard, it may be a right and reasonable thing to adhere to it, when
it has once been formulated. For men act on the faith of it; and to
overturn an imperfect rule with all the expectations built upon it will
often do more harm than can be counterbalanced by any benefits to be
derived from the substitution of a better principle. Thus legislation is
an announcement to all the world that in future certain principles will
be applied in the administration of justice. Forthwith the expectations,
dealings, and contracts of all men concerned are based upon the
principles so declared, and the disregard of them by the judicature
would be a breach of faith and an ill service to the cause of justice.
Similarly the decision of a court may not be perfectly wise or just; but
whether it is or not, all men expect that like decisions will for the
future be given in like cases. It is often more important that the
course of judicial decision should be uniform and within the limits of
human foresight, than that it should be ideally just. So with all the
other sources of law. That which has always been customary in the past
is entitled for this reason alone to a certain measure of allowance and
recognition in the future. That which is approved by the general opinion
of the legal profession serves so largely as the basis of the actions
and expectations of men, that the courts of law will not lightly depart
from it. That which all parties interested have agreed to, and which
they have declared as valid law to bind them, may not, for all that, be
absolutely just and reasonable; but they must be held bound by it none
the less, otherwise there will be no certainty of dealing among mankind.
§ 47. =The Sources of Law as Constitutive and Abrogative.=
The process of legal evolution is threefold. It comprises in the first
place the increase or growth of law—that is to say, the substitution of
legal principles for the discretion of courts, and the transformation of
fact into law. It involves in the second place the opposite process of
the decrease of law—the reconquest by the _arbitrium judicis_ of domains
formerly occupied by legal principle—the transformation of law into
fact. Finally it includes the alteration of law—that is to say, the
destruction of one legal principle and the substitution of another in
its stead.
To carry out this threefold process, it is clear that we require
instruments of legal development which are capable not merely of
creating new law, but of destroying old. It is not sufficient to obtain
new law which stands side by side with the old, as a supplement to it;
it is necessary to obtain new law which excludes the old, as a
substitute for it. We must possess instruments of abrogative, and not
merely instruments of constitutive power. So far we have considered the
sources of law only in respect of this latter operation. We have yet to
consider to what extent they possess the power of destroying law, as
well as of creating it. The conservative virtue of the law has at all
times been very great. We find, accordingly, that the constitutive
operation of the sources is much more general than the abrogative. It by
no means follows that, because a certain fact is capable of giving rise
to a new rule, it is equally capable of getting rid of an old one.
Legislation, indeed, is pre-eminent in this respect above all other
legal sources. Alone among the instruments of legal development, it
works with equal facility in both ways; and it is this peculiarity which
makes it so efficient a method of legal reform.
In the strict theory of the law, precedent is wholly constitutive, being
quite destitute of abrogative power. When the law is already settled,
the judges have no authority save to obey and administer it. Their power
of making new law by way of judicial decision is limited to those vacant
spaces where there is as yet no other law which they can apply.
Precedents make law, but cannot alter it.
Mercantile custom resembles precedent. So long as the ground is
vacant—so long as there is no rule of the common law _in pari
materia_—the proved custom of merchants will be allowed by the courts as
a source of new law. But so soon as from this or any other source
principles have been once established in the matter, there is no longer
any room for new rules thus arising. Immemorial custom, on the other
hand, has full power to derogate from the common law, though the statute
law is beyond its operation.
Agreement possesses considerable, though not complete, abrogative power.
A great part of the law is subject to supersession and modification by
the consent of all persons interested. _Modus et conventio vincunt
legem._ It is law only until and unless there is some agreement to the
contrary. The residue of the law, however, is peremptory, and not to be
thus excluded by consent. Agreements which attempt to derogate from it,
and to establish special law in place of it, are illegal and void.
§ 48. =Sources of Law and Sources of Rights.=
The sources of law may also serve as sources of rights. By a source or
title of rights is meant some fact which is legally constitutive of
rights. It is the _de facto_ antecedent of a legal right just as a
source of law is the _de facto_ antecedent of a legal principle. An
examination of any legal system will show that to a large extent the
same classes of facts which operate as sources of law operate as
sources of rights also. The two kinds of sources form intersecting
circles. Some facts create law but not rights; some create rights but
not law; some create both at once. An act of Parliament for example is
a typical source of law; but there are numerous private acts which are
clearly titles of legal rights. Such is an act of divorce, or an act
granting a pension for public services, or an act incorporating a
company. So in the case of precedent, the judicial decision is a
source of rights as between the parties to it, though a source of law
as regards the world at large. Regarded as creative of rights, it is
called a judgment; regarded as creative of law, it is called a
precedent. So also immemorial custom does upon occasion give rise to
rights as well as to law. In respect of the former operation, it is
specifically distinguished as prescription, while as a source of law
it retains the generic title of custom. That an agreement operates as
a source of rights is a fact too familiar to require illustration. The
proposition which really needs emphatic statement in this case is that
agreement is not exclusively a title of rights, but is also operative
as a source of law.
§ 49. =Ultimate Legal Principles.=
All rules of law have historical sources. As a matter of fact and
history they have their origin somewhere, though we may not know what it
is. But not all of them have legal sources. Were this so, it would be
necessary for the law to proceed _ad infinitum_ in tracing the descent
of its principles. It is requisite that the law should postulate one or
more first causes, whose operation is ultimate, and whose authority is
underived. In other words there must be found in every legal system
certain ultimate principles, from which all others are derived, but
which are themselves self-existent. Before there can be any talk of
legal sources, there must be already in existence some law which
establishes them and gives them their authority. The rule that a man may
not ride a bicycle on the footpath may have its source in the by-laws of
a municipal council; the rule that these by-laws have the force of law
has its source in an act of Parliament. But whence comes the rule that
acts of Parliament have the force of law? This is legally ultimate; its
source is historical only, not legal. The historians of the constitution
know its origin, but lawyers must accept it as self-existent. It is the
law because it is the law, and for no other reason that it is possible
for the law itself to take notice of. No statute can confer this power
upon Parliament, for this would be to assume and act on the very power
that is to be conferred. So also the rule that judicial decisions have
the force of law is legally ultimate and underived. No statute lays it
down. It is certainly recognised by many precedents, but no precedent
can confer authority upon precedent. It must first possess authority
before it can confer it.
If we inquire as to the number of these ultimate principles, the answer
is that a legal system is free to recognise any number of them, but is
not bound to recognise more than one. From any one ultimate legal source
it is possible for the whole law to be derived, but one such there must
be. A statute for example may at any time give statutory authority to
the operation of precedent,[109] and so reduce it from an ultimate to a
derivative source of law.[110]
SUMMARY.
Sources of law {Formal—source of the authority of the law.
{Material—source of the contents of the law.
Material sources {Legal—immediate and legally recognised.
{Historical—remote and not legally recognised.
{1. Legislation—enacted law.
{2. Custom—customary law.
Legal sources {3. Precedent—case-law.
{4. Professional opinion—juristic law.
{5. Agreement—conventional law.
Grounds of the recognition of these sources.
Operation of sources {Constitutive—adding new law to old.
{Abrogative—substituting new law for old.
Extent of abrogative power possessed by the sources.
Relation between sources of law and sources of rights.
Legal principles {Ultimate—without legal sources.
{Derivative—drawn from legal sources.
CHAPTER VII.
LEGISLATION.
§ 50. =The Nature of Legislation.=
Legislation is that source of law which consists in the declaration of
legal rules by a competent authority. It is such an enunciation or
promulgation of principles as confers upon them the force of law. It is
such a declaration of principles as constitutes a legal ground for their
recognition as law for the future by the tribunals of the state.
Although this is the strict and most usual application of the term
legislation, there are two other occasional uses of it which require to
be distinguished. It is sometimes used in a wide sense to include all
methods of law-making. To legislate is to make new law in any fashion.
Any act done with the intent and the effect of adding to or altering the
law is, in this wider sense, an act of legislative authority. As so
used, legislation includes all the sources of law, and not merely one of
them. “There can be no law,” says Austin,[111] “without a legislative
act.” Thus when judges establish a new principle by means of a judicial
decision, they may be said to exercise legislative, and not merely
judicial power. Yet this is clearly not legislation in the strict sense
already defined. The law-creative efficacy of precedent is to be found
not in the mere declaration of new principles but in the actual
application of them. Judges have in certain cases true legislative
power—as where they issue rules of court-but in ordinary cases the
judicial declaration of the law, unaccompanied by the judicial
application of it, has no legal authority whatever. So the act of the
parties to a contract, in laying down rules of special law for
themselves to the exclusion of the common law, may be regarded as an
exercise of legislative power. But though they have made law, they have
made it by way of mutual agreement for themselves, not by way of
authoritative declaration for other persons.
The writers who make use of the term in this wide sense divide
legislation into two kinds, which they distinguish as _direct_ and
_indirect_. The former is legislation in the narrow sense—the making of
law by means of the declaration of it. Indirect legislation, on the
other hand, includes all other modes in which the law is made.[112]
In a third sense legislation includes every expression of the will of
the legislature, whether directed to the making of law or not. In this
use, every act of Parliament is an instance of legislation, irrespective
altogether of its purpose and effect. The judicature, as we have seen,
does many things which do not fall within the administration of justice
in its strict sense; yet in a wider use the term is extended to include
all the activities of the courts. So here, the legislature does not
confine its action to the making of law, yet all its functions are
included within the term legislation. An act of Parliament may do no
more than ratify a treaty with a foreign state, or alter the calendar,
or establish a uniform time throughout the realm, or make some change in
the style and title of the reigning sovereign, or alter the coinage, or
appropriate public money, or declare war or make peace, or grant a
divorce, or annex or abandon territory. All this is legislation in a
wide sense, but it is not that declaration of legal principles with
which, as one of the sources of law, we are here alone concerned.
Law that has its source in legislation may be most accurately termed
_enacted_ law, all other forms being distinguished as _unenacted_. The
more familiar term, however, is _statute law_ as opposed to the _common
law_; but this, though sufficiently correct for most purposes, is
defective, inasmuch as the word statute does not extend to all modes of
legislation, but is limited to acts of Parliament. Blackstone and other
writers use the expressions _written_ and _unwritten_ law to indicate
the distinction in question. Much law, however, is reduced to writing,
even in its inception, besides that which originates in legislation. The
terms are derived from the Romans, who meant by _jus non scriptum_
customary law, all other, whether enacted or unenacted, being _jus
scriptum_. We shall see later, that according to the older theory, as we
find it in Blackstone and his predecessors, all English law proceeds
either from legislation or from custom. The common law was customary,
and therefore, adopting the Roman usage, unwritten law. All the residue
was enacted, and therefore written law.[113]
§ 51. =Supreme and Subordinate Legislation.=
Legislation is either _supreme_ or _subordinate_. The former is that
which proceeds from the supreme or sovereign power in the state, and
which is therefore incapable of being repealed, annulled, or controlled
by any other legislative authority. Subordinate legislation is that
which proceeds from any authority other than the sovereign power, and is
therefore dependent for its continued existence and validity on some
superior or supreme authority. The legislation of the Imperial
Parliament is supreme, for “what the parliament doth, no authority upon
earth can undo.”[114] All other forms of legislative activity recognised
by the law of England are subordinate. They may be regarded as having
their origin in a delegation of the power of Parliament to inferior
authorities, which in the exercise of their delegated functions remain
subject to the control of the sovereign legislature.
The chief forms of subordinate legislation are five in number.
(1) _Colonial._—The powers of self-government entrusted to the colonies
and other dependencies of the Crown are subject to the control of the
Imperial legislature. The Parliament at Westminster may repeal, alter,
or supersede any colonial enactment, and such enactments constitute,
accordingly, the first and most important species of subordinate
legislation.
(2) _Executive_.—The essential function of the executive is to conduct
the administrative departments of the state, but it combines with this
certain subordinate legislative powers which have been expressly
delegated to it by Parliament, or pertain to it by the common law. A
statute, for example, occasionally entrusts to some department of the
executive government the duty of supplementing the statutory provisions
by the issue of more detailed regulations bearing on the same matter. So
it is part of the prerogative of the Crown at common law to make laws
for the government of territories acquired by conquest, and not yet
possessed of representative local legislatures.
(3) _Judicial_.—In the same way, certain delegated legislative powers
are possessed by the judicature. The superior courts have the power of
making rules for the regulation of their own procedure. This is judicial
legislation in the true sense of the term, differing in this respect
from the so-called legislative action of the courts in creating new law
by way of precedent.
(4) _Municipal_.—Municipal authorities are entrusted by the law with
limited and subordinate powers of establishing special law for the
districts under their control. The enactments so authorised are termed
by-laws, and this form of legislation may be distinguished as municipal.
(5) _Autonomous_.—All the kinds of legislation which we have hitherto
considered proceed from the state itself, either in its supreme or in
one or other of its many subordinate departments. But this is not
necessarily the case, for legislation is not a function that is
essentially limited to the state. The declaration of new principles
amounts to legislation not because it is the voice of the state, but
because it is accepted by the state as a sufficient legal ground for
giving effect to those new principles in its courts of justice. The
_will_ of the state is, indeed, as we have already seen, the one and
only _formal_ source of law; but it does not follow from this that the
_word_ of the state is the sole form of that _material_ source of the
law which is called legislation. In the allowance of new law the state
may hearken to other voices than its own. In general, indeed, the power
of legislation is far too important to be committed to any person or
body of persons save the incorporate community itself. The great bulk of
enacted law is promulgated by the state in its own person. But in
exceptional cases it has been found possible and expedient to entrust
this power to private hands. The law gives to certain groups of private
individuals limited legislative authority touching matters which concern
themselves. A railway company, for example, is able to make by-laws for
the regulation of its undertaking. A university may make statutes
binding upon its members. A registered company may alter those articles
of association by which its constitution and management are determined.
Legislation thus effected by private persons, and the law so created,
may be distinguished as _autonomic_.
There is a close resemblance between autonomic law and conventional law,
but there is also a real distinction between them. The creation of each
is a function entrusted by the state to private persons. But
conventional law is the product of agreement, and therefore is law for
none except those who have consented to its creation. Autonomic law, on
the contrary, is the product of a true form of legislation, and is
imposed by superior authority _in invitos_. The act of a general meeting
of shareholders in altering the articles of association is an act of
autonomous legislation, because the majority has the power of imposing
its will in this respect upon a dissentient minority. All the
shareholders may in fact agree, but the law-creating efficacy of their
resolution is independent of any such accidental unanimity. We may say,
if we please, that with respect to consenting shareholders the
resolution is an agreement, while with respect to dissentients it is an
act of legislative authority. The original articles of association, on
the other hand, as they stand when the company is first formed,
constitute a body of conventional, not autonomic law. They are law for
all shareholders by virtue of their own agreement to become members of
the company, and are not the outcome of any subsequent exercise of
legislative authority vested in the majority.[115]
§ 52. =Relation of Legislation to other Sources.=
So great is the superiority of legislation over all other methods of
legal evolution, that the tendency of advancing civilisation is to
acknowledge its exclusive claim, and to discard the other instruments as
relics of the infancy of law. The expressed will of the state tends to
obtain recognition not only as the sole formal source of law, but as its
exclusive material source also. Statute law has already become the type
or standard, from which the other forms are more or less abnormal
variations. Nothing is more natural than this from our modern point of
view, nothing less natural from that of primitive jurisprudence. Early
law is conceived as _jus_ (the principles of justice), rather than as
_lex_ (the will of the state). The function of the state in its earlier
conception is to _enforce_ the law, not to _make_ it. The rules so to be
enforced are those rules of right which are found realised in the
immemorial customs of the nation, or which are sanctioned by religious
faith and practice, or which have been divinely revealed to men. It is
well known that the earliest codes were the work, not of mortal men, but
of the gods.[116] That the material contents of the law depend upon the
express or tacit will of the state, that principles sanctioned by
religion or immemorial usage are laws only so long as the prince chooses
to retain them unaltered, that it is within the powders and functions of
political rulers to change and subvert the laws at their own good
pleasure, are beliefs which mark considerable progress along the road of
political and legal development. Until such progress has been made, and
until the petrifying influence of the primitive alliance of law with
religion and immutable custom has been to some extent dissolved, the
part played by human legislation in the development of the legal system
is necessarily small, and may be even non-existent. As it is the most
powerful, so it is the latest of the instruments of legal growth.
In considering the advantages of legislation, it will be convenient to
contrast it specially with its most formidable rival, namely precedent.
So considered, the first virtue of legislation lies in its abrogative
power. It is not merely a source of new law, but is equally effective in
abolishing that which already exists. But precedent possesses merely
constitutive efficacy; it is capable of producing very good law—better
in some respects than that which we obtain by way of legislation—but its
defect is that, except in a very imperfect and indirect manner, its
operation is irreversible. What it does, it does once for all. It cannot
go back upon its footsteps, and do well what it has once done ill.
Legislation, therefore, is the indispensable instrument, not indeed of
legal growth, but of legal reform. As a destructive and reformative
agent it has no equivalent, and without it all law is as that of the
Medes and Persians.
The second respect in which legislation is superior to precedent is that
it allows an advantageous division of labour, which here, as elsewhere,
results in increased efficiency. The legislature becomes differentiated
from the judicature, the duty of the former being to make law, while
that of the latter is to interpret and apply it. Speaking generally, a
legal system will be best administered, when those who administer it
have this as their sole function. Precedent, on the contrary, unites in
the same hands the business of making the law and that of enforcing it.
It is true, however, that legislation does not necessarily involve any
such division of functions. It is not of the essence of this form of
legal development that it should proceed from a distinct department of
the state, whose business it is to give laws to the judicature. It is
perfectly possible for the law to develop by a process of true
legislation, in the absence of any legislative organ other than the
courts of justice themselves. We have already noticed the existence of
this judicial legislation, in considering the various forms of
subordinate legislative power. The most celebrated instance of it is the
case of the Roman praetor. In addition to his purely judicial functions,
he possessed the _jus edicendi_, that is to say, legislative powers in
respect of the matters pertaining to his office. It was customary for
each praetor at the commencement of his term of office to publish an
_edictum_ containing a declaration of the principles which he intended
to observe in the exercise of his judicial functions. Each such edict
was naturally identical in its main outlines with that which preceded
it, the alterations made in the old law by each successive praetor being
for the most part accepted by his successors. By this exercise of
legislative power on the part of judicial officers, a very considerable
body of new law was in course of time established, distinguished as the
_jus praetorium_ from the older _jus civile_. Powers of judicial
legislation, similar in kind, though less in extent, are at the present
day very generally conferred upon the higher courts of justice. Yet
though not theoretically necessary, it is certainly expedient, that at
least in its higher forms the function of law-making should be vested in
a department of the state superior to and independent of the judicature.
A third advantage of statute law is that the formal declaration of it is
a condition precedent to its application in courts of justice. Case-law,
on the contrary, is created and declared in the very act of applying and
enforcing it. Legislation satisfies the requirement of natural justice
that laws shall be known before they are enforced; but case-law operates
retrospectively, being created _pro re nata_, and applied to facts which
are prior in date to the law itself.[117]
Fourthly, legislation can by way of anticipation make rules for cases
that have not yet arisen, whereas precedent must needs wait until the
actual concrete instance comes before the courts for decision. Precedent
is dependent on, legislation independent of, the accidental course of
litigation. So far as precedent is concerned, a point of law must remain
unsettled, until by chance the very case arises. Legislation can fill up
a vacancy, or settle a doubt in the legal system, as soon as the
existence of this defect is called to the attention of the legislature.
Case-law, therefore, is essentially incomplete, uncertain, and
unsystematic; while if statute law shows the same defects, it is only
through the lethargy or incapacity of the legislature. As a set-off
against this demerit of precedent, it is to be observed that a rule
formulated by the judicature in view of the actual case to which it is
to be applied is not unlikely to be of better workmanship, and more
carefully adapted to the ends to be served by it, than one laid down _a
priori_ by the legislature.
Finally, statute law is greatly superior to case-law in point of form.
The product of legislation assumes the form of abstract propositions,
but that of precedent is merged in the concrete details of the actual
cases to which it owes its origin. Statute law, therefore is brief,
clear, easily accessible and knowable, while case-law is buried from
sight and knowledge in the huge and daily growing mass of the records of
bygone litigation. Case-law is gold in the mine—a few grains of the
precious metal to the ton of useless matter—while statute law is coin of
the realm ready for immediate use.
This very perfection of form, however, brings with it a defect of
substance from which case-law is free. Statute law is embodied in an
authoritative form of written words, and this literary expression is an
essential part of the law itself. It is the duty of the courts to apply
the letter of the law. They are concerned with the spirit and reason of
it only so far as the spirit and reason have succeeded in finding
expression through the letter. Case-law, on the contrary, has no letter.
It has no authoritative verbal expression, and there is no barrier
between the courts of justice and the very spirit and purpose of the law
which they are called on to administer. In interpreting and applying
statute law, the courts are concerned with words and their true meaning;
in interpreting and applying case-law, they are dealing with ideas and
principles and their just and reasonable contents and operation. Statute
law is rigid, straitly bound within the limits of authoritative
formulae; case-law, with all its imperfections, has at least this merit,
that it remains in living contact with the reason and justice of the
matter, and draws from this source a flexibility and a power of growth
and adaptation which are too much wanting in the _litera scripta_ of
enacted law.
§ 53. =Codification.=
The advantages of enacted law so greatly outweigh its defects that there
can be no doubt as to the ultimate issue of its rivalry with the other
forms of legal development and expression. The whole tendency in modern
times is towards the process which, since the days of Bentham, has been
known as codification, that is to say, the reduction of the whole
_corpus juris_, so far as practicable, to the form of enacted law. In
this respect England lags far behind the Continent. Since the middle of
the eighteenth century the process has been going on in European
countries, and is now all but complete. Nearly everywhere the old medley
of civil, canon, customary, and enacted law has given place to codes
constructed with more or less skill and success. Even in England, and
the other countries to which English law has spread, tentative steps are
being taken on the same road. Certain isolated and well-developed
portions of the common law, such as the law of bills of exchange, of
partnership, and of sale, have been selected for transformation into
statutory form. The process is one of exceeding difficulty, owing to the
complexity and elaboration of English legal doctrine. Many portions of
the law are not yet ripe for it, and premature codification is worse
than none at all. But the final result is not doubtful.
Codification must not be understood to involve the total abolition of
precedent as a source of law. Case-law will continue to grow, even when
the codes are complete. The old theory, now gradually disappearing, but
still true in most departments of the law, is that the common law is the
basis and groundwork of the legal system, legislation being nothing more
than a special instrument for its occasional modification or
development. Unenacted law is the principal, and enacted law is merely
accessory. The activity of the legislature is called for only on special
occasions to do that which lies beyond the constructive or remedial
efficacy of the common law. Codification means not the total
disappearance of case-law, but merely the reversal of this relation
between it and statute law. It means that the substance and body of the
law shall be enacted law, and that case-law shall be incidental and
supplementary only. In the most carefully prepared of codes subtle
ambiguities will come to light, real or apparent inconsistencies will
become manifest, and omissions will reveal themselves. No legislative
skill can effectually anticipate the complexity and variety of the
facts. The function of precedent will be to supplement, to interpret, to
reconcile, and to develop the principles which the code contains. Out of
the code itself, therefore, a body of case-law will grow, as a judicial
commentary and supplement. It will be expedient from time to time that
this supplementary and explanatory case-law be itself codified and
incorporated into successive editions of the code. But so often as this
is done, the process of interpretation will begin again with the like
results.
§ 54. =The Interpretation of Enacted Law.=
We have seen that one of the characteristics of enacted law is its
embodiment in authoritative formulae. The very words in which it is
expressed—the _litera scripta_—constitute a part of the law itself.
Legal authority is possessed by the letter, no less than by the spirit
of the enactment. Other forms of law (with the exception of written
conventional law, which in this respect stands by the side of statutory)
have no fixed and authoritative expression. There is in them no letter
of the law, to stand between the spirit of the law and its judicial
application. Hence it is that in the case of enacted law a process of
judicial _interpretation_ or _construction_ is necessary, which is not
called for in respect of customary or case-law. By interpretation or
construction is meant the process by which the courts seek to ascertain
the meaning of the legislature through the medium of the authoritative
forms in which it is expressed.
Interpretation is of two kinds, which Continental lawyers distinguish as
_grammatical_ and _logical_. The former is that which regards
exclusively the verbal expression of the law. It does not look beyond
the _litera legis_. Logical interpretation, on the other hand, is that
which departs from the letter of the law, and seeks elsewhere for some
other and more satisfactory evidence of the true intention of the
legislature. It is essential to determine with accuracy the relations
which subsist between these two methods. It is necessary to know in what
circumstances grammatical interpretation is alone legitimate, and when
on the contrary it is allowable to accept, instead, the divergent
results that may be attainable by way of logical interpretation. In
other words, we have to determine the relative claims of the letter and
the spirit of enacted law.
The true principles on this matter seem to be the following. The duty of
the judicature is to discover and to act upon the true intention of the
legislature—the _mens_ or _sententia legis_. The essence of the law lies
in its spirit, not in its letter, for the letter is significant only as
being the external manifestation of the intention that underlies it.
Nevertheless in all ordinary cases the courts must be content to accept
the _litera legis_ as the exclusive and conclusive evidence of the
_sententia legis_. They must in general take it absolutely for granted
that the legislature has said what it meant, and meant what it has said.
_Ita scriptum es_ is the first principle of interpretation. Judges are
not at liberty to add to or take from or modify the letter of the law,
simply because they have reason to believe that the true _sententia
legis_ is not completely or correctly expressed by it. That is to say,
in all ordinary cases grammatical interpretation is the sole form
allowable.
To this general principle there are two exceptions. There are two cases
in which the _litera legis_ need not be taken as conclusive, and in
which the _sententia legis_ may be sought from other indications. The
first of these cases is that in which the letter of the law is
_logically defective_, that is to say, when it fails to express some
single, definite, coherent, and complete idea.
The logical defects by which the _litera legis_ may be affected are
three in number. The first is ambiguity; for a statute, instead of
meaning one thing, may mean two or more different things. In such case
it is the right and duty of the courts to go behind the letter of the
law, and to ascertain from other sources, as best they can, the true
intention which has thus failed to attain perfect expression.
When a statutory provision is capable of two meanings, it is commonly,
though not invariably, the case that one of these is more natural,
obvious, and consonant with the ordinary use of language than the other.
The interpretation of an ambiguous law is therefore of two kinds,
according as it accepts the more natural and obvious meaning, or rejects
it in favour of another which conforms better to the intention of the
legislature, though worse to the familiar usages of speech. The former
mode of interpretation is termed literal or strict, and the latter may
be distinguished as equitable. The general principle is that
interpretation must be literal, unless there is some adequate reason to
the contrary. In the absence of sufficient indications that the
legislature has used words in some less natural and obvious sense, their
literal and ordinary signification will be attributed to them. The
maintenance of a just balance between the competing claims of these two
forms of interpretation is one of the most important elements in the
administration of statute law. On each side there are dangers to be
avoided. Undue laxity, on the one hand, sacrifices the certainty and
uniformity of the law to the arbitrary discretion of the judges who
administer it; while undue strictness, on the other hand, sacrifices the
true intent of the legislature and the rational development of the law
to the tyranny of words. _Scire leges_, said the Romans,[118] _non hoc
est verba earum tenere, sed vim ac potestatem_.[119]
A second logical defect of statutory expression is inconsistency. A law,
instead of having more meanings than one, may have none at all, the
different parts of it being repugnant, so as to destroy each other’s
significance. In this case it is the duty of the judicature to ascertain
in some other way the true _sententia legis_, and to correct the letter
of the law accordingly.
Lastly, the law may be logically defective by reason of its
incompleteness. The text, though neither ambiguous nor inconsistent, may
contain some _lacuna_ which prevents it from expressing any logically
complete idea. For example, where there are two alternative cases, the
law may make provision for one of them, and remain silent as to the
other. Such omissions the courts may lawfully supply by way of logical
interpretation. It is to be noted, however, that the omission must be
such as to make the statute _logically_ incomplete. It is not enough
that the legislature meant more than it said, and failed to express its
whole mind. If what it has said is logically complete—giving expression
to a single, intelligible, and complete idea—the courts have no lawful
concern with anything else that the legislature may have meant but not
said. Their duty is to apply the letter of the law, therefore they may
alter or add to it so far as is necessary to make its application
possible, but they must do nothing more.
It has been already said that there are two cases in which logical
interpretation is entitled to supersede grammatical. The first of these,
namely that of some logical defect in the _litera legis_, has been
considered. The second is that in which the text leads to a result so
unreasonable that it is self-evident that the legislature could not have
meant what it has said. For example, there may be some obvious clerical
error in the text, such as a reference to a section by the wrong number,
or the omission of a negative in some passage in which it is clearly
required.
In considering the logical defects of the _litera legis_, we have
tacitly assumed that by going behind the defective text it is always
possible to discover a logically perfect _sententia legis_. We have
assumed that the whole duty of the courts is to ascertain the true and
perfect intention which has received imperfect expression. This is not
so, however. In a great number of cases the defects of the _litera
legis_ are simply the manifestation of corresponding defects in the
_sententia_. If the legislature speaks ambiguously, it is often because
there is no single and definite meaning to be expressed. If the words of
the legislature are self-contradictory, it is possibly due to some
repugnancy and confusion in the intention itself. If the text contains
omissions which make it logically imperfect, the reason is more often
that the case in question has not occurred to the mind of the
legislature, than that there exists with respect to it a real intention
which by inadvertence has not been expressed.
What, then, is the rule of interpretation in such cases? May the courts
correct and supplement the defective _sententia legis_, as well as the
defective _litera legis_? The answer is that they may and must. If the
letter of the law is logically defective, it must be made logically
perfect, and it makes no difference in this respect whether the defect
does or does not correspond to one in the _sententia legis_ itself.
Where there is a genuine and perfect intention lying behind the
defective text, the courts must ascertain and give effect to it; where
there is none, they must ascertain and give effect to the intention
which the legislature presumably would have had, if the ambiguity,
inconsistency, or omission had been called to mind. This may be regarded
as the _dormant_ or _latent_ intention of the legislature, and it is
this which must be sought for as a substitute in the absence of any real
and conscious intention.[120]
In the case of the _sententia_, as formerly in that of the _litera
legis_, it is to be noticed that the only defects which the courts may
remedy are _logical_ defects. That the intention of the legislature is
ethically defective, is not a fact with which the judicature has any
concern. The _sententia legis_ might have been wiser, juster, or more
expedient, had it been wider, or narrower, or other than it actually is.
But the courts have no authority to detract from it, add to it, or alter
it, on that account. It may be that had a certain case been brought to
the notice of the legislature, the statute would have been extended to
cover it; but so long as it is logically complete and workable without
the inclusion of this case, it must stand as it is. If a statute makes a
provision as to sheep, which in common sense ought to have been extended
to goats also, this is the affair of the legislature, not of the courts.
To correct the _sententia legis_ on logical grounds is a true process of
interpretation; it fulfils the ultimate or dormant, if not the immediate
or conscious intention of the legislature. But to correct it on ethical
grounds is to assume and exercise legislative power.
SUMMARY.
Legislation—Its three senses:
1. All forms of law-making {Direct legislation.
{Indirect legislation.
2. All expression of the will of the legislature.
3. The creation of law by way of authoritative declaration.
Law {Enacted—Statute—Written.
{Unenacted—Common—Unwritten.
{Supreme—by the Imperial Parliament.
{ {1. Colonial.
Legislation { {2. Executive.
{Subordinate {3. Judicial.
{4. Municipal.
{5. Autonomous.
Historical relation of legislation to other sources of law.
Superiority of legislation over other sources of law.
Codification.
{Grammatical—based on the _litera legis_ exclusively.
{
Interpretation { { _Litera legis_ logically {Ambiguous.
{Logical { defective. {Inconsistent.
{ {Incomplete.
{ _Litera legis_ containing self-evident error.
Strict and equitable interpretation.
Extensive and restrictive interpretation.
CHAPTER VIII.
CUSTOM.
§ 55. =The Early Importance of Customary Law.=
The importance of custom as a source of law continuously diminishes as
the legal system grows. As an instrument of the development of English
law in particular, it has now almost ceased to operate, partly because
it has to a large extent been superseded by legislation and precedent,
and partly because of the very stringent limitations imposed upon its
law-creating efficacy, the legal requirements of a valid custom being
such as few customs can at the present day conform to. In earlier times,
however, it was otherwise. It was long the received and official theory
of English law that whatever was not the product of legislation had its
source in custom. Law was either the written statute law, or the
unwritten, common, or customary law. Precedent was not conceived as
being itself a legal source at all, for it was held to operate only as
evidence of those customs from which the common law proceeded. _Lex et
consuetudo Angliae_ was the familiar title of our legal system. The
common law of the realm and the common custom of the realm were
synonymous expressions. It may be gravely doubted whether at any time
this doctrine expressed the truth of the matter, but it is clear that it
was much truer in the early days of our legal history, than it
subsequently became; and it remained the accepted theory long after it
had ceased to retain any semblance of the truth. For some centuries
past, the true sources of the great bulk of our law have been statute
and precedent, not statute and custom, and the common law is essentially
case-law, not customary law. Yet we find Hale[121] in the seventeenth
century, and Blackstone in the eighteenth, laying down the older
doctrine as still valid. In the words of Blackstone:[122] “The municipal
law of England ... may with sufficient propriety be divided into two
kinds; the _lex non scripta_, the unwritten, or common law; and the _lex
scripta_, the written, or statute law. The _lex non scripta_, or
unwritten law, includes not only general customs, or the common law
properly so called; but also the particular customs of certain parts of
the kingdom; and likewise those particular laws that are by custom
observed only in certain courts and jurisdictions.” Such language is an
echo of the past, not an accurate account of the facts of the present
day. Nevertheless even now custom has not wholly lost its efficacy. It
is still one of the legal sources of the law of England, and an
examination of its nature and operation pertains to modern juridical
theory, and not merely to legal history or antiquities.
§ 56. =Reasons for the Reception of Customary Law.=
The reasons for attributing to custom the force of law have been already
briefly indicated in relation to legal sources in general. We have seen
that, in the first place, custom is the embodiment of those principles
which have commended themselves to the national conscience as principles
of truth, justice and public utility. The fact that any rule has already
the sanction of custom raises a presumption that it deserves to obtain
the sanction of law also. _Via trita via tuta._ Speaking generally, it
is well that the courts of justice, in seeking for those principles of
right which it is their duty to administer, should be content to accept
those which have already in their favour the prestige and authority of
long acceptance, rather than attempt the more dangerous task of
fashioning a set of principles for themselves by the light of nature.
The national conscience may well be accepted by the courts as an
authoritative guide; and of this conscience national custom is the
external and visible sign.
Custom is to society what law is to the state. Each is the expression
and realisation, to the measure of men’s insight and ability, of the
principles of right and justice. The law embodies those principles as
they commend themselves to the incorporate community in the exercise of
its sovereign power. Custom embodies them as acknowledged and approved
not by the power of the state, but by the public opinion of the society
at large. Nothing, therefore, is more natural than that, when the state
begins to evolve out of the society, the law of the state should in
respect of its material contents be in great part modelled upon and
coincident with the customs of the society. When the state takes up its
function of administering justice, it accepts as true and valid the
rules of right already accepted by the society of which it is itself a
product, and it finds those principles already realised in the customs
of the realm. As those customs develop and alter with change of
circumstance and the growth of public enlightenment, the state is wisely
content to allow such development and modification to reflect themselves
in the law which it administers. This influence of custom upon law,
however, is characteristic rather of the beginnings of the legal system
than of its mature growth. When the state has grown to its full strength
and stature, it acquires more self-confidence, and seeks to conform
national usage to the law, rather than the law to national usage. Its
ambition is then to be the source not merely of the form, but of the
matter of the law also. But in earlier times it has perforce to content
itself with conferring the form and nature of law upon the material
contents supplied to it by custom.
A second ground of the law-creative efficacy of custom is to be found in
the fact that the existence of an established usage is the basis of a
rational expectation of its continuance in the future. Justice demands
that, unless there is good reason to the contrary, men’s rational
expectations shall, so far as possible, be fulfilled rather than
frustrated. Even if customs are not ideally just and reasonable, even if
it can be shown that the national conscience has gone astray in
establishing them, even if better rules might be formulated and enforced
by the wisdom of the judicature, it may yet be wise to accept them as
they are, rather than to overturn all those expectations which are based
upon established practice.
§ 57. =The Requisites of a Valid Custom.=
In order that a custom may be valid and operative as a source of law, it
must conform to certain requirements laid down by law. The chief of
these are the following:—
1. _Reasonableness._—A custom must be reasonable. _Malus usus abolendus
est._[123] The authority of usage is not absolute, but conditional on a
certain measure of conformity with justice and public utility. It is not
meant by this that the courts are at liberty to disregard a custom
whenever they are not satisfied as to its absolute rectitude and wisdom,
or whenever they think that a better rule could be formulated in the
exercise of their own judgment. This would be to deprive custom of all
authority, either absolute or conditional. The true rule is that a
custom, in order to be deprived of legal efficacy, must be so obviously
and seriously repugnant to right and reason, that to enforce it as law
would do more mischief than that which would result from the overturning
of the expectations and arrangements based on its presumed continuance
and legal validity. We shall see, when we come to discuss the theory of
precedent, how the authority of judicial decisions is, in general,
similarly conditional rather than absolute; a precedent which is plainly
and seriously unreasonable may be overruled instead of followed. We are
told in the old books that a similar rule obtains in respect of the
authority of acts of Parliament themselves. It was once held to be good
law, that an unreasonable act of Parliament was void.[124] This, indeed,
is no longer so; for the law-creating authority of Parliament is
absolute. Certain forms of subordinate legislation, however, are still
subject to the rule in question; an unreasonable by-law, for example, is
as void and unauthoritative as an unreasonable custom or precedent.
2. _Opinio necessitatis._—The second requisite of a valid custom is that
which commentators on the civil law term _opinio necessitatis_.[125] By
this is meant the conviction on the part of those who use a custom that
it is obligatory, and not merely optional.[126] Custom, merely as such,
has no legal authority at all; it is legally effective only because and
in so far as it is the expression of an underlying principle of right
approved by those who use it. When it is based on no such ethical
conviction or _opinio necessitatis_—when those who use it hold
themselves free to depart from it if they will—it is of no legal
significance. The only customs which are a source of law are those which
are observed by the community as determining the rights and duties of
its members.
3. _Conformity with statute law._—The third condition of legal validity
is that a custom must not be contrary to an act of Parliament. We shall
see that certain forms of custom possess not merely constitutive, but
also limited abrogative power, being capable of derogating from the old
law, as well as of creating new. But no custom of any sort is of any
validity as against statute law. The authority of legislation is in
English law higher than that of custom. By no length of desuetude can a
statute become invalid, and by no length of contrary usage can its
provisions be modified in the smallest particular. The common law will
yield to immemorial usage, but the enacted law stands for ever.[127]
It must not be supposed that this rule is one of necessity, derived by
logical inference from the nature of things. It is nothing more than a
positive principle of the law of England, and a very different rule was
adopted by Roman law,[128] and by the various Continental systems
derived from it. There the recognised maxim is _Lex posterior derogat
priori._ The later rule prevails over the earlier, regardless of their
respective origins. Legislation has no inherent superiority in this
respect over custom. If the enacted law comes first, it can be repealed
or modified by later custom; if the customary law is the earlier, it can
be similarly dealt with by later enacted law. “If,” says Savigny,[129]
“we consider customs and statutes with respect to their legal efficacy,
we must put them on the same level. Customary law may complete, modify,
or repeal a statute; it may create a new rule, and substitute it for the
statutory rule which it has abolished.” So Windscheid:[130] “The power
of customary law is equal to that of statutory law. It may, therefore,
not merely supplement, but also derogate from the existing law. And this
is true not merely of rules of customary law _inter se_, but also of the
relations of customary to statute law.”[131]
4. _Immemorial antiquity._—The fourth requisite of the validity of a
custom relates to the length of time during which it has been
established. Here it is necessary to distinguish between two kinds of
customs, namely, those which are _general_—the customs of the realm,
prevailing throughout the whole territory governed by the legal
system—and those which are _local_, being limited to some special part
of the realm.[132] The rule of English law with respect to the necessary
duration of a custom is that one which is merely local must have existed
from _time immemorial_. In the case of other customs, however, there is
no such requirement. It is there sufficient that the usage should be
definitely established, and its duration is immaterial. A local custom
must make up for the limited extent of its application by the long
duration of its existence, but other customs derive from their
generality such a measure of authority as does not require to be
supplemented by length of days.
We shall see later, how the idea of immemorial custom was derived by the
law of England from the canon law, and by the canon from the civil law.
Time immemorial, or time whereof the memory of man runs not, means in
the civil and canon law, and in the systems derived therefrom, and
originally meant in England also, time so remote that no living man can
remember it, or give evidence respecting it. Custom was immemorial, when
its origin was so ancient that the beginning of it was beyond human
memory, so that no testimony was available as to a time when it did not
as yet exist.[133] In the thirteenth century, however, a very singular
change took place in the meaning of the term. The limit of human memory
ceased to be a question of fact, and was determined by a very
unreasonable rule of law which still remains in force. In consequence of
the interpretation put by the judges upon the Statute of Westminster I.,
passed in the year 1275, it became an established legal principle that
the time of memory reached back as far as the commencement of the reign
of Richard I. and no further. From that day to this the law has remained
unaltered. The discordance between the memory of man as it is in fact,
and as it is in law, has been steadily growing with the lapse of years,
so that at the present day the law of England imputes to living men a
faculty of remembrance extending back for seven centuries. There is
perhaps no more curious example of the conservatism of our law.[134]
The rule, therefore, that a particular custom is invalid unless
immemorial means in practice this: that if he who disputes its validity
can prove its non-existence at any time between the present day and the
twelfth century, it will not receive legal recognition. It is not
necessary for the upholder of it to prove affirmatively its existence
during the whole of that period. If he can prove that it has existed for
a moderate period, say twenty years, from the present day, this will
raise a presumption of its immemorial antiquity, which must be rebutted
by him who disputes it.[135]
It is not difficult to understand the reason which induced the law to
impose this stringent limitation upon the efficacy of local customs. It
was designed in the interests of a uniform system of common law for the
whole realm. Had all manner of usages been recognised without any such
limitation, as having the force of special law, the establishment and
maintenance of a system of common law would have been rendered all but
impossible. Customary laws and customary rights, infinitely various and
divergent, would have grown up so luxuriantly, as to have choked that
uniform system of law and rights which it was the purpose of the royal
courts of justice to establish throughout the realm.[136]
_Origin of the rule as to time of memory._—The requirement of
immemorial antiquity was introduced into the English law courts of the
twelfth or thirteenth century from the canon law. In two respects the
Canonists developed and rendered more definite the somewhat vague and
indeterminate theory of customary law which we find in the writings of
the Roman lawyers. In the first place, clear recognition was accorded
to the distinction between _jus commune_ and _consuetudines_, the
former being the common, general, or written law of the whole Church,
while the latter consisted of the divergent local and personal customs
which were added to, or substituted for the _jus commune_ in
particular places or in respect of particular persons. This
nomenclature, with the conceptions expressed by it, passed from the
canon law to the law of England.
In the second place the Canonists attempted to supply a defect of the
civil law by laying down a fixed rule as to the necessary duration of
customs. They determined that no _consuetudo_ was to be held valid, so
as to derogate from the _jus commune_, unless it was _praescripta_,
that is to say, unless it had endured during the legal period of
prescription. Consuetudo praescripta praejudicat juri communi.[137]
What, then, was the period of prescription thus required? On this
point we find no agreement among the doctors, for there were several
different forms of prescription known to Roman law, and there was no
unanimity among the Canonists in the selection of any one of them as a
test of the validity of custom. Many favoured the adoption of the
ordinary decennial prescription of Roman land law, and held that a
custom must have endured for ten years at least, but need have lasted
no longer.[138] Others demanded forty years, since this is the
prescription required as against the Church by the legislation of
Justinian.[139] At one time, however, there was a widely held opinion
that the true time of prescription required to enable a custom to
derogate from the common law of the Church was time immemorial. Illa
consuetudo praejudicat juri, cuius non exstat memoria hominum.[140]
This conception of time of memory as a period of prescription was
derived from the civil law. Immemorial prescription was there a mode
of acquiring servitudes. Ductus aquae cuius origo memoriam excessit,
jure constituti loco habetur.[141] The Canon law adopted this rule,
and made a more extensive use of it. Immemorial prescription became a
supplementary mode of acquisition, available in all cases in which
there was no shorter period of prescription to which a claimant might
have recourse. From the canon law it passed into the laws of France,
Germany, and England.[142]
As already stated, then, many Canonists recognised time immemorial not
merely as a period of prescription, but as a condition of the validity
of customary law. Suarez, writing at the end of the sixteenth century,
tells us, indeed, in the course of an exhaustive examination of the
theory of customary law, that in his day this doctrine was no longer
received.[143] Long before Suarez, however, it had established for
itself a secure place in the law of England. The canonical principles
of _consuetudo rationabilis et praescripta_ and of _tempus
immemoriale_ were in the thirteenth century at the latest incorporated
in our legal system by those ecclesiastical lawyers who laid the
foundations of it. This, indeed, was the only form of prescription
which obtained recognition from the common law. We find the rule
settled with perfect definiteness in the earliest Year Books of Edward
I.[144]
5. _Conformity with the common law._—The fifth and last requirement of a
valid custom is that, unless immemorial, it must be consistent with the
common law. That it must be consistent with statute law is, as we have
already seen, a rule applicable to all customs whatever, whether
immemorial or not. That it must be consistent with the common law is a
rule applicable only to recent customs, and not to those which have the
prestige and authority of immemorial antiquity. Modern custom possesses
constitutive, but no abrogative power; it must operate in the spaces
left vacant by the law already established; it may supplement the law,
but cannot derogate from it. Immemorial custom, on the other hand, can
destroy as well as create, so far as the common law is concerned; though
as against the statute law it is as powerless as the most ephemeral
usage.[145]
The combined effect of the various rules which we have considered is to
render custom less and less important as a source of new law. As the
legal system develops, the sphere within which custom is operative grows
gradually smaller. For, in the first place, custom cannot derogate from
statute law, and this latter tends progressively to absorb into itself
the whole of the common law. In the second place, the requirement of
immemorial antiquity precludes local custom from operating as an
instrument of fresh legal growth. Such customs may now be proved and
applied for the first time, but they cannot now for the first time come
into existence. In the third place, all recent custom must be consistent
with the law as already established, whether common or statutory. As the
law develops and completes itself, therefore, there is less and less
room left for the constitutive operation of custom. There are fewer
vacancies within which customary law may grow. It is for this reason
that the growth of general customary law has already all but ceased.
Until a comparatively recent date, a great part of mercantile law was so
imperfectly developed as to leave very considerable scope for the
operation of mercantile custom. The law as to negotiable instruments,
for example, was chiefly customary law. But at the present day our
mercantile law is so complete that it is only in comparatively rare
cases that the custom of merchants has any opportunity of serving as the
ground of new principles.
§ 58. =Conventional Custom.=
Custom which does not fulfil all the requirements hitherto considered by
us does not necessarily fail of all legal effect. It cannot, indeed,
operate as a source of law by virtue of its own inherent authority. Yet
it may nevertheless become legally operative by being incorporated into
agreements, through the tacit consent of those who make them. Customs so
operative may be distinguished as _conventional_. It is a rule of
English law, as well as of other systems, that where a contract is made
in any matter in respect of which an established custom exists, it must
be interpreted by reference to that custom, and the parties must be
deemed to have intended (in the absence of any expression of contrary
intent) to adopt it as one of the terms of their agreement. _In
contractibus tacite veniunt ea quae sunt moris et consuetudinis._[146]
For example, if a lease of agricultural land is made in any district in
which there are established usages as to the mode of agriculture and as
to the relative rights and liabilities of landlord and tenant, the
parties must be taken to have agreed to those usages as terms of the
bargain, unless they have expressly or implicitly shown an intention to
the contrary. In the same way, a mercantile contract must be taken to
incorporate any usages of trade which are relevant to its
subject-matter. In this manner customs which are not in themselves
authoritative as sources of law or rights may become indirectly
operative through the added authority of agreement. But the law and
rights so produced are in reality conventional and not customary. It is
sometimes not easy to determine whether a custom is operative directly
and as such, or only indirectly as accessory to a contract, and the
distinction has not always been sufficiently adverted to.
§ 59. =Theories of Customary Law.=
So far we have been concerned rather with those positive rules of
English law which determine the validity and effect of custom, than with
the abstract theory of the matter. This portion of juridical theory,
however, has been the subject of considerable discussion and difference
of opinion, and it is not free from apparent difficulties. We have to
consider two opinions which differ materially from that which is here
accepted as correct. The first of these is a characteristic feature of
foreign and more especially of German jurisprudence, its reception being
chiefly due to the influence of Puchta and Savigny. It essentially
consists in this, that custom is rightly to be considered as a formal,
and not merely as a material source of law. According to this doctrine,
custom does itself confer the force and validity of law upon the
principles embodied in it. It does not merely provide the material
contents which derive their validity as law from the will of the state.
It operates directly through its own inherent force and authority; not
indirectly by reason of its recognition and allowance by the supreme
authority and force of the state. The will of the state is not admitted
to be the exclusive source of legal validity. It has no pre-eminence in
this respect above the will of the _people_, as manifested in national
usage. Custom is regarded as the expression of the national will and
conscience, and as such it confers immediately the authority of law upon
all principles approved by it. The will of the state is simply a special
form of the popular will, and these are of equal authority. Customary
law, therefore, has an existence independent of the state. It will be
enforced by the state through its courts of justice because it is
already law; it is not because it will be so enforced, that it is law.
Thus it is said by Arndts,[147] a German jurist of repute: “Customary
law contains the ground of its validity in itself. It is law by virtue
of its own nature, as an expression of the general consciousness of
right, not by virtue of the sanction, express or tacit, of any
legislature.” So Windscheid:[148] “In custom is manifested the
conviction of those who use it that such custom is law (Recht), and
this conviction is the source of the authority and validity of
customary law. For the ultimate source of all positive law is national
reason.... And this national reason can establish law in two different
ways, namely, mediately and immediately. Mediately, through
representation, it creates law by means of legislation. Immediately,
it creates law by means of custom.”
Notwithstanding the credit of the great names by which this theory is
sanctioned, it is rightly and all but unanimously rejected by English
jurists. Custom is a material, not a formal source of law. Its only
function is to supply the principles to which the will of the state
gives legal force. Law is law only because it is applied and enforced by
the state, and where there is no state there can be no law. The popular
conscience is in itself as powerless to establish or alter the law of
the land, as it is to deal in like fashion with the laws of nature. From
custom, as from any other source, the state may draw the material
contents of the rules to which it gives the form and nature of law, but
from no other source than the will of the state itself can this form or
nature be itself derived.
A second theory of customary law is that which we may term the
Austinian, as having been advanced by Austin, and generally received by
his followers. Austin rightly repudiates the German theory on the
ground, already indicated, that custom is not a formal but merely a
material source of law. The rejection of this and other allied
confusions of thought is, indeed, one of the great services which he and
his school have rendered to legal science. Nevertheless his own theory
cannot be regarded as wholly satisfactory. For he in his turn confounds
the legal and the historical sources of the law, and erroneously regards
custom as one of the latter, rather than as one of the former. He
considers that the true legal source of customary law is to be found in
the precedents in which customs receive for the first time judicial
recognition and enforcement. Customary law is for him simply a variety
of case-law. It is case-law in which pre-existing customs have served as
the historical sources from which the courts have drawn the matter of
their decisions. The judges are conceived as basing their judgments upon
custom, just as, on other occasions, they may base them on Justinian’s
Digest or on the law of nature. It follows from this that a custom does
not acquire the force of law until it has actually come to the notice of
the courts and received judicial approval and application. If it is
never disputed, and therefore never requires enforcement, it never
acquires the force of law at all. “Law styled customary,” says
Austin,[149] “is not to be considered a distinct kind of law. It is
nothing but judiciary law, founded on an anterior custom.”
This opinion, however, seems inconsistent with the established doctrines
of English law as to this matter. Custom is law not because it _has
been_ recognised by the courts, but because it _will be_ so recognised,
in accordance with fixed rules of law, if the occasion arises. Its legal
validity is not dependent on the accidents of litigation. A custom does
not wait to put on the nature of law until it has been actually enforced
by the courts, any more than an Act of Parliament or an agreement is
destitute of legal efficacy until it has required and received judicial
recognition. This recognition may make a custom part of the _common_
law, as being thereafter entitled to judicial notice, but it was part of
the _law_ already. The Austinian theory forgets that the operation of
custom is determined by fixed legal principles, just as much as the
operation of precedent itself. These two are co-ordinate legal sources,
and each operates independently of the other. Custom does not enter the
law through precedent, any more than precedent through custom. A custom
is taken as the ground of a judicial decision, just as an Act of
Parliament is so taken. In each case the law has been already made, and
the judicial decision merely applies it.
§ 60. =Custom and Prescription.=
The relation between custom and prescription is such as to demand
attention here, although the theory of the latter will receive further
consideration in another place. Custom is long usage operating as a
source of law; prescription is long usage operating as a source of
rights. That all the lands in a certain borough have from time
immemorial, on the death of an owner intestate, descended to his
youngest son, is a custom, and is the source of a rule of special and
customary law excluding in that borough the common law of
primogeniture. But that John Styles, the owner of a certain farm, and
all his predecessors in title, from time immemorial have used a way
over the adjoining farm is a prescription, and is the source of a
prescriptive right of way vested in John Styles.
Regarded historically, the law of prescription is merely a branch of
the law of custom. A prescription was originally conceived as a
_personal_ custom, that is to say, a custom limited to a particular
person and his ancestors or predecessors in title. It was
distinguished from a local custom, which was limited to an individual
place, not to an individual person. Local and personal customs were
classed as the two species of _particular customs_, and as together
opposed to the general customs of the realm. Coke distinguishes as
follows between custom (_i.e._ local custom) and prescription.[150]
“In the common law, a prescription which is personal is for the most
part applied to persons, being made in the name of a certain person
and of his ancestors, or those whose estate he hath; or in bodies
politique or corporate and their predecessors.... And a custome, which
is local, is alleged in no person, but layd within some mannor or
other place.”
Since prescription and custom were thus regarded as two species of the
same thing, we find, as might be expected, that they are originally
governed by essentially similar rules of law. The requisites of a valid
prescription were in essence the same as those of a valid custom. Both
must be reasonable, both must be immemorial, both must be consistent
with statute law, and so on. It was only by a process of gradual
differentiation, and by the later recognition of other forms of
prescription not known to the early law, that the difference between the
creation of customary law and the creation of prescriptive rights has
been brought clearly into view. In the case of custom, for example, the
old rule as to time immemorial still subsists, but in the case of
prescription it has been superseded by the statutory rules contained in
that most unfortunate specimen of legislative skill, the Prescription
Act. A prescriptive right to light, for instance, is now finally
acquired by enjoyment for twenty years. Usage during this period is now
an absolute title, instead of, as at common law, merely evidence of
usage during time of memory.
SUMMARY.
Historical importance of customary law.
Reasons for the recognition of customary law.
Requisites of a valid custom:
1. Reasonableness.
2. Opinio necessitatis.
3. Consistency with statute law.
4. Immemorial antiquity (unless general).
History of this rule.
5. Consistency with the common law (unless immemorial).
Conventional customs.
Theories of the operation of custom as a source of law:
1. Savigny’s—custom a formal source.
2. Austin’s—custom an historical source.
Relations between custom and prescription.
CHAPTER IX.
PRECEDENT.
§ 61. =The Authority of Precedents.=
The importance of judicial precedents has always been a distinguishing
characteristic of English law. The great body of the common or unwritten
law is almost entirely the product of decided cases, accumulated in an
immense series of reports extending backwards with scarcely a break to
the reign of Edward the First at the close of the thirteenth century.
Orthodox legal theory, indeed, long professed to regard the common law
as customary law, and judicial decisions as merely evidence of custom
and of the law derived therefrom. This, however, was never much better
than an admitted fiction. In practice, if not in theory, the common law
in England has been created by the decisions of English judges. Neither
Roman law, however, nor any of those modern systems which are founded
upon it, allows any such place or authority to precedent. They allow to
it no further or other influence than that which is possessed by any
other expression of expert legal opinion. A book of reports and a
text-book are on the same level. They are both evidences of the law;
they are both instruments for the persuasion of judges; but neither of
them is anything more.[151] English law, on the other hand, draws a
sharp distinction between them. A judicial precedent speaks in England
with authority; it is not merely evidence of the law but a source of it;
and the courts are bound to follow the law that is so established.
It seems clear that we must attribute this feature of English law to the
peculiarly powerful and authoritative position which has been at all
times occupied by English judges. From the earliest times the judges of
the king’s courts have been a small and compact body of legal experts.
They have worked together in harmony, imposing their own views of law
and justice upon the whole realm, and establishing thereby a single
homogeneous system of common law. Of this system they were the creators
and authoritative interpreters, and they did their work with little
interference either from local custom or from legislation. The
centralization and concentration of the administration of justice in the
royal courts gave to the royal judges a power and prestige which would
have been unattainable on any other system. The authority of precedents
was great in England because of the power, the skill, and the
professional reputation of the judges who made them. In England the
bench has always given law to the bar; in Rome it was the other way
about, for in Rome there was no permanent body of professional judges
capable of doing the work that has been done for centuries in England by
the royal courts.
§ 62. =Declaratory and Original Precedents.=
In proceeding to consider the various kinds of precedents and the
methods of their operation, we have in the first place to distinguish
between those decisions which are creative of the law and those which
are merely declaratory of it. A _declaratory_ precedent is one which is
merely the application of an already existing rule of law; an _original_
precedent is one which creates and applies a new rule. In the former
case the rule is applied because it is already law; in the latter case
it is law for the future because it is now applied. In any
well-developed system such as that of modern England, declaratory
precedents are far more numerous than those of the other class; for on
most points the law is already settled, and judicial decisions are
therefore commonly mere declarations of pre-existing principles.
Original precedents, however, though fewer in number, are greater in
importance. For they alone develop the law; the others leave it as it
was, and their only use is to serve as good evidence of it for the
future. Unless required for this purpose, a merely declaratory decision
is not perpetuated as an authority in the law reports. When the law is
already sufficiently well evidenced, as when it is embodied in a statute
or set forth with fulness and clearness in some comparatively modern
case, the reporting of declaratory decisions is merely a needless
addition to the great bulk of our case-law.
It must be understood, however, that a declaratory precedent is just as
truly a source of law as is one belonging to the other class. The legal
authority of each is exactly the same. Speaking generally, the authority
and legal validity of a precedent do not depend on whether it is, or is
not, an accurate statement of previously existing law. Whether it is or
is not, it may establish as law for the future that which it now
declares and applies as law. The distinction between the two kinds turns
solely on their relation to the law of the past, and not at all on their
relation to that of the future. A declaratory precedent, like a
declaratory statute, is a source of law, though it is not a source of
_new_ law. Here, as elsewhere, the mere fact that two sources overlap,
and that the same legal principle is established by both of them, does
not deprive either of them of its true nature as a legal source. Each
remains an independent and self-sufficient basis of the rule.
We have already referred to the old theory that the common law is
customary, not case-law. This doctrine may be expressed by saying that
according to it all precedents are declaratory merely, and that their
original operation is not recognised by the law of England. Thus Hale
says in his _History of the Common Law_:—
“It is true the decisions of courts of justice, though by virtue of
the laws of this realm they do bind as a law between the parties
thereto, as to the particular case in question, till reversed by error
or attaint, yet they do not make a law properly so called: for that
only the king and parliament can do; yet they have a great weight and
authority in expounding, declaring, and publishing what the law of
this kingdom is; especially when such decisions hold a consonancy and
congruity with resolutions and decisions of former times.”[152]
Hale, however, is evidently troubled in mind as to the true position of
precedent, and as to the sufficiency of the declaratory theory thus set
forth by him, for elsewhere he tells us inconsistently that there are
three sources of English law, namely, (1) custom, (2) the authority of
Parliament, and (3) “the judicial decisions of courts of justice
consonant to one another in the series and succession of time.”[153]
In the Court of Chancery this declaratory theory never prevailed, nor
indeed could it, having regard to the known history of the system of
equity administered by that court. There could be no pretence that the
principles of equity were founded either in custom or legislation, for
it was a perfectly obvious fact that they had their origin in judicial
decisions. The judgments of each Chancellor made law for himself and his
successors.
“It must not be forgotten,” says Sir George Jessel, “that the rules of
courts of equity are not, like the rules of the common law, supposed
to have been established from time immemorial. It is perfectly well
known that they have been established from time to time—altered,
improved, and refined from time to time. In many cases we know the
names of the Chancellors who invented them. No doubt they were
invented for the purpose of securing the better administration of
justice, but still they were invented.”[154]
Both at law and in equity, however, the declaratory theory must be
totally rejected if we are to attain to any sound analysis and
explanation of the true operation of judicial decisions. We must admit
openly that precedents make law as well as declare it. We must admit
further that this effect is not merely accidental and indirect, the
result of judicial error in the interpretation and authoritative
declaration of the law. Doubtless judges have many times altered the law
while endeavouring in good faith to declare it. But we must recognise a
distinct law-creating power vested in them and openly and lawfully
exercised. Original precedents are the outcome of the intentional
exercise by the courts of their privilege of developing the law at the
same time that they administer it.
§ 63. =Authoritative and Persuasive Precedents.=
Decisions are further divisible into two classes, which may be
distinguished as authoritative and persuasive. These two differ in
respect of the kind of influence which they exercise upon the future
course of the administration of justice. An authoritative precedent is
one which judges must follow whether they approve of it or not. It is
binding upon them and excludes their judicial discretion for the future.
A persuasive precedent is one which the judges are under no obligation
to follow, but which they will take into consideration, and to which
they will attach such weight as it seems to them to deserve. It depends
for its influence upon its own merits, not upon any legal claim which it
has to recognition. In other words, authoritative precedents are _legal_
sources of law, while persuasive precedents are merely _historical_. The
former establish law in pursuance of a definite rule of law which
confers upon them that effect, while the latter, if they succeed in
establishing law at all, do so indirectly, through serving as the
historical ground of some later authoritative precedent. In themselves
they have no legal force or effect.
The authoritative precedents recognised by English law are the decisions
of the superior courts of justice in England. The chief classes of
persuasive precedents are the following:
(1) Foreign judgments, and more especially those of American
courts.[155]
(2) The decisions of superior courts in other portions of the British
Empire, for example, the Irish courts.[156]
(3) The judgments of the Privy Council when sitting as the final court
of appeal from the Colonies.[157]
(4) Judicial _dicta_, that is to say, statements of law which go beyond
the occasion, and lay down a rule that is irrelevant or unnecessary for
the purpose in hand. We shall see later that the authoritative influence
of precedents does not extend to such _obiter dicta_, but they are not
equally destitute of persuasive efficacy.[158]
§ 64. =The Absolute and Conditional Authority of Precedents.=
Authoritative precedents are of two kinds, for their authority is either
absolute or conditional. In the former case the decision is absolutely
binding and must be followed without question, however unreasonable or
erroneous it may be considered to be. It has a legal claim to implicit
and unquestioning obedience. Where, on the other hand, a precedent
possesses merely conditional authority, the courts possess a certain
limited power of disregarding it. In all ordinary cases it is binding,
but there is one special case in which its authority may be lawfully
denied. It may be overruled or dissented from, when it is not merely
wrong, but so clearly and seriously wrong that its reversal is demanded
in the interests of the sound administration of justice. Otherwise it
must be followed, even though the court which follows it is persuaded
that it is erroneous or unreasonable. The full significance of this rule
will require further consideration shortly. In the meantime it is
necessary to state what classes of decisions are recognised by English
law as absolutely, and what as merely conditionally authoritative.
Absolute authority exists in the following cases:—
(1) Every court is absolutely bound by the decisions of all courts
superior to itself. A court of first instance cannot question a decision
of the Court of Appeal, nor can the Court of Appeal refuse to follow the
judgments of the House of Lords.
(2) The House of Lords is absolutely bound by its own decisions. “A
decision of this House once given upon a point of law is conclusive upon
this House afterwards, and it is impossible to raise that question again
as if it was _res integra_ and could be re-argued, and so the House be
asked to reverse its own decision.”[159]
(3) The Court of Appeal is, it would seem, absolutely bound by its own
decisions and by those of older courts of co-ordinate authority, for
example, the Court of Exchequer Chamber.[160]
In all other cases save these three, it would seem that the authority of
precedents is merely conditional. It is to be noticed, however, that the
force of a decision depends not merely on the court by which it is given
but also on the court in which it is cited. Its authority may be
absolute in one court, and merely conditional in another. A decision of
the Court of Appeal is absolutely binding on a court of first instance,
but is only conditionally binding upon the House of Lords.
§ 65. =The Disregard of a Precedent.=
In order that a court may be justified in disregarding a conditionally
authoritative precedent, two conditions must be fulfilled. In the first
place, the decision must, in the opinion of the court in which it is
cited, be a _wrong_ decision; and it is wrong in two distinct cases:
first, when it is contrary to law, and secondly, when it is contrary to
reason. It is wrong as contrary to law, when there is already in
existence an established rule of law on the point in question, and the
decision fails to conform to it. When the law is already settled, the
sole right and duty of the judges is to declare and apply it. A
precedent _must_ be declaratory whenever it _can_ be, that is to say,
whenever there is any law to declare.
But in the second place, a decision may be wrong as being contrary to
reason. When there is no settled law to declare and follow, the courts
may make law for the occasion. In so doing, it is their duty to follow
reason, and so far as they fail to do so, their decisions are wrong, and
the principles involved in them are of defective authority.
Unreasonableness is one of the vices of a precedent, no less than of a
custom and of certain forms of subordinate legislation.
It is not enough, however, that a decision should be contrary to law or
reason, for there is a second condition to be fulfilled before the
courts are entitled to reject it. If the first condition were the only
one, a conditionally authoritative precedent would differ in nothing
from one which is merely persuasive. In each case the precedent would be
effective only so far as its own intrinsic merits commended it to the
minds of successive judges. But where a decision is authoritative, it is
not enough that the court to which it is cited should be of opinion that
it is wrong. It is necessary in innumerable cases to give effect to
precedents notwithstanding that opinion. It does not follow that a
principle once established should be reversed simply because it is not
as perfect and rational as it ought to be. It is often more important
that the law should be certain than that it should be ideally perfect.
These two requirements are to a great extent inconsistent with each
other, and we must often choose between them. Whenever a decision is
departed from, the certainty of the law is sacrificed to its rational
development, and the evils of the uncertainty thus produced may far
outweigh the very trifling benefit to be derived from the correction of
the erroneous doctrine. The precedent, while it stood unreversed, may
have been counted on in numerous cases as definitely establishing the
law. Valuable property may have been dealt with in reliance on it;
important contracts may have been made on the strength of it; it may
have become to a great extent a basis of expectation and the ground of
mutual dealings. Justice may therefore imperatively require that the
decision, though founded in error, shall stand inviolate none the less.
_Communis error facit jus_.[161]
“It is better,” said Lord Eldon, “that the law should be certain than
that every judge should speculate upon improvements in it.”[162]
It follows from this that, other things being equal, a precedent
acquires added authority from the lapse of time. The longer it has stood
unquestioned and unreversed, the more harm in the way of uncertainty and
the disappointment of reasonable expectations will result from its
reversal. A decision which might be lawfully overruled without
hesitation while yet new, may after the lapse of a number of years
acquire such increased strength as to be practically of absolute and no
longer of merely conditional authority. This effect of lapse of time has
repeatedly received judicial recognition.
“Viewed simply as the decision of a court of first instance, the
authority of this case, notwithstanding the respect due to the judges
who decided it, is not binding upon us; but viewed in its character
and practical results, it is one of a class of decisions which acquire
a weight and effect beyond that which attaches to the relative
position of the court from which they proceed. It constitutes an
authority which, after it has stood for so long a period unchallenged,
should not, in the interests of public convenience, and having regard
to the protection of private rights, be overruled by this court except
upon very special considerations. For twelve years and upwards the
case has continued unshaken by any judicial decision or
criticism.”[163]
“When an old decided case has made the law on a particular subject,
the Court of Appeal ought not to interfere with it, because people
have considered it as establishing the law and have acted upon
it.”[164]
The statement that a precedent gains in authority with age must be read
subject to an important qualification. Up to a certain point a human
being grows in strength as he grows in age; but this is true only within
narrow limits. So with the authority of judicial decisions. A moderate
lapse of time will give added vigour to a precedent, but after a still
longer time the opposite effect may be produced, not indeed directly,
but indirectly through the accidental conflict of the ancient and
perhaps partially forgotten principle with later decisions. Without
having been expressly overruled or intentionally departed from, it may
become in course of time no longer really consistent with the course of
judicial decision. In this way the tooth of time will eat away an
ancient precedent, and gradually deprive it of all its authority. The
law becomes animated by a different spirit and assumes a different
course, and the older decisions become obsolete and inoperative.
To sum the matter up, we may say that to justify the disregard of a
conditionally authoritative precedent, it must be erroneous, either in
law or in reason, and the circumstances of the case must not be such as
to make applicable the maxim, _Communis error facit jus._ The defective
decision must not, by the lapse of time or otherwise, have acquired such
added authority as to give it a title to permanent recognition
notwithstanding the vices of its origin.
The disregard of a precedent assumes two distinct forms, for the court
to which it is cited may either overrule it, or merely refuse to follow
it. Overruling is an act of superior jurisdiction. A precedent overruled
is definitely and formally deprived of all authority. It becomes null
and void, like a repealed statute, and a new principle is
authoritatively substituted for the old. A refusal to follow a
precedent, on the other hand, is an act of co-ordinate, not of superior
jurisdiction. Two courts of equal authority have no power to overrule
each other’s decisions. Where a precedent is merely not followed, the
result is not that the later authority is substituted for the earlier,
but that the two stand side by side conflicting with each other. The
legal antinomy thus produced must be solved by the act of a higher
authority, which will in due time decide between the competing
precedents, formally overruling one of them, and sanctioning the other
as good law. In the meantime the matter remains at large, and the law
uncertain.
§ 66. =Precedents Constitutive, not Abrogative.=
We have already seen the falsity of the theory that all precedents are
declaratory. We have seen that they possess a distinct and legally
recognised law-creating power. This power, however, is purely
constitutive and in no degree abrogative. Judicial decisions may make
law, but they cannot alter it, for where there is settled law already on
any point the duty of the judges is to apply it without question, and
they have no authority to substitute for it law of their own making.
Their legislative power is strictly limited to supplying the vacancies
of the legal system, to filling up with new law the gaps which exist in
the old, to supplementing the imperfectly developed body of legal
doctrine.
This statement, however, requires two qualifications. In the first
place, it must be read subject to the undoubted power of the courts to
overrule or disregard precedents in the manner already described. In its
practical effect this is equivalent to the exercise of abrogative power,
but in legal theory it is not so. The overruling of a precedent is not
the abolition of an established rule of law; it is an authoritative
denial that the supposed rule of law has ever existed. The precedent is
so treated not because it has made bad law, but because it has never in
reality made any law at all. It has not conformed to the requirements of
legal efficacy. Hence it is that the overruling of a precedent, unlike
the repeal of a statute, has retrospective operation. The decision is
pronounced to have been bad _ab initio_. A repealed statute, on the
contrary, remains valid and applicable as to matters arising before the
date of its repeal. The overruling of a precedent is analogous not to
the repeal of a statute, but to the judicial rejection of a custom as
unreasonable or as otherwise failing to conform to the requirements of
customary law.
In the second place, the rule that a precedent has no abrogative power
must be read subject to the maxim, _Quod fieri non debet, factum valet._
It is quite true that judges ought to follow the existing law whenever
there is any such law to follow. They are appointed to fulfil the law,
not to subvert it. But if by inadvertence or otherwise this rule is
broken through, and a precedent is established which conflicts with
pre-existing law, it does not follow from this alone that this decision
is destitute of legal efficacy. For it is a well-known maxim of the law
that a thing which ought not to have been done may nevertheless be valid
when it is done. If, therefore, a precedent belongs to the class which
is absolutely authoritative, it does not lose this authority simply
because it is contrary to law and ought not to have been made. No court,
for example, will be allowed to disregard a decision of the House of
Lords on such a ground; it must be followed without question, whether it
is in harmony with prior law or not. So also with those which are merely
conditionally authoritative. We have already seen that error is only one
of two conditions, both of which are requisite to render allowable the
disregard of such a precedent, and in this respect it makes no
difference whether the error consists in a conflict with law or in a
conflict with reason. It may well be better to adhere to the new law
which should not have been made than to recur to the old law which
should not have been displaced.
§ 67. =Grounds of the Authority of Precedents.=
The operation of precedents is based on the legal presumption of the
correctness of judicial decisions. It is an application of the maxim,
_Res judicata pro veritate accipitur._ A matter once formally decided is
decided once for all. The courts will listen to no allegation that they
have been mistaken, nor will they reopen a matter once litigated and
determined. That which has been delivered in judgment must be taken for
established truth. For in all probability it is true in fact, and even
if not, it is expedient that it should be held as true none the less.
_Expedit reipublicae ut sit finis litium._ When, therefore, a question
has once been judicially considered and answered, it must be answered in
the same way in all subsequent cases in which the same question again
arises. Only through this rule can that consistency of judicial decision
be obtained, which is essential to the proper administration of justice.
Hence the effect of judicial decisions in excluding the _arbitrium
judicis_ for the future, in providing predetermined answers for the
questions calling for consideration in future cases, and therefore in
establishing new principles of law.
The questions to which judicial answers are required are either
questions of law or of fact. To both kinds the maxim, _Res judicata pro
veritate accipitur_, is applicable. In the case of questions of law,
this maxim means that the court is presumed to have correctly
ascertained and applied the appropriate legal principle. The decision
operates, therefore, as proof of the law. It is, or at all events is
taken to be, a declaratory precedent. If the law so declared is at all
doubtful, the precedent will be worth preserving as useful evidence of
it. But if the law is already clear and certain, the precedent will be
useless; to preserve it would needlessly cumber the books of reports,
and it will be allowed to lapse into oblivion.
In the case of questions of fact, on the other hand, the presumption of
the correctness of judicial decisions results in the creation of new
law, not in the declaration and proof of old. The decision becomes, in a
large class of cases, an original precedent. That is to say, the
question thus answered ceases to be one of fact, and becomes for the
future one of law. For the courts are now provided with a predetermined
answer to it, and it is no longer a matter of free judicial discretion.
The _arbitrium judicis_ is now excluded by one of those fixed and
authoritative principles which constitute the law.
For example, the meaning of an ambiguous statute is at first a pure
question of fact. When for the first time the question arises whether
the word “cattle” as used by the statute includes horses, the court is
bound by no authority to determine the matter in one way or the other.
The occasion is one for the exercise of common sense and interpretative
skill. But when the question has once been decided, it is for the future
one of law and no longer one of fact; for it is incumbent on the courts
in subsequent cases to act on the maxim _Res judicata pro veritate
accipitur_, and to answer the question in the same way as before.
The operation of original precedents is, therefore, the progressive
transformation of questions of fact into questions of law. _Ex facto
oritur jus._ The growth of case-law involves the gradual elimination of
that judicial liberty to which it owes its origin. In any system in
which precedents are authoritative the courts are engaged in forging
fetters for their own feet. There is of course a limit to this process,
for it is absurd to suppose that the final result of legal development
will be the complete transformation of all questions of fact into
questions of law. The distinction between law and fact is permanent and
essential. What, then, is the limit? To what extent is precedent capable
of effecting this absorption of fact into law?
In respect of this law-creating operation of precedents, questions of
fact are divisible into two classes. For some of them do, and some do
not, admit of being answered _on principle_. The former are those the
answer to which is capable of assuming the form of a general principle:
the latter are those the answer to which is necessarily specific. The
former are answered by way of abstraction, that is to say, by the
elimination of the immaterial elements in the particular case, the
result being a general rule applicable not merely to that single case,
but to all others which resemble it in its essential features. The other
class of questions consists of those in which no such process of
abstraction, no such elimination of immaterial elements, as will give
rise to a general principle, is possible. The answer to them is based on
the circumstances of the concrete and individual case, and therefore
produces no rule of general application. The operation of precedent is
limited to one only of these classes of questions. Judicial decisions
are a source of law only in the case of those questions of fact which
admit of being answered on principle. These only are transformed by
decision into questions of law, for in this case only does the judicial
decision give rise to a rule which can be adopted for the future as a
rule of law. Those questions which belong to the other class are
permanently questions of fact, and their judicial solution leaves behind
it no permanent results in the form of legal principles.
For example, the question whether the defendant did or did not make a
certain statement is a question of fact, which does not admit of any
answer save one which is concrete and individual. It cannot be answered
on principle. It necessarily remains, therefore, a pure question of
fact; the decision of it is no precedent, and establishes no rule of
law. On the other hand, the question whether the defendant in making
such a statement was or was not guilty of fraud or negligence, though it
may be equally a question of fact, nevertheless belongs to the other
class of such questions. It may well be possible to lay down a general
principle on a matter such as this. For it is a matter which may be
dealt with _in abstracto_, not necessarily _in concreto_. If, therefore,
the decision is arrived at on principle, it will amount to an original
precedent, and the question, together with every other essentially
resembling it, will become for the future a question of law,
predetermined by the rule thus established.
A precedent, therefore, is a judicial decision which contains in itself
a principle. The underlying principle which thus forms its authoritative
element is often termed the _ratio decidendi_. The concrete decision is
binding between the parties to it, but it is the abstract _ratio
decidendi_ which alone has the force of law as regards the world at
large. “The only use of authorities or decided cases,” says Sir George
Jessel, “is the establishment of some principle, which the judge can
follow out in deciding the case before him.”[165] “The only thing,” says
the same distinguished judge in another case, “in a judge’s decision
binding as an authority upon a subsequent judge is the principle upon
which the case was decided.”[166]
This is the true significance of the familiar contrast between authority
and principle. It is often said by judges that inasmuch as the matter
before them is not covered by authority, they must decide it upon
principle. The statement is a sure indication of the impending
establishment of an original precedent. It implies two things: first,
that where there is any authority on the point, that is to say, where
the question is already one of law, the duty of the judge is simply to
follow the path so marked out for him; and secondly, that if there is no
authority, and if, therefore, the question is one of pure fact, it is
his duty, if possible, to decide it upon principle, that is to say, to
formulate some general rule and to act upon it, thereby creating law for
the future. It may be, however, that the question is one which does not
admit of being answered either on authority or on principle, and in such
a case a specific or individual answer is alone possible, no rule of law
being either applied or created.[167]
Although it is the duty of courts of justice to decide questions of fact
on principle if they can, they must take care in this formulation of
principles to limit themselves to the requirements of the case in hand.
That is to say, they must not lay down principles which are not required
for the due decision of the particular case, or which are wider than is
necessary for this purpose. The only judicial principles which are
authoritative are those which are thus relevant in their subject-matter
and limited in their scope. All others, at the best, are of merely
persuasive efficacy. They are not true _rationes decidendi_, and are
distinguished from them under the name of _dicta_ or _obiter dicta_,
things said by the way. The prerogative of judges is not to make law by
formulating and declaring it—this pertains to the legislature—but to
make law by applying it. Judicial declaration, unaccompanied by judicial
application, is of no authority.
§ 68. =The Sources of Judicial Principles.=
Whence, then, do the courts derive those new principles, or _rationes
decidendi_, by which they supplement the existing law? They are in truth
nothing else than the principles of natural justice, practical
expediency, and common sense. Judges are appointed to administer
justice—justice according to law, so far as the law extends, but so far
as there is no law, then justice according to nature. Where the civil
law is deficient, the law of nature takes its place, and in so doing
puts on its character also. But the rules of natural justice are not
always such that any man may know them, and the light of nature is often
but an uncertain guide. Instead of trusting to their own unguided
instincts in formulating the rules of right and reason, the courts are
therefore wisely in the habit of seeking guidance and assistance
elsewhere. In establishing new principles, they willingly submit
themselves to various persuasive influences which, though destitute of
legal authority, have a good claim to respect and consideration. They
accept a principle, for example, because they find it already embodied
in some system of foreign law. For since it is so sanctioned and
authenticated, it is presumably a just and reasonable one. In like
manner the courts give credence to persuasive precedents, to judicial
_dicta_, to the opinions of text-writers, and to any other forms of
ethical or juridical doctrine which seem good to them. There is,
however, one source of judicial principles which is of special
importance, and calls for special notice. This is the analogy of
pre-existing law. New rules are very often merely analogical extensions
of the old. The courts seek as far as possible to make the new law the
embodiment and expression of the spirit of the old—of the _ratio juris_,
as the Romans called it. The whole thereby becomes a single and
self-consistent body of legal doctrine, containing within itself an
element of unity and of harmonious development. At the same time it must
be remembered that analogy is lawfully followed only as a guide to the
rules of natural justice. It has no independent claim to recognition.
Wherever justice so requires, it is the duty of the courts, in making
new law, to depart from the _ratio juris antiqui_, rather than servilely
to follow it.
It is surprising how seldom we find in judicial utterances any explicit
recognition of the fact that in deciding questions on principle, the
courts are in reality searching out the rules and requirements of
natural justice and public policy. The measure of the prevalence of such
ethical over purely technical considerations is the measure in which
case-law develops into a rational and tolerable system as opposed to an
unreasoned product of authority and routine. Yet the official utterances
of the law contain no adequate acknowledgment of this dependence on
ethical influences. “The very considerations,” it has been well said,
“which judges most rarely mention, and always with an apology, are the
secret root from which the law draws all the juices of life.”[168] The
chief reason of this peculiarity is doubtless to be found in the
fictitious declaratory theory of precedent, and in the forms of judicial
expression and reasoning which this theory has made traditional. So long
as judges affect to be looking for and declaring old law, they cannot
adequately express the principles on which they are in reality making
new.
§ 69. =Respective Functions of Judges and Juries.=
The division of judicial functions between judge and jury creates a
difficulty in the theory of precedent which requires some consideration.
It is commonly said that all questions of fact are for the jury, and all
questions of law for the judge. But we have already seen that original
precedents are answers to questions of fact, transforming them for the
future into questions of law. Are such precedents, then, made by juries
instead of by judges? It is clear that they neither are nor can be. No
jury ever answers a question on principle; it gives decisions, but no
reasons; it decides _in concreto_, not _in abstracto_. In this respect
the judicial action of juries differs fundamentally from that of judges.
The latter decide on principle, whenever this is possible; they
formulate the _ratio decidendi_ which underlies their decision; they
strive after the general and the abstract, instead of adhering to the
concrete and the individual. Hence it is that the decision of a judge
may constitute a precedent, while that of a jury cannot. But in
composite tribunals, where the jury decides the facts and the judge the
law, how does the judge obtain any opportunity of establishing
precedents and creating new law? If the matter is already governed by
law, it will of course fall within his province; but if it is not
already so governed, is it not a pure question of fact which must be
submitted to the jury, to the total destruction of all opportunity of
establishing any precedent in respect of it? The truth of the matter is
that, although all questions of law are for the judge, it is very far
from being true that all questions of fact are for the jury. There are
very extensive and important portions of the sphere of fact which fall
within the jurisdiction of the judge, and it is within those portions
that the law-creating operation of judicial decisions takes place. No
jury, for example, is ever asked to interpret a statute or, speaking
generally, any other written document. Yet unless there is already some
authoritative construction in existence, this is pure matter of fact.
Hence that great department of case-law which has its origin in the
judicial interpretation of statute law. The general rule—consistently
acted on, though seldom expressly acknowledged—is that a judge will not
submit to a jury any question which he is himself capable of answering
_on principle_. Such a question he answers for himself; for since it can
be answered on principle, it provides a fit occasion for the
establishment of a precedent and a new rule of law. It _ought_ to be a
matter of law, and can only become what it ought to be, by being kept
from the jury and answered _in abstracto_ by the judge. The only
questions which go to a jury are those questions of fact which admit of
no principle, and are therefore the appropriate subject-matter of those
concrete and unreasoned decisions which juries give.[169]
We have said that this rule, though acted on, is not expressly
acknowledged. The reason is that judges are enabled to avoid the
acknowledgment through recourse to the declaratory theory of precedent.
As between judge and jury this theory is still in full force and effect,
although when the rights and privileges of juries are not concerned, the
courts are ready enough at the present day to acknowledge the essential
truth of the matter. As between judge and jury, questions of fact are
withdrawn from the exclusive cognizance of the latter by means of the
legal fiction that they are already questions of law. They are treated
proleptically as being already that which they are about to become. In a
completely developed legal system they would be already true questions
of law; the principle for their decision would have been already
authoritatively determined. Therefore the judges make bold to deal with
them as being already that which they ought to be, and thus the making
of the law by way of precedent is prevented from openly infringing upon
the rights of juries to decide all questions which have not already been
decided by the law.
SUMMARY.
Precedents { Declaratory—evidence of old law.
{ Original—sources of new law.
The declaratory theory of precedent.
{ Authoritative.
{ { Foreign decisions.
Precedents { Persuasive { Decisions in other parts of the Empire.
{ { Privy Council decisions.
{ { Judicial dicta.
{ Decisions of superior Court.
{ Absolutely authoritative { Decisions of House of Lords.
Precedents { { Decisions of Court of Appeal.
{ Conditionally authoritative—All others.
Conditions of the disregard of a precedent.
{ Contrary to law.
1. Decisions erroneous { Unreasonable.
2. Rejection of it not mischievous as unsettling the law.
Effect of lapse of time on precedents.
Distinction between overruling and refusing to follow.
Precedents constitutive and not abrogative.
Qualifications of the rule.
Ground of the authority of precedent.
The progressive transformation of fact into law.
_Rationes decidendi._
The determination of questions on principle and on authority.
Judicial _dicta_ contrasted with judicial decisions.
Sources of judicial principles.
Respective functions of judge and jury.
CHAPTER X.
LEGAL RIGHTS.
§ 70. =Wrongs.=
We have seen that the law consists of the principles in accordance with
which justice is administered by the state, and that the administration
of justice consists in the use of the physical force of the state in
enforcing rights and punishing the violation of them. The conception of
a right is accordingly one of fundamental significance in legal theory,
and the purpose of this chapter is to analyse it, and to distinguish its
various applications. Before attempting to define a right, however, it
is necessary to define two other terms which are closely connected with
it, namely, wrong and duty.
A wrong is simply a wrong act—an act contrary to the rule of right and
justice. A synonym of it is injury, in its true and primary sense of
_injuria_ (that which is contrary to _jus_), though by a modern
perversion of meaning this term has acquired the secondary sense of harm
or damage (_damnum_) whether rightful or wrongful, and whether inflicted
by human agency or not.
Wrongs or injuries are divisible for our present purpose into two kinds,
being either moral or legal. A moral or natural wrong is an act which is
morally or naturally wrong, being contrary to the rule of natural
justice. A legal wrong is an act which is legally wrong, being contrary
to the rule of legal justice and a violation of the law. It is an act
which is authoritatively determined to be wrong by a rule of law, and is
therefore treated as a wrong in and for the purposes of the
administration of justice by the state. It may or may not be a wrong in
deed and in truth, and conversely a moral wrong may or may not be a
wrong in law. Natural and legal wrongs, like natural and legal justice,
form intersecting circles, this discordance between law and fact being
partly intentional and partly the result of imperfect historical
development.
In all ordinary cases the legal recognition of an act as a wrong
involves the suppression or punishment of it by the physical force of
the state, this being the essential purpose for which the judicial
action of the state is ordained. We shall see later, however, that such
forcible constraint is not an invariable or essential incident, and that
there are other possible forms of effective legal recognition. The
essence of a legal wrong consists in its recognition as wrong by the
law, not in the resulting suppression or punishment of it. A legal wrong
is a violation of _justice according to law_.
§ 71. =Duties.=
A duty is an obligatory act, that is to say, it is an act the opposite
of which would be a wrong. Duties and wrongs are correlatives. The
commission of a wrong is the breach of a duty, and the performance of a
duty is the avoidance of a wrong. A synonym of duty is obligation, in
its widest sense, although in a special and technical application the
latter term denotes one particular kind of duty only, as we shall see
later.
Duties, like wrongs, are of two kinds, being either moral or legal. A
moral or natural duty is an act the opposite of which would be a moral
or natural wrong. A legal duty is an act the opposite of which would be
a legal wrong. It is an act recognised as a duty by the law, and treated
as such in and for the purposes of the administration of justice by the
state. These two classes are partly coincident and partly distinct. A
duty may be moral but not legal, or legal but not moral, or both at
once.
When the law recognises an act as a duty, it commonly enforces the
performance of it, or punishes the disregard of it. But this sanction of
legal force is in exceptional cases absent. A duty is legal because it
is legally recognised, not necessarily because it is legally enforced or
sanctioned. There are legal duties of imperfect obligation, as they are
called, which will be considered by us at a later stage of our inquiry.
§ 72. =Rights.=
A right is an interest recognised and protected by a rule of right. It
is any interest, respect for which is a duty, and the disregard of which
is a wrong.
All that is right or wrong, just or unjust, is so by reason of its
effects upon the interests of mankind,[170] that is to say upon the
various elements of human well-being, such as life, liberty, health,
reputation, and the uses of material objects. If any act is right or
just, it is so because and in so far as it promotes some form of human
interest. If any act is wrong or unjust, it is because the interests of
men are prejudicially affected by it. Conduct which has no influence
upon the interests of any one has no significance either in law or
morals.
Every wrong, therefore, involves some interest attacked by it, and every
duty involves some interest to which it relates, and for whose
protection it exists. The converse, however, is not true. Every attack
upon an interest is not a wrong, either in fact or in law, nor is
respect for every interest a duty, either legal or natural. Many
interests exist _de facto_ and not also _de jure_; they receive no
recognition or protection from any rule of right. The violation of them
is no wrong, and respect for them is no duty. For the interests of men
conflict with each other, and it is impossible for all to receive
rightful recognition. The rule of justice selects some for protection,
and the others are rejected.
The interests which thus receive recognition and protection from the
rules of right are called rights. Every man who has a right to any thing
has an interest in it also, but he may have an interest without having a
right. Whether his interest amounts to a right depends on whether there
exists with respect to it a duty imposed upon any other person. In other
words, a right is an interest the violation of which is a wrong.
Every right corresponds to a rule of right, from which it proceeds, and
it is from this source that it derives its name. That I have _a right_
to a thing means that it is _right_ that I should have that thing. All
right is _the_ right of him for whose benefit it exists, just as all
wrong is _the_ wrong of him whose interests are affected by it. In the
words of Windscheid,[171] “_Das_ Recht ist _sein_ Recht geworden.”
Rights, like wrongs and duties, are either moral or legal. A moral or
natural right is an interest recognised and protected by a rule of
natural justice—an interest the violation of which would be a moral
wrong, and respect for which is a moral duty. A legal right, on the
other hand, is an interest recognised and protected by a rule of legal
justice—an interest the violation of which would be a legal wrong done
to him whose interest it is, and respect for which is a legal duty.
“Rights,” says Ihering,[172] “are legally protected interests.”
Bentham set the fashion, still followed by many, of denying that there
are any such things as natural rights at all. All rights are legal
rights and the creation of the law. “Natural law, natural rights,” he
says,[173] “are two kinds of fictions or metaphors, which play so great
a part in books of legislation, that they deserve to be examined by
themselves.... Rights properly so called are the creatures of law
properly so called; real laws give rise to real rights. Natural rights
are the creatures of natural law; they are a metaphor which derives its
origin from another metaphor.” “In many of the cultivated,” says
Spencer,[174] criticising this opinion, “there has been produced a
confirmed and indeed contemptuous denial of rights. There are no such
things, say they, except such as are conferred by law. Following
Bentham, they affirm that the state is the originator of rights, and
that apart from it there are no rights.”
A complete examination of this opinion would lead us far into the
regions of ethical rather than juridical conceptions, and would here be
out of place. It is sufficient to make two observations with respect to
the matter. In the first place, he who denies the existence of natural
_rights_ must be prepared at the same time to reject natural or moral
_duties_ also. Rights and duties are essentially correlative, and if a
creditor has no natural right to receive his debt, the debtor is under
no moral duty to pay it to him. In the second place, he who rejects
natural _rights_ must at the same time be prepared to reject natural
_right_. He must say with the Greek Sceptics that the distinction
between right and wrong, justice and injustice, is unknown in the nature
of things, and a matter of human institution merely. If there are no
rights save those which the state creates, it logically follows that
nothing is right and nothing wrong save that which the state establishes
and declares as such. If natural justice is a truth and not a delusion,
the same must be admitted of natural rights.[175]
It is to be noticed that in order that an interest should become a
legal right, it must obtain not merely legal protection, but also
legal recognition. The interests of beasts are to some extent
protected by the law, inasmuch as cruelty to animals is a criminal
offence. But beasts are not for this reason possessed of legal rights.
The duty of humanity so enforced is not conceived by the law as a duty
_towards_ beasts, but merely as a duty _in respect_ of them. There is
no bond of legal obligation between mankind and them. The only
interest and the only right which the law recognises in such a case is
the interest and right of society as a whole in the welfare of the
animals belonging to it. He who ill-treats a child violates a duty
which he owes to the child, and a right which is vested in him. But he
who ill-treats a dog breaks no _vinculum juris_ between him and it,
though he disregards the obligation of humane conduct which he owes to
society or the state, and the correlative right which society or the
state possesses. Similarly a man’s interests may obtain legal
protection as against himself, as when drunkenness or suicide is made
a crime. But he has not for this reason a legal right against himself.
The duty to refrain from drunkenness is not conceived by the law as a
duty owing by a man to himself, but as one owing by him to the
community. The only interest which receives legal recognition is that
of the society in the sobriety of its members.
Although a legal right is commonly accompanied by the power of
instituting legal proceedings for the enforcement of it, this is not
invariably the case, and does not pertain to the essence of the
conception. As we shall see, there are classes of legal rights which are
not enforceable by any legal process; for example, debts barred by
prescription or the lapse of time. Just as there are imperfect and
unenforceable legal duties, so there are imperfect and unenforceable
legal rights.
Rights and duties are necessarily correlative. There can be no right
without a corresponding duty, or duty without a corresponding right, any
more than there can be a husband without a wife, or a father without a
child. For every duty must be a duty _towards_ some person or persons,
in whom, therefore, a correlative right is vested. And conversely every
right must be a right _against_ some person or persons, upon whom,
therefore, a correlative duty is imposed. Every right or duty involves a
_vinculum juris_ or bond of legal obligation, by which two or more
persons are bound together. There can be no duty unless there is some
one to whom it is due; there can be no right unless there is some one
from whom it is claimed; and there can be no wrong unless there is some
one who is wronged, that is to say, whose right has been violated.
We must therefore reject the opinion of those writers who distinguish
between _relative_ and _absolute_ duties, the former being those which
have rights corresponding to them, and the latter being those which have
none.[176] This opinion is held by those who conceive it to be of the
essence of a right, that it should be vested in some determinate person,
and be enforceable by some form of legal process instituted by him. On
this view, duties towards the public at large or towards indeterminate
portions of the public have no correlative rights; the duty, for
example, to refrain from committing a public nuisance. There seems no
sufficient reason, however, for defining a right in so exclusive a
manner. All duties towards the public correspond to rights vested in the
public, and a public wrong is necessarily the violation of a public
right. All duties correspond to rights, though they do not all
correspond to private rights vested in determinate individuals.
§ 73. =The Elements of a Legal Right.=
In every legal right the five following elements are involved:—
(1) A _person_ in whom it is vested, and who may be distinguished as the
_owner_ of the right, the _subject_ of it, or the person _entitled_.
(2) A _person_ against whom the right avails, and upon whom the
correlative duty lies. He may be distinguished as the person _bound_, or
as the _subject_ of the duty.
(3) An _act_ or _omission_ which is obligatory on the person bound in
favour of the person entitled. This may be termed the _content_ of the
right.
(4) Some _thing_ to which the act or omission relates, and which may be
termed the _object_ or _subject-matter_ of the right.
(5) A _title_: that is to say, certain facts or events by reason of
which the right has become vested in its owner.
Thus if A. buys a piece of land from B., A. is the subject or owner of
the right so acquired. The persons bound by the correlative duty are
persons in general, for a right of this kind avails against all the
world. The content of the right consists in non-interference with the
purchaser’s exclusive use of the land. The object or subject-matter of
the right is the land. And finally the title of the right is the
conveyance by which it was acquired from its former owner.[177]
Every right, therefore, involves a threefold relation in which the owner
of it stands:—
(1) It is a right _against_ some _person_ or persons.
(2) It is a right _to_ some _act_ or omission of such person or persons.
(3) It is a right _over_ or _to_ some _thing_ to which that act or
omission relates.
An ownerless right is an impossibility. There cannot be a right without
a subject in whom it inheres, any more than there can be weight without
a heavy body; for rights are merely attributes of persons, and can have
no independent existence. Yet although this is so, the ownership of a
right may be merely contingent or uncertain. The owner of it may be a
person indeterminate. He may even be a person who is not yet born, and
may therefore never come into existence. Although every right has an
owner, it need not have a _vested_ and _certain_ owner. Thus the fee
simple of land may be left by will to a person unborn at the death of
the testator. To whom does it belong in the meantime? We cannot say that
it belongs to no one, for the reasons already indicated. We must say
that it is presently owned by the unborn person, but that his ownership
is contingent on his birth.
Who is the owner of a debt in the interval between the death of the
creditor intestate and the vesting of his estate in an administrator?
Roman law in such a case personified the inheritance itself, and
regarded the rights contingently belonging to the heir as presently
vested in the inheritance by virtue of its fictitious personality.
According to English law before the Judicature Act, 1873, the personal
property of an intestate, in the interval between death and the grant of
letters of administration, was deemed to be vested in the Judge of the
Court of Probate, and it may be assumed that it now vests either in the
President of the Probate, Divorce and Admiralty Division, or in the
Judges of the High Court collectively. But neither the Roman nor the
English fiction is essential. There is no difficulty in saying that the
estate of an intestate is presently owned by an _incerta persona_,
namely by him who is subsequently appointed the administrator of it. The
law, however, abhors a temporary vacuum of vested ownership. It prefers
to regard all rights as presently vested in some determinate person,
subject, if need be, to be divested on the happening of the event on
which the title of the contingent owner depends.[178]
Certain writers define the object of a right with such narrowness that
they are forced to the conclusion that there are some rights which have
no objects. They consider that the object of a right means some material
thing to which it relates; and it is certainly true that in this sense
an object is not an essential element in the conception. Others admit
that a person, as well as a material thing, may be the object of a
right; as in the case of a husband’s right in respect of his wife, or a
father’s in respect of his children. But they go no further, and
consequently deny that the right of reputation, for example, or that of
personal liberty, or the right of a patentee, or a copyright, has any
object at all.
The truth seems to be, however, that an object is an essential element
in the idea of a right. A right without an object in respect of which it
exists is as impossible as a right without a subject to whom it belongs.
A right is, as we have said, a legally protected interest; and the
object of the right is the thing in which the owner has this interest.
It is the thing, material or immaterial, which he desires to keep or to
obtain, and which he is enabled to keep or to obtain by means of the
duty which the law imposes on other persons. We may illustrate this by
classifying the chief kinds of rights by reference to their objects.
(1) _Rights over material things._—In respect of their number and
variety, and of the great mass of legal rules relating to them, these
are by far the most important of legal rights. Their nature is too
familiar to require illustration.
(2) _Rights in respect of one’s own person._—I have a right not to be
killed, and the object of this right is my life. I have a right not to
be physically injured or assaulted, and the object of this right is my
bodily health and integrity. I have a right not to be imprisoned save in
due course of law; the object of this right is my personal liberty—that
is to say, my power of going where I will. I have a right not to be
coerced or deceived into acting contrary to my desires or interests; the
object of this right is my ability to fulfil my desires and protect and
promote my interests by my own activities.
(3) _The right of reputation._—In a man’s reputation, that is to say, in
the good opinion that other persons have of him, he has an interest,
just as he has an interest in the money in his pockets. In each case the
interest has obtained legal recognition and protection as a right, and
in each case the right involves an object in respect of which it exists.
(4) _Rights in respect of domestic relations._—Every man has an interest
and a right in the society, affections, and security of his wife and
children. Any person who without just cause interferes with this
interest, as by the seduction of his wife or daughter, or by taking away
his child, is guilty of a violation of his rights. The wrongdoer has
deprived him of something which was his, no less than if he had robbed
him of his purse.
(5) _Rights in respect of other rights._—In many instances a right has
another right as its subject-matter. I may have a right against A., that
he shall transfer to me some right which is now vested in himself. If I
contract with him for the sale of a piece of land to me, I acquire
thereby a right against him, that he shall so act as to make me the
owner of certain rights now belonging to himself. By the contract I
acquire a right to the right of ownership, and when the conveyance has
been executed, I acquire the right of ownership itself. Similarly a
promise of marriage vests in the woman a right to the rights of a wife;
but the marriage vests in her those rights themselves.[179]
It is commonly a question of importance, whether the right acquired by
an agreement or other transaction is merely a right to a right, or is
one having something else than another right as its immediate object. If
I buy a ton of coal or a flock of sheep, the right which I thereby
acquire may be of either of these kinds according to circumstances. I
may become forthwith the owner of the coal or the sheep; that is to say,
my right may have these material things as its immediate and direct
object. On the other hand, I may acquire merely a right against the
seller, that he by delivery or otherwise shall make me the owner of the
things so purchased. In this case I acquire a right which has, as its
immediate and direct object, nothing more than another right; though its
mediate and indirect object may be said, truly enough, to be the
material things purchased by me.
(6) _Rights over immaterial property._—Examples of these are patent
rights, copyrights, trade-marks, and commercial good-will. The object of
a patent-right is an invention, that is to say, the _idea_ of a new
process, instrument, or manufacture. The patentee has a right to the
exclusive use of this idea. Similarly the object of literary copyright
is the form of literary expression produced by the author of a book. In
this he has a valuable interest by reason of the disposition of the
public to purchase copies of the book, and by the Copyright Act this
interest has been raised to the level of a legal right.
(7) _Rights to services._—Finally we have to take account of rights
vested in one person to the services of another: the rights, for
example, which are created by a contract between master and servant,
physician and patient, or employer and workman. In all such cases the
object of the right is the skill, knowledge, strength, time, and so
forth, of the person bound. If I hire a physician, I obtain thereby a
right to the use and benefit of his skill and knowledge, just as, when I
hire a horse, I acquire a right to the use and benefit of his strength
and speed.
Or we may say, if we prefer it, that the object of a right of personal
service is the _person_ of him who is bound to render it. A man may be
the subject-matter of rights as well as the subject of them. His mind
and body constitute an instrument which is capable of certain uses, just
as a horse or a steam-engine is. In a law which recognises slavery, the
man may be bought and sold, just as the horse or steam-engine may. But
in our own law this is not so, and the only right that can be acquired
over a human being is a temporary and limited right to the use of him,
created by voluntary agreement with him—not a permanent and general
right of ownership over him.
§ 74. =Legal Rights in a wider sense of the term.=
Hitherto we have confined our attention to legal rights in the strictest
and most proper sense. It is in this sense only that we have regarded
them as the correlatives of legal duties, and have defined them as the
interests which the law protects by imposing duties with respect to them
upon other persons. We have now to notice that the term is also used in
a wider and laxer sense, to include any legally recognised interest,
whether it corresponds to a legal duty or not. In this generic sense a
legal right may be defined as any advantage or benefit which is in any
manner conferred upon a person by a rule of law. Of rights in this sense
there are at least three distinct kinds, sufficiently important to call
for separate classification and discussion. These are (1) _Rights_ (in
the strict sense), (2) _Liberties_, and (3) _Powers_. Having already
sufficiently considered the first of these, we shall now deal briefly
with the others.
§ 75. =Liberties.=
Just as my legal rights (in the strict sense) are the benefits which I
derive from legal duties imposed upon other persons, so my legal
liberties are the benefits which I derive from the absence of legal
duties imposed upon myself. They are the various forms assumed by the
interest which I have in doing as I please. They are the things which I
may do without being prevented by the law. The sphere of my legal
liberty is that sphere of activity within which the law is content to
leave me alone. It is clear that the term right is often used in a wide
sense to include such liberty. I have a right (that is to say, I am at
liberty) to do as I please with my own; but I have no right and am not
at liberty to interfere with what is another’s. I have a right to
express my opinions on public affairs, but I have no right to publish a
defamatory or seditious libel. I have a right to defend myself against
violence, but I have no right to take revenge upon him who has injured
me.
The interests of unrestrained activity thus recognised and allowed by
the law constitute a class of legal rights clearly distinguishable from
those which we have already considered. Rights of the one class are
concerned with those things which other persons _ought_ to do for me;
rights of the other class are concerned with those things which I _may_
do for myself. The former pertain to the sphere of obligation or
compulsion; the latter to that of liberty or free will. Both are legally
recognised interests; both are advantages derived from the law by the
subjects of the state; but they are two distinct species of one genus.
It is often said that all rights whatsoever correspond to duties; and
by those who are of this opinion a different explanation is
necessarily given of the class of rights which we have just
considered. It is said that a legal liberty is in reality a legal
right not to be interfered with by other persons in the exercise of
one’s activities. It is alleged that the real meaning of the
proposition that I have a legal right to express what opinions I
please, is that other persons are under a legal duty not to prevent me
from expressing them. So that even in this case the right is the
correlative of a duty. Now there is no doubt that in most cases a
legal liberty of acting is accompanied by a legal right not to be
hindered in so acting. If the law allows me a sphere of lawful and
innocent activity, it usually takes care at the same time to protect
this sphere of activity from alien interference. But in such a case
there are in reality two rights and not merely one; and there are
instances in which liberties are not thus accompanied by protecting
rights. I may have a legal liberty which involves no such duty of
non-interference imposed on others. If a landowner gives me a licence
to go upon his land, I have a right to do so, in the sense in which a
right means a liberty; but I have no right to do so, in the sense in
which a right vested in me is the correlative of a duty imposed upon
him. Though I have a liberty or right to go on his land, he has an
equal right or liberty to prevent me. The licence has no other effect
than to make that lawful which would otherwise be unlawful. The right
which I so acquire is nothing more than an extension of the sphere of
my rightful activity. So a trustee has a right to receive from the
beneficiaries remuneration for his trouble in administering the
estate, in the sense that in doing so he does no wrong. But he has no
right to receive remuneration, in the sense that the beneficiaries are
under any duty to give it to him. So an alien has a right, in the
sense of liberty, to enter British dominions, but the executive
government has an equal right, in the same sense, to keep him
out.[180] That I have a right to destroy my property does not mean
that it is wrong for other persons to prevent me; it means that it is
not wrong for me so to deal with that which is my own. That I have no
right to commit theft does not mean that other persons may lawfully
prevent me from committing such a crime, but that I myself act
illegally in taking property which is not mine.[181]
§ 76. =Powers.=
Yet another class of legal rights consists of those which are termed
powers. Examples of such are the following: the right to make a will, or
to alienate property; the power of sale vested in a mortgagee; a
landlord’s right of re-entry; the right to marry one’s deceased wife’s
sister; that power of obtaining in one’s favour the judgment of a court
of law, which is called a right of action; the right to rescind a
contract for fraud; a power of appointment; the right of issuing
execution on a judgment; the various powers vested in judges and other
officials for the due fulfilment of their functions. All these are legal
rights—they are legally recognised interests—they are advantages
conferred by the law—but they are rights of a different species from the
two classes which we have already considered. They resemble liberties,
and differ from rights _stricto sensu_, inasmuch as they have no duties
corresponding to them. My right to make a will corresponds to no duty in
any one else. A mortgagee’s power of sale is not the correlative of any
duty imposed upon the mortgagor; though it is otherwise with his right
to receive payment of the mortgage debt. A debt is not the same thing as
a right of action for its recovery. The former is a right in the strict
and proper sense, corresponding to the duty of the debtor to pay; the
latter is a legal power, corresponding to the liability of the debtor to
be sued. That the two are distinct appears from the fact that the right
of action may be destroyed (as by prescription) while the debt remains.
It is clear, therefore, that a power is not the same thing as a right of
the first class. Neither is it identical with a right of the second
class, namely, a liberty. That I have a right to make a will does not
mean that in doing so I do no wrong. It does not mean that I _may_ make
a will innocently; it means that I _can_ make a will effectively. That I
have a right to marry my cousin does not mean that such a marriage is
legally innocent, but that it is legally valid. It is not a liberty that
I have, but a power. That a landlord has a right of re-entry on his
tenant does not mean that in re-entering he does the tenant no wrong,
but that by so doing he effectively terminates the lease.[182]
A power may be defined as ability conferred upon a person by the law to
determine, by his own will directed to that end, the rights, duties,
liabilities, or other legal relations, either of himself or of other
persons. Powers are either public or private. The former are those which
are vested in a person as an agent or instrument of the functions of the
state; they comprise the various forms of legislative, judicial, and
executive authority. Private powers, on the other hand, are those which
are vested in persons to be exercised for their own purposes, and not as
agents of the state. Power is either ability to determine the legal
relations of other persons, or ability to determine one’s own. The first
of these—power over other persons—is commonly called _authority_; the
second—power over oneself—is usually termed _capacity_.[183]
These, then, are the three chief classes of benefits, privileges, or
rights conferred by the law: liberty, when the law allows to my will a
sphere of unrestrained activity; power, when the law actively assists me
in making my will effective; right in the strict sense, when the law
limits the liberty of others in my behalf. A liberty is that which I
_may_ do innocently; a power is that which I _can_ do effectively; a
right in the narrow sense is that which other persons _ought_ to do on
my behalf. I use my liberties with the acquiescence of the law; I use my
powers with its active assistance in making itself the instrument of my
will; I enjoy my rights through the control exercised by it over the
acts of others on my behalf.[184][185]
§ 77. =Duties, Disabilities, and Liabilities.=
There is no generic term which is the correlative of right in the wide
sense, and includes all the burdens imposed by the law, as a right
includes all the benefits conferred by it. These legal burdens are of
three kinds, being either _Duties_, _Disabilities_, or _Liabilities_. A
duty is the absence of liberty; a disability is the absence of power; a
liability is the presence either of liberty or of power vested in some
one else as against the person liable. Examples of liabilities
correlative to liberties are the liability of a trespasser to be
forcibly ejected, that of a defaulting tenant to have his goods seized
for rent, and that of the owner of a building to have his windows
darkened or his foundations weakened by the building or excavations of
his neighbours. Examples of liabilities correlative to powers are the
liability of a tenant to have his lease determined by re-entry, that of
a mortgagor to have the property sold by the mortgagee, that of a
judgment debtor to have execution issued against him, and that of an
unfaithful wife to be divorced.
The most important form of liability is that which corresponds to the
various powers of action and prosecution arising from the different
forms of wrongdoing. There is accordingly a narrow sense of the word
liability, in which it covers this case exclusively. Liability in this
sense is the correlative of a legal remedy. A synonym for it is
responsibility. It is either civil or criminal according as it
corresponds to a right of action or to a right of prosecution.[186][187]
SUMMARY.
The nature of a Wrong.
Moral and legal wrongs.
The nature of a Duty.
Moral and legal duties.
The nature of a Right.
Interests.
Their protection by the rule of right.
Interests and rights.
Moral and legal rights.
The denial of moral rights.
The correlation of rights and duties.
No rights without duties.
No duties without rights.
The elements of a legal right.
1. Person entitled, or owner.
2. Person bound.
3. Content.
4. Object or subject-matter.
5. Title.
No rights without owners.
No rights without objects.
{1. Material things.
{2. One’s own person.
{3. Reputation.
Objects of rights {4. Domestic relations.
{5. Other rights.
{6. Immaterial property.
{7. Services.
Rights in the generic sense—Any benefit conferred by the law.
{1. Rights (_stricto sensu_)—correlative to Duties.
{2. Liberties—correlative to Liabilities.
{3. Powers—correlative to Liabilities.
{1. Rights (_stricto sensu_)—what others _must_ do for me.
{2. Liberties—what I _may_ do for myself.
{3. Powers—what I _can_ do as against others.
Duties, Liabilities, Disabilities.
CHAPTER XI.
THE KINDS OF LEGAL RIGHTS.
§ 78. =Perfect and Imperfect Rights.=
Recognition by the law in the administration of justice is common to all
legal rights and duties, but the purposes and effects of this
recognition are different in different cases. All are not recognised to
the same end. Hence a division of rights and duties into two kinds,
distinguishable as _perfect_ and _imperfect_. A perfect right is one
which corresponds to a perfect duty; and a perfect duty is one which is
not merely recognised by the law, but _enforced_. A duty is enforceable
when an action or other legal proceeding, civil or criminal, will lie
for the breach of it, and when judgment will be executed against the
defendant, if need be, through the physical force of the state.[188]
Enforceability is the general rule. In all ordinary cases, if the law
will recognise a right at all, it will not stop short of the last remedy
of physical compulsion against him on whom the correlative duty lies.
_Ought_, in the mouth of the law, commonly means _must_. In all fully
developed legal systems, however, there are rights and duties which,
though undoubtedly recognised by the law, yet fall short of this typical
and perfect form.[189]
Examples of such imperfect legal rights are claims barred by lapse of
time; claims unenforceable by action owing to the absence of some
special form of legally requisite proof (such as a written document);
claims against foreign states or sovereigns, as for interest due on
foreign bonds; claims unenforceable by action as exceeding the local
limits of a court’s jurisdiction, such as claims in respect of foreign
land; debts due to an executor from the estate which he administers. In
all those cases the duties and the correlative rights are imperfect. No
action will lie for their maintenance; yet they are, for all that, legal
rights and legal duties, for they receive recognition from the law. The
statute of limitations, for example, does not provide that after a
certain time a debt shall become extinct, but merely that no action
shall thereafter be brought for its recovery. Lapse of time, therefore,
does not destroy the right, but merely reduces it from the rank of one
which is perfect to that of one which is imperfect. It remains valid for
all purposes save that of enforcement. In like manner he from whom a
chattel is taken wrongfully, and detained for six years, loses all right
to sue the taker for its recovery; but he does not cease to be the owner
of it. Nor is his ownership merely an empty title; for in divers ways it
may lead him, with the assistance of the law, to the possession and
enjoyment of his own again. All these cases of imperfect rights are
exceptions to the maxim, _Ubi jus ibi remedium_. The customary union
between the right and the right of action has been for some special
reason severed, but the right survives.
For what purposes the law will recognise an imperfect right is a
question relating to the concrete details of a legal system, and cannot
be fully discussed here. We may, however, distinguish the following
effects as those of greatest importance and most general application.
1. An imperfect right may be good as a ground of defence, though not as
a ground of action. I cannot sue on an informal contract, but if money
is paid or property delivered to me in pursuance of it, I can
successfully defend any claim for its recovery.
2. An imperfect right is sufficient to support any security that has
been given for it. A mortgage or pledge remains perfectly valid,
although the debt secured by it has ceased to be recoverable by
action.[190] But if the debt is discharged, instead of becoming merely
imperfect, the security will disappear along with it.
3. An imperfect right may possess the capacity of becoming perfect. The
right of action may not be non-existent, but may be merely dormant. An
informal verbal contract may become enforceable by action, by reason of
the fact that written evidence of it has since come into existence. In
like manner part-payment or acknowledgment will raise once more to the
level of a perfect right a debt that has been barred by the lapse of
time.
§ 79. =The Legal Nature of Rights against the State.=
A subject may claim rights against the state, no less than against
another subject. He can institute proceedings against the state for the
determination and recognition of those rights in due course of law, and
he can obtain judgment in his favour, recognising their existence or
awarding to him compensation for their infringement. But there can be no
_enforcement_ of that judgment. What duties the state recognises as
owing by it to its subjects, it fulfils of its own free will and
unconstrained good pleasure. The strength of the law is none other than
the strength of the state, and cannot be turned or used against the
state whose strength it is. The rights of the subject against the state
are therefore imperfect. They obtain legal recognition but no legal
enforcement.
The fact that the element of enforcement is thus absent in the case of
rights against the state, has induced many writers to deny that these
are legal rights at all. But as we have already seen, we need not so
narrowly define the term legal right, as to include only those claims
that are legally enforced. It is equally logical and more convenient to
include within the term all those claims that are legally recognised in
the administration of justice. All rights against the state are not
legal, any more than all rights against private persons are legal. But
some of them are; those, namely, which can be sued for in courts of
justice, and the existence and limits of which will be judicially
determined in accordance with fixed principles of law, redress or
compensation being awarded for any violation of them. To hold the
contrary, and to deny the name of legal right or duty in all cases in
which the state is the defendant, is to enter upon a grave conflict with
legal and popular speech and thought. In the language of lawyers, as in
that of laymen, a contract with the state is as much a source of legal
rights and obligations, as is a contract between two private persons;
and the right of the holder of consols is as much a legal right, as is
that of a debenture holder in a public company. It is not to the point
to say that rights against the state are held at the state’s good
pleasure, and are therefore not legal rights at all; for all other legal
rights are in the same position. They are legal rights not because the
state is bound to recognise them, but because it does so.
Whether rights against the state can properly be termed legal depends
simply on whether judicial proceedings in which the state is the
defendant are properly included within the administration of justice.
For if they are rightly so included, the principles by which they are
governed are true principles of law, in accordance with the definition
of law, and the rights defined by these legal principles are true legal
rights. The boundary line of the administration of justice has been
traced in a previous chapter. We there saw sufficient reason for
including not only the direct enforcement of justice, but all other
judicial functions exercised by courts of justice. This is the ordinary
use of the term, and it seems open to no logical objection.[191]
§ 80. =Positive and Negative Rights.=
In respect of their contents, rights are of two kinds, being either
_positive_ or _negative_. A positive right corresponds to a positive
duty, and is a right that he on whom the duty lies shall do some
positive act on behalf of the person entitled. A negative right
corresponds to a negative duty, and is a right that the person bound
shall refrain from some act which would operate to the prejudice of the
person entitled. The same distinction exists in the case of wrongs. A
positive wrong or wrong of commission is the breach of a negative duty
and the violation of a negative right. A negative wrong or wrong of
omission is the breach of a positive duty, and the infringement of a
positive right. A negative right entitles the owner of it to the
maintenance of the present position of things; a positive right entitles
him to an alteration of this position for his advantage. The former is
merely a right not to be harmed; the latter is a right to be positively
benefited. The former is a right to retain what one already has; the
latter is a right to receive something more than one already has.
In the case of a negative right the interest which is its _de facto_
basis is of such a nature that it requires for its adequate maintenance
or protection nothing more than the passive acquiescence of other
persons. All that is asked by the owner of the interest is to be left
alone in the enjoyment of it. In the case of a positive right, on the
other hand, the interest is of a less perfect and self-sufficient
nature, inasmuch as the person entitled requires for the realisation and
enjoyment of his right the active assistance of other persons. In the
former case I stand in an immediate and direct relation to the object of
my right, and claim from others nothing more than that they shall not
interfere between me and it. In the latter case I stand in a mediate and
indirect relation to the object, so that I can attain to it only through
the active help of others. My right to the money in my pocket is an
example of the first class; my right to the money in the pocket of my
debtor is an instance of the second.
The distinction is one of practical importance. It is much easier, as
well as much more necessary, for the law to prevent the infliction of
harm than to enforce positive beneficence. Therefore while liability for
hurtful acts of commission is the general rule, liability for acts of
omission is the exception. Generally speaking, all men are bound to
refrain from all kinds of positive harm, while only some men are bound
in some ways actively to confer benefits on others. No one is entitled
to do another any manner of hurt, save with special ground of
justification; but no one is bound to do another any manner of good save
on special grounds of obligation. Every man has a right against every
man that the present position of things shall not be interfered with to
his detriment; whilst it is only in particular cases and for special
reasons that any man has a right against any man that the present
position shall be altered for his advantage. I have a right against
every one not to be pushed into the water; if I have a right at all to
be pulled out, it is only on special grounds against determinate
individuals.
§ 81. =Real and Personal Rights.=
The distinction between real and personal rights is closely connected
but not identical with that between negative and positive rights. It is
based on a difference in the incidence of the correlative duties. A real
right corresponds to a duty imposed upon persons in general; a personal
right corresponds to a duty imposed upon determinate individuals. A real
right is available against the world at large; a personal right is
available only against particular persons. The distinction is one of
great prominence in the law, and we may take the following as
illustrations of it. My right to the peaceable occupation of my farm is
a real right, for all the world is under a duty towards me not to
interfere with it. But if I grant a lease of the farm to a tenant, my
right to receive the rent from him is personal; for it avails
exclusively against the tenant himself. For the same reason my right to
the possession and use of the money in my purse is real; but my right to
receive money from some one who owes it to me is personal. I have a real
right against every one not to be deprived of my liberty or my
reputation; I have a personal right to receive compensation from any
individual person who has imprisoned or defamed me. I have a real right
to the use and occupation of my own house; I have a personal right to
receive accommodation at an inn.
A real right, then, is an interest protected against the world at large;
a personal right is an interest protected solely against determinate
individuals. The distinction is clearly one of importance. The law
confers upon me a greater advantage in protecting my interests against
all persons, than in protecting them only against one or two. The right
of a patentee, who has a monopoly as against all the world, is much more
valuable than the right of him who purchases the good-will of a business
and is protected only against the competition of his vendor. If I buy a
chattel, it is an important question, whether my interest in it is
forthwith protected against every one, or only against him who sells it
to me. The main purpose of mortgages and other forms of real security is
to supplement the imperfections of a personal right by the superior
advantages inherent in a right of the other class. Furthermore, these
two kinds of rights are necessarily very different in respect of the
modes of their creation and extinction. The indeterminate incidence of
the duty which corresponds to a real right, renders impossible many
modes of dealing with it which are of importance in the case of personal
rights.
The distinction which we are now considering is closely connected with
that between positive and negative rights. All real rights are negative,
and most personal rights are positive, though in a few exceptional cases
they are negative. It is not difficult to see the reason for this
complete or partial coincidence. A real right, available against all
other persons, can be nothing more than a right to be left alone by
those persons—a right to their passive non-interference. No person can
have a legal right to the active assistance of all the world. The only
duties, therefore, that can be of general incidence are negative. It may
be objected to this, that though a private person cannot have a positive
right against all other persons, yet the state may have such a right
against all its subjects. All persons, for example, may be bound to pay
a tax or to send in census returns. Are not these duties of general
incidence, and yet positive? The truth is, however, that the right of
the state in all such cases is personal and not real. The right to
receive a tax is not one right, but as many separate rights as there are
taxpayers. If I owe ten pounds to the state as income tax, the right of
the state against me is just as personal as is that of any other
creditor, and it does not change its nature because other persons or
even all my fellow-citizens owe a similar amount on the like account. My
debt is not theirs, nor are their debts mine. The state has not one real
right available against all, but an immense number of personal rights,
each of which avails against a determinate tax-payer. On the other hand,
the right of the state that no person shall trespass on a piece of Crown
land is a single interest protected against all the world, and is
therefore a single real right. The unity of a real right consists in the
singleness of its subject-matter. The right of reputation is _one_
right, corresponding to an infinite number of duties; for the
subject-matter is one thing, belonging to one person, and protected
against all the world.
Although all real rights are negative, it is not equally true that all
personal rights are positive. This is so, indeed, in the great majority
of cases. The merely passive duty of non-interference, when it exists at
all, usually binds all persons in common. There are, however,
exceptional cases in which this is not so. These exceptional rights,
which are both negative and personal, are usually the product of some
agreement by which some particular individual has deprived himself of a
liberty which is common to all other persons. Thus all tradesmen may
lawfully compete with each other in the ordinary way of business, even
though the result of this competition is the ruin of the weaker
competitors. But in selling to another the good-will of my business I
may lawfully deprive myself of this liberty by an express agreement with
the purchaser to that effect. He thereby acquires against me a right of
exemption from competition, and this right is both personal and
negative. It is a monopoly, protected not against the world at large,
but against a determinate individual. Such rights belong to an
intermediate class of small extent, standing between rights which are
both real and negative on the one side and those which are both personal
and positive on the other.
In defining a real right as one availing against the world at large,
it is not meant that the incidence of the correlative duty is
absolutely universal, but merely that the duty binds persons in
general, and that if any one is not bound his case is exceptional.
Similarly a personal right is not one available against a single
person only, but one available against one or more _determinate_
individuals. The right of the creditor of a firm is personal, though
the debt may be due from any number of partners. Even as so explained,
however, it can scarcely be denied, that if intended as an exhaustive
classification of all possible cases, the distinction between real and
personal rights—between duties of general and of determinate
incidence—is logically defective. It takes no account of the
possibility of a third and intermediate class. Why should there not be
rights available against particular classes of persons, as opposed
both to the whole community and to persons individually determined,
for example, a right available only against aliens? An examination,
however, of the contents of any actual legal system will reveal the
fact that duties of this suggested description either do not exist at
all, or are so exceptional that we are justified in classing them as
anomalous. As a classification, therefore, of the rights which
actually obtain legal recognition, the distinction between real and
personal rights may be accepted as valid.
The distinction between a real and a personal right is otherwise
expressed by the terms right _in rem_ (or _in re_) and right _in
personam_. These expressions are derived from the commentators on the
civil and canon law. Literally interpreted, _jus in rem_ means a right
against or in respect of a thing, _jus in personam_ a right against or
in respect of a person. In truth, however, every right is at the same
time one in respect of some thing, namely its object, and against some
person, namely, the person bound. In other words, every right involves
not only a _real_, but also a _personal_ relation. Yet although these
two relations are necessarily coexistent, their relative prominence and
importance are not always the same. In real rights it is the real
relation that stands in the forefront of the juridical conception; such
rights are emphatically and conspicuously _in rem_. In personal rights,
on the other hand, it is the personal relation that forms the
predominant factor in the conception; such rights are before all things
_in personam_. For this difference there is more than one reason. In the
first place, the real right is a relation between the owner and a vague
multitude of persons, no one of whom is distinguished from any other;
while a personal right is a definite relation between determinate
individuals, and the definiteness of this personal relation raises it
into prominence. Secondly, the source or title of a real right is
commonly to be found in the character of the real relation, while a
personal right generally derives its origin from the personal relation.
In other words, if the law confers upon me a real right, it is commonly
because I stand in some special relation to the thing which is the
object of the right. If on the contrary it confers on me a personal
right, it is commonly because I stand in some special relation to the
person who is the subject of the correlative duty. If I have a real
right in a material object, it is because I made it, or found it, or
first acquired possession of it, or because by transfer or otherwise I
have taken the place of some one who did originally stand in some such
relation to it. But if I have a personal right to receive money from
another, it is commonly because I have made a contract with him, or have
come in some other manner to stand in a special relation to him. Each of
these reasons tends to advance the importance of the real relation in
real rights, and that of the personal relation in personal rights. The
former are primarily and pre-eminently _in rem_; the latter primarily
and pre-eminently _in personam_.
The commonest and most important kind of _jus in personam_ is that which
has been termed by the civilians and canonists _jus ad rem_. I have a
_jus ad rem_, when I have a right that some other right shall be
transferred to me or otherwise vested in me. _Jus ad rem_ is a right to
a right. We have already seen, in the previous chapter, that it is
possible for one right to be in this way the subject-matter of another.
A debt, a contract to assign property, and a promise of marriage are
examples of this. It is clear that such a right to a right must be in
all cases _in personam_. The right which is to be transferred,
however—the subject-matter of the _jus ad rem_—may be either real or
personal, though it is more commonly real. I may agree to assign or
mortgage a debt, or the benefit of a contract, no less than lands or
chattels. An agreement to assign a chattel creates a _jus ad jus in
rem_; an agreement to assign a debt or a contract creates a _jus ad jus
in personam_.[192]
The terms _jus in rem_ and _jus in personam_ were invented by the
commentators on the civil law, and are not found in the original
sources. The distinction thereby expressed, however, received adequate
recognition from the Roman lawyers. They drew a broad line of
demarcation between _dominium_ on the one side and _obligatio_ on the
other, the former including real, and the latter personal rights.
_Dominium_ is the relation between the owner of a real right
(_dominus_) and the right so vested in him. _Obligatio_ is the
relation between the owner of a personal right (_creditor_) and the
person on whom the correlative duty lies. _Obligatio_, in other words,
is the legal bond by which two or more determinate individuals are
bound together. Our modern English obligation has lost this specific
meaning, and is applied to any duty, whether it corresponds to a real
or to a personal right. It is to be noticed, however, that both
_dominium_ and _obligatio_ are limited by the Romans to the sphere of
what, in the succeeding part of this chapter, we term proprietary
rights. A man’s right to his personal liberty or reputation, for
example, falls neither within the sphere of _dominium_ nor within that
of _obligatio_. The distinction between real and personal rights, on
the other hand, is subject to no such limitation.
The terms _jus in rem_ and _jus in personam_ are derived from the
Roman terms _actio in rem_ and _actio in personam_. An _actio in rem_
was an action for the recovery of _dominium_; one in which the
plaintiff claimed that a certain thing belonged to him and ought to be
restored or given up to him. An _actio in personam_ was one for the
enforcement of an _obligatio_; one in which the plaintiff claimed the
payment of money, the performance of a contract, or the protection of
some other personal right vested in him as against the defendant.[193]
Naturally enough, the right protected by an _actio in rem_ came to be
called _jus in rem_, and a right protected by an _actio in personam,
jus in personam_.
§ 82. =Proprietary and Personal Rights.=
Another important distinction is that between proprietary and personal
rights. The aggregate of a man’s proprietary rights constitutes his
_estate_, his _assets_, or his _property_ in one of the many senses of
that most equivocal of legal terms. German jurisprudence is superior to
our own in possessing a distinct technical term for this aggregate of
proprietary rights, namely _Vermögen_, the rights themselves being
_Vermögensrechte_. The French speak in the same fashion of _avoir_ or
_patrimoine_. The sum total of a man’s personal rights, on the other
hand, constitutes his _status_ or personal condition, as opposed to his
estate. If he owns land, or chattels, or patent rights, or the good-will
of a business, or shares in a company, or if debts are owing to him, all
these rights pertain to his estate. But if he is a free man and a
citizen, a husband and a father, the rights which he has as such pertain
to his status or standing in the law.[194]
What, then, is the essential nature of this distinction? It lies in the
fact that proprietary rights are _valuable_, and personal rights are
not. The former are those which are worth money; the latter are those
that are worth none. The former are the elements of a man’s _wealth_;
the latter are merely elements in his _well-being_. The former possess
not merely juridical, but also economic significance; while the latter
possess juridical significance only.[195]
It makes no difference in this respect, whether a right is _jus in rem_
or _jus in personam_. Rights of either sort are proprietary, and make up
the estate of the possessor, if they are of economic value. Thus my
right to the money in my pocket is proprietary; but not less so is my
right to the money which I have in the bank. Stock in the funds is part
of a man’s estate, just as much as land and houses; and a valuable
contract, just as much as a valuable chattel. On the other hand, a man’s
rights of personal liberty, and of reputation, and of freedom from
bodily harm are personal, not proprietary. They concern his welfare, not
his wealth; they are juridical merely, not also economic. So also with
the rights of a husband and father with respect to his wife and
children. Rights such as these constitute his legal status, not his
legal estate. If we go outside the sphere of private, into that of
public law, we find the list of personal rights greatly increased.
Citizenship, honours, dignities, and official position in all its
innumerable forms pertain to the law of status, not to that of
property.[196]
With respect to the distinction between proprietary and personal
rights—estate and status—there are the following supplementary
observations to be made.
1. The distinction is not confined to rights in the strict sense, but
is equally applicable to other classes of rights also. A person’s
estate is made up not merely of his valuable claims against other
persons, but of such of his powers and liberties, as are either
valuable in themselves, or are accessory to other rights which are
valuable. A landlord’s right of re-entry is proprietary, no less than
his ownership of the land; and a mortgagee’s right of sale, no less
than the debt secured. A general power of appointment is proprietary,
but the power of making a will or a contract is personal.
2. The distinction between personal and proprietary rights has its
counterpart in that between personal and proprietary duties and
liabilities. The latter are those which relate to a person’s estate,
and diminish the value of it. They represent a loss of money, just as
a proprietary right represents the acquisition of it. All others are
personal. A liability to be sued for a debt is proprietary, but a
liability to be prosecuted for a crime is personal. The duty of
fulfilling a contract for the purchase of goods is proprietary, but
the duty of fulfilling a contract to marry is personal.
3. Although the term estate includes only rights (in the generic
sense), the term status includes not only rights, but also duties,
liabilities, and disabilities. A minor’s contractual disabilities are
part of his status, though a man’s debts are not part of his estate.
Status is the sum of one’s personal duties, liabilities, and
disabilities, as well as of one’s personal rights.
4. A person’s status is made up of smaller groups of personal rights,
duties, liabilities, and disabilities, and each of these constituent
groups is itself called a status. Thus the same person may have at the
same time the status of a free man, of a citizen, of a husband, of a
father, and so on. So we speak of the status of a wife, meaning all
the personal benefits and burdens of which marriage is the legal
source and title in a woman. In the same way we speak of the status of
an alien, a lunatic, or an infant.
5. It may be thought that proprietary rights should be defined as
those which are transferable, rather than as those which are valuable.
As to this, it seems clear that all transferable rights are also
proprietary; for if they can be transferred, they can be sold, and are
therefore worth money. But it is not equally true that all proprietary
rights are transferable. Popular speech does not, and legal theory
need not, deny the name of property to a valuable right, merely
because it is not transferable. A pension may be inalienable; but it
must be counted, for all that, as wealth or property. Debts were
originally incapable of assignment; but even then they were elements
of the creditor’s estate. A married woman may be unable to alienate
her estate; but it is an estate none the less. The true test of a
proprietary right is not whether it can be alienated, but whether it
is equivalent to money; and it may be equivalent to money, though it
cannot be sold for a price. A right to receive money or something
which can itself be turned into money, is a proprietary right, and is
to be reckoned in the possessor’s estate, even though inalienable.
6. It is an unfortunate circumstance that the term status is used in a
considerable variety of different senses. Of these we may distinguish
the following:
(a) _Legal condition of any kind, whether personal or proprietary._
This is the most comprehensive use of the term. A man’s status
in this sense includes his whole position in the law—the sum
total of his legal rights, duties, liabilities, or other legal
relations, whether proprietary or personal, or any particular
group of them separately considered. Thus we may speak of the
status of a landowner, of a trustee, of an executor, of a
solicitor, and so on. It is much more common, however, to
confine the term in question to some particular description of
legal condition—some particular kind of status in this wide
sense. Hence the other and specific meanings of the term.
(b) _Personal legal condition_; that is to say, a man’s legal
condition, only so far as his personal rights and burdens are
concerned, to the exclusion of his proprietary relations. It is
in this sense that we have hitherto used the term. Thus we speak
of the status of an infant, of a married woman, of a father, of
a public official, or of a citizen; but not of a landowner or of
a trustee.
(c) _Personal capacities and incapacities_, as opposed to the other
elements of personal status. By certain writers the term status
is applied not to the whole sphere of personal condition, but
only to one part of it, namely that which relates to personal
capacity and incapacity.[197] The law of status in this sense
would include the rules as to the contractual capacities and
incapacities of married women, but not the personal rights and
duties existing between her and her husband. So it would include
the law as to infant’s contracts, but not the law as to the
mutual rights of parent and child. This law of status in the
sense of personal capacity is considered as a special branch of
the law, introductory to the main body of legal doctrine, on the
ground that a knowledge of the different capacities of different
classes of persons to acquire rights and to enter into legal
relations is pre-supposed in the exposition of those rights and
legal relations themselves. It cannot be doubted that there are
certain rules which so permeate the law, that it is necessary in
any well-arranged system to dispose of them once for all in a
preliminary portion of the code, instead of constantly repeating
them in connexion with every department of the law in which they
are relevant; but it may be doubted whether the rules of
personal capacity belong to this category. Surely the
contractual capacity of a minor is best dealt with in the law of
contracts, his capacity to commit a tort in the law of tort, his
capacity to commit a crime in the criminal law, his capacity to
marry in the law of marriage. Moreover, even if personal
capacity is a suitable subject for separate and introductory
treatment in the law, there seems little justification for
confining the term status to this particular branch of personal
condition.
(d) _Compulsory as opposed to conventional personal condition._
Status is used by some writers to signify a man’s personal legal
condition, so far only as it is imposed upon him by the law
without his own consent, as opposed to the condition which he
has acquired for himself by agreement. The position of a slave
is a matter of status, the position of a free servant is a
matter of contract. Marriage creates a status in this sense, for
although it is entered into by way of consent, it cannot be
dissolved in that way, and the legal condition created by it is
determined by the law, and cannot be modified by the agreement
of the parties. A business partnership, on the other hand,
pertains to the law of contract, and not to that of status.[198]
7. _The law of persons and the law of things._ Certain of the Roman
lawyers, for example Gaius, divided the whole of the substantive law
into two parts, which they distinguished as _jus quod ad personas
pertinet_ and _jus quod ad res pertinet_, terms which are commonly
translated as the law of persons and the law of things. There has been
much discussion as to the precise significance of this distinction,
and it is possible that it was based on no clear and consistent
logical analysis at all. Any adequate investigation of the matter
would here be out of place, but it is suggested that the true basis of
the division is the distinction between personal and proprietary
rights, between status and property. The _jus quod ad res pertinet_ is
the law of property, the law of proprietary rights; the _jus quod ad
personas pertinet_ is the law of status, the law of personal rights,
so far as such rights require separate consideration, instead of being
dealt with in connexion with those portions of the law of property to
which they are immediately related.[199]
§ 83. =Rights in re propria and Rights in re aliena.=
Rights may be divided into two kinds, distinguished by the civilians as
_jura in re propria_ and _jura in re aliena_. The latter may also be
conveniently termed _encumbrances_, if we use that term in its widest
permissible sense.[200] A right _in re aliena_ or encumbrance is one
which limits or derogates from some more general right belonging to some
other person in respect of the same subject-matter. All others are _jura
in re propria_. It frequently happens that a right vested in one person
becomes subject or subordinate to an adverse right vested in another. It
no longer possesses its full scope or normal compass, part of it being
cut off to make room for the limiting and superior right which thus
derogates from it. Thus the right of a landowner may be subject to and
limited by that of a tenant to the temporary use of the property; or to
the right of a mortgagee to sell or take possession; or to the right of
a neighbouring landowner to the use of a way or other easement; or to
the right of the vendor of land in respect of restrictive covenants
entered into by the purchaser as to the use of it; for example, a
covenant not to build upon it.
A right subject to an encumbrance may be conveniently designated as
_servient_, while the encumbrance which derogates from it may be
contrasted as _dominant_. These expressions are derived from, and
conform to, Roman usage in the matter of servitudes. The general and
subordinate right was spoken of figuratively by the Roman lawyers as
being in bondage to the special right which prevailed over and derogated
from it. The term _servitus_, thus derived, came to denote the superior
right itself rather than the relation between it and the other; just as
_obligatio_ came to denote the right of the creditor, rather than the
bond of legal subjection under which the debtor lay.[201]
The terms _jus in re propria_ and _jus in re aliena_ were devised by the
commentators on the civil law, and are not to be found in the original
sources. Their significance is clear. The owner of a chattel has _jus in
re propria_—a right over his own property; the pledgee or other
encumbrancer of it has _jus in re aliena_—a right over the property of
some one else.
There is nothing to prevent one encumbrance from being itself subject to
another. Thus a tenant may sublet; that is to say, he may grant a lease
of his lease, and so confer upon the sub-lessee a _jus in re aliena_ of
which the immediate subject-matter is itself merely another right of the
same quality. The right of the tenant in such a case is dominant with
regard to that of the landowner, but servient with regard to that of the
sub-lessee. So the mortgagee of land may grant a mortgage of his
mortgage; that is to say, he may create what is called a sub-mortgage.
The mortgage will then be a dominant right in respect of the ownership
of the land, but a servient right with respect to the sub-mortgage. So
the easements appurtenant to land are leased or mortgaged along with it;
and therefore, though themselves encumbrances, they are themselves
encumbered. Such a series of rights, each limiting and derogating from
the one before it, may in theory extend to any length.
A right is not to be classed as encumbered or servient, merely on
account of its _natural_ limits and restrictions. Otherwise all rights
would fall within this category, since none of them are unlimited in
their scope, all being restrained within definite boundaries by the
conflicting interests and rights of other persons. All ownership of
material things, for example, is limited by the maxim, _sic utere tuo ut
alienum non laedas_. Every man must so restrain himself in the use of
his property, as not to infringe upon the property and rights of others.
The law confers no property in stones, sufficiently absolute and
unlimited to justify their owner in throwing them through his
neighbour’s windows. No landowner may by reason of his ownership inflict
a nuisance upon the public or upon adjoining proprietors. But in these
and all similar cases we are dealing merely with the normal and natural
boundaries of the right, not with those exceptional and artificial
restrictions which are due to the existence of _jura in re aliena_
vested in other persons. A servient right is not merely a limited right,
for all are limited; it is a right so limited that its ordinary
boundaries are infringed. It is a right which, owing to the influence of
some other and superior right, is prevented from attaining its normal
scope and dimensions. Until we have first settled the natural contents
and limits of a right, there can be no talk of other rights which
qualify and derogate from it.
It is essential to an encumbrance, that it should, in the technical
language of our law, _run with_ the right encumbered by it. In other
words the dominant and the servient rights are necessarily _concurrent_.
By this it is meant that an encumbrance must follow the encumbered right
into the hands of new owners, so that a change of ownership will not
free the right from the burden imposed upon it. If this is not so—if the
right is transferable free from the burden—there is no true encumbrance.
For the burden is then merely personal to him who is subject to it, and
does not in truth limit or derogate from the right itself. This right
still exists in its full compass, since it can be transferred in its
entirety to a new owner. For this reason an agreement to sell land vests
an encumbrance or _jus in re aliena_ in the purchaser; but an agreement
to sell a chattel does not. The former agreement runs with the property,
while the latter is non-concurrent. So the fee simple of land may be
encumbered by negative agreements, such as a covenant not to build; for
speaking generally, such obligations will run with the land into the
hands of successive owners. But positive covenants are merely personal
to the covenantor, and derogate in no way from the fee simple vested in
him, which he can convey to another free from any such burdens.
Concurrence, however, may exist in different degrees; it may be more or
less perfect or absolute. The encumbrance may run with the servient
right into the hands of some of the successive owners and not into the
hands of others. In particular, encumbrances may be concurrent either in
law or merely in equity. In the latter case the concurrence is imperfect
or partial, since it does not prevail against the kind of owner known in
the language of the law as a purchaser for value without notice of the
dominant right. Examples of encumbrances running with then servient
rights at law are easements, leases, and legal mortgages. On the other
hand an agreement for a lease, an equitable mortgage, a restrictive
covenant as to the use of land, and a trust will run with their
respective servient rights in equity but not at law.
It must be carefully noted that the distinction between _jura in re
propria_ and _jura in re aliena_ is not confined to the sphere of real
rights or _jura in rem_. Personal, no less than real rights may be
encumbrances of other rights. Personal, no less than real rights may be
themselves encumbered. A debtor, for example, may grant a security over
the book debts owing to him in his business or over his shares in a
company, as well as over his stock in trade. A life tenancy of money in
the public funds is just as possible as a life tenancy of land. There
can be a lien over a man’s share in a trust fund, as well as over a
chattel belonging to him. The true test of an encumbrance is not whether
the encumbrancer has a _jus in rem_ available against all the world, but
whether he has a right which will avail against subsequent owners of the
encumbered property.
The chief classes of encumbrances are four in number, namely, Leases,
Servitudes, Securities, and Trusts. In a later chapter we shall
consider these more at length, and in the meantime it is sufficient
briefly to indicate their nature.
1. A lease is the encumbrance of property vested in one man by a right
to the possession and use of it vested in another.
2. A servitude is a right to the limited use of a piece of land
unaccompanied either by the ownership or by the possession of it; for
example, a right of way or a right to the passage of light or water
across adjoining land.
3. A security is an encumbrance vested in a creditor over the property
of his debtor, for the purpose of securing the recovery of the debt; a
right, for example, to retain possession of a chattel until the debt
is paid.
4. A trust is an encumbrance in which the ownership of property is
limited by an equitable obligation to deal with it for the benefit of
someone else. The owner of the encumbered property is the trustee; the
owner of the encumbrance is the beneficiary.
§ 84. =Principal and Accessory Rights.=
The relation between principal and accessory rights is the reverse of
that just considered as existing between servient and dominant rights.
For every right is capable of being affected to any extent by the
existence of other rights; and the influence thus exercised by one upon
another is of two kinds, being either adverse or beneficial. It is
adverse, when one right is limited or qualified by another vested in a
different owner. This is the case already dealt with by us. It is
beneficial, on the other hand, when one right has added to it a
supplementary right vested in the same owner. In this case the right so
augmented may be termed the _principal_, while the one so appurtenant to
it is the _accessory_ right. Thus a security is accessory to the right
secured; a servitude is accessory to the ownership of the land for whose
benefit it exists; the rent and covenants of a lease are accessory to
the landlord’s ownership of the property; covenants for title in a
conveyance are accessory to the estate conveyed; and a right of action
is accessory to the right for whose enforcement it is provided.
A real right may be accessory to a personal; as in the case of a debt
secured by a mortgage of land. A personal right may be accessory to a
real; as in the case of the covenants of a lease. A real right may be
accessory to a real; as in the case of servitudes appurtenant to land.
And finally a personal right may be accessory to a personal; as in the
case of a debt secured by a guarantee.
A right which is dominant with respect to one right, is often at the
same time accessory with respect to another. It limits one right, and at
the same time augments another. A typical example is a servitude over
land. The owner of Whiteacre has a right of way over the adjoining farm
Blackacre to the highway. This right of way is dominant with respect to
Blackacre, and accessory with respect to Whiteacre. For the burden of it
goes with Blackacre, and the benefit of it with Whiteacre. Blackacre is
accordingly called the servient, and Whiteacre the dominant tenement. So
a mortgage is a dominant right with respect to the property subject to
it, and an accessory right with respect to the debt secured by it. In
like manner a landlord’s right to his rent is dominant with regard to
the lease, but accessory with regard to the reversion. This double
character, however, is not necessary or universal. A public right of way
is an encumbrance of the land subject to it, but it is not accessory to
any other land. So a lease is a dominant right which is not at the same
time accessory to any principal.
§ 85. =Legal and Equitable Rights.=
In a former chapter we considered the distinction between common law and
equity. We saw that these two systems of law, administered respectively
in the courts of common law and the Court of Chancery, were to a
considerable extent discordant. One of the results of this discordance
was the establishment of a distinction between two classes of rights,
distinguishable as legal and equitable. Legal rights are those which
were recognised by the courts of common law. Equitable rights (otherwise
called equities) are those which were recognised solely in the Court of
Chancery. Notwithstanding the fusion of law and equity by the Judicature
Act, 1873, this distinction still exists, and must be reckoned with as
an inherent part of our legal system. That which would have been merely
an equitable right before the Judicature Act is merely an equitable
right still.
Inasmuch as all rights, whether legal or equitable, now obtain legal
recognition in all courts, it may be suggested that the distinction is
now of no importance. This is not so however, for in two respects at
least, these two classes of rights differ in their practical effects.
1. The methods of their creation and disposition are different. A legal
mortgage of land must be created by deed, but an equitable mortgage may
be created by a written agreement or by a mere deposit of title-deeds. A
similar distinction exists between a legal and an equitable lease, a
legal and an equitable servitude, a legal and an equitable charge on
land, and so on.
2. Equitable rights have a more precarious existence than legal rights.
Where there are two inconsistent legal rights claimed adversely by
different persons over the same thing, the first in time prevails. _Qui
prior est tempore potior est jure._ A similar rule applies to the
competition of two inconsistent equitable rights. But when a legal and
an equitable right conflict, the legal will prevail over and destroy the
equitable, even though subsequent to it in origin, provided that the
owner of the legal right acquired it for value and without notice of the
prior equity. As between a prior equitable mortgage, for example, and a
subsequent legal mortgage, preference will be given to the latter. The
maxim is: Where there are equal equities, the law will prevail. This
liability to destruction by conflict with a subsequent legal right is an
essential feature and a characteristic defect of all rights which are
merely equitable.[202]
SUMMARY.
I. Rights { Perfect—enforceable by law.
{ Imperfect—recognised by law, but not enforceable.
The legal quality of rights against the state.
{ Positive—correlative to positive duties and negative wrongs.
II. Rights { Negative—correlative to negative duties and positive wrongs.
{ Real—_in rem_ or _in re_—correlative to duties of indeterminate
III. Rights { Personal—_in personam_—correlative to duties of determinate
incidence (almost all positive).
_Jura ad rem._
_Dominium and obligatio._
{ Proprietary—constituting a person’s _estate_ or property.
IV. Rights { Personal—constituting a person’s _status_ or personal condition.
Other uses of the term _status_.
{ _In re propria._
V. Rights { _In re aliena—servitus_—encumbrance.
The natural limits of rights, distinguished from encumbrances.
The concurrence of the encumbrance and the right encumbered.
Encumbrances either real or personal rights.
{ 1. Leases.
Classes of encumbrances { 2. Servitudes.
{ 3. Securities.
{ 4. Trusts.
VI. Principal and Accessory Rights.
VII. Legal and Equitable Rights.
VIII. Primary and Sanctioning Rights.
CHAPTER XII.
OWNERSHIP.
§ 86. =The Definition of Ownership.=
Ownership, in its most comprehensive signification, denotes the relation
between a person and any right that is vested in him. That which a man
owns is in all cases a right. When, as is often the case, we speak of
the ownership of a material object, this is merely a convenient figure
of speech. To own a piece of land means in truth to own a particular
kind of right in the land, namely, the fee simple of it.
Ownership, in this generic sense, extends to all classes of rights,
whether proprietary or personal, _in rem_ or _in personam_, _in re
propria_ or _in re aliena_. I may own a debt, or a mortgage, or a share
in a company, or money in the public funds, or a copyright, or a lease,
or a right of way, or the fee simple of land. Every right is owned; and
nothing can be owned except a right. Every man is the owner of the
rights which are his.
Ownership, in its generic sense, as the relation in which a person
stands to any right vested in him, is opposed to two other possible
relations between a person and a right. It is opposed in the first place
to possession. This very difficult juridical conception will be
considered by us in the succeeding chapter. We shall see that the
possession of a right (_possessio juris, Rechtsbesitz_) is the _de
facto_ relation of continuing exercise and enjoyment, as opposed to the
_de jure_ relation of ownership. A man may possess a right without
owning it, as where the wrongful occupant of land makes use of a right
of way or other casement appurtenant to it. Or he may own a right
without possessing it. Or finally ownership and possession may be
united, as indeed they usually are, the _de jure_ and the _de facto_
relations being coexistent and coincident.
The ownership of a right is, in the second place, opposed to the
encumbrance of it. The owner of the right is he in whom the right itself
is vested; while the encumbrancer of it is he in whom is vested, not the
right itself, but some adverse, dominant, and limiting right in respect
of it. A. may be the owner of property, B. the lessee of it, C. the
sub-lessee, D. the first mortgagee, E. the second mortgagee, and so on
indefinitely. Legal nomenclature, however, does not supply separate
names for every distinct kind of encumbrancer. There is no distinctive
title, for example, by which we may distinguish from the owner of the
property him who has an easement over it or the benefit of a covenant
which runs with it.
Although encumbrance is thus opposed to ownership, every encumbrancer is
nevertheless himself the _owner_ of the encumbrance. The mortgagee of
the land is the owner of the mortgage. The lessee of the land is the
owner of the lease. The mortgagee of the mortgage is the owner of the
sub-mortgage. That is to say, he in whom an encumbrance is vested stands
in a definite relation not merely to it, but also to the right
encumbered by it. Considered in relation to the latter, he is an
encumbrancer; but considered in relation to the former, he is himself an
owner.
Ownership is of various kinds, and the following distinctions are of
sufficient importance and interest to deserve special examination:
1. Corporeal and Incorporeal Ownership.
2. Sole Ownership and Co-ownership.
3. Trust-Ownership and Beneficial Ownership.
4. Legal and Equitable Ownership.
5. Vested and Contingent Ownership.
§ 87. =Corporeal and Incorporeal Ownership.=
Although the true subject-matter of ownership is in all cases a right, a
very common form of speech enables us to speak of the ownership of
material things. We speak of owning, acquiring, or transferring, not
rights in land or chattels, but the land or chattels themselves. That is
to say, we identify by way of metonymy the right with the material thing
which is its object. This figure of speech is no less convenient than
familiar. The concrete reference to the material object relieves us from
the strain of abstract thought. Rights are dim abstractions, while
material things are visible realities; and it is easier to think and
speak of the latter than of the former, even though the substitution is
a mere figure of speech. This device, moreover, is an aid to brevity, no
less than to ease of comprehension.
This figurative identification of a right with its object is, however,
not always permissible. I may be said to own the money in my hand; but
as to that which is due to me, I own not the money, but a right to it.
In the one case I own the material coins; in the other the immaterial
debt or _chose in action_. So I own my land, but merely a right of way
over the land of my neighbour. If we look, therefore, no deeper than the
mere usages of speech, it would seem as if the subject-matter of
ownership were sometimes a material object and at other times a right.
This, of course, would be a logical absurdity. Ownership may conceivably
be in all cases a relation to a material object; or it may in all cases
be a relation to a right; but it cannot be sometimes the one and
sometimes the other. So long as we remember that the ownership of a
material thing is nothing more than a figurative substitute for the
ownership of a particular kind of right in that thing, the usage is one
of great convenience; but so soon as we attempt to treat it as anything
more than a figure of speech, it becomes a fertile source of confusion
of thought.
In what cases, then, do we use this figure of speech? What is it that
determines whether we do or do not identify a right with its object? How
is the line drawn between corporeal and incorporeal ownership? The usage
is to some extent arbitrary and uncertain. The application of figurative
language is a matter not of logic but of variable practice and opinion.
Speaking generally, however, we may say that the ownership of a material
thing means the ownership of a _jus in re propria_ in respect of that
thing. No man is said to own a piece of land or a chattel, if his right
over it is merely an encumbrance of some more general right vested in
some one else. The ownership of a _jus in re aliena_ is always
incorporeal, even though the object of that right is a corporeal thing.
I am not said to own a chattel, merely because I own a right to have it
transferred to me, or because I own a lien over it or a right to the
temporary use of it.
When, on the other hand, a right is not a mere encumbrance of another
right—when it is a self-existent _jus in re propria_—it is identified
with the material thing which is its subject-matter. It is not difficult
to perceive the origin and reason of this usage of speech. In its full
and normal compass a _jus in re propria_ over a material object is a
right to the entirety of the lawful uses of that object. It is a general
right of use and disposal, all _jura in re aliena_ being merely special
and limited rights derogating from it in special respects. It is only
this absolute and comprehensive right—this _universum jus_—that is
identified with its object. For it is in some sense coincident with its
object, and exhausts the juridical significance of it. It is the
greatest right which can exist in respect of the thing, including all
lesser rights within itself, and he who owns it may therefore
conveniently be said to own the thing itself.
We have said that in its full and normal compass corporeal ownership is
the ownership of a right to the entirety of the lawful uses of a
corporeal thing. This compass, however, may be limited to any extent by
the adverse influences of _jura in re aliena_ vested in other persons.
The right of the owner of a thing may be all but eaten up by the
dominant rights of lessees, mortgagees, and other encumbrancers. His
ownership may be reduced to a mere name rather than a reality. Yet he
none the less remains the owner of the thing, while all others own
nothing more than _rights_ over it. For he still owns that _jus in re
propria_ which, were all encumbrances removed from it, would straightway
expand to its normal dimensions as the _universum jus_ of general and
permanent use. He then, is the owner of a material object, who owns a
right to the general or residuary uses of it,[203] after the deduction
of all special and limited rights of use vested by way of encumbrance in
other persons.[204]
What, then, is the name of the right which we thus identify, for
convenience of speech, with its material object? What shall we call the
right which enables the owner of it to say that he owns a piece of land
or a chattel? Unfortunately for the lucidity of legal nomenclature,
there is, unless we are prepared to use the somewhat awkward Latin term
_jus in re propria_, no other name for it than _ownership_ itself. This
is a use of the term which is quite different from that hitherto
considered by us. Ownership, as a particular kind of right, must be
clearly distinguished from ownership, as a particular kind of relation
to rights of all descriptions. We cannot class together the right of
ownership and the ownership of a right. This use of the term to denote a
right is the natural outcome of the figurative use of it already
considered. When we not only speak of the ownership of land, but
interpret such language literally, it is clear that ownership must be
taken as the name of the right which the owner has in the land.[205]
§ 88. =Corporeal and Incorporeal Things.=
Closely connected with the distinction between corporeal and incorporeal
ownership is that between corporeal and incorporeal _things_. The term
thing (_res_, _chose_, _sache_) is used in three distinct senses by
legal writers:—
1. In its first and simplest application it means merely a material
object, regarded as the subject-matter of a right.[206] According to
this use, some rights are rights to or over things, and some are not.
The owner of a house owns a thing; the owner of a patent does not.
2. In a second and wider sense the term thing includes every
subject-matter of a right, whether a material object or not. In this
signification every right is a right in or to some thing. A man’s life,
reputation, health, and liberty are things in law, no less than are his
land and chattels.[207] Things in this sense are either material or
immaterial, but the distinction thus indicated must not be confounded
with that now to be explained between things corporeal and incorporeal.
3. In a third and last application the term thing means whatever a man
owns as part of his estate or property. It is any subject-matter of
ownership within the sphere of proprietary or valuable rights. Now we
have already seen that according to the current usage of figurative
speech ownership is sometimes that of a material object and sometimes
that of a right. Things, therefore, as the objects of ownership, are of
two kinds also. A corporeal thing (_res corporalis_) is the
subject-matter of corporeal ownership; that is to say, a material
object. An incorporeal thing (_res incorporalis_) is the subject-matter
of incorporeal ownership; that is to say, it is any proprietary right
except that right of full dominion over a material object which, as
already explained, is figuratively identified with the object itself. If
I own a field and a right of way over another, my field is a _res
corporalis_ and my right of way is a _res incorporalis_. If I own a
pound in my pocket and a right to receive another from my debtor, the
first pound is a thing corporeal, and the right to receive the second is
a thing incorporeal; it is that variety of the latter, which is called,
in the technical language of English law, a _chose in action_ or thing
in action; while the pound in my pocket is a chose or thing in
possession.[208]
It is clear that if literally interpreted, this distinction is illogical
and absurd. We cannot treat in this way rights and the objects of rights
as two species of one genus. If we use the term thing in each case to
mean a right, then the right of an owner of land is just as incorporeal
as is that of his tenant. On the other hand, if the term is to be taken
in each case to mean the object of a right, then the object of the
tenant’s right is just as corporeal as is that of his landlord. The
distinction between corporeal and incorporeal things is based on the
same figure of speech as is that between corporeal and incorporeal
ownership. Both distinctions become intelligible, so soon as we
recognise the metonymy involved in the substitution of the
subject-matter of a right for the right itself.[209]
§ 89. =Sole Ownership and Co-ownership.=
As a general rule a right is owned by one person only at a time, but
duplicate ownership is perfectly possible. Two or more persons may at
the same time have the same right vested in them. This may happen in
several distinct ways, but the simplest and most obvious case is that of
co-ownership. Partners, for example, are co-owners of the chattels which
constitute their stock in trade, of the lease of the premises on which
their business is conducted, and of the debts owing to them by their
customers. It is not correct to say that a right owned by co-owners is
divided between them, each of them owning a separate part. The right is
an undivided unity, which is vested at the same time in more than one
person. If two partners have at their bank a credit balance of 1000_l._,
there is one debt of 1000_l._ owing by the bank to both of them at once,
not two separate debts of 500_l._ due to each of them individually. Each
partner is entitled to the whole sum, just as each would owe to the bank
the whole of the firm’s overdraft. The several ownership of a part is a
different thing from the co-ownership of the whole. So soon as each of
two co-owners begins to own a part of the right instead of the whole of
it, the co-ownership has been dissolved into sole ownership by the
process known as partition. Co-ownership involves the undivided
integrity of the right owned.
Co-ownership, like all other forms of duplicate ownership, is possible
only so far as the law makes provision for harmonising in some way the
conflicting claims of the different owners _inter se_. In the case of
co-owners the title of the one is rendered consistent with that of the
other by the existence of reciprocal obligations of restricted use and
enjoyment.
Co-ownership may assume different forms by virtue of the different
incidents attached to it by law. Its two chief kinds in English law are
distinguished as ownership _in common_ and _joint_ ownership. The most
important difference between these relates to the effect of the death of
one of the co-owners. In ownership in common the right of a dead man
descends to his successors like any other inheritable right. But on the
death of one of two joint owners his ownership dies with him, and the
survivor becomes the sole owner by virtue of this right of survivorship
or _jus accrescendi_.
§ 90. =Trust and Beneficial Ownership.=
A trust is a very important and curious instance of duplicate ownership.
Trust property is that which is owned by two persons at the same time,
the relation between the two owners being such that one of them is under
an obligation to use his ownership for the benefit of the other. The
former is called the trustee, and his ownership is trust-ownership; the
latter is called the beneficiary, and his is beneficial ownership.[210]
The trustee is destitute of any right of beneficial enjoyment of the
trust property. His ownership, therefore, is a matter of form rather
than of substance, and nominal rather than real. If we have regard to
the essence of the matter rather than to the form of it, a trustee is
not an owner at all, but a mere agent, upon whom the law has conferred
the power and imposed the duty of administering the property of another
person. In legal theory, however, he is not a mere agent but an owner.
He is a person to whom the property of some one else is fictitiously
attributed by the law, to the intent that the rights and powers thus
vested in a nominal owner shall be used by him on behalf of the real
owner. As between trustee and beneficiary, the law recognises the truth
of the matter; as between these two, the property belongs to the latter
and not to the former. But as between the trustee and third persons, the
fiction prevails. The trustee is clothed with the rights of his
beneficiary, and is so enabled to personate or represent him in dealings
with the world at large.
The purpose of trusteeship is to protect the rights and interests of
persons who for any reason are unable effectively to protect them for
themselves. The law vests those rights and interests for safe custody,
as it were, in some other person who is capable of guarding them and
dealing with them, and who is placed under a legal obligation to use
them for the benefit of him to whom they in truth belong. The chief
classes of persons in whose behalf the protection of trusteeship is
called for are four in number. In the first place, property may belong
to persons who are not yet born; and in order that it may be adequately
safeguarded and administered, it is commonly vested in the meantime in
trustees, who hold and deal with it on account of its unborn owners. In
the second place, similar protection is required for the property of
those who lie under some incapacity in respect of the administration of
it, such as infancy, lunacy, or absence. Thirdly, it is expedient that
property in which large numbers of persons are interested in common
should be vested in trustees. The complexities and difficulties which
arise from co-ownership become so great, so soon as the number of
co-owners ceases to be small, that it is essential to avoid them; and
one of the most effective devices for this purpose is that scheme of
duplicate ownership which we term a trust. Fourthly, when persons have
conflicting interests in the same property (for example, an owner and an
encumbrancer, or different kinds of encumbrancers) it is often advisable
that the property should be vested in trustees, whose power and duty it
is to safeguard the interests of each of those persons against the
conflicting claims of the others.
A trust is to be distinguished from two other relations which resemble
it. It is to be distinguished, in the first place, from a mere
contractual obligation to deal with one’s property on behalf of some one
else. A trust is more than an obligation to use one’s property for the
benefit of another; it is an obligation to use it for the benefit of
another in whom it is already concurrently vested. The beneficiary has
more than a mere personal right against his trustee to the performance
of the obligations of the trust. He is himself an owner of the trust
property. That which the trustee owns, the beneficiary owns also. If the
latter owned nothing save the personal obligation between the trustee
and himself, there would be no trust at all. Thus if a husband
gratuitously covenants with his wife to settle certain property upon
her, he remains the sole owner of it, until he has actually transferred
it in fulfilment of his contract; and in the meantime the wife owns
nothing save the contractual obligation created by the covenant. There
is therefore no trust. If, on the other hand, the husband declares
himself a trustee of the property for his wife, the effect is very
different. Here also he is under a personal obligation to transfer the
property to her, but this is not all. The beneficial ownership of the
property passes to the wife forthwith, yet the ownership of the husband
is not destroyed. It is merely transformed into a trust-ownership
consistent with the concurrent beneficial title of his wife.
In the second place, a trust is to be distinguished from the relation in
which an agent stands towards the property which he administers on
behalf of his principal. In substance, indeed, as already indicated,
these two relations are identical, but in form and in legal theory they
are essentially different. In agency the property is vested solely in
the person on whose behalf the agent acts, but in trusteeship it is
vested in the trustee himself, no less than in the beneficiary. A
trustee is an agent for the administration of property, who is at the
same time the nominal owner of the property so administered by him.
A trust is created by any act or event which separates the
trust-ownership of any property from the beneficial ownership of it,
and vests them in different persons. Thus the direct owner of property
may declare himself a trustee for some one else, who thereupon becomes
the beneficial owner; or the direct owner may transfer the property to
some one else, to hold it in trust for a third. Conversely, a trust is
destroyed by any act or event which reunites in the same hands the two
forms of ownership which have become thus separated. The trustee, for
example, may transfer the property to the beneficiary, who then
becomes the direct owner; or the beneficiary may transfer it to his
trustee, with the like result.
Trust-ownership and beneficial ownership are independent of each other
in their destination and disposition. Either of them may be
transferred, while the other remains unaffected. The trustee may
assign to another, who thereupon becomes a trustee in his stead, while
the beneficiary remains the same; or the beneficiary may assign to
another, while the trust-ownership remains where it was. In like
manner, either kind of ownership may be independently encumbered. The
trustee may, in pursuance of the powers of the trust, lease or
mortgage the property without the concurrence of the beneficiary; and
the beneficiary may deal in the same way with his beneficial ownership
independently of the trustee.
Whenever the beneficial ownership has been encumbered, either by the
creator of the trust or by the beneficial owner himself, the trustee
holds the property not only on behalf of the beneficial owner but also
on behalf of the beneficial encumbrancers. That is to say, the
relation of trusteeship exists between the trustee and all persons
beneficially interested in the property, either as owners or
encumbrancers. Thus if property is transferred to A., in trust for B.
for life, with remainder to C., A. is a trustee not merely for C., the
beneficial owner, but also for B., the beneficial encumbrancer. Both
are beneficiaries of the trust, and between the trustee and each of
them there exists the bond of a trust-obligation.[211]
§ 91. =Legal and Equitable Ownership.=
Closely connected but not identical with the distinction between trust
and beneficial ownership, is that between legal and equitable ownership.
One person may be the legal and another the equitable owner of the same
thing at the same time. Legal ownership is that which has its origin in
the rules of the common law, while equitable ownership is that which
proceeds from rules of equity divergent from the common law. The courts
of common law refused to recognise equitable ownership, and denied that
the equitable owner was an owner at all. The Court of Chancery adopted a
very different attitude. Here the legal owner was recognised no less
than the equitable, but the former was treated as a trustee for the
latter. Chancery vindicated the prior claims of equity, not by denying
the existence of the legal owner, but by taking from him by means of a
trust the beneficial enjoyment of his property. The fusion of law and
equity effected by the Judicature Act, 1873, has not abolished this
distinction; it has simply extended the doctrines of the Chancery to the
courts of common law, and as equitable ownership did not extinguish or
exclude legal ownership in Chancery, it does not do so now.
The distinction between legal and equitable ownership is not identical
with that mentioned in a previous chapter as existing between legal and
equitable _rights_. These two forms of ownership would still exist even
if all rights were legal. The equitable ownership of a legal right is a
different thing from the ownership of an equitable right. Law and equity
are discordant not merely as to the _existence_ of rights, but also as
to the _ownership_ of the rights which they both recognise. When a debt
is verbally assigned by A. to B., A. remains the legal owner of it none
the less, but B. becomes the equitable owner of it. But there are not
for that reason _two_ debts. There is only one as before, though it has
now two owners. So if A., the legal owner of a share in a company, makes
a declaration of trust in favour of B., B. becomes forthwith the
equitable owner of the share; but it is the same share as before, and
not another. The thing which he thus equitably owns is a legal right,
which is at the same time legally owned by A. Similarly the ownership of
an equitable mortgage is a different thing from the equitable ownership
of a legal mortgage.
Nor is the distinction between legal and equitable ownership merely
equivalent to that between trust and beneficial ownership. It is true
that, whenever the legal estate is in one man and the equitable estate
in another, there is a trust. A legal owner is always a trustee for the
equitable owner, if there is one. But an equitable owner may himself be
merely a trustee for another person. A man may settle upon trust his
equitable interest in a trust fund, or his equitable estate in his
mortgaged land. In such a case neither trustee nor beneficiary will have
anything more than equitable ownership.
If an equitable owner can be a trustee, can a legal owner be a
beneficiary? As the law now stands, he cannot. But this is a mere
accident of historical development, due to the fact that the courts of
common law refused to recognise trusts at all. There is no more
theoretical difficulty in allowing that a trustee and his beneficiary
may both be legal owners, than in allowing that they may both be
equitable owners. Had the courts of common law worked out a doctrine of
trusts for themselves, this twofold legal ownership would have actually
existed.
The practical importance of the distinction between legal and equitable
ownership is the same as that already indicated as pertaining to the
distinction between legal and equitable rights.[212]
§ 92. =Vested and Contingent Ownership.=
Ownership is either vested or contingent. It is vested when the owner’s
title is already perfect; it is contingent when his title is as yet
imperfect, but is capable of becoming perfect on the fulfilment of some
condition. In the former case he owns the right absolutely; in the
latter he owns it merely conditionally. In the former case the
investitive fact from which he derives the right is complete in all its
parts; in the latter it is incomplete, by reason of the absence of some
necessary element, which is nevertheless capable of being supplied in
the future. In the meantime, therefore, his ownership is contingent, and
it will not become vested until the necessary condition is fulfilled. A
testator, for example, may leave property to his wife for her life, and
on her death to A., if he is then alive, but if A. is then dead, to B.
A. and B. are both owners of the property in question, but their
ownership is merely contingent. That of A. is conditional on his
surviving the testator’s widow; while that of B. is conditional on the
death of A. in the widow’s lifetime.
The contingent _ownership_ of a right does not necessarily involve its
contingent _existence_. It need not be a contingent right, because it is
contingently owned. Shares and other choses in action may have an
absolute existence, though the ownership of them may be contingently and
alternately in A. and B. Money in a bank may be certainly owing to some
one, though it may depend on a condition, whether it is owing to C. or
D. On the other hand, it may be that the right is contingent in respect
of its existence, no less than in respect of its ownership. This is so
whenever there is no alternative owner, and when, therefore, the right
will belong to no one unless it becomes vested in the contingent owner
by the fulfilment of the condition.
It is to be noticed that the contingent ownership of a right is
something more than a simple chance or possibility of becoming the owner
of it. It is more than a mere _spes acquisitionis_. I have no contingent
ownership of a piece of land merely because I may buy it, if I so wish;
or because peradventure its owner may leave it to me by his will.
Contingent ownership is based not upon the mere possibility of future
acquisition, but upon the present existence of an inchoate or incomplete
title.
The conditions on which contingent ownership depends are termed
conditions _precedent_ to distinguish them from another kind known as
conditions _subsequent_. A condition precedent is one by the fulfilment
of which an inchoate title is completed; a condition subsequent is one
on the fulfilment of which a title already completed is extinguished. In
the former case I acquire absolutely what I have already acquired
conditionally. In the latter case I lose absolutely what I have already
lost conditionally. A condition precedent involves an inchoate or
incomplete investitive fact; a condition subsequent involves an
incomplete or inchoate divestitive fact.[213] He who owns property
subject to a power of sale or power of appointment vested in some one
else, owns it subject to a condition subsequent. His title is complete,
but there is already in existence an incomplete divestitive fact, which
may one day complete itself and cut short his ownership.
It is to be noticed that ownership subject to a condition subsequent is
not contingent but vested. The condition is attached not to the
commencement of vested ownership, but to the continuance of it.
Contingent ownership is that which is not yet vested, but may become so
in the future; while ownership subject to a condition subsequent is
already vested, but may be divested and destroyed in the future. In
other words ownership subject to a condition subsequent is not
contingent but determinable. It is ownership already vested, but liable
to premature determination by the completion of a divestitive fact which
is already present in part.
It is clear that two persons may be contingent owners of the same right
at the same time. The ownership of each is alternative to that of the
other. The ownership of one is destined to become vested, while that of
the other is appointed to destruction. Similarly the vested ownership of
one man may coexist with the contingent ownership of another. For the
event which in the future will vest the right in the one, will at the
same time divest it from the other. Thus a testator may leave property
to his wife, with a provision that if she marries again, she shall
forfeit it in favour of his children. His widow will have the vested
ownership of the property, and his children the contingent ownership at
the same time. Her marriage is a condition subsequent in respect of her
own vested ownership, and a condition precedent in respect of the
contingent ownership of the children.[214]
SUMMARY.
Ownership—the relation between a person and a right vested in him.
Ownership }
Possession } The three beneficial relations between persons and rights.
Encumbrance }
.nf l
.nf l
The kinds of Ownership.
1. Corporeal and incorporeal.
The ownership of things and that of rights.
The ownership of rights and the right of ownership.
Res corporales and res incorporales.
Diferent uses of the term res or thing.
(_a_) A material object.
(_b_) The object of a right.
Material and immaterial things.
(_c_) The object of ownership.
Corporeal and incorporeal things.
2. Sole ownership and co-ownership.
Joint ownership and ownership in common.
3. Trust and beneficial ownership.
The nature of trusts.
The purposes of trusts.
4. Legal and equitable ownership.
5. Vested and contingent ownership.
Conditions precedent and subsequent.
Contingent and determinable ownership.
CHAPTER XIII.
POSSESSION.
§ 93. =Introduction.=
In the whole range of legal theory there is no conception more difficult
than that of possession. The Roman lawyers brought their usual acumen to
the analysis of it, and since their day the problem has formed the
subject of a voluminous literature, while it still continues to tax the
ingenuity of jurists. Nor is the question one of mere curiosity or
scientific interest, for its practical importance is not less than its
difficulty. The legal consequences which flow from the acquisition and
loss of possession are many and serious. Possession, for example, is
evidence of ownership; the possessor of a thing is presumed to be the
owner of it, and may put all other claimants to proof of their title.
Long possession is a sufficient title even to property which originally
belonged to another. The transfer of possession is one of the chief
methods of transferring ownership. The first possession of a thing which
as yet belongs to no one is a good title of right. Even in respect of
property already owned, the wrongful possession of it is a good title
for the wrongdoer, as against all the world except the true owner.
Possession is of such efficacy, also, that a possessor may in many cases
confer a good title on another, even though he has none himself; as when
I obtain a bank-note from a thief, or goods from a factor who disposes
of them in fraud of his principal. These are some, though some only, of
the results which the law attributes to possession, rightful or
wrongful. They are sufficient to show the importance of this conception,
and the necessity of an adequate analysis of its essential nature.
§ 94. =Possession in Fact and in Law.=
It is necessary to bear in mind from the outset the distinction between
possession in fact and possession in law. We have to remember the
possibility of more or less serious divergences between legal principles
and the truth of things. Not everything which is recognised as
possession by the law need be such in truth and in fact. And conversely
the law, by reasons good or bad, may be moved to exclude from the limits
of the conception facts which rightly fall within them. There are three
possible cases in this respect. First, possession may and usually does
exist both in fact and in law. The law recognises as possession all that
is such in fact, and nothing that is not such in fact, unless there is
some special reason to the contrary. Secondly, possession may exist in
fact but not in law. Thus the possession by a servant of his master’s
property is for some purposes not recognised as such by the law, and he
is then said to have detention or custody rather than possession.
Thirdly, possession may exist in law but not in fact; that is to say,
for some special reason the law attributes the advantages and results of
possession to some one who as a matter of fact does not possess. The
possession thus fictitiously attributed to him is by English lawyers
termed _constructive_. The Roman lawyers distinguished possession in
fact as _possessio naturalis_, and possession in law as _possessio
civilis_.[215]
In consequence of this divergence, partly intentional and avowed, partly
accidental and unavowed, between the law and the fact of possession, it
is impossible that any abstract theory should completely harmonise with
the detailed rules to be found in any concrete body of law. Such harmony
would be possible only in a legal system which had developed with
absolute logical rigour, undisturbed by historical accidents, and
unaffected by any of those special considerations which in all parts of
the law prevent the inflexible and consistent recognition of general
principles.
It follows from this discordance between law and fact, that a complete
theory of possession falls into two parts: first an analysis of the
conception itself, and secondly an exposition of the manner in which it
is recognised and applied in the actual legal system. It is with the
first of those matters that we are here alone concerned.
It is to be noticed that there are not two _ideas_ of possession—a legal
and a natural. Were this so, we could dispense altogether with the
discussion of possession in fact. There is only one idea, to which the
actual rules of law do more or less imperfectly conform. There is no
conception which will include all that amounts to possession in law, and
will include nothing else, and it is impossible to frame any definition
from which the concrete law of possession can be logically deduced. Our
task is merely to search for the idea which underlies this body of
rules, and of which they are the imperfect and partial expression and
application.
The complexities of the English law are increased by the curious
circumstance that two distinct kinds of legal possession are
recognised in that system. These are distinguished as seisin and
possession. To a considerable extent they are governed by different
rules and have different effects. I may have seisin of a piece of land
but not possession of it, or possession but not seisin, or both at
once; and in all those cases I may or may not at the same time have
possession in fact. The doctrine of seisin is limited to land; it is
one of the curiosities of that most curious of the products of the
human intellect, the English law of real property. The doctrine of
possession, on the other hand, is common, with certain variations, to
land and chattels. The divergence between these two forms of
possession in law is a matter of legal history, not of legal theory.
Extraordinary importance was until a comparatively recent period
attributed by our law to the acquisition and retention of seisin by
the owner of land. Without seisin his right was a mere shadow of
ownership, rather than the full reality of it. For many purposes a man
had only what he possessed—and the form of his possession must be that
which amounted to seisin. A dispossessed owner was deprived of his
most effective remedies; he could neither alienate his estate, nor
leave it by his will; neither did his heirs inherit it after him. The
tendency of modern law is to eliminate the whole doctrine of seisin,
as an archaic survival of an earlier process of thought, and to
recognise a single form of legal possession.[216]
§ 95. =Corporeal and Incorporeal Possession.=
We have seen in a former chapter that ownership is of two kinds, being
either corporeal or incorporeal. A similar distinction is to be drawn in
the case of possession. Corporeal possession is the possession of a
material object—a house, a farm, a piece of money. Incorporeal
possession is the possession of anything other than a material
object—for example, a way over another man’s land, the access of light
to the windows of a house, a title of rank, an office of profit, and
such like. All these things may be possessed as well as owned. The
possessor may or may not be the owner of them, and the owner of them may
or may not be in possession of them. They may have no owner at all,
having no existence _de jure_, and yet they may be possessed and enjoyed
_de facto_.
Corporeal possession is termed in Roman law _possessio corporis_.
Incorporeal possession is distinguished as _possessio juris_, the
possession of a right, just as incorporeal ownership is the ownership of
a right. The Germans distinguish in like fashion between _Sachenbesitz_,
the possession of a material thing, and _Rechtsbesitz_, the possession
of a right. The significance of this nomenclature and the nature of the
distinction indicated by it will be considered by us later.
It is a question much debated whether incorporeal possession is in
reality true possession at all. Some are of opinion that all genuine
possession is corporeal, and that the other is related to it by way of
analogy merely. They maintain that there is no single generic conception
which includes _possessio corporis_ and _possessio juris_ as its two
specific forms. The Roman lawyers speak with hesitation and even
inconsistency on the point. They sometimes include both forms under the
title of _possessio_, while at other times they are careful to qualify
incorporeal possession as _quasi possessio_—something which is not true
possession, but is analogous to it. The question is one of no little
difficulty, but the opinion here accepted is that the two forms do in
truth belong to a single genus. The true idea of possession is wider
than that of corporeal possession, just as the true idea of ownership is
wider than that of corporeal ownership. The possession of a right of way
is generically identical with the possession of the land itself, though
specifically different from it.
This being so, the strictly logical order of exposition involves the
analysis, in the first place, of the generic conception, in its full
compass, followed by an explanation of the _differentia_, which
distinguishes _possessio corporis_ from _possessio juris_. We shall,
however, adopt a different course, confining our attention in the first
place to _possessio corporis_, and proceeding thereafter to the analysis
of _possessio juris_ and to the exposition of the generic idea which
comprises both of them. This course is advisable for two reasons. In the
first place, the matter is of such difficulty that it is easier to
proceed from the specific idea to the generic, than conversely. And in
the second place, the conception of corporeal possession is so much more
important than that of incorporeal, that it is permissible to treat the
latter simply as a supplement to the former, rather than as co-ordinate
with it.
§ 96. =Corporeal Possession.=
Corporeal possession is clearly some form of continuing relation between
a person and a material object. It is equally clear that it is a
relation of fact and not one of right. It may be, and commonly is, a
title of right; but it is not a right itself. A man may possess a thing
in defiance of the law, no less than in accordance with it. Nor is this
in any way inconsistent with the proposition, already considered by us,
that possession may be such either in law or in fact. A thief has
possession in law, although he has acquired it contrary to law. The law
condemns his possession as wrongful, but at the same time recognises
that it exists, and attributes to it most, if not all, of the ordinary
consequences of possession.[217]
What, then, is the exact nature of that continuing _de facto_ relation
between a person and a thing, which is known as possession? The answer
is apparently this: _The possession of a material object is the
continuing exercise of a claim to the exclusive use of it_. It involves,
therefore, two distinct elements, one of which is mental or subjective,
the other physical or objective. The one consists in the intention of
the possessor with respect to the thing possessed, while the other
consists in the external facts in which this intention has realised,
embodied, or fulfilled itself. These two constituent elements of
possession were distinguished by the Roman lawyers as _animus_ and
_corpus_, and the expressions are conveniently retained by modern
writers. The subjective element is called more particularly the _animus
possidendi_, _animus sibi habendi_, or _animus domini_.
_Apiscimur possessionem_, so runs a celebrated sentence of the Roman
lawyer Paul,[218] _corpore et animo, neque per se animo aut per se
corpore_. Neither of these is sufficient by itself. Possession begins
only with their union, and lasts only until one or other of them
disappears. No claim or _animus_, however strenuous or however rightful,
will enable a man to acquire or retain possession, unless it is
effectually realised or exercised in fact. No mere intent to appropriate
a thing will amount to the possession of it. Conversely, the _corpus_
without the _animus_ is equally ineffective. No mere physical relation
of person to thing has any significance in this respect, unless it is
the outward form in which the needful _animus_ or intent has fulfilled
and realised itself. A man does not possess a field because he is
walking about in it, unless he has the intent to exclude other persons
from the use of it. I may be alone in a room with money that does not
belong to me lying ready to my hand on the table. I have absolute
physical power over this money; I can take it away with me if I please;
but I have no possession of it, for I have no such purpose with respect
to it.
§ 97. =The Animus Possidendi.=
We shall consider separately these two elements in the conception. And
first of the _animus possidendi_. The intent necessary to constitute
possession is the intent to appropriate to oneself the exclusive use of
the thing possessed. It is an exclusive claim to a material object. It
is a purpose of using the thing oneself and of excluding the
interference of other persons. As to this necessary mental attitude of
the possessor there are the following observations to be made.
1. The _animus sibi habendi_ is not necessarily a claim of right. It may
be consciously wrongful. The thief has a possession no less real than
that of a true owner. The possessor of a thing is not he who has, or
believes that he has, a right to it, but he who intends to act as if he
had such a right. To possession in good faith the law may and does allow
special benefits which are cut off by fraud, but to possession as
such—the fulfilment of the self-assertive will of the individual—good
faith is irrelevant.
2. The claim of the possessor must be exclusive. Possession involves an
intent to exclude other persons from the uses of the thing possessed. A
mere intent or claim of unexclusive use cannot amount to possession of
the material thing itself, though it may and often does amount to some
form of incorporeal possession. He who claims and exercises a right of
way over another man’s land is in possession of this right of way; but
he is not in possession of the land itself, for he has not the necessary
_animus_ of exclusion.
The exclusion, however, need not be absolute. I may possess my land
notwithstanding the fact that some other person, or even the public at
large, possesses a right of way over it. For, subject to this right of
way, my _animus possidendi_ is still a claim of exclusive use. I intend
to exclude all alien interference except such as is justified by the
limited and special right of use vested in others.
3. The _animus possidendi_ need not amount to a claim or intent to use
the thing _as owner_. A tenant, a borrower, or a pledgee may have
possession no less real than that of the owner himself. Any degree or
form of intended use, however limited in extent or in duration, may, if
exclusive for the time being, be sufficient to constitute possession.
4. The _animus possidendi_ need not be a claim on one’s own behalf. I
may possess a thing either on my own account or on account of another. A
servant, agent, or trustee may have true possession, though he claims
the exclusive use of the thing on behalf of another than himself.[219]
5. The _animus possidendi_ need not be specific, but may be merely
general. That is to say, it does not necessarily involve any continuous
or present knowledge of the particular thing possessed or of the
possessor’s relation to it. A general intent with respect to a class of
things is sufficient (if coupled with the necessary physical relation)
to confer possession of the individual objects belonging to that class,
even though their individual existence is unknown. Thus I possess all
the books in my library, even though I may have forgotten the existence
of many of them. So if I set nets to catch fish, I have a general intent
and claim with respect to all the fish that come therein; and my
ignorance whether there are any there or not does in no way affect my
possession of such as are there. So I have a general purpose to possess
my flocks and herds, which is sufficient to confer possession of their
increase though unknown to me. So if I receive a letter, I have
forthwith the _animus possidendi_ with respect to its enclosure; and I
do not first acquire possession of the cheque that is inside it, when I
open the envelope and see it.[220] But if, on the other hand, I buy a
cabinet believing it to be empty, whereas it contains money hid in a
secret drawer, I do not acquire possession of the money until I actually
find it; for until then I have no _animus_ with respect to it, either
general or specific.[221]
§ 98. =The Corpus of Possession.=
To constitute possession the _animus domini_ is not in itself
sufficient, but must be embodied in a _corpus_. The claim of the
possessor must be effectively realised in the facts; that is to say, it
must be actually and continuously exercised. The will is sufficient only
when manifested in an appropriate environment of fact, just as the fact
is sufficient only when it is the expression and embodiment of the
required intent and will. Possession is the effective realisation in
fact of the _animus sibi habendi_.
One of the chief difficulties in the theory of possession is that of
determining what amounts to such effective realisation. The true answer
seems to be this: that the facts must amount to the actual present
exclusion of all alien interference with the thing possessed, together
with a reasonably sufficient security for the exclusive use of it in the
future. Then, and then only, is the _animus_ or self-assertive will of
the possessor satisfied and realised. Then, and only then, is there a
continuing _de facto_ exercise of the claim of exclusive use. Whether
this state of facts exists depends on two things: (1) on the relation of
the possessor to other persons, and (2) on the relation of the possessor
to the thing possessed. We shall consider these two elements of the
_corpus possessionis_ separately.
§ 99. =The Relation of the Possessor to other Persons.=
So far as other persons are concerned, I am in possession of a thing
when the facts of the case are such as to create a reasonable
expectation that I will not be interfered with in the use of it. I must
have some sort of security for their acquiescence and non-interference.
“The reality,” it has been well said,[222] “of _de facto_ dominion is
measured in inverse ratio to the chances of effective opposition.” A
security for enjoyment may, indeed, be of any degree of goodness or
badness, and the prospect of enjoyment may vary from a mere chance up to
moral certainty. At what point in the scale, then, are we to draw the
line? What measure of security is required for possession? We can only
answer: Any measure which normally and reasonably satisfies the _animus
domini_. A thing is possessed, when it stands with respect to other
persons in such a position that the possessor, having a reasonable
confidence that his claim to it will be respected, is content to leave
it where it is. Such a measure of security may be derived from many
sources, of which the following are the most important.[223]
1. _The physical power of the possessor._ The physical power to exclude
all alien interference (accompanied of course by the needful intent)
certainly confers possession; for it constitutes an effective guarantee
of enjoyment. If I own a purse of money, and lock it up in a
burglar-proof safe in my house, I certainly have possession of it. I
have effectively realised my _animus possidendi_, for no one can lay a
finger on the thing without my consent, and I have full power of using
it myself. Possession thus based on physical power may be looked on as
the typical and perfect form. Many writers, however, go so far as to
consider it the only form, defining possession as the intention, coupled
with the physical power, of excluding all other persons from the use of
a material object. We shall see reason to conclude that this is far too
narrow a view of the matter.
2. _The personal presence of the possessor._ This source of security
must be distinguished from that which has just been mentioned. The two
commonly coincide, indeed, but not necessarily. Bolts, bars, and stone
walls will give me the physical power of exclusion without any personal
presence on my part; and on the other hand there may be personal
presence without any real power of exclusion. A little child has no
physical power as against a grown man; yet it possesses the money in its
hand. A dying man may retain or acquire possession by his personal
presence, but certainly not by any physical power left in him. The
occupier of a farm has probably no real physical power of preventing a
trespass upon it, but his personal presence may be perfectly effective
in restraining any such interference with his rights. The respect shown
to a man’s person will commonly extend to all things claimed by him that
are in his immediate presence.
3. _Secrecy._ A third source of _de facto_ security is secrecy. If a man
will keep a thing safe from others, he may hide it; and he will gain
thereby a reasonable guarantee of enjoyment and is just as effectively
in possession of the thing, as is the strong man armed who keeps his
goods in peace.
4. _Custom._ Such is the tendency of mankind to acquiesce in established
usage, that we have here a further and important source of _de facto_
security and possession. Did I plough and sow and reap the harvest of a
field last year and the year before? Then unless there is something to
the contrary, I may reasonably expect to do it again this year, and I am
in possession of the field.
5. _Respect for rightful claims._ Possession is a matter of fact and not
a matter of right. A claim may realise itself in the facts whether it is
rightful or wrongful. Yet its rightfulness, or rather a public
conviction of its rightfulness, is an important element in the
acquisition of possession. A rightful claim will readily obtain that
general acquiescence which is essential to _de facto_ security, but a
wrongful claim will have to make itself good without any assistance from
the law-abiding spirit of the community. An owner will possess his
property on much easier terms than those on which a thief will possess
his plunder.[224] The two forms of security, _de facto_ and _de jure_,
tend to coincidence. Possession tends to draw ownership after it, and
ownership attracts possession.
6. _The manifestation of the animus domini._ An important element in the
_de facto_ security of a claim is the visibility of the claim.
Possession essentially consists, it is true, not in the manifestation of
the _animus_, but in the realisation of it. But a manifested intent is
much more likely to obtain the security of general acquiescence than one
which has never assumed a visible form. Hence the importance of such
circumstances as entry, apprehension, and actual use.[225]
7. _The protection afforded by the possession of other things._ The
possession of a thing tends to confer possession of any other thing that
is connected with the first or accessory to it. The possession of land
confers a measure of security, which _may_ amount to possession, upon
all chattels situated upon it. The possession of a house may confer the
possession of the chattels inside it. The possession of a box or a
packet may bring with it the possession of its contents. Not
necessarily, however, in any of those cases. A man effectually gives
delivery of a load of bricks by depositing them on my land, even in my
absence; but he could not deliver a roll of bank-notes by laying them
upon my doorstep. In the former case the position of the thing is normal
and secure; in the latter it is abnormal and insecure.
Notwithstanding some judicial dicta to the contrary, it does not seem to
be true, either in law or in fact, that the possession of land
necessarily confers possession of all chattels that are on or under it;
or that the possession of a receptacle such as a box, bag, or cabinet,
necessarily confers possession of its contents. Whether the possession
of one thing will bring with it the possession of another that is thus
connected with it depends upon the circumstances of the particular case.
A chattel may be upon my land, and yet I shall have no possession of it
unless the _animus_ and _corpus possessionis_ both exist. I may have no
_animus_; as when my neighbour’s sheep, with or without my knowledge,
stray into my field. There may be no _corpus_; as when I lose a jewel in
my garden, and cannot find it again. There may be neither _corpus_ nor
_animus_; as when, unknown to me, there is a jar of coins buried
somewhere upon my estate. So in the case of chattels, the possession of
the receptacle does not of necessity carry with it the _possession_ of
its contents. As already stated, if I buy a cabinet containing money in
a secret drawer, I acquire no possession of the money, till I actually
discover it. For I have no _animus possidendi_ with respect to any such
contents, but solely with respect to the cabinet itself.
That this is so in law, no less than in fact, appears from the
following cases:—
In _Bridges_ v. _Hawkesworth_[226] a parcel of bank-notes was dropped
on the floor of the defendant’s shop, where they were found by the
plaintiff, a customer. It was held that the plaintiff had a good title
to them as against the defendant. For the plaintiff, and not the
defendant, was the first to acquire possession of them. The defendant
had not the necessary _animus_, for he did not know of their
existence.
In _R._ v. _Moore_[227] a bank-note was dropped in the shop of the
prisoner, who on discovering it, picked it up and converted it to his
own use, well knowing that the owner could be found. It was held that
he was rightly convicted of larceny; from which it follows that he was
not in possession of the note until he actually discovered it.
In _Merry_ v. _Green_[228] the plaintiff purchased a bureau at
auction, and subsequently discovered money in it, hidden in a secret
drawer and belonging to the vendor. The plaintiff thereupon
appropriated the money; and it was held that in doing so he committed
theft, as he obtained possession of the money not when he innocently
bought the bureau, but when he fraudulently abstracted the contents of
it.
In _Cartwright_ v. _Green_[229] a bureau was delivered for the purpose
of repairs to a carpenter, who discovered in a secret drawer money
which he converted to his own use. It was held that he committed
larceny, by feloniously taking the money into his possession.
On the other hand the possession of the receptacle _may_ confer
possession of the contents, even though their existence is unknown;
for there may at the time of taking the receptacle be a general intent
to take its contents also. He who steals a purse, not knowing whether
there is money in it, steals the money in it at the same time.
Thus in _R._ v. _Mucklow_[230] a letter containing a bank-draft was
delivered by mistake to the prisoner, whose name was identical with
that of the person for whom the letter was intended. He received the
letter innocently; but on subsequently opening it and finding that it
was not meant for him, he appropriated the draft. It was held that he
was not guilty of larceny. For the innocent possession of the letter
brought with it the innocent possession of its contents, and no
subsequent fraudulent dealing with the thing thus innocently obtained
could amount to theft.
There are, however, certain cases which seem to indicate that the
possessor of land possesses whatever is in it or under it.
In _Elwes_ v. _Brigg Gas Co._[231] the defendant company took a lease
of land from the plaintiff for the purpose of erecting gas works, and
in the process of excavation found a prehistoric boat six feet below
the surface. It was held that the boat belonged to the landlord, and
not to the tenants who discovered it. Chitty, J., says of the
plaintiff: “Being entitled to the inheritance ... and in lawful
possession, he was in possession of the ground, not merely of the
surface, but of everything that lay beneath the surface down to the
centre of the earth, and consequently in possession of the boat.... In
my opinion it makes no difference in these circumstances that the
plaintiff was not aware of the existence of the boat.”
So in _South Staffordshire Water Co._ v. _Sharman_[232] the defendant
was employed by the plaintiff company to clean out a pond upon their
land, and in doing so he found certain gold rings at the bottom of it.
It was held that the company was in first possession of these rings,
and the defendant, therefore, had acquired no title to them.
Cases such as these, however, are capable of explanation on other
grounds, and do not involve any necessary conflict either with the
theory of possession or with the cases already cited, such as
_Bridges_ v. _Hawkesworth_. The general principle is that the first
finder of a thing has a good title to it against all but the true
owner, even though the thing is found on the property of another
person (_Armory_ v. _Delamirie_,[233] _Bridges_ v. _Hawkesworth_).
This principle, however, is subject to important exceptions, in which,
owing to the special circumstances of the case, the better right is in
him on whose property the thing is found. The chief of these
exceptional cases are the following:—
1. When he on whose property the thing is found is already in
possession not merely of the property, but of the thing itself; as in
certain circumstances, even without specific knowledge, he undoubtedly
may be. His prior possession will then confer a better right as
against the finder. If I sell a coat in the pocket of which, unknown
to me, there is a purse which I picked up in the street, and the
purchaser of the coat finds the purse in it, it may be assumed with
some confidence that I have a better right to it than he has, though
it does not belong to either of us.
2. A second limitation of the right of a finder is that, if any one
finds a thing as the servant or agent of another, he finds it not for
himself, but for his employer. If I instruct a carpenter to break open
a locked box for me, he must give up to me whatever he finds in it.
This seems a sufficient explanation of such a case as _Sharland’s_.
The rings found at the bottom of the pond were not in the Company’s
possession in fact; and it seems contrary to other cases to hold that
they were so in law. But though Sharland was the first to obtain
possession of them, he obtained it for his employers, and could claim
no title for himself.[234]
3. A third case in which a finder obtains no title is that in which he
gets possession only through a trespass or other act of wrongdoing. If
a trespasser seeks and finds treasure in my land, he must give it up
to me, not because I was first in possession of it (which is not the
case), but because he cannot be suffered to retain any advantage
derived from his own wrong. This seems a sufficient explanation of
_Elwes_ v. _Brigg Gas Co._ “The boat,” says Chitty, J.,[235] “was
embedded in the land. A mere trespasser could not have taken
possession of it; he could only have come at it by further acts of
trespass involving spoil and waste of the inheritance.” According to
the true construction of the lease the tenants, though entitled to
excavate and remove soil, were not entitled to remove anything else.
They must leave the premises as they found them, save in so far as
they were authorised to do otherwise by the terms of their lease.
§ 100. =Relation of the Possessor to the Thing Possessed.=
The second element in the _corpus possessionis_ is the relation of the
possessor to the thing possessed, the first being that which we have
just considered, namely, the relation of the possessor to other persons.
To constitute possession the _animus domini_ must realise itself in both
of those relations. The necessary relation between the possessor and the
thing possessed is such as to admit of his making such use of it as
accords with the nature of the thing and of his claim to it. There must
be no barrier between him and it, inconsistent with the nature of the
claim he makes to it. If I desire to catch fish, I have no possession of
them till I have them securely in my net or on my line. Till then my
_animus domini_ has not been effectively embodied in the facts. So
possession once gained may be lost by the loss of my power of using the
thing; as when a bird escapes from its cage, or I drop a jewel in the
sea. It is not necessary that there should be anything in the nature of
physical presence or contact. So far as the physical relation between
person and thing is concerned, I may be in possession of a piece of land
at the other side of the world. My power of using a thing is not
destroyed by my voluntary absence from it, for I can go to it when I
will.
Some amount of difficulty or even uncertainty in coming to the enjoyment
of a thing is not inconsistent with the present possession of it. My
cattle have strayed, but they will probably be found. My dog is away
from home, but he will probably return. I have mislaid a book, but it is
somewhere within my house and can be found with a little trouble. These
things, therefore, I still possess, though I cannot lay my hands on them
at will. I have with respect to them a reasonable and confident
expectation of enjoyment. But if a wild bird escapes from its cage, or a
thing is hopelessly mislaid, whether in my house or out of it, I have
lost possession of it. Such a loss of the proper relation to the thing
itself is very often at the same time the loss of the proper relation to
other persons. Thus if I drop a shilling in the street, I lose
possession on both grounds. It is very unlikely that I shall find it
myself, and it is very likely that some passer-by will discover and
appropriate it.
CHAPTER XIV.
POSSESSION (CONTINUED).
§ 101. =Immediate and Mediate Possession.=
One person may possess a thing for and on account of some one else. In
such a case the latter is in possession by the agency of him who so
holds the thing on his behalf. The possession thus held by one man
through another may be termed _mediate_, while that which is acquired or
retained directly or personally may be distinguished as _immediate_ or
_direct_. If I go myself to purchase a book, I acquire direct possession
of it; but if I send my servant to buy it for me, I acquire mediate
possession of it through him, until he has brought it to me, when my
possession becomes immediate.
Of mediate possession there are three kinds.[236] The first is that
which I acquire through an agent or servant; that is to say through some
one who holds solely on my account and claims no interest of his own. In
such a case I undoubtedly acquire or retain possession; as, for example,
when I allow my servant to use my tools in his work, or when I send him
to buy or borrow a chattel for me, or when I deposit goods with a
warehouseman who holds them on my account, or when I send my boots to a
shoemaker to be repaired. In all such cases, though the immediate
possession is in the servant, warehouseman, or artisan, the mediate
possession is in me; for the immediate possession is held on my account,
and my _animus domini_ is therefore sufficiently realised in the facts.
The second kind of mediate possession is that in which the direct
possession is in one who holds both on my account and on his own, but
who recognises my superior right to obtain from him the direct
possession whenever I choose to demand it. That is to say, it is the
case of a borrower, hirer, or tenant at will. I do not lose possession
of a thing because I have lent it to some one who acknowledges my title
to it and is prepared to return it to me on demand, and who in the
meantime holds it and looks after it on my behalf. There is no
difference in this respect between entrusting a thing to a servant or
agent and entrusting it to a borrower. Through the one, as well as
through the other, I retain as regards all other persons a due security
for the use and enjoyment of my property. I myself possess whatever is
possessed for me on those terms by another.[237]
There is yet a third form of mediate possession, respecting which more
doubt may exist, but which must be recognised by sound theory as true
possession. It is the case in which the immediate possession is in a
person who claims it for himself until some time has elapsed or some
condition has been fulfilled, but who acknowledges the title of another
for whom he holds the thing, and to whom he is prepared to deliver it
when his own temporary claim has come to an end: as for example when I
lend a chattel to another for a fixed time, or deliver it as a pledge to
be returned on the payment of a debt. Even in such a case I retain
possession of the thing, so far as third persons are concerned. The
_animus_ and the _corpus_ are both present; the _animus_, for I have not
ceased, subject to the temporary right of another person, to claim the
exclusive use of the thing for myself; the _corpus_, inasmuch as through
the instrumentality of the bailee or pledgee, who is keeping the thing
safe for me, I am effectually excluding all other persons from it, and
have thereby attained a sufficient security for its enjoyment. In
respect of the effective realisation of the _animus domini_, there seems
to be no essential difference between entrusting a thing to an agent,
entrusting it to a bailee at will, and entrusting it to a bailee for a
fixed term, or to a creditor by way of pledge. In all these cases I get
the benefit of the immediate possession of another person, who, subject
to his own claim, if any, holds and guards the thing on my account. If I
send a book to be bound, can my continued possession of it depend on
whether the binder has or has not a lien over it for the price of the
work done by him? If I lend a book to a friend, can my possession of it
depend on whether he is to return it on demand or may keep it till
to-morrow? Such distinctions are irrelevant, and in any alternative my
possession as against third persons is unaffected.
A test of the existence of a true mediate possession in all the
foregoing cases is to be found in the operation of the law of
prescription. A title by prescription is based on long and continuous
possession. But he who desires to acquire ownership in this way need
not retain the immediate possession of the thing. He may let his land
to a tenant for a term of years, and his possession will remain
unaffected, and prescription will continue to run in his favour. If he
desires to acquire a right of way by prescription, his tenant’s use of
it is equivalent to his own. For all the purposes of the law of
prescription mediate possession in all its forms is as good as
immediate. In _Haig_ v. _West_[238] it is said by Lindley, L. J.: “The
vestry by their tenants occupied and enjoyed the lanes as land
belonging to the parish.... The parish have in our opinion gained a
title to these parish lanes by the Statute of Limitations. The vestry
have by their tenants occupied and enjoyed the lanes for more than a
century.”
In the case of chattels a further test of the legal recognition of
mediate possession in all its forms is to be found in the law as to
delivery by attornment. In _Elmore_ v. _Stone_[239] A. bought a horse
from B., a livery stable keeper, and at the same time agreed that it
should remain at livery with B. It was held that by this agreement the
horse had been effectually delivered by B. to A., though it had
remained continuously in the physical custody of B. That is to say, A.
had acquired mediate possession, through the direct possession which
B. held on his behalf. The case of _Marvin_ v. _Wallace_[240] goes
still further. A. bought a horse from B., and, without any change in
the immediate possession, lent it to the seller to keep and use as a
bailee for a month. It was held that the horse had been effectually
delivered by B. to A. This was mediate possession of the third kind,
being acquired and retained through a bailee for a fixed term.
Crompton, J., referring to _Elmore_ v. _Stone_, says:[241] “In the one
case we have a bailment of a description different from the original
possession; here we have a loan; but in each case the possession of
the bailee is the possession of the bailor; it would be dangerous to
distinguish between such cases.”
In all cases of mediate possession two persons are in possession of the
same thing at the same time. Every mediate possessor stands in relation
to a direct possessor through whom he holds. If I deposit goods with an
agent, he is in possession of them as well as I. He possesses for me,
and I possess through him. A similar duplicate possession exists in the
case of master and servant, landlord and tenant, bailor and bailee,
pledgor and pledgee. In all such cases, however, there is an important
distinction to be noticed. Mediate possession exists as against third
persons only, and not as against the immediate possessor. Immediate
possession, on the other hand, is valid as against all the world,
including the mediate possessor himself. Thus if I deposit goods with a
warehouseman, I retain possession as against all other persons; because
as against them I have the benefit of the warehouseman’s custody. But as
between the warehouseman and myself, he is in possession and not I. For
as against him I have in no way realised my _animus possidendi_ nor in
any way obtained a security of use and enjoyment. So in the case of a
pledge, the debtor continues to possess quoad the world at large; but as
between debtor and creditor, possession is in the latter. The debtor’s
possession is mediate and relative; the creditor’s is immediate and
absolute. So also with landlord and tenant, bailor and bailee, master
and servant, principal and agent, and all other cases of mediate
possession.
Here also we may find a test in the operation of prescription. As
between landlord and tenant, prescription, if it runs at all, will run
in favour of the tenant; but at the same time it may run in favour of
the landlord as against the true owner of the property. Let us
suppose, for example, that possession for twenty years will in all
cases give a good title to land, and that A. takes wrongful possession
of land from X., holds it for ten years, and then allows B. to have
the gratuitous use of it as tenant at will. In ten years more A. will
have a good title as against X., for, as against him, A. has been
continuously in possession. But in yet another ten years B., the
tenant, will have a good title as against his landlord A., for, as
between these two, the possession has been for twenty years in B.
To put the matter in a general form, prescription runs in favour of
the immediate against the mediate possessor, but in favour of the
mediate possessor as against third persons.
§ 102. =Concurrent Possession.=
It was a maxim of the civil law that two persons could not be in
possession of the same thing at the same time. _Plures eandem rem in
solidum possidere non possunt._[242] As a general proposition this is
true; for exclusiveness is of the essence of possession. Two adverse
claims of exclusive use cannot both be effectually realised at the same
time. Claims, however, which are not adverse, and which are not,
therefore, mutually destructive, admit of concurrent realisation. Hence
there are several possible cases of duplicate possession.
1. Mediate and immediate possession coexist in respect of the same thing
as already explained.
2. Two or more persons may possess the same thing in common, just as
they may own it in common. This is called _compossessio_ by the
civilians.
3. Corporeal and incorporeal possession may coexist in respect of the
same material object, just as corporeal and incorporeal ownership may.
Thus A. may possess the land, while B. possesses a right of way over it.
For it is not necessary, as we have already seen, that A.’s claim of
exclusive use should be absolute; it is sufficient that it is general.
§ 103. =The Acquisition of Possession.=
Possession is acquired whenever the two elements of _corpus_ and
_animus_ come into coexistence, and it is lost so soon as either of them
disappears. The modes of acquisition are two in number, namely Taking
and Delivery. Taking is the acquisition of possession without the
consent of the previous possessor. The thing taken may or may not have
been already in the possession of some one else, and in either case the
taking of it may be either rightful or wrongful. Delivery, on the other
hand, is the acquisition of possession with the consent and co-operation
of the previous possessor. It is of two kinds, distinguished by English
lawyers as actual and constructive.[243] Actual delivery is the transfer
of _immediate_ possession; it is such a physical dealing with the thing
as transfers it from the hands of one person to those of another. It is
of two kinds, according as the _mediate_ possession is or is not
retained by the transferor. The delivery of a chattel by way of sale is
an example of delivery without any reservation of mediate possession;
the delivery of a chattel by way of loan or deposit is an instance of
the reservation of mediate possession on the transfer of immediate.
Constructive delivery, on the other hand, is all which is not actual,
and it is of three kinds. The first is that which the Roman lawyers
termed _traditio brevi manu_, but which has no recognised name in the
language of English law. It consists in the surrender of the mediate
possession of a thing to him who is already in immediate possession of
it. If, for example, I lend a book to some one, and afterwards, while he
still retains it, I agree with him to sell it to him, or to make him a
present of it, I can effectually deliver it to him in fulfilment of this
sale or gift, by telling him that he may keep it. It is not necessary
for him to go through the form of handing it back to me and receiving it
a second time from my hands. For he has already the immediate possession
of it, and all that is needed for delivery under the sale or gift is the
destruction of the _animus_ through which mediate possession is still
retained by me.[244]
The second form of constructive delivery is that which the commentators
on the civil law have termed _constitutum possessorium_ (that is to say,
an agreement touching possession). This is the converse of _traditio
brevi manu_. It is the transfer of mediate possession, while the
immediate possession remains in the transferor. Any thing may be
effectually delivered by means of an agreement that the possessor of it
shall for the future hold it no longer on his own account but on account
of some one else. No physical dealing with the thing is requisite,
because by the mere agreement mediate possession is acquired by the
transferee, through the immediate possession retained by the transferor
and held on the other’s behalf. Therefore, if I buy goods from a
warehouseman, they are delivered to me so soon as he has agreed with me
that he will hold them as warehouseman on my account. The position is
then exactly the same as if I had first taken actual delivery of them,
and then brought them back to the warehouse, and deposited them there
for safe custody.[245]
The third form of constructive delivery is that which is known to
English lawyers as attornment.[246] This is the transfer of mediate
possession, while the immediate possession remains outstanding in some
third person. The mediate possessor of a thing may deliver it by
procuring the immediate possessor to agree with the transferee to hold
it for the future on his account, instead of on account of the
transferor. Thus if I have goods in the warehouse of A., and sell them
to B., I have effectually delivered them to B., so soon as A. has agreed
with B. to hold them for him, and no longer for me. Neither in this nor
in any other case of constructive delivery is any physical dealing with
the thing required, the change in the _animus_ of the persons concerned
being adequate in itself.[247]
§ 104. =Possession not essentially the Physical Power of Exclusion.=
According to a widely accepted theory the essence of corporeal
possession is to be found in the physical power of exclusion. The
_corpus possessionis_, it is said, is of two kinds, according as it
relates to the commencement or to the continuance of possession. The
_corpus_ required at the commencement is the present or actual physical
power of using the thing oneself and of excluding all other persons from
the use of it. The _corpus_ required for the retention of a possession
once acquired may, on the other hand, consist merely in the ability to
reproduce this power at will. Thus I acquire possession of a horse if I
take him by the bridle, or ride upon him, or otherwise have him in my
immediate personal presence, so that I can prevent all other persons
from interfering with him. But no such immediate physical relation is
necessary to retain the possession so acquired. I can put the horse in
my stable, or let him run in a field. So long as I can go to him when I
wish, and reproduce at will the original relation of physical power, my
possession has not ceased. To this view of the matter, however, the
following objections may be made.[248]
1. Even at the commencement a possessor need have no physical power of
excluding other persons. What physical power of preventing trespass does
a man acquire by making an entry upon an estate which may be some square
miles in extent? Is it not clear that he may have full possession of
land that is absolutely unfenced and unprotected, lying open to every
trespasser? There is nothing to prevent even a child from acquiring
effective possession as against strong men, nor is possession impossible
on the part of him who lies in his bed at the point of death. If I
stretch a net in the sea, do I not acquire the possession of the fish
caught in it, so soon as they are caught? Yet every other fisherman that
passes by has more power of excluding me than I have of excluding him.
So if I set traps in the forest, I possess the animals which I catch in
them, though there is neither physical presence nor physical power. If
in my absence a vendor deposits a load of stone or timber on my land, do
I not forthwith acquire possession of it? Yet I have no more physical
power over it than any one else has. I may be a hundred miles from my
farm, without having left any one in charge of it; but I acquire
possession of the increase of my sheep and cattle.
In all such cases the assumption of physical power to exclude alien
interference is no better than a fiction. The true test is not the
physical power of preventing interference, but the improbability of any
interference, from whatever source this improbability arises. Possession
is the security of enjoyment, and there are other means of attaining
this security than personal presence or power. It is true that in time
of war the possession of a place must be obtained and defended by cannon
and bayonets; but in the peaceful intercourse of fellow-citizens under
the rule of law, possession can be acquired and retained on much easier
terms and in much simpler fashion. The chances of hostile interference
are determined by other considerations than that of the amount of
physical force at the disposal of the claimant. We have to take account
of the customs and opinions of the community, the spirit of legality and
of respect for rightful claims, and the habit of acquiescence in
established facts. We have to consider the nature of the uses of which
the thing admits, the nature of the precautions which are possibly or
usually taken in respect of it, the opinion of the community as to the
rightfulness of the claim seeking to realise itself, the extent of
lawless violence that is common in the society, the opportunities for
interference and the temptations to it, and lastly but not exclusively
the physical power of the possessor to defend himself against
aggression. If, having regard to these circumstances and to such as
these, it appears that the _animus possidendi_ has so prospered as to
have acquired a reasonable security for its due fulfilment, there is
true possession, and if not, not.
2. In the second place it is by no means clear how it is possible for
possession at its commencement and possession in its continuance to be
made up of different elements. How can it be that possession at its
inception involves actual physical power of exclusion, while in its
continuance it involves merely the power of reproducing this primary
relationship? Possession is a continuing _de facto_ relation between a
person and a thing. Surely, therefore, it must from beginning to end
have the same essential nature. What is that nature? Savigny’s theory
affords no answer. It tells us, at the most, how possession begins, and
how it ceases; but we wish to know what it essentially and continuously
_is_.
3. Thirdly and lastly, the theory which we are considering is
inapplicable to the possession of incorporeal things. Even if it
successfully explained the possession of land, it would afford no
explanation of the possession of a right of way or other servitude. Here
there is neither exclusion nor the power of exclusion. It is, on the
contrary, the possessor of the servient land who has the physical power
of excluding the possessor of the servitude. If I possess an easement of
light, what power have I to prevent its infringement by the building
operations of my neighbour? It is true that this is not a conclusive
objection to Savigny’s analysis; for it remains perfectly open to him to
rejoin that possession in its proper sense is limited to the possession
of corporeal things, and that its extension to incorporeal things is
merely analogical and metaphorical. The fact remains, however, that this
extension has taken place; and, other things being equal, a definition
of possession which succeeds in including both its forms is preferable
to one which is forced to reject one of them as improper.
§ 105. =Incorporeal Possession.=
Hitherto we have limited our attention to the case of corporeal
possession. We have now to consider incorporeal, and to seek the generic
conception which includes both these forms. For I may possess not the
land itself, but a way over it, or the access of light from it, or the
support afforded by it to my land which adjoins it. So also I may
possess powers, privileges, immunities, liberties, offices, dignities,
services, monopolies. All these things may be possessed as well as
owned. They may be possessed by one man, and owned by another. They may
be owned and not possessed, or possessed and not owned.
Corporeal possession is, as we have seen, the continuing exercise of a
claim to the exclusive use of a material object. Incorporeal possession
is the continuing exercise of a claim to anything else. The thing so
claimed may be either the non-exclusive use of a material object (for
example, a way or other servitude over a piece of land) or some interest
or advantage unconnected with the use of material objects (for example a
trade-mark, a patent, or an office of profit).
In each kind of possession there are the same two elements required,
namely the _animus_ and the _corpus_. The _animus_ is the claim—the
self-assertive will of the possessor. The _corpus_ is the environment of
fact in which this claim has realised, embodied, and fulfilled itself.
Possession, whether corporeal or incorporeal, exists only when the
_animus possidendi_ has succeeded in establishing a continuing practice
in conformity to itself. Nor can any practice be said to be continuing,
unless some measure of future existence is guaranteed to it by the facts
of the case. The possession of a thing is the _de facto_ condition of
its continuous and secure enjoyment.
In the case of corporeal possession the _corpus possessionis_ consists,
as we have seen, in nothing more than the continuing exclusion of alien
interference, coupled with ability to use the thing oneself at will.
Actual use of it is not essential. I may lock my watch in a safe,
instead of keeping it in my pocket; and though I do not look at it for
twenty years, I remain in possession of it none the less. For I have
continuously exercised my claim to it, by continuously excluding other
persons from interference with it. In the case of incorporeal
possession, on the contrary, since there is no such claim of exclusion,
actual continuous use and enjoyment is essential, as being the only
possible mode of exercise. I can acquire and retain possession of a
right of way only through actual and repeated use of it. In the case of
incorporeal things continuing non-use is inconsistent with possession,
though in the case of corporeal things it is consistent with it.
Incorporeal possession is commonly called the possession of a _right_,
and corporeal possession is distinguished from it as the possession of a
_thing_. The Roman lawyers distinguish between _possessio juris_ and
_possessio corporis_, and the Germans between _Rechtsbesitz_ and
_Sachenbesitz_. Adopting this nomenclature, we may define incorporeal
possession as the continuing exercise of a right, rather than as the
continuing exercise of a claim. The usage is one of great convenience,
but it must not be misunderstood. To exercise a right means to exercise
a claim _as if it were a right_. There may be no right in reality; and
where there is a right, it may be vested in some other person, and not
in the possessor. If I possess a way over another’s land, it may or may
not be a _right_ of way; and even if it is a right of way, it may be
owned by some one else, though possessed by me. Similarly a trade-mark
or a patent which is possessed and exercised by me may or may not be
legally valid; it may exist _de facto_ and not also _de jure_; and even
if legally valid, it may be legally vested not in me, but in
another.[249]
The distinction between corporeal and incorporeal possession is clearly
analogous to that between corporeal and incorporeal ownership. Corporeal
possession, like corporeal ownership, is that of a thing; while
incorporeal possession, like incorporeal ownership, is that of a right.
Now in the case of ownership we have already seen that this distinction
between things and rights is merely the outcome of a figure of speech,
by which a certain kind of right is identified with the material thing
which is its object. A similar explanation is applicable in the case of
possession. The possession of a piece of land means in truth the
possession of the exclusive use of it, just as the possession of a right
of way over land means the possession of a certain non-exclusive use of
it. By metonymy the exclusive use of the thing is identified with the
thing itself, though the non-exclusive use of it is not. Thus we obtain
a distinction between the possession of things and the possession of
rights, similar to that between the ownership of things and the
ownership of rights.[250]
In essence, therefore, the two forms of possession are identical, just
as the two forms of ownership are. Possession in its full compass and
generic application means _the continuing exercise of any claim or
right_.
§ 106. =Relation between Possession and Ownership.=
“Possession,” says Ihering,[251] “is the objective realisation of
ownership.” It is in _fact_ what ownership is in _right_. Possession is
the _de facto_ exercise of a claim; ownership is the _de jure_
recognition of one. A thing is owned by me when my claim to it is
maintained by the will of the state as expressed in the law; it is
possessed by me, when my claim to it is maintained by my own
self-assertive will. Ownership is the guarantee of the law; possession
is the guarantee of the facts. It is well to have both forms of security
if possible; and indeed they normally coexist. But where there is no
law, or where the law is against a man, he must content himself with the
precarious security of the facts. Even when the law is in one’s favour,
it is well to have the facts on one’s side also. _Beati possidentes_.
Possession, therefore, is the _de facto_ counterpart of ownership. It is
the external form in which rightful claims normally manifest themselves.
The separation of these two things is an exceptional incident, due to
accident, wrong, or the special nature of the claims in question.
Possession without ownership is the body of fact, uninformed by the
spirit of right which usually accompanies it. Ownership without
possession is right, unaccompanied by that environment of fact in which
it normally realises itself. The two things tend mutually to coincide.
Ownership strives to realise itself in possession, and possession
endeavours to justify itself as ownership. The law of prescription
determines the process by which, through the influence of time,
possession without title ripens into ownership, and ownership without
possession withers away and dies.[252]
Speaking generally, ownership and possession have the same
subject-matter. Whatever may be owned may be possessed, and whatever may
be possessed may be owned. This statement, however, is subject to
important qualifications. There are claims which may be realised and
exercised in fact without receiving any recognition or protection from
the law, there being no right vested either in the claimant or in any
one else. In such cases there is possession without ownership. For
example, men might possess copyrights, trade-marks, and other forms of
monopoly, even though the law refused to defend those interests as legal
rights. Claims to them might be realised _de facto_, and attain some
measure of security and value from the facts, without any possibility of
support from the law.
Conversely there are many rights which can be owned, but which are not
capable of being possessed. They are those which may be termed
_transitory_. Rights which do not admit of continuing exercise do not
admit of possession either. They cannot be exercised without being
thereby wholly fulfilled and destroyed; therefore they cannot be
possessed. A creditor, for example, does not possess the debt that is
due to him; for this is a transitory right which in its very nature
cannot survive its exercise. But a man may possess an easement over
land, because its exercise and its continued existence are consistent
with each other. It is for this reason that obligations generally (that
is to say, rights _in personam_ as opposed to _rights in rem_) do not
admit of possession. It is to be remembered, however, that _repeated_
exercise is equivalent in this respect to _continuing_ exercise. I may
possess a right of way through repeated acts of use, just as I may
possess a right of light or support through continuous enjoyment.
Therefore even obligations admit of possession, provided that they are
of such a nature as to involve a series of repeated acts of performance.
We may say that a landlord is in possession of his rents, an annuitant
of his annuity, a bondholder of his interest, or a master of the
services of his servant.[253]
We may note finally that, although incorporeal possession is possible in
fact of all continuing rights, it by no means follows that the
recognition of such possession, or the attribution of legal consequences
to it, is necessary or profitable in law. To what extent incorporeal
possession exists in law, and what consequences flow from it, are
questions which are not here relevant, but touch merely the details of
the legal system.
§ 107. =Possessory Remedies.=
In English law possession is a good title of right against any one who
cannot show a better. A wrongful possessor has the rights of an owner
with respect to all persons except earlier possessors and except the
true owner himself. Many other legal systems,[254] however, go much
further than this, and treat possession as a provisional or temporary
title even against the true owner himself. Even a wrongdoer, who is
deprived of his possession, can recover it from any person whatever,
simply on the ground of his possession. Even the true owner, who retakes
his own, may be forced in this way to restore it to the wrongdoer, and
will not be permitted to set up his own superior title to it. He must
first give up possession, and then proceed in due course of law for the
recovery of the thing on the ground of his ownership. The intention of
the law is that every possessor shall be entitled to retain and recover
his possession, until deprived of it by a judgment according to law.
Legal remedies thus appointed for the protection of possession even
against ownership are called _possessory_, while those available for the
protection of ownership itself may be distinguished as _proprietary_. In
the modern and medieval civil law the distinction is expressed by the
contrasted terms _petitorium_ (a proprietary suit) and _possessorium_ (a
possessory suit).
This duplication of remedies, with the resulting provisional protection
of possession, has its beginnings in Roman law. It was taken up into the
canon law, where it received considerable extensions, and through the
canon law it became a prominent feature of medieval jurisprudence. It is
still received in modern Continental systems; but although well known to
the earlier law of England, it has been long since rejected by us as
cumbrous and unnecessary.
There has been much discussion as to the reasons on which this
provisional protection of possession is based. It would seem probable
that the considerations of greatest weight are the three following.
1. The evils of violent self-help are deemed so serious that it must be
discouraged by taking away all advantages which any one derives from it.
He who helps himself by force even to that which is his own must restore
it even to a thief. The law gives him a remedy, and with it he must be
content. This reason, however, can be allowed as valid only in a
condition of society in which the evils and dangers of forcible
self-redress are much more formidable than they are at the present day.
It has been found abundantly sufficient to punish violence in the
ordinary way as a criminal offence, without compelling a rightful owner
to deliver up to a trespasser property to which he has no manner of
right, and which can be forthwith recovered from him by due course of
law. In the case of chattels, indeed, our law has not found it needful
to protect possession even to this extent. It seems that an owner who
retakes a chattel by force acts within his legal rights. Forcible entry
upon land, however, is a criminal offence.
2. A second reason for the institution of possessory remedies is to be
found in the serious imperfections of the early proprietary remedies.
The procedure by which an owner recovered his property was cumbrous,
dilatory, and inefficient. The path of the claimant was strewn with
pitfalls, and he was lucky if he reached his destination without
disaster. The part of plaintiff in such an action was one of grave
disadvantage, and possession was nine points of the law. No man,
therefore, could be suffered to procure for himself by violence the
advantageous position of defendant, and to force his adversary by such
means to assume the dangerous and difficult post of plaintiff. The
original position of affairs must first be restored; possession must
first be given to him who had it first; then, and not till then, would
the law consent to discuss the titles of the disputants to the property
in question. Yet however cogent such considerations may have been in
earlier law, they are now of little weight. With a rational system of
procedure the task of the plaintiff is as easy as that of the defendant.
The law shows no favour to one rather than to the other.
3. A third reason for possessory remedies, closely connected with the
second, is the difficulty of the proof of ownership. It is easy to prove
that one has been in possession of a thing, but difficult (in the
absence of any system of registration of title) to prove that one is the
owner of it. Therefore it was considered unjust that a man should be
allowed by violence to transfer the heavy burden of proof from his own
shoulders to those of his opponent. Every man should bear his own
burden. He who takes a thing by force must restore it to him from whom
he has taken it; let him then prove, if he can, that he is the owner of
it; and the law will then give to him what it will not suffer him to
take for himself. But English law has long since discovered that it is
possible to attain this end in a much more satisfactory and reasonable
way. It adjusts the burden of proof of ownership with perfect equity,
without recourse to any such anomaly as the protection of the possessor
against the owner. This it does by the operation of the three following
rules:
1. Prior possession is _prima facie_ proof of title. Even in the
ordinary proprietary action a claimant need do nothing more than prove
that he had an older possession than that of the defendant; for the law
will presume from this prior possession a better title. _Qui prior est
tempore potior est jure._
2. A defendant is always at liberty to rebut this presumption by proving
that the better title is in himself.
3. A defendant is not allowed to set up the defence of _jus tertii_, as
it is called; that is to say, he will not be heard to allege, as against
the plaintiff’s claim, that neither the plaintiff nor he himself, but
some third person, is the true owner. Let every man come and defend his
own title. As between A. and B. the right of C. is irrelevant.
By the joint operation of these three rules the same purpose is effected
as was sought in more cumbrous fashion by the early duplication of
proprietary and possessory remedies.[255]
SUMMARY OF CHAPTERS XIII. AND XIV.
Possession { In fact—possessio naturalis.
{ In law—possessio civilis.
Possession in law { Seisin
{ Possession.
Possession { Corporeal—possessio corporis—Sachenbesitz.
{ Incorporeal—possessio juris—Rechtsbesitz.
Corporeal possession—the continuing exercise of a claim to the exclusive
use of a material thing.
Elements of corporeal possession { Animus sibi habendi.
{ Corpus.
Animus sibi habendi:
1. Not necessarily a claim of right.
2. Must be exclusive.
3. Not necessarily a claim to use as owner.
4. Not necessarily a claim on one’s own behalf.
5. Not necessarily specific.
Corpus—the effective realisation of the animus in a security for enjoyment.
Elements of the corpus:
1. A relation of the possessor to other persons, amounting to a
security for their non-interference.
The grounds of such security:
1. Physical power.
2. Personal presence.
3. Secrecy.
4. Custom.
5. Respect for rightful claims.
6. Manifestation of the animus.
7. Protection afforded by other possessions.
The rights of a finder.
2. A relation of the possessor to the thing possessed, amounting
to a security for the use of the thing at will.
Possession { Immediate—without the intervention of another person.
{ Mediate—through or by means of another person.
Mediate possession { 1. Through servants or agents.
{ 2. Through bailees or tenants at will.
{ 3. Through persons claiming temporary possession
{ for themselves.
The relation between the mediate and the immediate possessor.
The exclusiveness of possession.
Exceptional instances of duplicate possession:
1. Mediate and immediate possession.
2. Possession in common.
3. Corporeal and incorporeal possession.
The acquisition of possession:
{ 1. Taking
{ 2. Delivery { Actual
{ { Traditio brevi manu.
{ Constructive { Constitutum possessorium.
{ Attornment.
Possession not essentially the physical power of exclusion.
Incorporeal possession:
Its nature—the continuing exercise of any claim, save one to the
exclusive use of a corporeal thing.
Its relation to corporeal possession.
The generic conception of possession.
The relation between possession and ownership.
Possession the de facto exercise of a claim.
Ownership the de jure recognition of one.
The identity of the objects of ownership and possession.
Exceptions:
1. Things which can be possessed, but cannot be owned.
2. Things which can be owned, but cannot be possessed.
Possessory remedies.
1. Their nature.
2. Their objects.
3. Their exclusion from English law.
CHAPTER XV.
PERSONS.
§ 108. =The Nature of Personality.=
The purpose of this chapter is to investigate the legal conception of
personality. It is not permissible to adopt the simple device of saying
that a person means a human being, for even in the popular or non-legal
use of the term there are persons who are not men. Personality is a
wider and vaguer term than humanity. Gods, angels, and the spirits of
the dead are persons, no less than men are. And in the law this want of
coincidence between the class of persons and that of human beings is
still more marked. In the law there may be men who are not persons;
slaves, for example, are destitute of legal personality in any system
which regards them as incapable of either rights or liabilities. Like
cattle, they are things and the objects of rights; not persons and the
subjects of them. Conversely there are, in the law, persons who are not
men. A joint-stock company or a municipal corporation is a person in
legal contemplation. It is true that it is only a fictitious, not a real
person; but it is not a fictitious _man_. It is personality, not human
nature, that is fictitiously attributed by the law to bodies corporate.
So far as legal theory is concerned, a person is any being whom the law
regards as capable of rights or duties. Any being that is so capable is
a person, whether a human being or not, and no being that is not so
capable is a person, even though he be a man. Persons are the substances
of which rights and duties are the attributes. It is only in this
respect that persons possess juridical significance, and this is the
exclusive point of view from which personality receives legal
recognition.
But we may go one step further than this in the analysis. No being is
capable of rights, unless also capable of interests which may be
affected by the acts of others. For every right involves an underlying
interest of this nature. Similarly no being is capable of duties, unless
also capable of acts by which the interests of others may be affected.
To attribute rights and duties, therefore, is to attribute interests and
acts as their necessary bases. A person, then, may be defined, for the
purposes of the law, as any being to whom the law attributes a
capability of interests and therefore of rights, of acts and therefore
of duties.
Persons as so defined are of two kinds, distinguishable as natural and
legal. A natural person is a being to whom the law attributes
personality in accordance with reality and truth. Legal persons are
beings, real or imaginary, to whom the law attributes personality by way
of fiction, when there is none in fact. Natural persons are persons in
fact as well as in law; legal persons are persons in law but not in
fact.[256]
§ 109. =The Legal Status of the Lower Animals.=
The only natural persons are human beings. Beasts are not persons. They
are merely things—often the objects of legal rights and duties, but
never the subjects of them. Beasts, like men, are capable of acts and
possess interests. Yet their acts are neither lawful nor unlawful; they
are not recognised by the law as the appropriate subject-matter either
of permission or of prohibition. Archaic codes did not scruple, it is
true, to punish with death in due course of law the beast that was
guilty of homicide. “If an ox gore a man or a woman that they die: then
the ox shall be surely stoned and his flesh shall not be eaten.”[257] A
conception such as this pertains to a stage that is long since past; but
modern law shows us a relic of it in the rule that the owner of a beast
is liable for its trespasses, just as a master must answer for his
servant, or a slave-owner for his slave.[258] This vicarious liability,
however, does not involve any legal recognition of the personality of
the animal whose misdeeds are thus imputed to its owner.
A beast is as incapable of legal rights as of legal duties, for its
interests receive no recognition from the law. _Hominum causa omne jus
constitutum._[259] The law is made for men, and allows no fellowship or
bonds of obligation between them and the lower animals. If these last
possess moral rights—as utilitarian ethics at least need not scruple to
admit—those rights are not recognised by any legal system. That which is
done to the hurt of a beast may be a wrong to its owner or to the
society of mankind, but it is no wrong to the beast. No animal can be
the owner of any property, even through the medium of a human trustee.
If a testator vests property in trustees for the maintenance of his
favourite horses or dogs, he will thereby create no valid trust
enforceable in any way by or on behalf of these non-human beneficiaries.
The only effect of such provisions is to authorise the trustees, if they
think fit, to expend the property or any part of it in the way so
indicated; and whatever part of it is not so spent will go to the
testator’s representatives as undisposed of.[260]
There are, however, two cases in which beasts may be thought to possess
legal rights. In the first place, cruelty to animals is a criminal
offence, and in the second place, a trust for the benefit of particular
classes of animals, as opposed to one for individual animals, is valid
and enforceable as a public and charitable trust; for example, a
provision for the establishment and maintenance of a home for stray dogs
or broken-down horses.[261] Are we driven by the existence of these
cases to recognise the legal rights and therefore the legal personality
of beasts? There is no occasion for any such conflict with accustomed
modes of thought and speech. These duties towards animals are conceived
by the law as duties towards society itself. They correspond not to
private rights vested in the immediate beneficiaries, but to public
rights vested in the community at large—for the community has a rightful
interest, legally recognised to this extent, in the well-being even of
the dumb animals which belong to it.
§ 110. =The Legal Status of Dead Men.=
Dead men are no longer persons in the eye of the law. They have laid
down their legal personality with their lives, and are now as destitute
of rights as of liabilities. They have no rights because they have no
interests. There is nothing that concerns them any longer, “neither have
they any more a portion for ever in anything that is done under the
sun.” They do not even remain the owners of their property until their
successors enter upon their inheritance. We have already seen how, in
the interval between death and the entering of the heir, Roman law
preferred to personify the inheritance itself, rather than attribute any
continued legal personality or ownership to the dead man.[262] So in
English law the goods of an intestate, before the grant of letters of
administration, have been vested in the bishop of the diocese or in the
judge of the Court of Probate, rather than left to the dead until they
are in truth acquired by the living.
Yet although all a man’s rights and interests perish with him, he does
when alive concern himself much with that which shall become of him and
his after he is dead. And the law, without conferring rights upon the
dead, does in some degree recognise and take account after a man’s death
of his desires and interests when alive. There are three things, more
especially, in respect of which the anxieties of living men extend
beyond the period of their deaths, in such sort that the law will take
notice of them. These are a man’s body, his reputation, and his estate.
By a natural illusion a living man deems himself interested in the
treatment to be awarded to his own dead body. To what extent does the
law secure his desires in this matter? A corpse is the property of no
one. It cannot be disposed of by will or any other instrument,[263] and
no wrongful dealing with it can amount to theft.[264] The criminal law,
however, secures decent burial for all dead men, and the violation of a
grave is a criminal offence.[265] “Every person dying in this country,”
it has been judicially declared,[266] “has a right to Christian burial.”
On the other hand the testamentary directions of a man as to the
disposal of his body are without any binding force,[267] save that by
statute he is given the power of protecting it from the indignity of
anatomical uses.[268] Similarly a permanent trust for the maintenance of
his tomb is illegal and void, this being a purpose to which no property
can be permanently devoted.[269] Even a temporary trust for this purpose
(not offending against the rule against perpetuities) has no other
effect than that already noticed by us as attributed to trusts for
animals, its fulfilment being lawful but not obligatory.[270] Property
is for the uses of the living, not of the dead.
The reputation of the dead receives some degree of protection from the
criminal law. A libel upon a dead man will be punished as a
misdemeanour—but only when its publication is in truth an attack upon
the interests of living persons. The right so attacked and so defended
is in reality not that of the dead, but that of his living descendants.
To this extent, and in this manner only, has the maxim _De mortuis nil
nisi bonum_ obtained legal recognition and obligation.[271]
By far the most important matter, however, in which the desires of dead
men are allowed by the law to regulate the actions of the living is that
of testamentary succession. For many years after a man is dead, his hand
may continue to regulate and determine the disposition and enjoyment of
the property which he owned while living. This, however, is a matter
which will receive attention more fitly in another place.
§ 111. =The Legal Status of Unborn Persons.=
Though the dead possess no legal personality, it is otherwise with the
unborn. There is nothing in law to prevent a man from owning property
before he is born. His ownership is necessarily contingent, indeed, for
he may never be born at all; but it is none the less a real and present
ownership. A man may settle property upon his wife and the children to
be born of her. Or he may die intestate, and his unborn child will
inherit his estate. Yet the law is careful lest property should be too
long withdrawn in this way from the uses of living men in favour of
generations yet to come; and various restrictive rules have been
established to this end. No testator could now direct his fortune to be
accumulated for a hundred years and then distributed among his
descendants.
A child in its mother’s womb is for many purposes regarded by a legal
fiction as already born, in accordance with the maxim, _Nasciturus pro
jam nato habetur_. In the words of Coke: “The law in many cases hath
consideration of him in respect of the apparent expectation of his
birth.”[272]
To what extent an unborn person can possess personal as well as
proprietary rights is a somewhat unsettled question. It has been held
that a posthumous child is entitled to compensation under Lord
Campbell’s Act for the death of his father.[273] Wilful or negligent
injury inflicted on a child in the womb, by reason of which it dies
after having been born alive, amounts to murder or manslaughter.[274] A
pregnant woman condemned to death is respited as of right, until she has
been delivered of her child. On the other hand, in a case in which a
claim was made by a female infant against a railway company for injuries
inflicted upon her while in her mother’s womb through a collision due to
the defendant’s negligence, it was held by an Irish court that no cause
of action was disclosed.[275] The decision of two of the four judges,
however, proceeded upon the ground that the company owed no duty of care
towards a person whose existence was unknown to them, and not upon the
ground that an unborn child has in no case any right of immunity from
personal harm.
The rights of an unborn person, whether proprietary or personal, are all
contingent on his birth as a living human being. The legal personality
attributed to him by way of anticipation falls away _ab initio_ if he
never takes his place among the living. Abortion is a crime; but it is
not homicide, unless the child is born alive before he dies. A
posthumous child may inherit; but if he dies in the womb, or is
stillborn, his inheritance fails to take effect, and no one can claim
through him, though it would be otherwise if he lived for an hour after
his birth.
§ 112. =Double Personality.=
It often happens that a single human being possesses a double
personality. He is one man, but two persons. _Unus homo_, it is said,
_plures personas sustinet_. In one capacity, or in one right as English
lawyers say, he may have legal relations with himself in his other
capacity or right. He may contract with himself, or owe money to
himself, or transfer property to himself. Every contract, debt,
obligation, or assignment requires two persons; but those two persons
may be the same human being. This double personality exists chiefly in
the case of trusteeship. A trustee is, as we have seen, a person in whom
the property of another is nominally vested, to the intent that he may
represent that other in the management and protection of it. A trustee,
therefore, is for many purposes two persons in the eye of the law. In
right of his beneficiary he is one person, and in his own right he is
another. In the one capacity he may owe money to himself in the other.
In the one capacity he may own an encumbrance over property which
belongs to himself in the other. He may be his own creditor, or his own
landlord; as where a testator appoints one of his creditors as his
executor, or makes one of his tenants the trustee of his land.[276] In
all such cases, were it not for the recognition of double personality,
the obligation or encumbrance would be destroyed by merger, or
_confusio_ as the Romans called it, for two persons at least are
requisite for the existence of a legal relation. No man can in his own
right be under any obligation to himself, or own any encumbrance over
his own property. _Nulli res sua servit._[277]
§ 113. =Legal Persons.=
A legal person is any subject-matter to which the law attributes a
merely legal or fictitious personality. This extension, for good and
sufficient reasons, of the conception of personality beyond the limits
of fact—this recognition of persons who are not men—is one of the most
noteworthy feats of the legal imagination, and the true nature and uses
of it will form the subject of our consideration during the remainder of
this chapter.
The law, in creating legal persons, always does so by personifying some
real thing. Such a person has to this extent a real existence, and it is
his personality alone that is fictitious. There is, indeed, no
theoretical necessity for this, since the law might, if it so pleased,
attribute the quality of personality to a purely imaginary being, and
yet attain the ends for which this fictitious extension of personality
is devised. Personification, however, conduces so greatly to simplicity
of thought and speech, that its aid is invariably accepted. The thing
personified may be termed the _corpus_ of the legal person so
created;[278] it is the body into which the law infuses the _animus_ of
a fictitious personality.
Although all fictitious or legal personality involves personification,
the converse is not true. Personification in itself is a mere metaphor,
not a legal fiction. Legal personality is a definite legal conception;
personification, as such, is a mere artifice of speech devised for
compendious expression. In popular language, and in legal language also,
when strictness of speech is not called for, the device of
personification is extensively used. We speak of the estate of a
deceased person as if it were itself a person. We say that it owes
debts, or has debts owing to it, or is insolvent. The law, however,
recognises no legal personality in such a case. The rights and
liabilities of a dead man devolve upon his heirs, executors, and
administrators, not upon any fictitious person known as his estate.
Similarly we speak of a piece of land as entitled to a servitude, such
as a right of way over another piece. So, also, in the case of common
interests and actions, we personify as a single person the group of
individuals concerned, even though the law recognises no body corporate.
We speak of a firm as a person distinct from the individual partners. We
speak of a jury, a bench of judges, a public meeting, the community
itself, as being itself a person instead of merely a group or society of
persons. But legal personality is not reached until the law recognises,
over and above the associated individuals, a fictitious being which in a
manner represents them, but is not identical with them.
Legal persons, being the arbitrary creations of the law, may be of as
many kinds as the law pleases. Those which are actually recognised by
our own system, however, all fall within a single class, namely
corporations or bodies corporate. A corporation is a group or series of
persons which by a legal fiction is regarded and treated as itself a
person. If, however, we take account of other systems than our own, we
find that the conception of legal personality is not so limited in its
application, and that there are at least three distinct varieties. They
are distinguished by reference to the different kinds of things which
the law selects for personification.
1. The first class of legal persons consists of corporations, as already
defined, namely those which are constituted by the personification of
groups or series of individuals. The individuals who thus form the
_corpus_ of the legal person are termed its _members_. We shall consider
this form of fictitious personality more particularly in the sequel.
2. The second class is that in which the _corpus_, or object selected
for personification, is not a group or series of persons, but an
institution. The law may, if it pleases, regard a church, or a hospital,
or a university, or a library, as a person. That is to say, it may
attribute personality not to any group of persons connected with the
institution, but to the institution itself. Our own law does not,
indeed, so deal with the matter. The person known to the law of England
as the University of London is not the institution that goes by that
name, but a personified and incorporated aggregate of human beings,
namely the chancellor, vice-chancellor, fellows, and graduates. It is
well to remember, however, that notwithstanding this tradition and
practice of English law, fictitious personality is not limited by any
logical necessity, or, indeed, by any obvious requirement of expediency,
to the incorporation of bodies of individual persons.
3. The third kind of legal person is that in which the _corpus_ is some
fund or estate devoted to special uses—a charitable fund, for example,
or a trust estate, or the property of a dead man or of a bankrupt. Here,
also, English law prefers the process of incorporation. If it chooses to
personify at all, it personifies not the fund or the estate, but the
body of persons who administer it. Yet the other way is equally
possible, and may be equally expedient. The choice of the _corpus_ into
which the law shall breathe the breath of a fictitious personality is a
matter of form rather than of substance, of lucid and compendious
expression rather than of legal principle.
§ 114. =Corporations.=
We have now to consider more particularly the nature and purposes of the
legal conception of incorporation, inasmuch as legal personality goes no
further than this in English law. Much of what is said in this special
connection, however, will be applicable _mutatis mutandis_ to the other
classes of legal persons also.
Corporations are of two kinds, distinguished in English law as
corporations aggregate and corporations sole. “Persons,” says Coke,[279]
“are of two sorts, persons natural created of God, ... and persons
incorporate or politique created by the policy of man (and therefore
they are called bodies politique); and those be of two sorts, viz.,
either sole, or aggregate of many.” A corporation aggregate is an
incorporated _group_ of coexisting persons, and a corporation sole is an
incorporated _series_ of successive persons. The former is that which
has several members at a time, while the latter is that which has only
one member at a time. Corporations aggregate are by far the more
numerous and important. Examples are a registered company, consisting of
all the shareholders, and a municipal corporation, consisting of the
inhabitants of the borough. Corporations sole are found only when the
successive holders of some public office are incorporated so as to
constitute a single, permanent, and legal person. The Sovereign, for
example, is a corporation of this kind at common law, while the
Postmaster-General,[280] the Solicitor to the Treasury,[281] and the
Secretary of State for War[282] have been endowed by statute with the
same nature.[283]
It is essential to recognise clearly the element of legal fiction
involved in both those forms of incorporation, for this has been made by
some writers a matter of dispute. A company is in law something
different from its shareholders or members.[284] The property of the
company is not in law the property of the shareholders. The debts and
liabilities of the company are not attributed in law to its members. The
company may become insolvent, while its members remain rich. Contracts
may be made between the company and a shareholder, as if between two
persons entirely distinct from each other. The shareholders may become
so reduced in number that there is only one of them left; but he and the
company will be distinct persons for all that.[285]
May we not go further still, and say that a company is capable of
surviving the last of its members? At common law indeed, a corporation
is dissolved by the death of all its members.[286] There is, however,
no logical necessity for any such rule, and it does not apply to
corporations sole, for beings of this sort lead a continuous life,
notwithstanding the intervals between the death or retirement of each
occupant of the office and the appointment of his successor. Nor is
there any reason to suppose that such a ground of dissolution is known
to the trading corporations which are incorporated under the Companies
Acts. Being established by statute, they can be dissolved only in
manner provided by the statute to which they owe their origin.[287]
The representatives of a deceased shareholder are not themselves
members of the company, unless they become registered as such with
their own consent. If, therefore, on the death of the last surviving
members of a private company, their executors refuse or neglect to be
registered in their stead, the company will no longer have any
members. Is it, for that reason, _ipso jure_ dissolved? If not, it is
clear that since a company can survive its members and exist without
them, it must be something entirely distinct from them.[288]
In all those respects a corporation is essentially different from an
unincorporated partnership. A firm is not a person in the eye of the
law; it is nothing else than the sum of its individual members. There is
no fictitious being, standing over against the partners, as a company
stands over against its shareholders. The property and debts of the firm
are nothing else than those of the partners. A change in the list of
partners is the substitution of a new firm for the old one, and there is
no permanent legal unity, as in the case of the company. There can be no
firm which consists of one partner only, as a company may consist of one
member. The incorporation of a firm—that process by which an ordinary
partnership is transmuted into a company—effects a fundamental change in
the legal relations of its members. It is nothing less than the birth of
a new being, to whom the whole business and property of the partnership
is transferred—a being without soul or body, not visible save to the eye
of the law, but of a kind whose power and importance, wealth and
activity, are already great, and grow greater every day.
In the case of corporations sole, the fictitious nature of their
personality is equally apparent. The chief difficulty in apprehending
the true nature of a corporation of this description is that it bears
the same name as the natural person who is its sole member for the time
being, and who represents it and acts for it. Each of them is the
Sovereign, or the Solicitor to the Treasury, or the Secretary of State
for War. Nevertheless under each of these names two persons live. One is
a human being, administering for the time being the duties and affairs
of the office. He alone is visible to the eyes of laymen. The other is a
mythical being whom only lawyers know of, and whom only the eye of the
law can perceive. He is the true occupant of the office; he never dies
or retires; the other, the person of flesh and blood, is merely his
agent and representative, through whom he performs his functions. The
living official comes and goes, but this offspring of the law remains
the same for ever.
The doctrine that corporations are _personae fictae_, though generally
received, has not passed unchallenged. Attempts have been made in
recent years, especially by German jurists, to establish in place of
it a new theory which regards corporate personality as a reality, and
not a fictitious construction of the law. A corporation, it is said,
is nothing more, in law or in fact, than the aggregate of its members
conceived as a unity, and this unity, this organisation of human
beings, is a real person and a living organism, possessed of a real
will of its own, and capable of actions and of responsibility for
them, just as a man is.
With respect to this theory it is to be observed that, even if
applicable to corporations aggregate, it must leave corporations sole
and the other classes of legal persons to be explained in the older
fashion. And even in the case of corporations aggregate it seems
impossible to admit that their personality is anything more than the
outcome of metaphor and fiction. A society is not a person, but a
number of persons. The so-called will of a company is in reality
nothing but the wills of a majority of its directors or shareholders.
Ten men do not become in fact one person, because they associate
themselves together for one end, any more than two horses become one
animal when they draw the same cart. The apparent absurdity of holding
that a rich and powerful joint-stock company is a mere fiction of the
law, and possesses no real existence, proceeds not from the
fiction-theory, but from a misunderstanding of it. No one denies the
reality of the company (that is to say, the group of shareholders).
What is in truth denied is the reality of its personality. A group or
society of men is a very real _thing_, but it is only a fictitious
_person_.[289]
§ 115. =The Agents, Beneficiaries, and Members of a Corporation.=
Although corporations are fictitious persons, the acts and interests,
rights and liabilities, attributed to them by the law are those of real
or natural persons, for otherwise the law of corporations would be
destitute of any relation to actual fact and of any serious purpose.
Every corporation, therefore, involves in the first place some real
person or persons whose interests are fictitiously attributed to it, and
in the second place some real person or persons whose acts are
fictitiously imputed to it. A corporation, having neither soul nor body,
cannot act save through the agency of some representative in the world
of real men. For the same reason it can have no interests, and therefore
no rights, save those which are attributed to it as a trustee for or
otherwise on behalf of actual human beings.[290] Whatever a company is
reputed to do in law is done in fact by the directors or the
shareholders as its agents and representatives. Whatever interests,
rights, or property it possesses in law are in fact those of its
shareholders, and are held by it for their benefit. Every legal person,
therefore, has corresponding to it in the world of natural persons
certain agents or representatives by whom it acts, and certain
beneficiaries on whose behalf it exists and fulfils its functions. Its
representatives may or may not be different persons from its
beneficiaries, for these two capacities may or may not be united in the
same individuals. The shareholders of a company are not merely the
persons for whose benefit it exists; they are also those by whom it
acts. In the case of a corporation established for charitable purposes
it is otherwise, for the beneficiaries may have no share whatever in the
management of its affairs.
The representatives and beneficiaries of a corporation must not be
confounded with its members. These last are, as we have seen, the
individuals who form the group or series personified by the law, and who
so constitute the _corpus_ or body of the fictitious person thus
created. Membership of a corporation does not in itself affect in any
way the rights or liabilities of the members, for it is nothing more
than a matter of form. A man’s privileges and responsibilities in
respect of a corporation depend on whether he is one of its
representatives or beneficiaries, not on whether he is formally
accounted by the law as one of its members. Municipal corporations are
constituted by the incorporation of the inhabitants of boroughs; but if
by statute it were declared that they should consist for the future of
the mayor, aldermen, and councillors, the change would not affect the
rights, powers, or liabilities of any human being.
The extent to which the three classes of persons with whom a corporation
is concerned, namely its members, its representatives, and its
beneficiaries, are coincident and comprise the same persons, is a matter
to be determined as the law thinks fit in the particular case. The
members of a corporation may or may not be those by whom it acts, and
they may or may not be those on whose behalf it exists.
It is worth notice that some or all of the members of a corporation may
be corporations themselves. There is nothing to prevent the shares of a
company from being held by other companies. In this case the fiction of
incorporation is duplicated, and the law creates a fictitious person by
the personification of a group of persons who themselves possess a
merely legal and artificial personality.
§ 110 =The Acts and Liabilities of a Corporation.=
When a natural person acts by an agent, the authority of the agent is
conferred, and its limits are determined, by the will and consent of the
principal. In general only those acts of the agent are imputed by the
law to the principal, which are within the limits of the agent’s
authority as thus created and circumscribed. But in the case of a
corporation it is necessarily otherwise. A legal person is as incapable
of conferring authority upon an agent to act on its behalf, as of doing
the act _in propria persona_. The authority of the agents and
representatives of a corporation is therefore conferred, limited, and
determined, not by the consent of the principal, but by the law itself.
It is the law that determines who shall act for a corporation, and
within what limits his activity must be confined. Any act which lies
beyond these legally appointed limits will not be imputed to the
corporation, even though done in its name and on its behalf. It is said
to be _ultra vires_ of the corporation, and as a corporate act it is
null and void.
Speaking generally, we may say that a corporation can do those things
only which are incidental to the fulfilment of the purposes for which
the law created it. All its acts must be directed to its legally
appointed end. Thus the memorandum of association of a company must set
forth the purposes for which it is established; and even the unanimous
consent of the whole body of shareholders cannot effectively enable the
company to act beyond the limits so marked out for its activity.
It is well settled in the law of England that a corporation may be held
liable for wrongful acts, and that this liability extends even to those
cases in which malice, fraud, or other wrongful motive or intent is a
necessary element. A company may be sued for libel, malicious
prosecution, or deceit.[291] Nor is this responsibility civil only.
Corporations, no less than men, are within reach of the arm of the
criminal law. They may be indicted or otherwise prosecuted for a breach
of their statutory duties, and punished by way of fine and
forfeiture.[292]
Although this is now established law, the theoretical basis of the
liability of corporations is a matter of some difficulty and debate. For
in the first place it may be made a question whether such liability is
consistent with natural justice. To punish a body corporate, either
criminally or by the enforcement of penal redress, is in reality to
punish the beneficiaries on whose behalf its property is held, for the
acts of the agents by whom it fulfils its functions. So far, therefore,
as the beneficiaries and the agents are different persons, the liability
of bodies corporate is an instance of vicarious responsibility, and it
is to be justified on the same principles as are applicable to the
vicarious liability of a principal for the unauthorised acts of his
agent—principles which will be considered by us at a later stage of our
enquiry. For although the representatives of a corporation are in form
and legal theory the agents of that fictitious person, yet in substance
and fact they are the agents of the beneficiaries. A company is justly
held liable for the acts of its directors, because in truth the
directors are the servants of the shareholders.
A more serious difficulty in imposing liability upon bodies corporate
arises from the following consideration. The wrongful acts so attributed
by the law to fictitious persons are in reality the acts of their
agents. Now we have already seen that the limits of the authority of
those agents are determined by the law itself, and that acts beyond
those limits will not be deemed in law to be the acts of the
corporation. How, then, can an illegal act be imputed to a corporation?
If illegal, it cannot be within the limits of lawful authority; and if
not within these limits, it cannot be the act of the corporation. The
solution of this difficulty is twofold. In the first place, the argument
does not extend to wrongful acts of _omission_, for these are done by
the body politic in person, and not merely by its representatives. No
fictitious person can do in person what by law it ought not to do, but
it can in person fail to do what in law it ought. And in the second
place, the liability of a corporation for the acts of its
representatives is a perfectly logical application of the law as to an
employer’s liability for his servants. The responsibility of a master
does not depend on any authority given to his servant to commit the
wrongful act. It is the outcome of an absolute rule of law that the
employer is himself answerable for all wrongs committed by his servant
in the course and process of doing that which he is employed to do. I am
liable for the negligence of my servant in driving my carriage, not
because I authorised him to be negligent, but because I authorised him
to drive the carriage. So in the case of the agents of a corporation:
the law imputes to the corporation not only all acts which its agents
are lawfully authorised to do, but all unlawful acts which they do in or
about the business so authorised. The corporation is responsible not
only for what its agents do, being thereunto lawfully authorised, but
also for the manner in which they do it. If its agents do negligently or
fraudulently that which they might have done lawfully and with
authority, the law will hold the corporation answerable.[293]
§ 117. =The Uses and Purposes of Incorporation.=
There is probably nothing which the law can do by the aid of the
conception of incorporation, which it could not do without it. But there
are many things which it can by such aid do better or more easily than
would otherwise be possible. Among the various reasons for admitting
this fictitious extension of personality, we may distinguish one as of
general and fundamental importance, namely, the difficulty which the law
finds in dealing with common interests vested in large numbers of
individuals and with common action in the management and protection of
such interests. The normal state of things—that with which the law is
familiar, and to which its principles are conformed—is individual
ownership. With a single individual the law knows well how to deal, but
common ownership is a source of serious and manifold difficulties. If
two persons carry on a partnership, or own and manage property in
common, complications arise, with which nevertheless the law can deal
without calling in the aid of fresh conceptions. But what if there are
fifty or a hundred joint owners? With such a state of facts legal
principles and conceptions based on the type of individual ownership are
scarcely competent to deal. How shall this multitude manage its common
interests and affairs? How shall it dispose of property or enter into
contracts? What if some be infants, or insane, or absent? What shall be
the effect of the bankruptcy or death of an individual member? How shall
one of them sell or otherwise alienate his share? How shall the joint
and separate debts and liabilities of the partners be satisfied out of
their property? How shall legal proceedings be taken by or against so
great a number? These questions and such as these are full of difficulty
even in the case of a private partnership, if the members are
sufficiently numerous. The difficulty is still greater in the case of
interests, rights, or property vested not in individuals or in definite
associations of individuals, but in the public at large or in
indeterminate classes of the public.
In view of these difficulties the aim of the law has been to reduce, so
far as may be, the complex form of collective ownership and action to
the simple and typical form of individual ownership and action. The law
seeks some instrument for the effective expression and recognition of
the elements of unity and permanence involved in the shifting multitude
with whose common interests and activities it has to deal. There are two
chief devices for this purpose, namely trusteeship and incorporation.
The objects of trusteeship are various, and many of its applications
have a source and significance that are merely historical. In general,
however, it is used as a mode of overcoming the difficulties created by
the incapacity, uncertainty, or multiplicity of the persons to whom
property belongs. The property is deemed by the law to be vested, not in
its true owners, but in one or more determinate individuals of full
capacity, who hold it for safe custody on behalf of those uncertain,
incapable, or multitudinous persons to whom it in truth belongs. In this
manner the law is enabled to assimilate collective ownership to the
simpler form of individual ownership. If the property and rights of a
charitable institution or an unincorporated trading association of many
members are held in trust by one or two individuals, the difficulties of
the problem are greatly reduced.
It is possible, however, for the law to take one step further in the
same direction. This step it has taken, and has so attained to the
conception of incorporation. This may be regarded from one point of view
as merely a development of the conception of trusteeship. For it is
plain that so long as a trustee is not required to _act_, but has merely
to serve as a depositary of the rights of beneficiaries, there is no
necessity that he should be a real person at all. He may be a mere
fiction of the law. And as between the real and the fictitious trustee
there are, in large classes of cases, important advantages on the side
of the latter. He is _one_ person, and so renders possible a complete
reduction of common to individual ownership; whereas the objections to a
single trustee in the case of natural persons are serious and obvious.
The fictitious trustee, moreover, though not incapable of dissolution,
is yet exempt from the inevitable mortality that afflicts mankind. He
embodies and expresses, therefore, to a degree impossible in the case of
natural trustees, the two elements of unity and of permanence which call
for recognition in the case of collective interests. An incorporated
company is a permanent unity, standing over against the multitudinous
and variable body of shareholders whose rights and property it holds in
trust.
It is true, indeed, that a fictitious trustee is incapable of acting in
the matter of his trust in his proper person. This difficulty, however,
is easily avoided by means of agency, and the agents may be several in
number, so as to secure that safety which lies in a multitude of
counsellors, while the unity of the trusteeship itself remains
unaffected.
We have considered the general use and purpose of incorporation. Among
its various special purposes there is one which has assumed very great
importance in modern times, and which is not without theoretical
interest. Incorporation is used to enable traders to trade with limited
liability. As the law stands, he who ventures to trade _in propria
persona_ must put his whole fortune into the business. He must stake all
that he has upon the success of his undertaking, and must answer for all
losses to the last farthing of his possessions. The risk is a serious
one even for him whose business is all his own, but it is far more
serious for those who enter into partnership with others. In such a case
a man may be called upon to answer with his whole fortune for the acts
or defaults of those with whom he is disastrously associated.
It is not surprising, therefore, that modern commerce has seized eagerly
upon a plan for eliminating this risk of ruin. Incorporation has proved
admirably adapted to this end. They who wish to trade with safety need
no longer be so rash as to act _in propria persona_, for they may act
merely as the irresponsible agents of a fictitious being, created by
them for this purpose with the aid and sanction of the Companies Act. If
the business is successful, the gains made by the company will be held
on behalf of the shareholders; if unsuccessful, the losses must be borne
by the company itself. For the debts of a corporation are not the debts
of its members. _Si quid universitati debetur, singulis non debetur, nec
quod debet universitas singuli debent._[294] The only risk run by its
members is that of the loss of the capital with which they have supplied
or undertaken to supply the company for the purpose of enabling it to
carry on its business. To the capital so paid or promised, the creditors
of the insolvent corporation have the first claim, but the liability of
the shareholders extends no further.
The advantages which traders derive from such a scheme of limited
liability are obvious. Nor does it involve any necessary injustice to
creditors, for those who deal with companies know, or have the means of
knowing, the nature of their security. The terms of the bargain are
fully disclosed and freely consented to. There is no reason in the
nature of things why a man should answer for his contracts with all his
estate, rather than with a definite portion of it only, for this is
wholly a matter of agreement between the parties.
§ 118. =The Creation and Extinction of Corporations.=
The birth and death of legal persons are determined not by nature, but
by the law. They come into existence at the will of the law, and they
endure during its good pleasure. Corporations maybe established by royal
charter, by statute, by immemorial custom, and in recent years by
agreement of their members expressed in statutory forms and subject to
statutory provisions and limitations. They are in their own nature
capable of indefinite duration, this being indeed one of their chief
virtues as compared with humanity, but they are not incapable of
destruction. The extinction of a body corporate is called its
dissolution—the severing of that legal bond by which its members are
knit together into a fictitious unity. We have already noticed that a
legal person does not of necessity lose its life with the destruction or
disappearance of its _corpus_ or bodily substance. There is no reason
why a corporation should not continue to live, although the last of its
members is dead; and a corporation sole is merely dormant, not extinct,
during the interval between two successive occupants of the office. The
essence of a body corporate consists in the _animus_ of fictitious and
legal personality, not in the _corpus_ of its members.[295]
§ 119. =The State as a Corporation.=
Of all forms of human society the greatest is the state. It owns immense
wealth and performs functions which in number and importance are beyond
those of all other associations. Is it, then, recognised by the law as a
person? Is the commonwealth a body politic and corporate, endowed with
legal personality, and having as its members all those who owe
allegiance to it and are entitled to its protection? This is the
conclusion to which a developed system of law might be expected to
attain. But the law of England has chosen another way. The community of
the realm is an organised society, but it is no person or body
corporate. It owns no property, is capable of no acts, and has no rights
nor any liabilities imputed to it by the law. Whatever is said to the
contrary is figure of speech, and not the literal language of our law.
How, then, are we to account for this failure of the law to make so
obvious and useful an application of the conception of incorporation and
legal personality? Why has it failed to recognise and express in this
way the unity and permanence of the state? The explanation is to be
found in the existence of monarchical government. The real personality
of the King, who is the head of the state, has rendered superfluous any
attribution of fictitious personality to the state itself. Public
property is in the eye of the law the property of the King. Public
liabilities are those of the King; it is he, and he alone, who owes the
principal and interest of the national debt. Whatsoever is done by the
state is in law done by the King. The public justice administered in the
law courts is royal justice administered by the King through his
servants the judges. The laws are the King’s laws, which he enacts with
the advice and consent of his Parliament. The executive government of
the state is the King’s government, which he carries on by the hands of
his ministers. The state has no army save the King’s army, no navy save
the King’s navy, no revenues save the royal revenues, no territory save
the dominions of the King. Treason and other offences against the state
and the public interest are in law offences against the King, and the
public peace is the King’s peace. The citizens of the state are not
fellow-members of one body politic and corporate, but fellow-subjects of
one sovereign lord.
Insomuch, therefore, as everything which is _public_ in fact is
conceived as _royal_ by the law, there is no need or place for any
incorporate commonwealth, _respublica_, or _universitas regni_. The King
holds in his own hands all the rights, powers and activities of the
state. By his agency the state acts, and through his trusteeship it
possesses property and exercises rights. For the legal personality of
the state itself there is no call or occasion.
The King himself, however, is in law no mere mortal man. He has a double
capacity, being not only a natural person, but a body politic, that is
to say, a corporation sole. The visible wearer of the crown is merely
the living representative and agent for the time being of this invisible
and undying _persona ficta_, in whom by our law the powers and
prerogatives of the government of this realm are vested. When the King
in his natural person dies, the property real and personal which he owns
in right of his crown and as trustee for the state, and the debts and
liabilities which in such right and capacity have been incurred by him,
pass to his successors in office, and not to his heirs, executors, or
administrators. For those rights and liabilities pertain to the King who
is a corporation sole, and not to the King who is a mortal man.[296]
In modern times it has become usual to speak of the Crown rather than of
the King, when we refer to the King in his public capacity as a body
politic. We speak of the property of the Crown, when we mean the
property which the King holds in right of his crown. So we speak of the
debts due by the Crown, of legal proceedings by and against the Crown,
and so on. The usage is one of great convenience, because it avoids a
difficulty which is inherent in all speech and thought concerning
corporations sole, the difficulty, namely, of distinguishing adequately
between the body politic and the human being by whom it is represented
and whose name it bears. Nevertheless we must bear in mind that this
reference to the Crown is a mere figure of speech, and not the
recognition by the law of any new kind of legal or fictitious person.
The Crown is not itself a person in the law. The only legal person is
the body corporate constituted by the series of persons by whom the
crown is worn. There is no reason of necessity or even of convenience,
indeed, why this should be so. It is simply the outcome of the resolute
refusal of English law to recognise any legal persons other than
corporations aggregate and sole. Roman law, it would seem, found no
difficulty in treating the treasure-chest of the Emperor (_fiscus_) as
_persona ficta_, and a similar exercise of the legal imagination would
not seem difficult in respect of the Crown of England.
Just as our law refuses to personify and incorporate the empire as a
whole, so it refuses to personify and incorporate the various
constituent self-governing states of which the empire is made up. There
is no such person known to the law of England as the state or government
of India or of Cape Colony.[297] The King or the Crown represents not
merely the empire as a whole, but each of its parts; and the result is a
failure of the law to give adequate recognition and expression to the
distinct existence of these parts.[298] The property and liabilities of
the government of India are in law those of the British Crown. The
national debts of the colonies are owing by no person known to the law
save the King of England. A contract between the governments of two
colonies is in law a nullity, unless the King can make contracts with
himself. All this would be otherwise, did the law recognise that the
dependencies of the British Empire were bodies politic and corporate,
each possessing a distinct personality of its own, and capable in its
own name and person of rights, liabilities, and activities. Some of the
older colonies were actually in this position, being created
corporations aggregate by the royal charters to which they owed their
origin: for example, Massachusetts, Rhode Island, and Connecticut. A
similar corporate character pertains to modern dependencies such as the
Chartered Company of South Africa. Even an unincorporated colony of the
ordinary type may become incorporate, and so possessed of separate
personality, by virtue of its own legislation.[299] In the absence of
any such separate incorporation of the different portions of the empire,
their separate existence can be recognised in law only by way of that
doctrine of plural personality which we have already considered in
another connection.[300] Although the King represents the whole empire,
it is possible for the law to recognise a different personality in him
in respect of each of its component parts. The King who owns the public
lands in Cape Colony is not necessarily in the eye of the law the same
person who owns the public lands in England. The King, when he borrows
money in his capacity as the executive government of Australia, may be
deemed in law a different person from the King who owes the English
national debt. How far this plural personality of the Crown is actually
recognised by the common law of England is a difficult question which it
is not necessary for us here to answer.[301] It is sufficient to point
out that in the absence of any separate incorporation this is the only
effective way of recognising in law the separate rights, liabilities,
and activities of the different dependencies of the Crown.
SUMMARY.
The nature of personality.
Persons { Natural.
{ Legal.
Natural persons—living human beings.
The legal status of beasts.
The legal status of dead men.
The legal status of unborn persons.
Double personality.
Legal persons.
Legal personality based on personification.
Personification without legal personality.
{ 1. Corporations.
Classes of Legal persons { 2. Institutions.
{ 3. Funds or Estates.
Corporations—the only legal persons known to English law.
Corporations aggregate and corporations sole.
The fiction involved in incorporation.
The beneficiaries of a corporation.
The representatives of a corporation.
The members of a corporation.
Authority of a corporation’s agents.
Liability of a corporation for wrongful acts.
The purposes of incorporation:
1. Reduction of collective to individual ownership and action.
2. Limited liability.
The creation and dissolution of corporations.
The personality of the state.
CHAPTER XVI.
TITLES.
§ 120. =Vestitive Facts.=
We have seen in a former chapter that every right involves a title or
source from which it is derived. The title is the _de facto_ antecedent,
of which the right is the _de jure_ consequent. If the law confers a
right upon one man which it does not confer upon another, the reason is
that certain facts are true of him which are not true of the other, and
these facts are the title of the right. Whether a right is inborn or
acquired, a title is equally requisite. The title to a debt consists in
a contract, or a judgment, or other such transaction; but the title to
life, liberty, or reputation consists in nothing more than in being born
with the nature of a human being. Some rights the law gives to a man on
his first appearance in the world; the others he must acquire for
himself, for the most part not without labour and difficulty. But
neither in the one case nor in the other can there be any right without
a basis of fact in which it has its root and from which it proceeds.
Titles are of two kinds, being either _original_ or _derivative_. The
former are those which create a right _de novo_; the latter are those
which transfer an already existing right to a new owner. The catching of
fish is an original title of the right of ownership, whereas the
purchase of them is a derivative title. The right acquired by the
fisherman is newly created; it did not formerly exist in any one. But
that which is acquired by the purchaser is in legal theory identical
with that which is lost by the vendor. It is an old right transferred,
not a new one created. Yet in each case the fact which vests the right
is equally a title, in the sense already explained. For the essence of a
title is not that it determines the creation of rights _de novo_, but
that it determines the acquisition of rights new or old.
As the facts confer rights, so they take them away. All rights are
perishable and transient. Some are of feeble vitality, and easily killed
by any adverse influence, the bond between them and their owners being
fragile and easily severed. Others are vigorous and hardy, capable of
enduring and surviving much. But there is not one of them that is exempt
from possible extinction and loss. The first and greatest of all is that
which a man has in his own life; yet even this the law will deny to him
who has himself denied it to others.
The facts which thus cause the loss of rights may be called, after
Bentham, _divestitive facts_. This term, indeed, has never been received
into the accepted nomenclature of the law, but there seems no better
substitute available. The facts which confer rights received from
Bentham the corresponding name of _investitive facts_. The term already
used by us, namely title, is commonly more convenient, however, and has
the merit of being well established in the law.[302] As a generic term
to include both investitive and divestitive facts the expression
_vestitive fact_ may be permissible.[303] Such a fact is one which
determines, positively or negatively, the _vesting_ of a right in its
owner.
We have seen that titles are of two kinds, being either original or
derivative. In like manner divestitive facts are either _extinctive_ or
_alienative_. The former are those which divest a right by destroying
it. The latter divest a right by transferring it to some other owner.
The receipt of payment is divestitive of the right of the creditor; so
also is the act of the creditor in selling the debt to a third person;
but in the former case the divestitive fact is extinctive, while in the
latter it is alienative.
It is plain that derivative titles and alienative facts are not two
different classes of facts, but are merely the same facts looked at from
two different points of view.[304] The transfer of a right is an event
which has a double aspect. It is the acquisition of a right by the
transferee, and the loss of it by the transferor. The vestitive fact, if
considered with reference to the transferee, is a derivative title,
while from the point of view of the transferor it is an alienative fact.
Purchase is a derivative title, but sale is an alienative fact; yet they
are merely two different sides of the same event.
These distinctions and divisions are exhibited in the following Table:
{ Investitive Facts { Original Titles. Creation of
{ or Titles. Rights.
Vestitive Facts { Derivative Titles. } Transfer of
{ Divestitive Facts. { Alienative Facts. } Rights.
{ Extinctive Facts. Destruction of
Rights.
These different classes of vestitive facts correspond to the three chief
events in the life history of a right, namely, its creation, its
extinction, and its transfer. By an original title a right comes first
into existence, being created _ex nihilo_; by an extinctive fact it is
wholly destroyed; by derivative titles and alienative facts, on the
other hand—these being, as we have seen, the same facts viewed from
different sides—the existence of the right is in no way affected. The
transfer of a right does not in legal theory affect its personal
identity; it is the same right as before, though it has now a different
owner.[305]
§ 121. =Acts in the Law.=
Vestitive facts—whether they create, transfer, or extinguish rights—are
divisible into two fundamentally distinct classes, according as they
operate in pursuance of the will of the persons concerned, or
independently of it. That is to say, the creation, transfer, and
extinction of rights are either voluntary or involuntary. In innumerable
cases the law allows a man to acquire or lose his rights by a
manifestation or declaration of his will and intent directed to that
end. In other cases it confers rights upon him, or takes them away
without regard to any purpose or consent of his at all. If he dies
intestate, the law itself will dispose of his estate as it thinks fit;
but if he leaves a duly executed will in which he expresses his desires
in the matter, the law will act accordingly. So if he sells his
property, it passes from him in accordance with his declared intent,
which the law adopts as its own; but if his goods are taken in execution
by a creditor, or vested in a trustee on his bankruptcy, the transfer is
an involuntary one, effected in pursuance of the law’s purposes, and not
of his at all.
The distinction between these two classes of vestitive facts may be
variously expressed. We may make use, for example, of the contrasted
expressions _act of the party_ and _act of the law_. An act of the party
is any expression of the will or intention of the person concerned,
directed to the creation, transfer, or extinction of a right, and
effective in law for that purpose; such as a contract or a deed of
conveyance. An act of the law, on the other hand, is the creation,
extinction, or transfer of a right by the operation of the law itself,
independent of any consent thereto on the part of him concerned. The
expression act of the party is one of some awkwardness, however, and it
is more convenient in general to substitute for it the technical term
_act in the law_, as contrasted with those acts _of_ the law which we
have already defined.[306]
Acts in the law are of two kinds, which may be distinguished as
_unilateral_ and _bilateral_. A unilateral act is one in which there is
only one party whose will is operative; as in the case of testamentary
disposition, the exercise of a power of appointment, the revocation of a
settlement, the avoidance of a voidable contract, or the forfeiture of a
lease for breach of covenant. A bilateral act, on the other hand, is one
which involves the consenting wills of two or more distinct parties; as,
for example, a contract, a conveyance, a mortgage, or a lease. Bilateral
acts in the law are called _agreements_ in the wide and generic sense of
that term. There is, indeed, a narrow and specific use, in which
agreement is synonymous with _contract_, that is to say, the creation of
rights _in personam_ by way of consent. The poverty of our legal
nomenclature is such, however, that we cannot afford thus to use these
two terms as synonymous. We shall therefore habitually use agreement in
the wide sense, to include all bilateral acts in the law, whether they
are directed to the creation, or to the transfer, or to the extinction
of rights. In this sense conveyances, mortgages, leases, or releases are
agreements no less than contracts are.[307]
Unilateral acts in the law are divisible into two kinds in respect of
their relation to the other party concerned. For in some instances they
are adverse to him; that is to say, they take effect not only without
his _consent_, but notwithstanding his _dissent_. His will is wholly
inoperative and powerless in the matter. This is so, for example, in the
case of a re-entry by a landlord upon a tenant for breach of covenant;
or the exercise of a power of appointment, as against the persons
entitled in default of appointment; or the avoidance of a voidable
contract; or the exercise by a mortgagee of his power of sale. In other
cases it is not so; the operation of the unilateral act is subject to
the dissent of the other party affected by it, though it does not
require his consent. In the meantime, pending the expression of his
will, the act has merely a provisional and contingent operation. A will,
for example, involves nothing save the unilateral intent and assent of
the testator. The beneficiaries need know nothing of it; they need not
yet be in existence. But if they subsequently dissent, and reject the
rights so transferred to them, the testament will fail of its effect.
If, on the other hand, they accept the provisions made on their behalf,
the operation of the will forthwith ceases to be provisional and becomes
absolute. Similarly a settlement of property upon trust need not be
known or consented to _ab initio_ by the beneficiaries. It may be a
purely unilateral act, subject however to repudiation and avoidance by
the persons intended to be benefited by it. So I may effectually grant a
mortgage or other security to a creditor who knows nothing of it.[308]
Where there are more than two parties concerned in any act in the law,
it may be bilateral in respect of some of them and unilateral in respect
of others. Thus a conveyance of property by A. to B. in trust for C. may
be bilateral as to A. and B. _inter se_—operating by the mutual consent
of these two—while it may at the same time be unilateral as between A.
and B. on the one side and C. on the other—C. having no knowledge of the
transaction. So the exercise of a mortgagee’s power of sale is bilateral
as between mortgagee and purchaser, but unilateral so far as regards the
mortgagor.[309]
§ 122. =Agreements.=
Of all vestitive facts, acts in the law are the most important; and
among acts in the law, agreements are entitled to the chief place.
Unilateral acts are comparatively infrequent and unimportant. The
residue of this chapter will therefore be devoted to the consideration
of the grounds, modes, and conditions of the operation of agreement as
an instrument of the creation, transfer, and extinction of rights. A
considerable portion of what is to be said in this connection will,
however, be applicable _mutatis mutandis_ to unilateral acts also.
The importance of agreement as a vestitive fact lies in the universality
of its operation. There are few rights which cannot be acquired through
the assent of the persons upon whom the correlative duties are to be
imposed. There are few rights which cannot be transferred to another by
the will of him in whom they are presently vested. There are few which
are not extinguished when their owner no longer desires to retain them.
Of that great multitude of rights and duties of which the adult member
of a civilised community stands possessed, the great majority have their
origin in agreements made by him with other men. By agreements of
contrary intent he may strip himself almost as destitute of rights and
duties, as when in the scantiest of juridical vesture he made his first
appearance before the law. _Invito beneficium non datur_,[310] said the
Romans.
By what reasons, then, is the law induced to allow this far-reaching
operation to the fact of agreement? Why should the mere consent of the
parties be permitted in this manner to stand for a title of right? Are
not rights the subject-matter of justice, and is justice a mere matter
of convention varying with the wills of men?
The reasons are two in number. Agreement is in the first place
evidential of right, and in the second place constitutive of it. There
is in general no better evidence of the justice of an arrangement than
the fact that all persons whose interests are affected by it have freely
and with full knowledge consented to it. Men are commonly good judges of
their own interests, and in the words of Hobbes “there is not ordinarily
a greater sign of the equal distribution of anything, than that every
man is contented with his share.” When, therefore, all interests are
satisfied, and every man is content, the law may safely presume that
justice has been done, and that each has received his own. The
determination of the law is needed only in default of the agreement of
the parties. Hence it is, that he who agrees with another in any
declaration of their respective rights and duties will not be suffered
to go back from his word, and will not be heard to dispute the truth of
his declaration. The exceptions to this rule are themselves defined by
equally rigid rules; and he who would disclaim a duty which he has thus
imposed upon himself, or reclaim a right which he has thus transferred
or abandoned, must bring himself within one of those predetermined
exceptions. Otherwise he will be held bound by his own words.
This conclusive presumption of the truth of consensual declarations of
right is, however, only one of the foundations of the law of agreement.
Consent is in many cases truly constitutive of right, instead of merely
evidential of it. It is one of the leading principles of justice to
guarantee to men the fulfilment of their reasonable expectations. In all
matters that are otherwise indifferent, expectation is of predominant
influence in the determination of the rule of right, and of all the
grounds of rational expectation there is none of such general importance
as mutual consent. “The human will,” says Aquinas, “is able by way of
consent to make a thing just; provided that the thing is not in itself
repugnant to natural justice.”[311]
There is an obvious analogy between agreement and legislation—the former
being the private and the latter the public declaration and
establishment of rights and duties. By way of legislation the state does
for its subjects that which in other cases it allows them to do for
themselves by way of agreement. As to the respective spheres of these
two operations, the leading maxim is _Modus et conventio vincunt legem_.
Save when the interests of the public at large demand a different rule,
the autonomy of consenting parties prevails over the legislative will of
the state. So far as may be, the state leaves the rule of right to be
declared and constituted by the agreement of those concerned with it. So
far as possible, it contents itself with executing the rules which its
subjects have made for themselves. And in so doing it acts wisely. For
in the first place, the administration of justice is enabled in this
manner to escape in a degree not otherwise attainable the disadvantages
inherent in the recognition of rigid principles of law. Such principles
we must have; but if they are established _pro re nata_ by the parties
themselves, they will possess a measure of adaptability to individual
cases which is unattainable by the more general legislation of the state
itself. Amid the infinite diversities and complexities of human affairs
the state wisely despairs of truly formulating the rules of justice. So
far as possible, it leaves the task to those who by their nearness to
the facts are better qualified for it. It says to its subjects: Agree
among yourselves as to what is just in your individual concerns, and I
shall enforce your agreement as the rule of right.
In the second place, men are commonly better content to bear the burdens
which they themselves have taken up, than those placed upon them by the
will of a superior. They acquiesce easily in duties of their own
imposition, and are well pleased with rights of their own creation. The
law or the justice which best commends itself to them is that which they
themselves have made or declared. Wherefore, instead of binding its
subjects, the state does well in allowing them to bind themselves.
§ 123. =The Classes of Agreements.=
Agreements are divisible into three classes, for they either create
rights, or transfer them, or extinguish them. Those which create rights
are themselves divisible into two subclasses, distinguishable as
_contracts_ and _grants_. A contract is an agreement which creates an
obligation or right _in personam_ between the parties to it. A grant is
an agreement which creates a right of any other description; examples
being grants of leases, easements, charges, patents, franchises, powers,
licences, and so forth. An agreement which transfers a right may be
termed generically an _assignment_. One which extinguishes a right is a
_release_, _discharge_, or _surrender_.
As already indicated, a contract is an agreement intended to create a
right _in personam_ between the contracting parties. No agreement is a
contract unless its effect is to bind the parties to each other by the
_vinculum juris_ of a newly created personal right. It commonly takes
the form of a promise or set of promises. That is to say, a declaration
of the consenting wills of two persons that one of them shall henceforth
be under an obligation to the other naturally assumes the form of an
undertaking by the one with the other to fulfil the obligation so
created. Not every promise, however, amounts to a contract. To
constitute a contract there must be not merely a promise to do a certain
act, but a promise, express or implied, to do this act as a legal duty.
When I accept an invitation to dine at another man’s house, I make him a
promise, but enter into no contract with him. The reason is that our
wills, though consenting, are not directed to the creation of any legal
right or to any alteration of our legal relations towards each other.
The essential form of a contract is not: I promise this to you; but: I
agree with you that henceforth you shall have a legal right to demand
and receive this from me. Promises that are not reducible to this from
are not contracts. Therefore the consent that is requisite for the
creation of rights by way of contract is essentially the same as that
required for their transfer or extinction. The essential element in each
case is the express or tacit reference to the legal relations of the
consenting parties.
Taking into account the two divisions of the consensual creation of
rights, there are, therefore, four distinct kinds of agreements:—
1. Contracts—creating rights _in personam_.
2. Grants—creating rights of any other kind.
3. Assignments—transferring rights.
4. Releases—extinguishing rights.
It often happens that an agreement is of a mixed nature, and so falls
within two or more of these classes at the same time. Thus the sale of
a specific chattel is both a contract and an assignment, for it
transfers the ownership of the chattel and at the same time creates an
obligation to pay the price. So a lease is both a grant and a
contract, for it creates real and personal rights at the same time. In
all such cases the agreement must be classed in accordance with its
chief or essential operation, its other effects being deemed
subsidiary and incidental.
A frequent result of the difference between law and equity, and
between legal and equitable rights and ownership, is that the same
agreement has one effect in law and another in equity. In law it may
be a mere contract, and in equity an assignment or a grant. Thus a
written agreement for the sale of land is in law nothing more than a
contract, imposing upon the seller a personal obligation to execute a
conveyance under seal, but not in itself amounting to a transfer of
the ownership of the land. In equity, on the other hand, such an
agreement amounts to an assignment. The equitable ownership of the
land passes under it to the purchaser forthwith, and the vendor holds
the legal ownership in trust for him. Similarly a contract to grant a
_legal_ lease or mortgage or servitude is itself the actual grant of
an _equitable_ lease, mortgage, or servitude. For it is a maxim of
Chancery that equity regards that as already done which ought to be
done.
§ 124. =Void and Voidable Agreements.=
In respect of their legal efficacy agreements are of three kinds, being
either _valid_, _void_, or _voidable_. A valid agreement is one which is
fully operative in accordance with the intent of the parties. A void
agreement is one which entirely fails to receive legal recognition or
sanction, the declared will of the parties being wholly destitute of
legal efficacy. A voidable agreement stands midway between these two
cases. It is not a nullity, but its operation is conditional and not
absolute. By reason of some defect in its origin it is liable to be
destroyed or cancelled at the option of one of the parties to it. On the
exercise of this power the agreement not only ceases to have any
efficacy, but is deemed to have been void _ab initio_. The avoidance of
it relates back to the making of it. The hypothetical or contingent
efficacy which has hitherto been attributed to it wholly disappears, as
if it had never existed. In other words, a voidable agreement is one
which is void or valid at the election of one of the parties to it. A
lease determinable on notice or on re-entry for breach of covenant is
not for that reason voidable; because, when determined, it is not
destroyed _ab initio_, but merely from then onwards.[312]
Void and voidable agreements may be classed together as _invalid_. The
most important causes of invalidity are six in number, namely, (1)
incapacity, (2) informality, (3) illegality, (4) error, (5) coercion,
and (C) want of consideration.
1. _Incapacity._ Certain classes of persons are wholly or partially
destitute of the power of determining their rights and liabilities by
way of consent. They cannot, at least to the same extent as other
persons, supersede or supplement the common law by subjecting themselves
to conventional law of their own making. In the case of minors,
lunatics, and convicts, for example, the common law is peremptory, and
not to be derogated from or added to by their agreement. So the
agreements of an incorporated company may be invalid because _ultra
vires_, or beyond the capacity conferred upon it by law.
2. _Informality._ Agreements are of two kinds, which may be
distinguished as _simple_ and _formal_. A simple agreement is one in
which nothing is required for its effective operation beyond the
manifestation, in whatever fashion, of the consenting wills of the
parties. A formal agreement, on the other hand, is one in which the law
requires not merely that consent shall exist, but that it shall be
manifested in some particular form, in default of which it is held of no
account. Thus the intent of the parties may be held effective only if
expressed in writing signed by them, or in writing authenticated by the
more solemn form of sealing; or it must be embodied in some appointed
form of words; or it must be acknowledged in the presence of witnesses,
or recorded by some form of public registration; or it must be
accompanied by some formal act, such as the delivery of the
subject-matter of the agreement.
The leading purpose of all such forms is twofold. They are, in the first
place, designed as pre-appointed evidence of the fact of consent and of
its terms, to the intent that this method of determining rights and
liabilities may be provided with the safeguards of permanence,
certainty, and publicity. In the second place their purpose is that all
agreements may by their help be the outcome of adequate reflection. Any
necessary formality has the effect of drawing a sharp line between the
preliminary negotiations and the actual agreement, and so prevents the
parties from drifting by inadvertence into unconsidered consent.
3. _Illegality._ In the third place an agreement may be invalid by
reason of the purposes with which it is made. To a very large extent men
are free to agree together upon any matter as they please; but this
autonomous liberty is not absolute. Limitations are imposed upon it,
partly in the interests of the parties themselves, and partly on behalf
of the public. There is much of the common law which will not suffer
itself to be derogated from by any private agreement; and there are many
rules which, though they in no way infringe upon the common law, cannot
be added to it as supplementary. That is to say, there are many matters
in which the common law will admit of no abatement, and many in which it
will admit of no addition, by way of conventional law. It is true in
great part that _Modus et conventio vincunt legem_; but over against
this principle we must set the qualification, _Privatorum conventio juri
publico non derogat_. By _jus publicum_ is here meant that part of the
law which concerns the public interest, and which for this reason the
agreements of private persons cannot be allowed to infringe upon.[313]
Agreements which in this way overpass the limits allowed by the law are
said in a wide sense to be illegal, or to be void for illegality. They
may or may not be illegal in a narrower sense, as amounting in their
making or in their performance to a criminal or civil wrong.
4. _Error or mistake._ Error or mistake, as a ground of invalidity, is
of two kinds, which are distinguishable as _essential_ and
_unessential_. Essential error is that which is of such a nature as to
prevent the existence of any real consent and therefore of any real
agreement. The parties have not in reality meant the _same_ thing, and
therefore have not in reality agreed to _any_ thing. Their agreement
exists in appearance only, and not in reality. This is the case if A.
makes an offer to B. which is accepted in mistake by C.; or if A. agrees
to sell land to B., but A. is thinking of one piece of land, and B. is
thinking of another. The effect of error of this kind is to make the
agreement wholly void, inasmuch as there is in truth no agreement at
all, but only the external semblance and form of one.[314]
There is, however, an exception to this rule when the error is due to
the negligence of one of the parties and is unknown to the other. For in
such a case he who is in fault will be estopped by his own carelessness
from raising the defence of essential error, and will be held bound by
the agreement in the sense in which the other party understood it.[315]
Unessential error, on the other hand, is that which does not relate to
the nature or contents of the agreement, but only to some external
circumstance, serving as one of the inducements which led to the making
of it; as when A. agrees to buy B.’s horse because he believes it to be
sound, whereas it is in reality unsound. This is not essential error,
for there is a true _consensus ad idem_. The parties have agreed to the
same thing in the same sense, though one of them would not have made the
agreement had he not been under a mistake. The general rule is that
unessential error has no effect on the validity of an agreement. Neither
party is in any way concerned in law with the reasons which induced the
other to give his consent. That which men consent to they must abide by,
whether their reasons are good or had. And this is so even though one
party is well aware of the error of the other.[316]
This rule, however, is subject to an important exception, for even
unessential error will in general make an agreement voidable at the
option of the mistaken party, if it has been caused by the
misrepresentation of the other party. He who is merely mistaken is none
the less bound by his agreement; but he who is misled has a right to
rescind the agreement so procured.[317]
5. _Coercion._ In order that consent may be justly allowed as a title of
right, it must be free. It must not be the product of any form of
compulsion or undue influence; otherwise the basis of its legal
operation fails. Freedom, however, is a matter of degree, and it is no
easy task to define the boundary line that must be recognised by a
rational system of law. We can only say generally, that there must be
such liberty of choice as to create a reasonable presumption that the
party exercising it has chosen that which he desires, and not merely
submitted to that which he cannot avoid. We cannot usefully enter here
into any examination of the actual results that have been worked out in
this matter by English law.
6. _Want of consideration._ A further condition very commonly required
by English law for the existence of fully efficacious consent is that
which is known by the technical name of _consideration_. This
requirement is, however, almost wholly confined to the law of contract,
other forms of agreement being generally exempt from it.
A consideration in its widest sense is the reason, motive, or
inducement, by which a man is moved to bind himself by an agreement. It
is not for nothing that he consents to impose an obligation upon
himself, or to abandon or transfer a right. It is in _consideration_ of
such and such a fact that he agrees to bear new burdens or to forego the
benefits which the law already allows him. If he sells his house, the
consideration of his agreement is the receipt or promise of the purchase
money. If he makes a settlement upon his wife and children, it is in
consideration of the natural love and affection which he has for them.
If he promises to pay a debt incurred by him before his bankruptcy, the
consideration of his promise is the moral obligation which survives his
legal indebtedness to his creditors. Using the term in this wide sense,
it is plain that no agreement made with knowledge and freedom by a
rational man can be destitute of some species of consideration. All
consent must proceed from some efficient cause. What, then, is meant by
saying that the law requires a consideration as a condition of the
validity of an agreement? The answer is that the consideration required
by the law is a consideration of a kind which the law itself regards as
sufficient. It is not enough that it should be deemed sufficient by the
parties, for the law has itself authoritatively declared what facts
amount to a valid and sufficient consideration for consent, and what
facts do not. If men are moved to agreement by considerations which the
law refuses to recognise as good, so much the worse for the agreement.
_Ex nudo pacto non oritur actio._ To bare consent, proceeding from no
lawfully sanctioned source, the law allows no operation.
What considerations, then, does the law select and approve as sufficient
to support a contract? Speaking generally, we may say that none are good
for this purpose save those which are _valuable_. By a valuable
consideration is meant something of value given by one party in exchange
for the promise of the other. By English law no promise (unless under
seal or of record) is binding unless the promisor receives a _quid pro
quo_ from the promisee. Contracts which are purely unilateral, all the
obligation being on one side, and nothing either given or promised on
the other, are destitute of legal operation. Every valid contract[318]
is reducible to the form of a bargain that if I do something for you,
you will do something for me.
The thing thus given by way of consideration must be of some _value_.
That is to say, it must be material to the interests of one or other or
both of the parties. It must either involve some gain or benefit to the
promisor by way of recompense for the burden of his promise, or it must
involve some loss or disadvantage to the promisee for which the benefit
of the promise is a recompense. Commonly it possesses both of these
qualities at once, but either of them is sufficient by itself. Thus if I
promise gratuitously to take care of property which the owner deposits
with me, I am bound by that promise, although I receive no benefit in
recompense for it, because there is a sufficient consideration for it in
the detriment incurred by the promisee in entrusting his property to my
guardianship. But if the thing given by way of consideration is of no
value at all, being completely indifferent to both parties, it is
insufficient, and the contract is invalid; as, for example, the doing of
something which one is already bound to the other party to do, or the
surrender of a claim which is known to be unfounded.
In certain exceptional cases, however, considerations which are not
valuable are nevertheless accepted as good and sufficient by the law.
Thus the existence of a legal obligation may be a sufficient
consideration for a promise to fulfil it; as in the case of a promissory
note or other negotiable instrument given for the amount of an existing
debt. At one time it was supposed to be the law that a merely moral
obligation was in the same manner a sufficient basis for a promise of
performance, and though this is no longer true as a general proposition,
certain particular applications of the principle still survive, while
others have but recently been abolished by statute. Thus a promise made
by a discharged bankrupt to pay a creditor in full was until recently a
binding contract, because made in consideration of the moral obligation
which survives the legal indebtedness of an insolvent. For the same
reason, a promise made after majority to pay debts incurred during
infancy was binding, until the law was altered in this respect by recent
legislation. Similarly a promise to pay a debt barred by prescription is
legally valid even yet, the consideration being the moral (and imperfect
legal) obligation which survives the period of prescription.
With respect to the rational basis of this doctrine, it is to be noticed
that the requirement of consideration is not absolute, but conditional
on the absence of a certain formality, namely that of a sealed writing.
Form and consideration are two alternative conditions of the validity of
contracts and of certain other kinds of agreements. It may be surmised,
therefore, that they are founded on the same reasons and fulfil the same
functions. They are intended as a precaution against the risk of giving
legal efficacy to unconsidered promises and to the levities of speech.
The law selects certain reasons and inducements, which are normally
sufficient for reasoned and deliberate consent, and holds valid all
agreements made on these grounds, even though informal. In all other
cases it demands the guarantee of solemn form. There can be little
doubt, however, that our law has shown itself too scrupulous in this
matter; in other legal systems no such precaution is known, and its
absence seems to lead to no ill results.
Although the doctrine of consideration, in the form received by
English law, is unknown elsewhere, it is simply a modification of a
doctrine known to the civil law and to several modern systems, more
especially to that of France. Article 1131 of the French Civil Code
provides that: “L’obligation sans cause, ou sur une fausse cause, ou
sur une cause illicite, ne peut avoir aucun effet.”[319] This _cause_
or _causa_ is a synonym for consideration, and we find the terms used
interchangeably in the earlier English authorities.[320] There is,
however, an essential difference between the English and the
Continental principle. Unlike the former, the latter never rejects any
cause or consideration as _insufficient_. Whatever motive or
inducement is enough to satisfy the contracting parties is enough to
satisfy the law, even though it is nothing more than the _causa
liberalitatis_ of a voluntary gift. By an obligation _sans cause_, or
contract without consideration, French law does not mean a contract
made without any motive or inducement (for there are none such), nor a
contract made from an inadequate motive or inducement (for the law
makes no such distinctions), but a contract made for a consideration
which has failed—_causa non secuta_, as the Romans called it. The
second ground of invalidity mentioned in the Article cited is the
_falsity_ of the consideration (_falsa causa_). A consideration may be
based on a mistake, so that it is imaginary and not real; as when I
agree to buy a horse which, unknown to me, is already dead, or a ship
which has been already wrecked, or give a promissory note for a debt
which is not truly owing. Finally a _causa turpis_, or illegal
consideration, is as fatal to a contract in French and Roman law as in
English.
In English law the failure of consideration (_causa non secuta_) and
its unreality due to error (_causa falsa_) are grounds of invalidity,
only when the absence of such failure or error is expressly or
impliedly made a condition of the contract. In a contract for the sale
of a chattel, for example, the present existence of the chattel is an
implied condition of the validity of the sale.[321]
SUMMARY
{ Original Titles. Creation of
{ Investitive Facts { Rights.
{ or Titles. { Derivative Titles. }
Vestitive Facts { } Transfer of
{ { Alienative Facts. } Rights.
{ Divestitive Facts. {
{ Extinctive Facts. Destruction of
Rights.
{ Acts of the law.
Vestitive Facts { { Unilateral.
{ Acts in the law. {
{ Bilateral, or Agreements.
{ 1. Contracts—creating rights _in personam_.
Agreements. { 2. Grants—creating rights of other descriptions.
{ 3. Assignments—transferring rights.
{ 4. Releases—extinguishing rights.
Grounds of the operation of agreements.
Comparison of agreement and legislation
{ Valid.
Agreements. { { Void.
{ Invalid. {
{ Voidable.
The causes of invalidity.
{ 1. Incapacity.
{ 2. Informality.
{ 3. Illegality.
{ 4. Error.
{ 5. Coercion.
{ 6. Want of consideration.
CHAPTER XVII.
LIABILITY.
§ 125. =The Nature and Kinds of Liability.=
He who commits a wrong is said to be liable or responsible for it.
Liability or responsibility is the bond of necessity that exists between
the wrongdoer and the remedy of the wrong. This _vinculum juris_ is not
one of mere duty or obligation; it pertains not to the sphere of _ought_
but to that of _must_. It has its source in the supreme will of the
state, vindicating its supremacy by way of physical force in the last
resort against the unconforming will of the individual. A man’s
liability consists in those things which he _must_ do or suffer, because
he has already failed in doing what he _ought_. It is the _ultimatum_ of
the law.[322]
The purpose of this chapter and of the two which follow it is to
consider the general theory of liability. We shall investigate the
leading principles which determine the existence, the incidence, and the
measure of responsibility for wrongdoing. The special rules which relate
exclusively to particular kinds of wrongs will be disregarded as
irrelevant to the purpose of our inquiry.
Liability is in the first place either civil or criminal, and in the
second place either remedial or penal. The nature of these distinctions
has been already sufficiently considered in a previous chapter on the
Administration of Justice. We there saw that civil liability is
liability to civil proceedings, and that a civil proceeding is one whose
direct purpose is the enforcement of a right vested in the plaintiff.
Criminal liability, on the other hand, is liability to criminal
proceedings, and a proceeding of this nature is one whose direct purpose
is the punishment of a wrong committed by the defendant.[323]
We also saw that the law often punishes a wrong by creating and
enforcing against the wrongdoer a new obligation; for example, that of
paying a pecuniary penalty or damages. In such a case the direct purpose
of the proceeding is the enforcement of the sanctioning right thus
created, though its ulterior purpose is the punishment of the wrong in
which this right has its source. Hence the necessity of the further
distinction between penal and remedial liability. The former is that in
which the purpose of the law, direct or ulterior, is or includes the
punishment of a wrongdoer; the latter is that in which the law has no
such purpose at all, its sole intent being the enforcement of the
plaintiff’s right, and the idea of punishment being wholly irrelevant.
The liability of a borrower to repay the money borrowed by him is
remedial; that of the publisher of a libel to be imprisoned, or to pay
damages to the person injured by him, is penal. All criminal liability
is penal; civil liability, on the other hand, is sometimes penal and
sometimes remedial.[324]
§ 126. =The Theory of Remedial Liability.=
The theory of remedial liability presents little difficulty. It may be
laid down as a general principle, that, whenever the law creates a duty,
it should enforce the specific fulfilment of it. The sole condition of
the existence of remedial liability is the existence of a legal duty
binding upon the defendant and unfulfilled by him. What a man ought to
do by a rule of law, he ought to be made to do by the force of law. In
law _ought_ is normally equivalent to _must_, and obligation and
remedial liability are in general coexistent. To this general principle,
however, there are the following exceptions:—
1. In the first place, there are duties of imperfect obligation—duties
the breach of which gives no cause of action, and creates no liability
at all, either civil or criminal, penal or remedial. A debt barred by
the statute of limitations, or due by the Crown, is a legal debt, but
the payment of it cannot be compelled by any legal proceedings.[325]
2. Secondly, there are many duties which from their nature cannot be
specifically enforced after having once been broken. When a libel has
already been published, or an assault has already been committed, it is
too late to compel the wrongdoer to perform his duty of refraining from
such acts. Wrongs of this description may be termed transitory; once
committed, they belong to the irrevocable past. Others, however, are
continuing; for example, the non-payment of a debt, the commission of a
nuisance, or the detention of another’s property. In such cases the duty
violated is in its nature capable of specific enforcement,
notwithstanding the violation of it.
3. In the third place, even when the specific enforcement of a duty is
possible, it may be, or be deemed to be, more expedient to deal with it
solely through the criminal law, or through the creation and enforcement
of a substituted sanctioning duty of pecuniary compensation. It is only
in special cases, for example, that the law will compel the specific
performance of a contract, instead of the payment of damages for the
breach of it.
§ 127. =The Theory of Penal Liability.=
We now proceed to the main subject of our inquiry, namely, the general
principles of penal liability. We have to consider the legal theory of
punishment, in its application both to the criminal law and to those
portions of the civil law in which the idea of punishment is relevant
and operative. We have already, in a former chapter, dealt with the
purposes of punishment, and we there saw that its end is fourfold, being
deterrent, disabling, retributive, and reformative. The first of these
purposes, however, is primary and essential, the others being merely
secondary. In our present investigation, therefore, we shall confine our
attention to punishment as deterrent. The inquiry will fall into three
divisions, relating (1) to the conditions, (2) to the incidence, and (3)
to the measure of penal liability.
The general conditions of penal liability are indicated with sufficient
accuracy in the legal maxim, _Actus non facit reum, nisi mens sit
rea_—The act alone does not amount to guilt; it must be accompanied by a
guilty mind. That is to say, there are two conditions to be fulfilled
before penal responsibility can rightly be imposed, and we may
conveniently distinguish these as the _material_ and the _formal_
conditions of liability. The material condition is the doing of some
_act_ by the person to be held liable. A man is to be accounted
responsible only for what he himself does, not for what other persons
do, or for events independent of human activity altogether. The formal
condition, on the other hand, is the _mens rea_ or guilty mind with
which the act is done. It is not enough that a man has done some act
which on account of its mischievous results the law prohibits; before
the law can justly punish the act, an inquiry must be made into the
mental attitude of the doer. For although the act may have been
materially or objectively wrongful, the mind and will of the doer may
have been innocent.
We shall see later that the _mens rea_ or guilty mind includes two, and
only two, distinct mental attitudes of the doer towards the deed. These
are intention and negligence. Generally speaking, a man is penally
responsible only for those wrongful acts which he does either wilfully
or negligently. Then and only then is the _actus_ accompanied by the
_mens rea_. Then and then only do the two conditions of liability, the
material and the formal, coexist. In this case only is punishment
justifiable, for it is in this case alone that it can be effective.
Inevitable accident or mistake—the absence both of wrongful intention
and of culpable negligence—is in general a sufficient ground of
exemption from penal responsibility. _Impunitus est_, said the Romans,
_qui sine culpa et dolo malo casu quodam damnum committit_.[326]
We shall consider separately these two conditions of liability,
analysing first the conception of an act, and secondly that of _mens
rea_ in its two forms of intention and negligence.[327]
§ 128. =Acts.=
The term act is one of ambiguous import, being used in various senses of
different degrees of generality. When it is said, however, that an act
is one of the essential conditions of liability, we use the term in the
widest sense of which it is capable. We mean by it any event which is
subject to the control of the human will. Such a definition is, indeed,
not ultimate, but it is sufficient for the purpose of the law. As to the
nature of the will and of the control exercised by it, it is not for
lawyers to dispute, this being a problem of psychology or physiology,
not of jurisprudence.
(1) _Positive and Negative Acts._ Of acts as so defined there are
various species. In the first place, they are either positive or
negative, either acts of commission or acts of omission. A wrongdoer
either does that which he ought not to do, or leaves undone that which
he ought to do. The term act is often used in a narrow sense to include
merely positive acts, and is then opposed to omissions or forbearances
instead of including them. This restriction, however, is inconvenient.
Adopting the generic sense, we can easily distinguish the two species as
positive and negative; but if we restrict the term to acts of
commission, we leave ourselves without a name for the genus, and are
compelled to resort to an enumeration of the species.
(2) _Internal and external acts._ In the second place, acts are either
internal or external. The former are acts of the mind, while the latter
are acts of the body. In each case the act may be either positive or
negative, lying either in bodily activity or passivity, or in mental
activity or passivity. To think is an internal act; to speak is an
external act. To work out an arithmetical problem in one’s head is an
act of the mind; to work it out on paper is an act of the body. Every
external act involves an internal act which is related to it; but the
converse is not true, for there are many acts of the mind which never
realise themselves in acts of the body. The term act is very commonly
restricted to external acts, but this is inconvenient for the reason
already given in respect of the distinction between positive and
negative acts.
(3) _Intentional and unintentional acts._ Acts are further
distinguishable as being either intentional or unintentional. The nature
of intention is a matter to which particular attention will be devoted
later, and it is sufficient to say here that an act is intended or
intentional when it is the outcome of a determination of the actor’s
will directed to that end. In other words, it is intentional when it was
foreseen and desired by the doer, and this foresight and desire realised
themselves in the act through the operation of the will. It is
unintentional, on the other hand, when, and in so far as, it is not the
result of any determination of the will towards a desired issue.
In both cases the act may be either internal or external, positive or
negative. The term omission, while often used in a wide sense to include
all negative acts, is also used in a narrower signification to include
merely unintentional negative acts. It is then opposed to a forbearance,
which is an intentional negative act. If I fail to keep an appointment
through forgetfulness, my act is unintentional and negative; that is to
say, an omission. But if I remember the appointment, and resolve not to
keep it, my act is intentional and negative; that is to say, a
forbearance.
The term act is very commonly restricted to intentional acts, but this
restriction is inadmissible in law. Intention is not a necessary
condition of legal liability, and therefore cannot be an essential
element in those acts which produce such liability. An act is an event
subject to the control of the will; but it is not essential that this
control should be actually exercised; there need be no actual
determination of the will, for it is enough that such control or
determination is possible. If the control of the will is actually
exercised, the act is intentional; if the will is dormant, the act is
unintentional; but in each case, by virtue of the existence of the power
of control, the event is equally an act. The movements of a man’s limbs
are acts; those of his heart are not. Not to move his arms is an act;
not to move his ears is not. To meditate is an act; to dream is not. It
is the power possessed by me of determining the issue otherwise which
makes any event _my act_, and is the ground of my responsibility for it.
Every act is made up of three distinct factors or constituent parts.
These are (1) its _origin_ in some mental or bodily activity or
passivity of the doer, (2) its _circumstances_, and (3) its
_consequences_. Let us suppose that in practising with a rifle I shoot
some person by accident. The material elements of my act are the
following: its origin or primary stage, namely a series of muscular
contractions, by which the rifle is raised and the trigger pulled;
secondly, the circumstances, the chief of which are the facts that the
rifle is loaded and in working order, and that the person killed is in
the line of fire; thirdly, the consequences, the chief of which are the
fall of the trigger, the explosion of the powder, the discharge of the
bullet, its passage through the body of the man killed, and his death. A
similar analysis will apply to all acts for which a man is legally
responsible. Whatever act the law prohibits as being wrongful is so
prohibited in respect of its origin, its circumstances, and its
consequences. For unless it has its origin in some mental or physical
activity or passivity of the defendant, it is not his act at all; and
apart from its circumstances and results it cannot be wrongful. All acts
are, in respect of their origin, indifferent. No bodily motion is in
itself illegal. To crook one’s finger may be a crime, if the finger is
in contact with the trigger of a loaded pistol; but in itself it is not
a matter which the law is in any way concerned to take notice of.
Circumstances and consequences are of two kinds, according as they are
relevant or irrelevant to the question of liability. Out of the infinite
array of circumstances and the endless chain of consequences the law
selects some few as material. They and they alone are constituent parts
of the wrongful act. All the others are irrelevant and without legal
significance. They have no bearing or influence on the guilt of the
doer. It is for the law, at its own good pleasure, to select and define
the relevant and material facts in each particular species of wrong. In
theft the hour of the day is irrelevant; in burglary it is material.
An act has no _natural_ boundaries, any more than an event or a place
has. Its limits must be artificially defined for the purpose in hand for
the time being. It is for the law to determine, in each particular case,
what circumstances and what consequences shall be counted within the
compass of the act with which it is concerned. To ask what act a man has
done is like asking in what place he lives.
By some writers the term act is limited to that part of the act which we
have distinguished as its origin. According to this opinion the only
acts, properly so called, are movements of the body. “An act,” it has
been said,[328] “is always a voluntary muscular contraction and nothing
else.” That is to say, the circumstances and consequences of an act are
not part of it, but are wholly external to it. This limitation, however,
seems no less inadmissible in law than contrary to the common usage of
speech. We habitually and rightly include all material and relevant
circumstances and consequences under the name of the act. The act of the
murderer is the shooting or poisoning of his victim, not merely the
muscular contractions by which this result is effected. To trespass on
another man’s land is a wrongful act; but the act includes the
circumstance that the land belongs to another man, no less than the
bodily movements by which the trespasser enters upon it.[329]
It may be suggested that although an act must be taken to include some
of its consequences, it does not include all of them, but only those
which are direct or immediate. Any such distinction, however, between
direct and indirect, proximate and remote consequences, is nothing more
than an indeterminate difference of degree, and cannot be made the basis
of any logical definition. The distinction between an act and its
consequences, between doing a thing and causing a thing, is a merely
verbal one; it is a matter of convenience of speech, and not the product
of any scientific analysis of the conceptions involved. There is no
logical distinction between the act of killing a man and the act of
doing something which results (however remotely) in his death.[330]
§ 129. =Two Classes of Wrongful Acts.=
Every wrong is an act which is mischievous in the eye of the law—an act
to which the law attributes harmful consequences. These consequences,
however, are of two kinds, being either actual or merely anticipated. In
other words, an act may be mischievous in two ways—either in its actual
results or in its tendencies. Hence it is, that legal wrongs are of two
kinds. The first consists of those in which the act is wrongful only by
reason of accomplished harm which in fact ensues from it. The second
consists of those in which the act is wrongful by reason of its
mischievous tendencies, as recognised by the law, irrespective of the
actual issue. In the first case there is no wrong or cause of action
without proof of actual damage; in the second case it is sufficient to
prove the act itself, even though in the event no harm has followed it.
For example, if A. breaks his contract with B, it is not necessary for
B. to prove that he was thereby disappointed in his reasonable
expectations, or otherwise suffered actual loss, for the law takes
notice of the fact that breach of contract is an act of mischievous
tendency, and therefore treats it as wrongful irrespective of the actual
issue. The loss, if any, incurred by B. is relevant to the measure of
damages, but not to the existence of a cause of action. So if I walk
across another man’s field, or publish a libel upon him, I am
responsible for the act without any proof of actual harm resulting from
it. For trespass and libel belong to the class of acts which are judged
wrongful in respect of their tendencies, and not merely in respect of
their results. In other cases, on the contrary, actual damage is
essential to the cause of action. Slander, for example, is in general
not actionable without proof of some loss sustained by the plaintiff,
although libel is actionable _per se_. So if by negligent driving I
expose others to the risk of being run over, I am not deemed guilty of
any wrong until an accident actually happens. The dangerous tendency of
the act is not in this case considered a sufficient ground of liability.
With respect to this distinction between wrongs which do and those which
do not, require proof of actual damage, it is to be noticed that
criminal wrongs commonly belong to the latter class. Criminal liability
is usually sufficiently established by proof of some act which the law
deems dangerous in its tendencies, even though the issue is in fact
harmless. The formula of the criminal law is usually: “If you do this,
you will be held liable in all events,” and not: “If you do this you
will be held liable if any harm ensues.” An unsuccessful attempt is a
ground of criminal liability, no less than a completed offence. This,
however, is not invariably so, for criminal responsibility, like civil,
sometimes depends on the accident of the event. If I am negligent in the
use of firearms, and kill some one in consequence, I am criminally
liable for manslaughter; but if by good luck my negligence results in no
accomplished mischief, I am free from all responsibility.
As to civil liability, no corresponding general principle can be laid
down. In some cases proof of actual damage is required, while in other
cases there is no such necessity; and the matter pertains to the
detailed exposition of the law, rather than to legal theory. It is to be
noted, however, that whenever this requirement exists, it imports into
the administration of civil justice an element of capriciousness from
which the criminal law is commonly free. In point of criminal
responsibility men are judged by their acts and by the mischievous
tendencies of them, but in point of civil liability they are often
judged by the actual event. If I attempt to execute a wrongful purpose,
I am criminally responsible whether I succeed or not; but my civil
liability will often depend upon the accident of the result. Failure in
a guilty endeavour amounts to innocence. Instead of saying: “Do this,
and you will be held accountable for it,” the civil law often says: “Do
this if you wish, but remember that you do it at your peril, and if evil
consequences chance to follow, you will be answerable for them.”
§ 130. =Damnum sine Injuria.=
Although all wrongs are, in fact or in legal theory, mischievous acts,
the converse is not true. All damage done is not wrongful. There are
cases in which the law will suffer a man knowingly and wilfully to
inflict harm upon another, and will not hold him accountable for it.
Harm of this description—mischief that is not wrongful because it does
not fulfil even the material conditions of responsibility—is called
_damnum sine injuria_, the term _injuria_ being here used in its true
sense of an act contrary to law (_in jus_), not in its modern and
corrupt sense of harm.
Cases of _damnum sine injuria_ fall under two heads. There are, in the
first place, instances in which the harm done to the individual is
nevertheless a gain to society at large. The wrongs of individuals are
such only because, and only so far as, they are at the same time the
wrongs of the whole community; and so far as this coincidence is
imperfect, the harm done to an individual is _damnum sine injuria_. The
special result of competition in trade may be ruin to many; but the
general result is, or is deemed to be, a gain to society as a whole.
Competitors, therefore, do each other harm but not injury. So a
landowner may do many things on his own land, which are detrimental to
the interests of adjoining proprietors. He may so excavate his land as
to withdraw the support required by the buildings on the adjoining
property; he may prevent the access of light to the windows of those
buildings; he may drain away the water which supplies his neighbour’s
well. These things are harmful to individuals; but it is held to serve
the public interest to allow a man, within wide limits, to do as he
pleases with his own.
The second head of _damnum sine injuria_ includes all those cases in
which, although real harm is done to the community, yet owing to its
triviality, or to the difficulty of proof, or to any other reason, it is
considered inexpedient to attempt its prevention by the law. The
mischief is of such a nature that the legal remedy would be worse than
the disease.
§ 131. =The Place and Time of an Act.=
Chiefly, though not exclusively, in consequence of the territorial
limits of the jurisdiction of courts, it is often material to
determine the place in which an act is done. In general this inquiry
presents no difficulty, but there are two cases which require special
consideration. The first is that in which the act is done partly in
one place and partly in another. If a man standing on the English side
of the Border fires at and kills a man on the Scottish side, has he
committed murder in England or in Scotland? If a contract is made by
correspondence between a merchant in London and another in Paris, is
the contract made in England or in France? If by false representations
made in Melbourne a man obtains goods in Sydney, is the offence of
obtaining goods by false pretences committed in Victoria or in New
South Wales? As a matter of fact and of strict logic the correct
answer in all these cases is that the act is not done either in the
one place or in the other. He who in England shoots a man in Scotland
commits murder in Great Britain, regarded as a unity, but not in
either of its parts taken in isolation. But no such answer is
allowable in law; for, so long as distinct territorial areas of
jurisdiction are recognised, the law must assume that it is possible
to determine with respect to every act the particular area within
which it is committed.
What locality, therefore, does the law attribute to acts which thus
fall partly within one territorial division and partly within another?
There are three possible answers. It may be said that the act is
committed in both places, or solely in that in which it has its
commencement, or solely in that in which it is completed. The law is
free to choose such one of these three alternatives as it thinks fit
in the particular case. The last of them seems to be that which is
adopted for most purposes. It has been held that murder is committed
in the place in which the death occurs,[331] and not also in the place
in which the act causing the death is done,[332] but the law on these
points is not free from doubt.[333] A contract is made in the place
where it is completed, that is to say, where the offer is
accepted[334] or the last necessary signature to the document is
affixed.[335] The offence of obtaining goods by false pretences is
committed in the place in which the goods are obtained[336] and not in
the place where the false pretence is made.[337]
A second case in which the determination of the locality of an act
gives rise to difficulty is that of negative acts. In what place does
a man omit to pay a debt or to perform a contract? The true answer is
apparently that a negative act takes place where the corresponding
positive act _ought_ to have taken place. An omission to pay a debt
occurs in the place where the debt is payable.[338] If I make in
England a contract to be performed in France, my failure to perform it
takes place in France and not in England. The presence of a negative
act is the absence of the corresponding positive act, and the positive
act is absent from the place in which it ought to have been present.
_The time of an act._ The position of an act in time is determined by
the same considerations as its position in space. An act which begins
to-day and is completed to-morrow is in truth done neither to-day nor
to-morrow, but in that space of time which includes both. But if
necessary the law may date it from its commencement, or from its
completion, or may regard it as continuing through both periods. For
most purposes the date of an act is the date of its completion, just
as its place is the place of its completion.[339]
A negative act is done at the time at which the corresponding positive
act ought to have been done. The date of the non-payment of a debt is
the day on which it becomes payable.
§ 132. =Mens Rea.=
We have seen that the conditions of penal liability are sufficiently
indicated by the maxim, _Actus non facit reum, nisi mens sit rea_. A man
is responsible not for his acts in themselves, but for his acts coupled
with the _mens rea_ or guilty mind with which he does them. Before
imposing punishment, whether civilly or criminally, the law must be
satisfied of two things: first, that an act has been done which by
reason of its harmful tendencies or results is fit to be repressed by
way of penal discipline; and secondly, that the mental attitude of the
doer towards his deed was such as to render punishment effective as a
deterrent for the future, and therefore just. The first is the material,
the second is the formal condition of liability. The _mens rea_ may
assume one or other of two distinct forms, namely wrongful intention or
culpable negligence. The offender may either have done the wrongful act
on purpose, or he may have done it carelessly, and in each case the
mental attitude of the doer is such as to make punishment effective. If
he intentionally chose the wrong, penal discipline will furnish him with
a sufficient motive to choose the right instead for the future. If, on
the other hand, he committed the forbidden act without wrongful intent,
but yet for want of sufficient care devoted to the avoidance of it,
punishment will be an effective inducement to carefulness in the future.
But if his act is neither intentional nor negligent, if he not only did
not intend it, but did his best as a reasonable man to avoid it, there
can be no good purpose fulfilled in ordinary cases by holding him liable
for it.
Yet there are exceptional cases in which, for sufficient or insufficient
reasons, the law sees fit to break through the rule as to _mens rea_. It
disregards the formal condition of liability, and is satisfied with the
material condition alone. It holds a man responsible for his acts,
independently altogether of any wrongful intention or culpable
negligence. Wrongs which are thus independent of _mens rea_ may be
distinguished as wrongs of _absolute liability_.
It follows that in respect of the requirement of _mens rea_ wrongs are
of three kinds:
(1) Intentional or Wilful Wrongs, in which the _mens rea_ amounts to
intention, purpose, or design.
(2) Wrongs of Negligence, in which the _mens rea_ assumes the less
serious form of mere carelessness, as opposed to wrongful intent.
(3) Wrongs of Absolute Liability, in which the _mens rea_ is not
required, neither wrongful intent not culpable negligence being
recognised as a necessary condition of responsibility.
We shall deal with these three classes of wrongs, and these three forms
of liability, in the order mentioned.
SUMMARY.
Liability { Civil { Remedial.
{ Criminal { Penal.
Remedial liability:
Specific enforcement the general rule.
Exceptions:
{ 1. Non-actionable wrongs.
{ 2. Transitory wrongs.
{ 3. Continuing wrongs in which sanctional enforcement is
{ more expedient than specific.
{ Its conditions.
Penal liability { Its incidence.
{ Its measure.
Conditions of penal liability { Material—_Actus_.
{ Formal—_Mens rea_.
The nature of an act:
1. Positive and negative acts.
2. Internal and external acts.
3. Intentional and unintentional acts.
The circumstances and consequences of acts.
The relation between _injuria_ and _damnum_.
1. All wrongs are mischievous acts.
Wrongs { In which proof of damage is required.
{ In which such proof is not required.
2. All mischievous acts are not wrongs.
_Damnum sine injuria._
(_a_) Loss of individual a gain to society at large.
(_b_) Legal remedy inexpedient.
The place and time of an act.
The formal condition of penal liability.
_Mens rea_ { Intention.
{ Negligence.
{ 1. Of Intention.
Wrongs { 2. Of Negligence.
{ 3. Of Absolute Liability (exceptions to the requirement of
_mens rea_).
CHAPTER XVIII
INTENTION AND NEGLIGENCE.
§ 133. =The Nature of Intention.=
Intention is the purpose or design with which an act is done. It is the
foreknowledge of the act, coupled with the desire of it, such
foreknowledge and desire being the cause of the act, inasmuch as they
fulfil themselves through the operation of the will. An act is
intentional if, and in so far as, it exists in idea before it exists in
fact, the idea realising itself in the fact because of the desire by
which it is accompanied.[340]
An act may be wholly unintentional, or wholly intentional, or
intentional in part only. It is wholly unintentional if no part of it is
the outcome of any conscious purpose or design, no part of it having
existed in idea before it became realised in fact. I may omit to pay a
debt, because I have completely forgotten that it exists; or I may,
through careless handling, accidentally press the trigger of a pistol in
my hand and so wound a bystander. An act is wholly intentional, on the
other hand, when every part of it corresponds to the precedent idea of
it, which was present in the actor’s mind, and of which it is the
outcome and realisation. The issue falls completely within the
boundaries of the intent. Finally an act may be in part intentional and
in part unintentional. The idea and the fact, the will and the deed, the
design and the issue, may be only partially coincident. If I throw
stones, I may intend to break a window but not to do personal harm to
any one; yet in the result I may do both of these things.
An act, and therefore a wrong, which is intended only in part, must be
classed as unintended, just as a thing which is completed only in part
is incomplete. If any constituent element or essential factor of the
complete wrong falls outside the limits of the doer’s intent he cannot
be dealt with on the footing of wilful wrongdoing. If liability in such
a case exists at all, it must be either absolute or based on
negligence.[341]
A wrong is intentional, only when the intention extends to all the
elements of the wrong, and therefore to its circumstances no less than
to its origin and its consequences. We cannot say, indeed, that the
circumstances are intended or intentional; but the act is intentional
with respect to the circumstances, inasmuch as they are included in that
precedent idea which constitutes the intention of the act. So far,
therefore, as the knowledge of the doer does not extend to any material
circumstance, the wrong is, as to that circumstance, unintentional. To
trespass on A.’s land believing it to be one’s own is not a wilful
wrong. The trespasser intended, indeed, to enter upon the land, but he
did not intend to enter upon land belonging to A. His act was
unintentional as to the circumstance that the land belonged to A. So if
a woman marries again during the lifetime of her former husband, but
believing him to be dead, she does not wilfully commit the crime of
bigamy, for one of the material circumstances lies outside her
intention. With respect to that circumstance the will and the deed are
not coincident.
Intention does not necessarily involve _expectation_. I may intend a
result which I well know to be extremely improbable. So an act may be
intentional with respect to a particular circumstance, although the
chance of the existence of that circumstance is known to be exceedingly
small. Intention is the foresight of a desired issue, however
improbable—not the foresight of an undesired issue, however probable. If
I fire a rifle in the direction of a man half a mile away, I may know
perfectly well that the chance of hitting him is not one in a thousand;
I may fully expect to miss him; nevertheless I intend to hit him if I
desire to do so. He who steals a letter containing a cheque,
intentionally steals the cheque also, if he hopes that the letter may
contain one, even though he well knows that the odds against the
existence of such a circumstance are very great.
Conversely, expectation does not in itself amount to intention. An
operating surgeon may know very well that his patient will probably die
of the operation; yet he does not intend the fatal consequence which he
expects. He intends the recovery which he hopes for but does not expect.
Although nothing can be intended which is not desired, it must be
carefully noticed that a thing may be desired, and therefore intended,
not in itself or for its own sake, but for the sake of something else
with which it is necessarily connected. If I desire and intend a certain
end, I also desire and intend the means by which this end is to be
obtained, even though in themselves those means may be indifferent, or
even objects of aversion. If I kill a man in order to rob him, I desire
and intend his death, even though I deeply regret, in his interests or
in my own, the necessity of it. In the same way, the desire and
intention of an end extend not merely to the means by which it is
obtained, but to all necessary concomitants without which it cannot be
obtained. If an anarchist, desiring to kill the emperor, throws a bomb
into his carriage, knowing that if it explodes and kills him it will
also kill others who are riding with him, the assassin both desires and
intends to kill those others. This additional slaughter may _in itself_
be in no way desired by him; he may be genuinely sorry for it; yet it
falls within the boundaries of his desire and of his intent, since it is
believed by him to be a necessary concomitant of the end which he
primarily seeks. The deaths of the emperor and of the members of his
suite are inseparably connected, and they constitute, therefore, a
single issue which must be desired and intended as a unity or not at
all. When I know or believe that A. cannot be had without B., I cannot
say that I intend A. but not B. If I desire A. sufficiently to overcome
my aversion to B., then I desire the total issue of which A. and B. are
the two inseparable factors. With respect to all circumstances which I
know or believe to exist, and with respect to all consequences which I
know or believe to be inevitable, my act is intentional, however
undesirable those circumstances or consequences may be in themselves. I
choose them deliberately and consciously as necessary incidents of that
which I desire and intend for its own sake.
Any genuine belief, however, that an event may not happen, coupled with
a genuine desire that it shall not, is sufficient to prevent it from
being intended. So any genuine doubt as to the existence of a
circumstance, coupled with a genuine hope that it does not exist, is
enough to prevent the act from being intentional as to that
circumstance. The act may be grossly negligent, it may be absolutely
reckless, but it is not intentional. If I fire a rifle at A., knowing
that I may very probably hit B. who is standing close to him, I do not
for that reason intend to hit B. I genuinely intend and desire not to
hit him. An intention to hit B. would be inconsistent with my admitted
intention to hit A.[342]
§ 134. =Intention and Motive.=
A wrongful act is seldom intended and desired for its own sake. The
wrongdoer has in view some ulterior object which he desires to obtain by
means of it. The evil which he does to another, he does and desires only
for the sake of some resulting good which he will obtain for himself. He
_intends_ the attainment of this ulterior object, no less than he
intends the wrongful act itself. His intent, therefore, is twofold, and
is divisible into two distinct portions, which we may distinguish as his
immediate and his ulterior intent. The former is that which relates to
the wrongful act itself; the latter is that which passes beyond the
wrongful act, and relates to the object or series of objects for the
sake of which the act is done. The immediate intent of the thief is to
appropriate another person’s money, while his ulterior intent may be to
buy food with it or to pay a debt. The ulterior intent is called the
_motive_ of the act.
The immediate intent is that part of the total intent which is
coincident with the wrongful act itself; the ulterior intent or motive
is that part of the total intent which lies outside the boundaries of
the wrongful act. For just as the act is not necessarily confined within
the limits of the intent, so the intent is not necessarily confined
within the limits of the act. The wrongdoer’s immediate intent, if he
has one, is his purpose to _commit_ the wrong; his ulterior intent, or
motive, is his purpose _in committing_ it. Every wrongful act may raise
two distinct questions with respect to the intent of the doer. The first
of these is: _How_ did he do the act—intentionally or accidentally? The
second is: If he did it intentionally, _why_ did he do it? The first is
an inquiry into his immediate intent; the second is concerned with his
ulterior intent, or motive.
The ulterior intention of one wrongful act may be the commission of
another. I may make a die with intent to coin bad money; I may coin bad
money with intent to utter it; I may utter it with intent to defraud.
Each of these acts is or may be a distinct criminal offence, and the
intention of any one of them is immediate with respect to that act
itself, but ulterior with respect to all that go before it in the
series.
A person’s ulterior intent may be complex instead of simple; he may
act from two or more concurrent motives instead of from one only. He
may institute a prosecution, partly from a desire to see justice done,
but partly also from ill-will towards the defendant. He may pay one of
his creditors preferentially on the eve of bankruptcy, partly from a
desire to benefit him at the expense of the others, and partly from a
desire to gain some advantage for himself. Now the law, as we shall
see later, sometimes makes liability for an act depend upon the motive
with which it is done. The Bankruptcy Act, for example, regards as
fraudulent any payment made by a debtor immediately before his
bankruptcy with intent to prefer one of his creditors to the others.
In all such cases the presence of mixed or concurrent motives raises a
difficulty of interpretation. The phrase “with intent to,” or its
equivalents, may mean any one of at least four different things:—(1)
That the intent referred to must be the sole or exclusive intent; (2)
that it is sufficient if it is one of several concurrent intents; (3)
that it must be the chief or dominant intent, any others being
subordinate or incidental; (4) that it must be a determining intent,
that is to say, an intent in the absence of which the act would not
have been done, the remaining purposes being insufficient motives by
themselves. It is a question of construction which of those meanings
is the true one in the particular case.[343]
§ 135. =Malice.=
Closely connected with the law and theory of intentional wrongdoing is
the legal use of the word malice. In a narrow and popular sense this
term means ill-will, spite, or malevolence; but its legal signification
is much wider. Malice means in law wrongful intention. It includes any
intent which the law deems wrongful, and which therefore serves as a
ground of liability. Any act done with such an intent is, in the
language of the law, malicious, and this legal usage has etymology in
its favour. The Latin _malitia_[344] means badness, physical or
moral—wickedness in disposition or in conduct—not specifically or
exclusively ill-will or malevolence; hence the malice of English law,
including all forms of evil purpose, design, intent, or motive.
We have seen, however, that intent is of two kinds, being either
immediate or ulterior, the ulterior intent being commonly distinguished
as the motive. The term malice is applied in law to both these forms of
intent, and the result is a somewhat puzzling ambiguity which requires
careful notice. When we say that an act is done maliciously, we mean one
of two distinct things. We mean either that it is done intentionally, or
that it is done with some wrongful motive. In the phrases malicious
homicide and malicious injury to property, malicious is merely
equivalent to wilful or intentional. I burn down a house maliciously if
I burn it on purpose, but not if I burn it negligently. There is here no
reference to any ulterior purpose or motive. But on the other hand
malicious prosecution does not mean intentional prosecution; it means a
prosecution inspired by some motive of which the law disapproves. A
prosecution is malicious, for example, if its ulterior intent is the
extortion of money from the accused. So also with the malice which is
needed to make a man liable for defamation on a privileged occasion; I
do not utter defamatory statements maliciously, simply because I utter
them intentionally.[345]
Although the word _malitia_ is not unknown to the Roman lawyers, the
usual and technical name for wrongful intent is _dolus_, or more
specifically _dolus malus_. _Dolus_ and _culpa_ are the two forms of
_mens rea_. In a narrower sense, however, _dolus_ includes merely that
particular variety of wrongful intent which we term fraud—that is to
say, the intent to deceive.[346] From this limited sense it was
extended to cover all forms of wilful wrongdoing. The English term
fraud has never received an equally wide extension. It resembles
_dolus_, however, in having a double use. In its narrow sense it means
deceit, as we have just said, and is commonly opposed to force. In a
wider sense it includes all forms of dishonesty, that is to say, all
wrongful conduct inspired by a desire to derive profit from the injury
of others. In this sense fraud is commonly opposed to malice in its
popular sense. I act fraudulently when the motive of my wrongdoing is
to derive some material gain for myself, whether by way of deception,
force, or otherwise. But I act maliciously when my motive is the
pleasure of doing harm to another, rather than the acquisition of any
advantage for myself. To steal property is fraudulent; to damage or
destroy it is malicious.
§ 136. =Relevance and Irrelevance of Motives.=
We have already seen in what way and to what extent a man’s immediate
intent is material in a question of liability. As a general rule no act
is a sufficient basis of responsibility unless it is done either
wilfully or negligently. Intention and negligence are the two
alternative formal conditions of penal liability.
We have now to consider the relevance or materiality, not of the
immediate, but of the ulterior intent. To what extent does the law take
into account the motives of a wrongdoer? To what extent will it inquire
not merely what the defendant has done, but why he has done it? To what
extent is malice, in the sense of improper motive, an element in legal
wrongdoing?
In answer to this question we may say generally (subject however, to
very important qualifications) that in law a man’s motives are
irrelevant. As a general rule no act otherwise lawful becomes unlawful
because done with a bad motive; and conversely no act otherwise unlawful
is excused or justified because of the motives of the doer, however
good. The law will judge a man by what he does, not by the reasons for
which he does it.
“It is certainly,” says Lord Herschell,[347] “a general rule of our
law that an act _prima facie_ lawful is not unlawful and actionable on
account of the motives which dictated it.” So it has been said:[348]
“No use of property which would be legal if due to a proper motive can
become illegal because it is prompted by a motive which is improper or
even malicious.” “Much more harm than good,” says Lord
Macnaghten,[349] “would be done by encouraging or permitting inquiries
into motives when the immediate act alleged to have caused the loss
for which redress is sought is in itself innocent or neutral in
character and one which anybody may do or leave undone without fear of
legal consequences. Such an inquisition would I think be intolerable.”
An illustration of this irrelevance of motives is the right of a
landowner to do harm to adjoining proprietors in certain defined ways by
acts done on his own land. He may intercept the access of light to his
neighbour’s windows, or withdraw by means of excavation the support
which his land affords to his neighbour’s house, or drain away the water
which would otherwise supply his neighbour’s well. His right to do all
these things depends in no way on the motive with which he does them.
The law cares nothing whether his acts are inspired by an honest desire
to improve his own property, or by a malevolent impulse to damage that
of others. He may do as he pleases with his own.[350]
To this rule as to the irrelevance of motives there are, however, very
important exceptions, more especially in the criminal law. The chief of
these are the following.
§ 137. =Criminal Attempts.=
An attempt to commit an indictable offence is itself a crime. Every
attempt is an act done with intent to commit the offence so attempted.
The existence of this ulterior intent or motive is of the essence of the
attempt. The act in itself may be perfectly innocent, but is deemed
criminal by reason of the purpose with which it is done. To mix arsenic
in food is in itself a perfectly lawful act, for it may be that the
mixture is designed for the poisoning of rats. But if the purpose is to
kill a human being, the act becomes by reason of this purpose the crime
of attempted murder. In such cases a rational system of law cannot avoid
considering the motive as material, for it is from the motive alone that
the act derives all its mischievous tendency, and therefore its wrongful
nature.
Although every attempt is an act done with intent to commit a crime, the
converse is not true. Every act done with this intent is not an attempt,
for it may be too remote from the completed offence to give rise to
criminal liability, notwithstanding the criminal purpose of the doer. I
may buy matches with intent to burn a haystack, and yet be clear of
attempted arson; but if I go to the stack and there light one of the
matches, my intent has developed into a criminal attempt. To intend to
commit a crime is one thing; to get ready to commit it is another; to
try to commit it is a third. We may say, indeed, that every intentional
crime involves four distinct stages—Intention, Preparation, Attempt, and
Completion. The two former are commonly innocent. An unacted intent is
no more a ground of liability than is an unintended act. The will and
the deed must go together. Even action in pursuance of the intent is not
commonly criminal if it goes no further than the stage of preparation. I
may buy a pistol with felonious purpose, and yet remain free from legal
guilt. There is still a _locus poenitentiae_. But the two last stages in
the offence, namely attempt and completion, are grounds of legal
liability. How, then, are we to draw the line which thus separates
innocence from guilt? What is the distinction between preparing to
commit a crime and attempting to commit it? How far may a man go along
the path of his criminal intent, and yet turn back in safety if his
heart or the occasion fails him? This is a question to which English law
gives no definite or sufficient answer. “An attempt to commit a crime,”
says Sir James Stephen in his Digest of the Criminal Law,[351] “is an
act done with intent to commit that crime, and forming part of a series
of acts which would constitute its actual commission, if it were not
interrupted. The point at which such a series of acts begins cannot be
defined, but depends upon the circumstances of each particular case.”
This, however, affords no adequate guidance, and lays down no principle
which would prevent a conviction for attempted forgery on proof of the
purchase of ink and paper.
The German Criminal Code,[352] on the other hand, defines an attempt as
an act done with intent to commit a crime, and amounting to the
commencement of the execution of it. That is to say, an act is not an
attempt unless it forms a constituent part of the completed crime.
Otherwise it is merely preparatory. It may be doubted, however, whether
this is a sufficient solution of the problem. We know when a crime is
completed, but at what stage in the long series of preliminary acts does
it begin? Not later, it would seem, than the earliest act done with the
requisite criminal intent; yet this act may be far too remote to
constitute an attempt.
What, then, is the true principle? The question is a difficult one, but
the following answer may be suggested. An attempt is an act of such a
nature that it is itself evidence of the criminal intent with which it
is done. A criminal attempt bears criminal intent upon its face. _Res
ipsa loquitur._ An act, on the other hand, which is in itself and on the
face of it innocent, is not a criminal attempt, and cannot be made
punishable by evidence _aliunde_ as to the purpose with which it was
done. To buy matches with intent to commit arson is not attempted arson,
because the act is innocent on its face, there being many lawful reasons
for the purchase of matches. But to buy dies with intent to coin money
is attempted forgery, for the act speaks for itself.[353] For the same
reason, to buy or load a gun with murderous intent is not in ordinary
circumstances attempted murder; but to lie in wait with the loaded
weapon, or to present it, or discharge it, is an act which itself
proclaims the criminal purpose with which it is done, and it is
punishable accordingly. If this is the correct explanation of the
matter, the ground of the distinction between preparation and attempt is
evidential merely. The reason for holding a man innocent, who does an
act with intent to commit a crime, is the danger involved in the
admission of evidence upon which persons may be punished for acts which
in themselves and in appearance are perfectly innocent. _Cogitationis
poenam nemo patitur._ No man can be safely punished for his guilty
purposes, save so far as they have manifested themselves in overt acts
which themselves proclaim his guilt.
There is yet another difficulty in the theory of attempts. What shall
be said if the act done with intent to commit a crime is of such a
nature that the completion of the crime by such means is impossible:
as if I attempt to steal by putting my hand into an empty pocket, or
to poison by administering sugar which I believe to be arsenic? It was
long supposed to be the law of England that there could be no
conviction for an attempt in such cases. It was considered that an
attempt must be part of a series of acts and events which, in its
completeness, would actually constitute the offence attempted.[354]
Recent decisions have determined the law otherwise.[355] The
possibility of a successful issue is not a necessary element in an
attempt, and this conclusion seems sound in principle. The matter,
however, is not free from difficulty, since it may be argued on the
other side that acts which in their nature cannot result in any harm
are not mischievous either in their tendency or in their results, and
therefore should not be treated as crimes. Shall an attempt to procure
the death of one’s enemy by means of witchcraft be punished as
attempted murder?
§ 138. =Other Exceptions to the Irrelevance of Motives.=
Criminal attempts constitute, as we have seen, the first of the
exceptions to the rule that a person’s ulterior intent or motive is
irrelevant in law. A second exception comprises all those cases in which
a particular intent forms part of the definition of a criminal offence.
Burglary, for example, consists in breaking and entering a
dwelling-house by night with intent to commit a felony therein. So
forgery consists in making a false document with intent to defraud. In
all such instances the ulterior intent is the source, in whole or in
part, of the mischievous tendency of the act, and is therefore material
in law.
In civil as opposed to criminal liability the ulterior intent is very
seldom relevant. In almost all cases the law looks to the act alone, and
makes no inquiries into the motives from which it proceeds. There are,
however, certain exceptions even in the civil law, and the chief, if not
all, of these fall within the principle that a harmful act may be
_damnum sine injuria_ if done from a proper motive and without malice,
but loses this protection so soon as it proceeds from some motive of
which the law does not approve. It may be expedient in the public
interest to allow certain specified kinds of harm to be done to
individuals, so long as they are done for some good and sufficient
reason; but the ground of this privilege falls away so soon as it is
abused for bad ends. In such cases, therefore, malice is an essential
element in the cause of action. Examples of wrongs of this class are
defamation (in cases of privilege) and malicious prosecution. In these
instances the plaintiff must prove malice, because in all of them the
defendant’s act is one which falls under the head of _damnum sine
injuria_ so long, but so long only, as it is done with good intent.
§ 139. =Jus necessitatis.=
We shall conclude our examination of the theory of wilful wrongdoing by
considering a special case in which, although intention is present, the
_mens rea_ is nevertheless absent. This is the case of the _jus
necessitatis_. So far as the abstract theory of responsibility is
concerned, an act which is necessary is not wrongful, even though done
with full and deliberate intention. It is a familiar proverb that
necessity knows no law: _Necessitas non habet legem_. By necessity is
here meant the presence of some motive adverse to the law, and of such
exceeding strength as to overcome any fear that can be inspired by the
threat of legal penalties. The _jus necessitatis_ is the right of a man
to do that from which he cannot be dissuaded by any terror of legal
punishment. Where threats are necessarily ineffective, they should not
be made, and their fulfilment is the infliction of needless and
uncompensated evil.
The common illustration of this right of necessity is the case of two
drowning men clinging to a plank that will not support more than one of
them. It may be the moral duty of him who has no one dependent on him to
sacrifice himself for the other who is a husband or a father; it may be
the moral duty of the old to give way to the young. But it is idle for
the law to lay down any other rule save this, that it is the right of
the stronger to use his strength for his own preservation. Another
familiar case of necessity is that in which shipwrecked sailors are
driven to choose between death by starvation on the one side and murder
and cannibalism on the other. A third case is that of crime committed
under the pressure of illegal threats of death or grievous bodily harm.
“If,” says Hobbes,[356] “a man by the terror of present death be
compelled to do a fact against the law, he is totally excused; because
no law can oblige a man to abandon his own preservation.”
It is to be noticed that the test of necessity is not the powerlessness
of any possible, but that of any reasonable punishment. It is enough if
the lawless motives to an act will necessarily countervail the fear of
any penalty which it is just and expedient that the law should threaten.
If burning alive were a fit and proper punishment for petty theft, the
fear of it would probably prevent a starving wretch from stealing a
crust of bread; and the _jus necessitatis_ would have no place. But we
cannot place the rights of property at so high a level. There are cases,
therefore, in which the motives to crime cannot be controlled by any
reasonable punishment. In such cases an essential element of the _mens
rea_, namely freedom of choice, is absent; and so far as abstract theory
is concerned, there is no sufficient basis of legal liability.
As a matter of practice, however, evidential difficulties prevent any
but the most limited scope being permitted to the _jus necessitatis_. In
how few cases can we say with any approach to certainty that the
possibility of self-control is really absent, that there is no true
choice between good and evil, and that the deed is one for which the
doer is rightly irresponsible. In this conflict between the requirements
of theory and the difficulties of practice the law has resorted to
compromise. While in some few instances necessity is admitted as a
ground of excuse, it is in most cases regarded as relevant to the
measure rather than to the existence of liability. It is acknowledged as
a reason for the reduction of the penalty, even to a nominal amount, but
not for its total remission. Homicide in the blind fury of irresistible
passion is not innocent, but neither is it murder; it is reduced to the
lower level of manslaughter. Shipwrecked sailors who kill and eat their
comrades to save their own lives are in law guilty of murder itself; but
the clemency of the Crown will commute the capital sentence to a short
term of imprisonment.[357]
§ 140. =Negligence.=
We have considered the first of the three classes into which injuries
are divisible, namely those which are intentional or wilful, and we have
now to deal with the second, namely wrongs of negligence.
The term negligence has two uses, for it signifies sometimes a
particular state of mind, and at other times conduct resulting
therefrom. In the former or subjective sense, negligence is opposed to
wrongful intention, these being the two forms assumed by that _mens rea_
which is a condition of penal responsibility. In the latter or objective
sense, it is opposed not to wrongful intention, but to intentional
wrongdoing. A similar double signification is observable in other words.
Cruelty, for example, means subjectively a certain disposition and
objectively conduct resulting from it. The ambiguity can scarcely lead
to any confusion, for the two forms of negligence are necessarily
coincident. Objective negligence is merely subjective negligence
realised in conduct; and subjective negligence is of no account in the
law, until and unless it is manifested in act. We shall commonly use the
term in the subjective sense, and shall speak objectively not of
negligence, but of negligent conduct or negligent wrongdoing.[358]
Negligence is culpable carelessness. “It is,” says Willes, J.,[359] “the
absence of such care as it was the duty of the defendant to use.” What
then is meant by carelessness? It is clear, in the first place, that it
excludes wrongful intention. These are two contrasted and mutually
inconsistent mental attitudes of a person towards his acts and their
consequences. No result which is due to carelessness can have been also
intended. Nothing which was intended can have been due to
carelessness.[360]
It is to be observed, in the second place, that carelessness or
negligence does not necessarily consist in thoughtlessness or
inadvertence. This is doubtless the commonest form of it, but it is not
the only form. If I do harm, not because I intended it, but because I
was thoughtless and did not advert to the dangerous nature of my act, or
foolishly believed that there was no danger, I am certainly guilty of
negligence. But there is another form of negligence, in which there is
no thoughtlessness or inadvertence whatever. If I drive furiously down a
crowded street, I may be fully conscious of the serious risk to which I
expose other persons. I may not intend to injure any of them, but I
knowingly and intentionally expose them to the danger. Yet if a fatal
accident happens, I am liable, at the most, not for wilful, but for
negligent homicide. When I consciously expose another to the risk of
wrongful harm, but without any wish to harm him, and harm actually
ensues, it is inflicted not wilfully, since it was not desired, nor
inadvertently, since it was foreseen as possible or even probable, but
nevertheless negligently.
If, then, negligence or carelessness is not to be identified with
thoughtlessness or inadvertence, what is its essential nature? The
correct answer seems to be that a careless person is a person who does
not _care_. The essence of negligence is not inadvertence but
_indifference_. Indifference is exceedingly apt to produce
thoughtlessness or inadvertence; but it is not the same thing, and may
exist without it, as we have seen from the example already given. If I
am careless, that is to say indifferent, as to the results of my
conduct, I shall very probably fail to acquire adequate foresight and
consciousness of them; but I may, on the contrary, make a very accurate
estimate of them, and yet remain equally indifferent with respect to
them, and therefore equally negligent.
Negligence, therefore, essentially consists in the _mental attitude of
undue indifference with respect to one’s conduct and its
consequences_.[361]
This being so, the distinction between intention and negligence becomes
clear. The wilful wrongdoer desires the harmful consequences, and
therefore does the act in order that they may ensue. The negligent
wrongdoer is careless (if not wholly, yet unduly) whether they ensue or
not, and therefore does the act not withstanding the risk that they may
ensue. The wilful wrongdoer is liable because he desires to do the harm;
the negligent wrongdoer is liable because he does not sufficiently
desire to avoid it. He who will excuse himself on the ground that he
meant no evil is still open to the reply: Perhaps you did not, but at
all events you might have avoided it, if you had sufficiently desired so
to do; and you are held liable not because you desired the mischief, but
because you were careless and indifferent whether it ensued or not.
Negligence, as so defined, is rightly treated as a form of _mens rea_,
standing side by side with wrongful intention as a formal ground of
responsibility. For these are the two mental attitudes which alone
justify the discipline of penal justice. The law may rightly punish
wilful wrongdoing, because, since the wrongdoer desired the outcome of
his act, punishment will supply him for the future with a good reason
for desiring the opposite. So, also, the law may justly punish negligent
wrongdoing, for since the wrongdoer is careless as to the interests of
others, punishment will cure this defect by making those interests for
the future coincident with his own. In no other case than these two can
punishment be effective, and therefore in no other case is it
justifiable. So far as abstract theory is concerned, every man is exempt
from penal responsibility who can truly say: The harm which I have done
is not the outcome of any desire of mine to do it; neither does it
proceed from any carelessness or indifference as to my acts and the
results of them; I did not mean it, neither could I have avoided it by
care.
It follows from the foregoing analysis that negligence is of two kinds,
according as it is or is not accompanied by inadvertence. Advertent
negligence is commonly termed wilful negligence or recklessness.
Inadvertent negligence may be distinguished as simple. In the former the
harm done is foreseen as possible or probable, but it is not willed. In
the latter it is neither foreseen nor willed. In each case carelessness,
that is to say, indifference as to consequences, is present; but in the
former case this indifference does not, while in the latter it does
prevent these consequences from being foreseen. The physician who treats
a patient improperly through ignorance or forgetfulness is guilty of
simple or inadvertent negligence; but if he does the same in order to
save himself trouble, or by way of a scientific experiment, with full
recognition of the dangers so incurred, his negligence is wilful.[362]
This distinction is of little practical importance, but demands
recognition here, partly because of the false opinion that all
negligence is inadvertent, and partly because of the puzzling nature of
the expression wilful negligence. In view of the fundamental opposition
between intention and negligence, this expression looks at first sight
self-contradictory, but it is not so. He who does a dangerous act, well
knowing that he is exposing others to a serious risk of injury, and
thereby causes a fatal accident, is guilty of negligent, not of wilful
homicide. But the negligence is wilful, though the homicide is not. He
is not merely negligent, but consciously, wilfully, and intentionally
negligent; for he knows at the time the true nature of the act which he
is doing. It is intentional with respect to the fact that his mental
attitude towards the consequences is one of culpable indifference.
§ 141. =Objection Considered.=
By way of objection to the foregoing analysis it may be said: “It is not
true that in all cases negligence amounts to carelessness in the sense
of indifference. A drunken man is liable for negligence if he stumbles
as he walks along the street, and breaks a shop window, but he may have
been exceedingly anxious to walk in a straight line and to avoid any
such accident. He may have been conscientiously using his best
endeavours, but they will not serve to justify him on a charge of
negligence. So an unskilful physician may devote to the treatment and
cure of his patient an amount of anxious attention and strenuous
endeavour, far in excess of that which one more skilful would consider
necessary; yet if his treatment is wrong, he is guilty of negligence.”
The answer to this objection is that in these and all similar cases
carelessness in the sense of indifference is really present, though it
is remote instead of immediate. The drunken man may be anxious and
careful _now_ not to break other persons’ windows, but if he had been
sufficiently anxious and careful on the point some time ago, he would
have remained sober, and the accident would not have happened. So with
the unskilful physician. It is a settled principle of law that want of
skill or of professional competence amounts to negligence. _Imperitia
culpae adnumeratur._[363] He who will exercise any trade or profession
must bring to the exercise of it such a measure of skill and knowledge
as will suffice for reasonable efficiency, and he who has less than this
practises at his own risk. The ignorant physician who kills his patient,
or the unskilful blacksmith who lames the horse shod by him, is legally
responsible, not because he is ignorant or unskilful—for skill and
knowledge may be beyond his reach—but because, being unskilful or
ignorant, he ventures to undertake a business which calls for qualities
which he does not possess. No man is bound in law to be a good surgeon
or a capable attorney, but all men are bound not to act as surgeons or
attorneys until and unless they are good and capable as such.
The unskilful physician, therefore, is liable not because he is now
careless of the health of his patient, but because he was formerly
careless in undertaking work calling for greater skill than he
possessed. If he then knew that he had not the requisite skill, his
carelessness is obvious. Possibly, however, he believed himself to be
sufficiently qualified. In this case we must go one step further back in
the search for that mental attitude of indifference which is the
essential element in all cases of negligence. He was careless in forming
his beliefs; he formed them without that anxious consideration which the
law requires from those who form beliefs on which they act to the injury
of others. A man may be called upon by the law to answer to-day for the
carelessness with which he formed an opinion years ago.
§ 142. =The Standard of Care.=
Carelessness is not culpable, or a ground of legal liability, save in
those cases in which the law has imposed a duty of carefulness. In all
other cases complete indifference as to the interests of others is
allowable. No general principle can be laid down, however, with regard
to the existence of this duty, for this is a matter pertaining to the
details of the concrete legal system, and not to abstract theory.
Carelessness is lawful or unlawful, as the law sees fit to provide. In
the criminal law liability for negligence is quite exceptional. Speaking
generally, crimes are wilful wrongs, the alternative form of _mens rea_
being deemed an insufficient ground for the rigour of criminal justice.
This, however, is not invariably the case, negligent homicide, for
example, being a criminal offence. In the civil law, on the other hand,
no such distinction is commonly drawn between the two forms of _mens
rea_. In general we may say that whenever an act would be a civil wrong
if done intentionally, it is also a civil wrong if done negligently.
When there is a legal duty not to do a thing on purpose, there is
commonly a legal duty to take care not to do it accidentally. To this
rule, however, there are certain exceptions—instances in which wrongful
intent is the necessary basis even of civil liability. In these cases a
person is civilly responsible for doing harm wilfully, but is not bound
to take any care not to do it. He must not, for example, deceive another
by any wilful falsehood, but unless there is some special ground of
obligation in the case, he is not answerable for false statements which
he honestly believes to be true, however negligent he may be in making
them.[364] Other instances of the same sort are based upon the express
or implied agreement or understanding of the persons concerned. Thus the
gratuitous lender of a chattel is bound to disclose any dangerous
defects which he actually knows of, but is not bound to take any care
whatever to see that it is safe, or to discover and disclose defects of
which he is ignorant. For he who borrows a thing gratuitously agrees
impliedly to take it as it is, and to run all risks. But he who hires a
thing for money is entitled to the exercise of due care for his safety
on the part of the owner.[365]
Carelessness may exist in any degree, and in this respect it differs
from the other form of _mens rea_. Intention either exists or it does
not; there can be no question of the degree in which it is present. The
degree of carelessness varies directly with the risk to which other
persons are exposed by the act in question. He is careless, who, without
intending evil, nevertheless exposes others to the danger of it, and the
greater the danger the greater the carelessness. The risk depends, in
its turn, on two things: first, the magnitude of the threatened evil,
and second, the probability of it. The greater the evil is, and the
nearer it is, the greater is the indifference or carelessness of him who
creates the danger.
Inasmuch, therefore, as carelessness varies in degree, it is necessary
to know what degree of it is requisite to constitute culpable
negligence. What measure of care does the law demand? What amount of
anxious consideration for the interests of others is a legal duty, and
within what limits is indifference lawful?
We have first to notice a possible standard of care which the law might
have adopted but has not. It does not demand the highest degree of care
of which human nature is capable. I am not liable for harm ignorantly
done by me, merely because by some conceivable exercise of prudential
foresight I might have anticipated the event and so avoided it. Nor am I
liable because, knowing the possibility of harm, I fail to take every
possible precaution against it. The law demands not that which is
possible, but that which is reasonable in view of the magnitude of the
risk. Were men to act on any other principle than this, excess of
caution would paralyse the business of the world. The law, therefore,
allows every man to expose his fellows to a certain measure of risk, and
to do so even with full knowledge. If an explosion occurs in my powder
mill, I am not liable for negligence, even though I established and
carried on the industry with full knowledge of its dangerous character.
This is a degree of indifference to the safety of other men’s lives and
property which the law deems permissible because not excessive. Inasmuch
as the carrying of firearms and the driving of horses are known to be
the occasions of frequent harm, extreme care and the most scrupulous
anxiety as to the interests of others would prompt a man to abstain from
those dangerous forms of activity. Yet it is expedient in the public
interest that those activities should go on, and therefore that men
should be exposed to the incidental risks of them. Consequently the law
does not insist on any standard of care which would include them within
the limits of culpable negligence. It is for the law to draw the line as
best it can, so that while prohibiting unreasonable carelessness, it
does not at the same time demand unreasonable care.
What standard, then, does the law actually adopt? It demands the amount
of care which would be shown in the circumstances of the particular case
by an ordinarily careful man. It is content to adopt the standard which
is customary for the time being in the community. It is satisfied with
conduct which in point of carefulness conforms to the moral standard and
the ordinary practice of mankind. Less than this is not sufficient, and
more than this is not required. A jury in determining the question of
negligence will decide whether in their opinion the defendant acted with
reasonable care; and in so doing they represent and express the current
opinion and practice of the community as to the risks to which one man
is justified in exposing others, and as to the degree of consideration
for the welfare of others which the community exacts and commonly
receives from its members.
The standard thus adopted by the law is of necessity somewhat vague and
indeterminate. It is not practicable to any great extent to lay down any
more definite and detailed rules as to what classes of acts are
negligent and what are not. Too much depends upon the circumstances of
the individual case, and the standard of due care is too liable to alter
with the advance of knowledge and the changes of social life and
manners. Risks which were once deemed excessive may become permissible
in view of the increasing stress and hurry of modern life, and
conversely conduct which to-day is beyond reproach may in the future
become grossly negligent by reason of the growth of skill or knowledge.
Nevertheless, here as elsewhere, the law seeks for definite and specific
principles. It dislikes the licence of the _arbitrium judicis_. So far
as practicable and justifiable it desires to make negligence a matter
not of fact but of legal rule and definition. It seeks to supersede the
vague principle that that is negligence which a jury considers such, by
substituting for it a body of legal doctrine determining the boundaries
of negligence in specific instances. This, however, is possible only to
a very limited extent. It would seem, indeed, that all legal rules on
this matter are merely negative, determining what does not amount to
negligence, and never positive, determining that certain acts are
negligent in law. It has been decided as a matter of law, for example,
that it is not negligent to drive cattle through the streets of a town
loose instead of leading them with halters.[366] Nor is it negligent to
allow a dog to run at large, if the owner has no actual knowledge of its
vicious temper. Nor is it negligent to try a horse for the first time in
a frequented thoroughfare.[367] Nor is there any negligence in the usual
practice of railway servants in violently shutting the doors of railway
carriages without warning,[368] notwithstanding the risk of injury to
the hands of passengers.[369]
As has been already indicated, there seem to be no corresponding rules
to the effect that certain kinds of conduct are negligent in law. The
law never goes further in this direction than to say that certain facts
are sufficient _evidence_ of negligence, that is to say, are sufficient
to entitle the jury to find negligence as a matter of fact if they think
fit. The reason for this cautious attitude of the law is obvious. No
facts can be such cogent proof of negligence that the law may safely and
wisely take them as conclusive. For they may be capable of explanation
by other facts, and that which is apparently due to the most culpable
negligence may be due in reality to inevitable mistake or accident. Thus
the law does not contain any rule to the effect that driving on the
wrong side of the road amounts to negligence. The rule is merely that
such conduct is evidence of negligence.[370] Nor is the act of leaving a
horse and cart unattended in the street an act of negligence in law; it
is merely one from which a jury is at liberty to infer negligence in
fact.[371]
§ 143. =Degrees of Negligence.=
We have said that English law recognises only one standard of care and
therefore only one degree of negligence. Whenever a person is under a
duty to take any care at all, he is bound to take that amount of it
which is deemed reasonable under the circumstances, having regard to the
ordinary practice of mankind; and the absence of this care is culpable
negligence. Although this is probably a correct statement of English
law, attempts have been made to establish two or even three distinct
standards of care and degrees of negligence. Some authorities, for
example, distinguish between gross negligence (_culpa lata_) and slight
negligence (_culpa levis_), holding that a person is sometimes liable
for the former only, and at other times even for the latter. In some
cases we find even a threefold distinction maintained, negligence being
either gross, ordinary, or slight.[372] These distinctions are based
partly upon Roman law, and partly upon a misunderstanding of it, and
notwithstanding some judicial dicta to the contrary we may say with some
confidence that no such doctrine is known to the law of England.[373]
These distinctions so drawn are hopelessly indeterminate and
impracticable. On what principle are we to draw the line between gross
negligence and slight? How can we thus elevate a distinction of degree
into one of kind? Even were it possible to establish two or more
standards, there seems no reason of justice or expediency for doing so.
The single standard of English law is sufficient for all cases. Why
should any man be required to show more care than is reasonable under
the circumstances, or excused if he shows less?
In connection with this alleged distinction between gross and slight
negligence it is necessary to consider the celebrated doctrine of Roman
law to the effect that the former (_culpa lata_) is equivalent to
wrongful intention (_dolus_)—a principle which receives occasional
expression and recognition in English law also. _Magna culpa dolus
est_,[374] said the Romans. In its literal interpretation, indeed, this
is untrue, for we have already seen that the two forms of _mens rea_ are
wholly inconsistent with each other, and that no degree of carelessness
can amount to design or purpose. Yet the proposition, though
inaccurately expressed, has a true signification. Although _real_
negligence, however gross, cannot amount to intention, _alleged_
negligence may. Alleged negligence which, if real, would be exceedingly
gross, is probably not negligence at all, but wrongful purpose. Its
grossness raises a presumption against its reality. For we have seen
that carelessness is measured by the magnitude and imminence of the
threatened mischief. Now the greater and more imminent the mischief, the
more probable is it that it is intended. Genuine indifference and
carelessness is very unusual and unlikely in extreme cases. Men are
often enough indifferent as to remote or unimportant dangers to which
they expose others, but serious risks are commonly avoided by care
unless the mischief is desired and intended. The probability of a result
tends to prove intention and therefore to disprove negligence. If a
new-born child is left to die from want of medical attention or nursing,
it _may_ be that its death is due to negligence only, but it is more
probable that it is due to wrongful purpose and malice aforethought. He
who strikes another on the head with an iron bar _may_ have meant only
to wound or stun, and not to kill him, but the probabilities are the
other way. Every man is presumed to intend the natural and probable
consequences of his acts,[375] and the more natural and probable the
consequences, the greater the strength of the presumption.[376]
In certain cases this presumption of intent has hardened into a positive
rule of law, and has become irrebuttable. In those cases that which is
negligence in fact may be deemed wrongful intent in law. It is
constructive, though not actual intent. The law of homicide supplies us
with an illustration. Murder is wilful homicide, and manslaughter is
negligent homicide, but the boundary line as drawn by the law is not
fully coincident with that which exists in fact. Much that is merely
negligent in fact is treated as wilful homicide in law. An intent to
cause grievous bodily harm is imputed as an intent to kill, if death
ensues, and an act done with knowledge that it will probably cause death
is in law an act done with intent to cause it.[377] The justification of
such conclusive presumptions of intent is twofold. In the first place,
as already indicated, very gross negligence is probably in truth not
negligence at all, but wrongful purpose; and in the second place, even
if it is truly negligence, yet by reason of its grossness it is as bad
as intent, in point of moral deserts, and therefore may justly be
treated and punished as if it were intent. The law, accordingly, will
sometimes say to a defendant: “Perhaps, as you allege, you were merely
negligent, and had no actual wrongful purpose; nevertheless you will be
dealt with just as if you had, and it will be conclusively presumed
against you that your act was wilful. For your deserts are no better
than if you had in truth intended the mischief which you have so
recklessly caused. Moreover it is exceedingly probable, notwithstanding
your disclaimer, that you did indeed intend it; therefore no endeavour
will be made on your behalf to discover whether you did or not.”
§ 144. =Other Theories of Negligence.=
The analysis of the conception of negligence is a matter of some
considerable difficulty, and it is advisable to take account of certain
theories which differ more or less seriously from that which has been
here accepted by us.
It is held by some, that negligence consists essentially in
inadvertence. It consists, that is to say, in a failure to be alert,
circumspect, or vigilant, whereby the true nature, circumstances, and
consequences of a man’s acts are prevented from being present in his
consciousness. The wilful wrongdoer is lie who knows that his act is
wrong; the negligent wrongdoer is he who does not know it, but would
have known it, were it not for his mental indolence.[378]
This explanation contains an important element of the truth, but it is
inadequate. For in the first place, as has been already pointed out, all
negligence is not inadvertent. There is such a thing as wilful or
advertent negligence, in which the wrongdoer knows perfectly well the
true nature, circumstances, and probable consequences of his act. He
foresees those consequences, and yet does not intend them, and therefore
cannot be charged with wilful wrongdoing in respect of them. His mental
attitude with regard to them is not intention, but a genuine form of
negligence, of which the theory of inadvertence can give no explanation.
In the second place, all inadvertence is not negligence. A failure to
appreciate the nature of one’s act, and to foresee its consequences, is
not in itself culpable. It is no ground of responsibility, unless it is
due to carelessness in the sense of undue indifference. He who is
ignorant or forgetful, notwithstanding a genuine desire to attain
knowledge or remembrance, is not negligent. The signalman who sleeps at
his post is negligent, not because he falls asleep, but because he is
not sufficiently anxious to remain awake. If his sleep is the
unavoidable result of illness or excessive labour, he is free from
blame. The essence of negligence, therefore, is not inadvertence—which
may or may not be due to carelessness—but carelessness—which may or may
not result in inadvertence.
It may be suggested in defence of the theory of inadvertence that there
are in reality three forms of the _mens rea_, and not two only: namely,
(1) intention, when the consequences are foreseen and intended, (2)
recklessness, when they are foreseen but not intended, and (3)
negligence, when they are neither foreseen nor intended. The law,
however, rightly classes the second and third of these together under
the head of negligence, for they are identical in their essential
nature, each of them being blameworthy only so far as it is the outcome
of carelessness.
We have now to consider another explanation which may be termed the
objective theory of negligence. It is held by some that negligence is
not a subjective, but an objective fact. It is not a particular state of
mind or form of the _mens rea_ at all, but a particular kind of conduct.
It is a breach of the duty of taking care, and to take care means to
take precautions against the harmful results of one’s actions, and to
refrain from unreasonably dangerous kinds of conduct.[379] To drive at
night without lights is negligence, because to carry lights is a
precaution taken by all reasonable and prudent men for the avoidance of
accidents. To take care, therefore, is no more a mental attitude or
state of mind than to take cold is. This, however, is not a correct
analysis. Carelessness may _result_ in a failure to take necessary
precautions, or to refrain from dangerous activities, but it is not the
same thing, just as it may result in inadvertence but is not the same
thing. The neglect of needful precautions or the doing of unreasonably
dangerous acts is not necessarily wrongful at all, for it may be due to
inevitable mistake or accident. And on the other hand, even when it is
wrongful, it may be wilful instead of negligent. A trap door may be left
unbolted, in order that one’s enemy may fall through it and so die.
Poison may be left unlabelled, with intent that some one may drink it by
mistake. A ship captain may wilfully cast away his ship by the neglect
of the ordinary rules of good seamanship. A father who neglects to
provide medicine for his sick child may be guilty of wilful murder,
rather than of mere negligence. In none of these cases, nor indeed in
any others, can we distinguish between intentional and negligent
wrongdoing, save by looking into the mind of the offender, and observing
his subjective attitude towards his act and its consequences. Externally
and objectively, the two classes of offences are indistinguishable.
Negligence is the opposite of wrongful intention, and since the latter
is a subjective fact the former must be such also.
SUMMARY.
The nature of Intention:
Foresight accompanied by desire.
Intention distinguished from expectation.
Intended consequences not always expected.
Expected consequences not always intended.
Intention extends to the means and necessary concomitants as well as
to the end.
Intention │Immediate.
│Ulterior—Motive.
Malice—wrongful intention.
Ambiguity of the term malice, which relates either to the immediate
or remote intention.
Concurrent motives.
The irrelevance of motives in law.
Exceptions to this principle.
The theory of criminal attempts.
The four stages of a completed crime: Intention, preparation,
attempt, completion.
Distinction between preparation and attempt.
Attempts by impossible means.
The jus necessitatis.
Its theory.
Its partial allowance in practice.
The nature of Negligence.
Subjective and objective uses of the term.
Negligence and intention opposed and inconsistent.
Negligence not necessarily inadvertence.
Negligence essentially indifference.
Negligence and intention the two alternative grounds of penal
liability.
Negligence│Wilful or inadvertent.
│Simple or inadvertent.
Negligence immediate and remote.
Negligence and want of skill.
The duty of carefulness:
The necessary basis of liability for negligence.
When it exists in the criminal and civil law.
The standard of care:
Not the highest possible.
That of the ordinarily careful man.
Negligence in law and in fact.
Degree’s of negligence.
Distinction between gross and slight negligence not recognised by
English law.
Culpa lata dolus est.
Significance of this proposition.
Negligence and constructive intent.
Criticism of other theories of negligence:
(1) That negligence is inadvertence.
(2) The objective theory.
CHAPTER XIX.
LIABILITY (CONTINUED).
§ 145. =Wrongs of Absolute Liability.=
We now proceed to consider the third class of wrongs, namely those of
absolute liability. These are the acts for which a man is responsible
irrespective of the existence of either wrongful intent or negligence.
They are the exceptions to the rule, _Actus non facit reum nisi mens sit
rea_. It may be thought, indeed, that in the civil as opposed to the
criminal law, absolute liability should be the rule rather than the
exception. It may be said: “It is clear that in the criminal law
liability should in all ordinary cases be based upon the existence of
_mens rea_. No man should be punished criminally unless he knew that he
was doing wrong, or might have known it by taking care. Inevitable
mistake or accident should be a good defence for him. But why should the
same principle apply to civil liability? If I do another man harm, why
should I not be made to pay for it? What does it matter to him whether I
did it wilfully, or negligently, or by inevitable accident? In either
case I have actually done the harm, and therefore should be bound to
_undo_ it by paying compensation. For the essential aim of civil
proceedings is redress for harm suffered by the plaintiff, not
punishment for wrong done by the defendant; therefore the rule of _mens
rea_ should be deemed inapplicable.”
It is clear, however, that this is not the law of England, and it seems
equally clear that there is no sufficient reason why it should be. In
all those judicial proceedings which fall under the head of penal
redress, the determining purpose of the law is not redress, but
punishment. Redress is in those cases merely the instrument of
punishment. In itself it is not a sufficient ground or justification for
such proceedings at all. Unless damages are at the same time a deserved
penalty inflicted upon the defendant, they are not to be justified as
being a deserved recompense awarded to the plaintiff. For they in no way
undo the wrong or restore the former state of things. The wrong is done
and cannot be undone. If by accident I burn down another man’s house,
the only result of enforcing compensation is that the loss has been
transferred from him to me; but it remains as great as ever for all
that. The mischief done has been in no degree abated. If I am not in
fault, there is no more reason why I should insure other persons against
the harmful issues of my own activity, than why I should insure them
against lightning or earthquakes. Unless some definite gain is to be
derived by transferring loss from one head to another, sound reason, as
well as the law, requires that the loss should lie where it falls.[380]
Although the requirement of _mens rea_ is general throughout the civil
and criminal law, there are numerous exceptions to it. The
considerations on which these are based are various, but the most
important is the difficulty of procuring adequate proof of intention or
negligence. In the majority of instances, indeed, justice requires that
this difficulty be honestly faced; but in certain special cases it is
allowable to circumvent it by means of a conclusive presumption of the
presence of this condition of liability. In this way we shall certainly
punish some who are innocent, but in the case of civil liability this is
not a very serious matter—since men know that in such cases they act at
their peril, and are content to take the risk—while in respect of
criminal liability such a presumption is seldom resorted to, and only in
the case of comparatively trivial offences.[381] Whenever, therefore,
the strict doctrine of _mens rea_ would too seriously interfere with the
administration of justice by reason of the evidential difficulties
involved in it, the law tends to establish a form of absolute liability.
In proceeding to consider the chief instances of this kind of liability
we find that the matter falls into three divisions, namely—(1) Mistake
of Law, (2) Mistake of Fact, and (3) Accident.
§ 146. =Mistake of Law.=
It is a principle recognised not only by our own but by other legal
systems that ignorance of the law is no excuse for breaking it.
_Ignorantia juris neminem excusat._ The rule is also expressed in the
form of a legal presumption that every one knows the law. The rule is
absolute, and the presumption irrebuttable. No diligence of inquiry will
avail against it; no inevitable ignorance or error will serve for
justification. Whenever a man is thus held accountable for breaking a
law which he did not know, and which he could not by due care have
acquired a knowledge of, the case is one of absolute liability.
The reasons rendered for this somewhat rigorous principle are three in
number. In the first place the law is in legal theory definite and
knowable; it is the duty of every man to know that part of it which
concerns him; therefore innocent and inevitable ignorance of the law is
impossible. Men are conclusively presumed to know the law, and are dealt
with as if they did know it, because they can and ought to know it.
In the second place, even if invincible ignorance of the law is in fact
possible, the evidential difficulties in the way of the judicial
recognition of such ignorance are insuperable, and for the sake of any
benefit derivable therefrom it is not advisable to weaken the
administration of justice by making liability dependent on well-nigh
inscrutable conditions touching knowledge or means of knowledge of the
law. Who can say of any man whether he knew the law, or whether during
the course of his past life he had an opportunity of acquiring a
knowledge of it by the exercise of due diligence?
Thirdly and lastly, the law is in most instances derived from and in
harmony with the rules of natural justice. It is a public declaration by
the state of its intention to maintain by force those principles of
right and wrong which have already a secure place in the moral
consciousness of men. The common law is in great part nothing more than
common honesty and common sense. Therefore although a man may be
ignorant that he is breaking the law, he knows very well in most cases
that he is breaking the rule of right. If not to his knowledge lawless,
he is at least dishonest and unjust. He has little ground of complaint,
therefore, if the law refuses to recognise his ignorance as an excuse,
and deals with him according to his moral deserts. He who goes about to
harm others when he believes that he can do so within the limits of the
law, may justly be required by the law to know those limits at his
peril. This is not a form of activity that need be encouraged by any
scrupulous insistence on the formal conditions of legal responsibility.
It must be admitted, however, that while each of these considerations is
valid and weighty, they do not constitute an altogether sufficient basis
for so stringent and severe a rule.[382] None of them goes the full
length of the rule. That the law is knowable throughout by all whom it
concerns is an ideal rather than a fact in any system as indefinite and
mutable as our own. That it is impossible to distinguish invincible from
negligent ignorance of the law is by no means wholly true. It may be
doubted whether this inquiry is materially more difficult than many
which courts of justice undertake without hesitation. That he who breaks
the law of the land disregards at the same time the principles of
justice and honesty is in many instances far from the truth. In a
complex legal system a man requires other guidance than that of common
sense and a good conscience. The fact seems to be that the rule in
question, while in general sound, does not in its full extent and
uncompromising rigidity admit of any sufficient justification.
§ 147. =Mistake of Fact.=
In respect of the influence of ignorance or error upon legal liability
we have inherited from Roman law a familiar distinction between law and
fact. By reason of his ignorance of the law no man will be excused, but
it is commonly said that inevitable ignorance of fact is a good
defence.[383] This, however, is far from an accurate statement of
English law. It is much more nearly correct to say that mistake of fact
is an excuse only within the sphere of the criminal law, while in the
civil law responsibility is commonly absolute in this respect. So far as
civil liability is concerned, it is a general principle of our law that
he who intentionally interferes with the person, property, reputation,
or other rightful interests of another does so at his peril, and will
not be heard to allege that he believed in good faith and on reasonable
grounds in the existence of some circumstance which justified his act.
If I trespass upon another man’s land, it is no defence to me that I
believed it on good grounds to be my own. If in absolute innocence and
under an inevitable mistake of fact I meddle with another’s goods, I am
liable for all loss incurred by the true owner.[384] If, intending to
arrest A., I arrest B. by mistake instead, I am absolutely liable to him
notwithstanding the greatest care taken by me to ascertain his identity.
If I falsely but innocently make a defamatory statement about another, I
am liable to him however careful I may have been to ascertain the truth.
There are, indeed, exceptions to this rule of absolute civil liability
for mistake of fact, but they are not of such number or importance as to
cast any doubt on the validity of the general principle.
In the criminal law, on the other hand, the matter is otherwise, and it
is here that the contrast between mistake of law and mistake of fact
finds its true application. Absolute criminal responsibility for a
mistake of fact is quite exceptional. An instance of it is the liability
of him who abducts a girl under the legal age of consent. Inevitable
mistake as to her age is no defence; he must take the risk.[385]
A word may be said as to the historical origin of this failure of
English law to recognise inevitable mistake as a ground of exemption
from civil liability. Ancient modes of procedure and proof were not
adapted for inquiries into mental conditions. By the practical
difficulties of proof early law was driven to attach exclusive
importance to overt acts. The subjective elements of wrongdoing were
largely beyond proof or knowledge, and were therefore disregarded as
far as possible. It was a rule of our law that intent and knowledge
were not matters that could be proved or put in issue. “It is common
learning,” said one of the judges of King Edward IV., “that the intent
of a man will not be tried, for the devil himself knoweth not the
intent of a man.”[386] The sole question which the courts would
entertain was whether the defendant did the act complained of. Whether
he did it ignorantly or with guilty knowledge was entirely immaterial.
This rule, however, was restricted to civil liability. It was early
recognised that criminal responsibility was too serious a thing to be
imposed upon an innocent man simply for the sake of avoiding a
difficult inquiry into his knowledge and intention. In the case of
civil liability, on the other hand, the rule was general. The success
with which it has maintained itself in modern law is due in part to
its undeniable utility in obviating inconvenient or even impracticable
inquiries, and in part to the influence of the conception of redress
in minimising the importance of the formal condition of penal
liability.
§ 148. =Accident.=
Unlike mistake, inevitable accident is commonly recognised by our law as
a ground of exemption from liability. It is needful, therefore, to
distinguish accurately between these two things, for they are near of
kin. Every act which is not done intentionally is done either
accidentally or by mistake. It is done accidentally, when it is
unintentional in respect of its _consequences_. It is done by mistake,
when it is intentional in respect of its consequences, but unintentional
in respect of some material _circumstance_. If I drive over a man in the
dark because I do not know that he is in the road, I injure him
accidentally; but if I procure his arrest, because I mistake him for
some one who is liable to arrest, I injure him not accidentally but by
mistake. In the former case I did not intend the harm at all, while in
the latter case I fully intended it, but falsely believed in the
existence of a circumstance which would have served to justify it. So if
by insufficient care I allow my cattle to escape into my neighbour’s
field, their presence there is due to accident; but if I put them there
because I wrongly believe that the field is mine, their presence is due
to mistake. In neither case did I intend to wrong my neighbour, but in
the one case my intention failed as to the consequence, and in the other
as to the circumstance.
Accident, like mistake, is either culpable or inevitable. It is culpable
when due to negligence, but inevitable when the avoidance of it would
have required a degree of care exceeding the standard demanded by the
law. Culpable accident is no defence, save in those exceptional cases in
which wrongful intent is the exclusive and necessary ground of
liability. Inevitable accident is commonly a good defence, both in the
civil and in the criminal law.
To this rule, however, there are, at least in the civil law, important
exceptions. These are cases in which the law insists that a man shall
act at his peril, and shall take his chance of accidents happening. If
he desires to keep wild beasts,[387] or to light fires,[388] or to
construct a reservoir of water,[389] or to accumulate upon his land any
substance which will do damage to his neighbours if it escapes,[390] or
to erect dangerous structures by which passengers in the highway may
come to harm,[390] he will do all these things _suo periculo_ (though
none of them are _per se_ wrongful) and will answer for all ensuing
damage notwithstanding consummate care.
There is one case of absolute liability for accident which deserves
special notice by reason of its historical origin. Every man is
absolutely responsible for the trespasses of his cattle. If my horse or
my ox escapes from my land to that of another man, I am answerable for
it without any proof of negligence.[391] Such a rule may probably be
justified as based on a reasonable presumption of law that all such
trespasses are the outcome of negligent keeping. Viewed historically,
however, the rule is worth notice as one of the last relics of the
ancient principle that a man is answerable for all damage done by his
property. In the theory of ancient law I am liable for the trespasses of
my cattle, not because of my negligent keeping of them, but because of
my ownership of them. For the same reason in Roman law a master was
liable for the offences of his slaves. The case is really, in its
historical origin, one of vicarious liability. In early law and custom
vengeance, and its products responsibility and punishment, were not
conceived as necessarily limited to human beings, but were in certain
cases extended to dumb animals and even inanimate objects. We have
already cited in another connection the provision of the Mosaic law that
“If an ox gore a man or a woman that they die, then the ox shall be
surely stoned and his flesh shall not be eaten.”[392] In the _Laws_ of
Plato it is said:[393] “If a beast of burden or other animal cause the
death of any one ... the kinsman of the deceased shall prosecute the
slayer for murder, and the wardens of the country ... shall try the
cause; and let the beast when condemned be slain by them, and cast
beyond the borders.” So in the Laws of King Alfred:[394] “If at their
common work,” (of wood cutting) “one man slay another unwilfully, let
the tree be given to the kindred.” And by English law until the year
1846 the weapon or other thing which “moved to the death of a man” was
forfeited to the King as guilty and accursed.[395] Here we have the
ground of a rule of absolute liability. If a man’s cattle or his slaves
do damage, they are thereby exposed to the vengeance of the injured
person. But to take destructive vengeance upon _them_ is to impose a
penalty upon their _owner_. The liability thence resulting probably
passed through three stages: first, that of unconditional forfeiture or
surrender of the property to the vengeance of the injured person;
secondly, that of an option given to the owner between forfeiture and
redemption—the _actiones noxales_ of Roman law;[396] and thirdly, that
of compulsory redemption, or in other words, unconditional compensation.
§ 149. =Vicarious Responsibility.=
Hitherto we have dealt exclusively with the conditions of liability, and
it is needful now to consider its incidence. Normally and naturally the
person who is liable for a wrong is he who does it. Yet both ancient and
modern law admit instances of vicarious liability in which one man is
made answerable for the acts of another. Criminal responsibility,
indeed, is never vicarious at the present day, except in very special
circumstances and in certain of its less serious forms.[397] In more
primitive systems, however, the impulse to extend vicariously the
incidence of liability receives free scope in a manner altogether alien
to modern notions of justice. It is in barbarous times considered a very
natural thing to make every man answerable for those who are of kin to
him. In the Mosaic legislation it is deemed necessary to lay down the
express rule that “The fathers shall not be put to death for the
children; neither shall the children be put to death for the fathers;
every man shall be put to death for his own sin.”[398] Plato in his
_Laws_ does not deem it needless to emphasise the same principle.[399]
Furthermore, so long as punishment is conceived rather as expiative,
retributive, and vindictive, than as deterrent and reformative, there
seems no reason why the incidence of liability should not be determined
by _consent_, and therefore why a guilty man should not provide a
substitute to bear his penalty and to provide the needful satisfaction
to the law. Guilt must be wiped out by punishment, but there is no
reason why the victim should be one person rather than another. Such
modes of thought have long since ceased to pervert the law; but that
they were at one time natural is rendered sufficiently evident by their
survival in popular theology.
Modern civil law recognises vicarious liability in two chief classes of
cases. In the first place, masters are responsible for the acts of their
servants done in the course of their employment. In the second place,
representatives of dead men are liable for deeds done in the flesh by
those whom they represent. We shall briefly consider each of these two
forms.
It has been sometimes said that the responsibility of a master for his
servant has its historical source in the responsibility of an owner for
his slave. This, however, is certainly not the case. The English
doctrine of employer’s liability is of comparatively recent growth. It
has its origin in the legal presumption, gradually become conclusive,
that all acts done by a servant in and about his master’s business are
done by his master’s express or implied authority, and are therefore in
truth the acts of the master for which he may be justly held
responsible.[400] No employer will be allowed to say that he did not
authorise the act complained of, or even that it was done against his
express injunctions, for he is liable none the less. This conclusive
presumption of authority has now, after the manner of such presumptions,
disappeared from the law, after having permanently modified it by
establishing the principle of employer’s liability. Historically, as we
have said, this is a fictitious extension of the principle, _Qui facit
per alium facit per se_. Formally, it has been reduced to the laconic
maxim, _Respondeat superior_.
The rational basis of this form of vicarious liability is in the first
place evidential. There are such immense difficulties in the way of
proving actual authority, that it is necessary to establish a conclusive
presumption of it. A word, a gesture, or a tone may be a sufficient
indication from a master to his servant that some lapse from the legal
standard of care or honesty will be deemed acceptable service. Yet who
could prove such a measure of complicity? Who could establish liability
in such a case, were evidence of authority required, or evidence of the
want of it admitted?
A further reason for the vicarious responsibility of employers is that
employers usually are, while their servants usually are not, financially
capable of the burden of civil liability. It is felt, probably with
justice, that a man who is able to make compensation for the hurtful
results of his activities should not be enabled to escape from the duty
of doing so by delegating the exercise of these activities to servants
or agents from whom no redress can be obtained. Such delegation confers
upon impecunious persons means and opportunities of mischief which would
otherwise be confined to those who are financially competent. It
disturbs the correspondence which would otherwise exist between the
capacity of doing harm and the capacity of paying for it. It is
requisite for the efficacy of civil justice that this delegation of
powers and functions should be permitted only on the condition that he
who delegates them shall remain answerable for the acts of his servants,
as he would be for his own.
A second form of vicarious responsibility is that of living
representatives for the acts of dead men. There is no doubt that
criminal responsibility must die with the wrongdoer himself, but with
respect to penal redress the question is not free from difficulty. For
in this form of liability there is a conflict between the requirements
of the two competing principles of punishment and compensation. The
former demands the termination of liability with the life of the
wrongdoer, while the latter demands its survival. In this dispute the
older common law approved the first of those alternatives. The received
maxim was: _Actio personalis moritur cum persona_. A man cannot be
punished in his grave; therefore it was held that all actions for penal
redress, being in their true nature instruments of punishment, must be
brought against the living offender and must die with him. Modern
opinion rejects this conclusion, and by various statutory provisions the
old rule has been in great part abrogated. It is considered that
although liability to afford redress ought to depend in point of
_origin_ upon the requirements of punishment, it should depend in point
of _continuance_ upon those of compensation. For when this form of
liability has once come into existence, it is a valuable right of the
person wronged; and it is expedient that such rights should be held upon
a secure tenure, and should not be subject to extinction by a mere
irrelevant accident such as the death of the offender. There is no
sufficient reason for drawing any distinction in point of survival
between the right of a creditor to recover his debt and the right of a
man who has been injured by assault or defamation to recover
compensation for the loss so suffered by him.
As a further argument in the same sense, it is to be observed that it is
not strictly true that a man cannot be punished after his death.
Punishment is effective not at the time it is inflicted, but at the time
it is threatened. A threat of evil to be inflicted upon a man’s
descendants at the expense of his estate will undoubtedly exercise a
certain deterrent influence upon him; and the apparent injustice of so
punishing his descendants for the offences of their predecessor is in
most cases no more than apparent. The right of succession is merely the
right to acquire the dead man’s estate, subject to all charges which, on
any grounds, and apart altogether from the interests of the successors
themselves, may justly be imposed upon it.
There is a second application of the maxim, _Actio personalis moritur
cum persona_, which seems equally destitute of justification.
According to the common law an action for penal redress died not
merely with the wrongdoer but also with the person wronged. This rule
has been abrogated by statute in part only. There can, however, be
little doubt that in all ordinary cases, if it is right to punish a
person at all, his liability should not cease simply by reason of the
death of him against whom his offence was committed. The right of the
person injured to receive redress should descend to his
representatives like any other proprietary interest.
§ 150. =The Measure of Criminal Liability.=
We have now considered the conditions and the incidence of penal
liability. It remains to deal with the measure of it, and here we must
distinguish between criminal and civil wrongs, for the principles
involved are fundamentally different in the two cases.
In considering the measure of criminal liability it will be convenient
to bestow exclusive attention upon the deterrent purpose of the criminal
law, remembering, however, that the conclusions so obtained are subject
to possible modification by reference to those subordinate and
incidental purposes of punishment which we thus provisionally disregard.
Were men perfectly rational, so as to act invariably in accordance with
an enlightened estimate of consequences, the question of the measure of
punishment would present no difficulty. A draconian simplicity and
severity would be perfectly just and perfectly effective. It would be
possible to act on the Stoic paradox that all offences involve equal
guilt, and to visit with the utmost rigour of the law every deviation,
however slight, from the appointed way. In other words, if the deterrent
effect of severity were certain and complete, the best law would be that
which by the most extreme and undiscriminating severity effectually
extinguished crime. Were human nature so constituted that a threat of
burning all offenders alive would with certainty prevent all breaches of
the law, then this would be the just and fitting penalty for all
offences from high treason to petty larceny. So greatly, however, are
men moved by the impulse of the moment, rather than by a rational
estimate of future good and evil, and so ready are they to face any
future evil which falls short of the inevitable, that the utmost rigour
is sufficient only for the diminution of crime, not for the extinction
of it. It is needful, therefore, in judging the merits of the law, to
subtract from the sum of good which results from the partial prevention
of offences, the sum of evil which results from the partial failure of
prevention and the consequent necessity of fulfilling those threats of
evil by which the law had hoped to effect its purpose. The perfect law
is that in which the difference between the good and the evil is at a
maximum in favour of the good, and the rules as to the measure of
criminal liability are the rules for the attainment of this maximum. It
is obvious that it is not attainable by an indefinite increase of
severity. To substitute hanging for imprisonment as the punishment for
petty theft would doubtless diminish the frequency of this offence, but
it is certain that the evil so prevented would be far outweighed by that
which the law would be called on to inflict in the cases in which its
threats proved unavailing.
In every crime there are three elements to be taken into account in
determining the appropriate measure of punishment. These are (1) the
motives to the commission of the offence, (2) the magnitude of the
offence, and (3) the character of the offender.
1. _The motive of the offence._ Other things being equal, the greater
the temptation to commit a crime the greater should be the punishment.
This is an obvious deduction from the first principles of criminal
liability. The object of punishment is to counteract by the
establishment of contrary and artificial motives the natural motives
which lead to crime. The stronger these natural motives the stronger
must be the counteractives which the law supplies. If the profit to be
derived from an act is great, or the passions which lead men to it are
violent, a corresponding strength or violence is an essential condition
of the efficacy of repressive discipline. We shall see later, however,
that this principle is subject to a very important limitation, and that
there are many cases in which extreme temptation is a ground of
extenuation rather than of increased severity of punishment.
2. _The magnitude of the offence._ Other things being equal, the greater
the offence, that is to say the greater the sum of its evil consequences
or tendencies, the greater should be its punishment. At first sight,
indeed, it would seem that this consideration is irrelevant. Punishment,
it may be thought, should be measured solely by the profit derived by
the offender, not by the evils caused to other persons; if two crimes
are equal in point of motive, they should be equal in point of
punishment, notwithstanding the fact that one of them maybe many times
more mischievous than the other. This, however, is not so, and the
reason is twofold.
(_a_) The greater the mischief of any offence the greater is the
punishment which it is profitable to inflict with the hope of preventing
it. For the greater this mischief the less is the proportion which the
evil of punishment bears to the good of prevention, and therefore the
greater is the punishment which can be inflicted before the balance of
good over evil attains its maximum. Assuming the motives of larceny and
of homicide to be equal, it may be profitable to inflict capital
punishment for the latter offence, although it is certainly unprofitable
to inflict it for the former. The increased measure of prevention that
would be obtained by such severity would, in view of the comparatively
trivial nature of the offence, be obtained at too great a cost.
(_b_) A second and subordinate reason for making punishment vary with
the magnitude of the offence is that, in those cases in which different
offences offer themselves as alternatives to the offender, an inducement
is thereby given for the preference of the least serious. If the
punishment of burglary is the same as that of murder, the burglar has
obvious motives for not stopping at the lesser crime. If an attempt is
punished as severely as a completed offence, why should any man repent
of his half-executed purposes?
3. _The character of the offender._ The worse the character or
disposition of the offender the more severe should be his punishment.
Badness of disposition is constituted either by the strength of the
impulses to crime, or by the weakness of the impulses towards
law-abiding conduct. One man may be worse than another because of the
greater strength and prevalence within him of such anti-social passions
as anger, covetousness, or malice; or his badness may lie in a
deficiency of those social impulses and instincts which are the springs
of right conduct in normally constituted men. In respect of all the
graver forms of law-breaking, for one man who abstains from them for
fear of the law there are thousands who abstain by reason of quite other
influences. Their sympathetic instincts, their natural affections, their
religious beliefs, their love of the approbation of others, their pride
and self-respect, render superfluous the threatenings of the law. In the
degree in which these impulses are dominant and operative, the
disposition of a man is good; in the degree in which they are wanting or
inefficient, it is bad.
In both its kinds badness of disposition is a ground for severity of
punishment. If a man’s emotional constitution is such that normal
temptation acts upon him with abnormal force, it is for the law to
supply in double measure the counteractive of penal discipline. If he is
so made that the natural influences towards well-doing fall below the
level of average humanity, the law must supplement them by artificial
influences of a strength that is needless in ordinary cases.
Any fact, therefore, which indicates depravity of disposition is a
circumstance of aggravation, and calls for a penalty in excess of that
which would otherwise be appropriate to the offence. One of the most
important of these facts is the repetition of crime by one who has been
already punished. The law rightly imposes upon habitual offenders
penalties which bear no relation either to the magnitude or to the
profit of the offence. A punishment adapted for normal men is not
appropriate for those who, by their repeated defiance of it, prove their
possession of abnormal natures. A second case in which the same
principle is applicable is that in which the mischief of an offence is
altogether disproportionate to any profit to be derived from it by the
offender. To kill a man from mere wantonness, or merely in order to
facilitate the picking of his pocket, is a proof of extraordinary
depravity beyond anything that is imputable to him who commits homicide
only through the stress of passionate indignation or under the influence
of great temptation. A third case is that of offences from which normal
humanity is adequately dissuaded by such influences as those of natural
affection. To kill one’s father is in point of magnitude no worse a
crime than any other homicide, but it has at all times been viewed with
greater abhorrence, and by some laws punished with greater severity, by
reason of the depth of depravity which it indicates in the offender.
Lastly it is on the same principle that wilful offences are punished
with greater rigour than those which are due merely to negligence.
An additional and subordinate reason for making the measure of liability
depend upon the character of the offender is that badness of disposition
is commonly accompanied by deficiency of sensibility. Punishment must
increase as sensibility diminishes. The more depraved the offender the
less he feels the shame of punishment; therefore the more he must be
made to feel the pain of it. A certain degree of even physical
insensibility is said to characterise the more degraded orders of
criminals; and the indifference with which death itself is faced by
those who in the callousness of their hearts have not scrupled to
inflict it upon others is a matter of amazement to normally constituted
men.
We are now in a position to deal with a question which we have already
touched upon but deferred for fuller consideration, namely the apparent
paradox involved in the rule that punishment must increase with the
temptation to the offence. As a general rule this proposition is true;
but it is subject to a very important qualification. For in certain
cases the temptation to which a man succumbs may be of such a nature as
to rebut that presumption of a bad disposition which would in ordinary
circumstances arise from the commission of the offence. He may, for
example, be driven to the act not by the strength of any bad or
self-regarding motives, but by that of his social or sympathetic
impulses. In such a case the greatness of the temptation, considered in
itself, demands severity of punishment, but when considered as a
disproof of the degraded disposition which usually accompanies
wrongdoing it demands leniency; and the latter of these two conflicting
considerations may be of sufficient importance to outweigh the other. If
a man remains honest until he is driven in despair to steal food for his
starving children, it is perfectly consistent with the deterrent theory
of punishment to deal with him less severely than with him who steals
from no other motive than cupidity. He who commits homicide from motives
of petty gain, or to attain some trivial purpose, deserves to be treated
with the utmost severity, as a man thoroughly callous and depraved. But
he who kills another in retaliation for some intolerable insult or
injury need not be dealt with according to the measure of his
temptations, but should rather be excused on account of them.
§ 151. =The Measure of Civil Liability.=
Penal redress is that form of penal liability in which the law uses the
compulsory compensation of the person injured as an instrument for the
punishment of the offender. It is characteristic of this form of
punishment that it takes account of one only of the three considerations
which, as we have seen, rightly determine the measure of penal
responsibility. It is measured exclusively by the magnitude of the
offence, that is to say, by the amount of loss inflicted by it. It takes
no account of the character of the offender, and so visits him who does
harm through some trivial want of care with as severe a penalty as if
his act had been prompted by deliberate malice. Similarly it takes no
account of the motives of the offence; he who has everything and he who
has nothing to gain are equally punished, if the damage done by them is
equal. Finally it takes no account of probable or intended consequences,
but solely of those which actually ensue; wherefore the measure of a
wrongdoer’s liability is not the evil which he meant to do, but that
which he has succeeded in doing; and his punishment is determined not by
his fault, but by the accident of the result. If one man is dealt with
more severely than another, it is not because he is more guilty, but
because he has had the misfortune to be more successful in his wrongful
purposes, or less successful in the avoidance of unintended issues.
Serious as are these lapses from the due standard of penal discipline,
it is not to be suggested that this form of civil liability is
unjustifiable. The use of redress as an instrument of punishment
possesses advantages more than sufficient to counterbalance any such
objections to it. More especially it possesses this, that while other
forms of punishment, such as imprisonment, are uncompensated evil, penal
redress is the gain of him who is wronged as well as the loss of the
wrongdoer. Further, this form of remedy gives to the persons injured a
direct interest in the efficient administration of justice—an interest
which is almost absent in the case of the criminal law. It is true,
however, that the law of penal redress, taken by itself, falls so far
short of the requirements of a rational scheme of punishment that it
would by itself be totally insufficient. In all modern and developed
bodies of law its operation is supplemented, and its deficiencies made
good, by a co-ordinate system of criminal liability. These two together,
combined in due proportions, constitute a very efficient instrument for
the maintenance of justice.
SUMMARY.
Wrongs of absolute liability—_Mens rea_ not required.
Exceptional nature of such wrongs.
Penal redress justified not as redress but as punishment.
Mistake of law.
Commonly no defence.
Reasons for the rule.
Criticism of it.
Mistake of fact.
A defence in criminal but commonly not in civil cases.
Accident.
Distinction between accident and mistake.
Accident │
and │Culpable.
mistake│
│Inevitable.
Inevitable accident commonly a defence.
Exceptions.
The Incidence of Penal Liability.
Vicarious liability.
1. Employer’s liability.
Its rational basis.
2. Liability of representatives of dead men.
Its rational basis.
The Measure of Penal Liability.
1. Criminal liability.
Reasons against indiscriminate severity.
The end to be attained.
The considerations to be taken account of.
(_a_) The motive of the offence.
(_b_) The magnitude of the offence.
(_c_) The character of the offender.
2. Civil liability.
Merits and demerits of the use of compulsory compensation
as an instrument of punishment.
CHAPTER XX.
THE LAW OF PROPERTY.
§ 152. =Meanings of the Term Property.=
The substantive civil law[401] is divisible into three great
departments, namely the law of property, the law of obligations, and the
law of status. The first deals with proprietary rights _in rem_, the
second with proprietary rights _in personam_, and the third with
personal or non-proprietary rights, whether _in rem_ or _in personam_.
In this chapter we shall consider in outline the first of these
branches, and we shall then proceed to deal in the same manner with the
law of obligations. The law of status on the other hand is not of such a
nature as to require or repay any further consideration from the point
of view of general theory.
The term property, which we here use as meaning proprietary rights _in
rem_, possesses a singular variety of different applications having
different degrees of generality. These are the following:—
1. _All legal rights._ In its widest sense, property includes all a
person’s legal rights, of whatever description. A man’s property is all
that is _his in law_. This usage, however, is obsolete at the present
day, though it is common enough in the older books. Thus Blackstone
speaks of the property (_i.e._ right) which a master has in the person
of his servant, and a father in the person of his child. “The inferior,”
he says,[402] “hath no kind of property in the company, care, or
assistance of the superior, as the superior is held to have in those of
the inferior.” So Hobbes says:[403] “Of things held in propriety, those
that are dearest to a man are his own life and limbs; and in the next
degree, in most men, those that concern conjugal affection; and after
them riches and means of living.” In like manner Locke[404] tells us
that “every man has a property in his own person,” and he speaks
elsewhere[405] of a man’s right to preserve “his property, that is, his
life, liberty, and estate.”
2. _Proprietary rights (dominium and status)._ In a second and narrower
sense, property includes not all a person’s rights but only his
proprietary as opposed to his personal rights. The former constitute his
estate or property, while the latter constitute his status or personal
condition. In this sense a man’s land, chattels, shares, and the debts
due to him are his property; but not his life or liberty or reputation.
In this sense we may oppose to Locke’s statement, that a man has a
property in his own person, the saying of Ulpian: _Dominus membrorum
suorum nemo videtur_.[406] This is probably the most frequent
application of the term at the present day, but in the case of a word
having so many recognised varieties of usage it is idle to attempt to
single out any one of them as exclusively correct. They are all of equal
authenticity.
3. _Proprietary rights in rem (dominium and obligatio)._ In a third
application, which is that adopted in this chapter, the term includes
not even all proprietary rights, but only those which are both
proprietary and real. The law of property is the law of proprietary
rights _in rem_, the law of proprietary rights _in personam_ being
distinguished from it as the law of obligations. According to this usage
a freehold or leasehold estate in land, or a patent or copyright, is
property; but a debt or the benefit of a contract is not.
4. _Corporeal property (dominium corporis and dominium juris)._ Finally,
in the narrowest use of the term, it includes nothing more than
corporeal property—that is to say, the right of ownership in a material
object, or that object itself identified with the right by way of
metonymy. Thus property is defined by Ahrens[407] as “a material object
subject to the immediate power of a person,” and Bentham[408] considers
as metaphorical and improper the extension of the term to include other
rights than those which relate to material things.
§ 153. =Kinds of Property.=
All property is, as we have already seen,[409] either corporeal or
incorporeal. Corporeal property is the right of ownership in material
things; incorporeal property is any other proprietary right _in rem_.
Incorporeal property is itself of two kinds, namely (1) _jura in re
aliena_ or encumbrances, whether over material or immaterial things (for
example, leases, mortgages, and servitudes), and (2) _jura in re
propria_ over immaterial things (for example, patents, copyrights, and
trade-marks). The resulting threefold division of property appears in
the following Table:—
{ Land }
{ Material { } Corporeal property
{ things { Chattels }
{
{ _Jura in re { { Patents }
{ propria_ { { }
{ { Immaterial { Copyrights }
{ { things { }
{ { Trade-marks }
Property { { }
{ { &c. }
{ }
{ { Leases } Incorporeal property
{ { }
{ _Jura in re { Servitudes }
{ aliena_ { }
{ Securities }
{ }
{ &c. }
§ 154. =The Ownership of Material Things.=
The owner of a material object is he who owns a right to the aggregate
of its uses. He who has merely a special and definitely limited right to
the use of it, such as a right of way or other servitude, is not an
owner of the thing but merely an encumbrancer of it. The definition,
however, must not be misunderstood. Ownership is the right of _general_
use, not that of absolute or unlimited use. He is the owner of a thing
who is entitled to all those uses of it which are not specially excepted
and cut off by the law. No such right as that of absolute and unlimited
use is known to the law. All lawful use is either general (that is to
say, residuary) or specific, the former being ownership, and the latter
encumbrance.
The limits thus imposed upon an owner’s right of use are of two kinds.
The first constitute the _natural_ limits of ownership. They are the
various applications of the maxim: _Sic utere tuo ut alienum non
laedas_—a legal principle whose function it is to restrain within due
bounds the opposing maxim that a man may do as he pleases with his own.
In the interests of the public or of a man’s neighbours many uses of the
things which are his are wholly excluded from his right of ownership.
The second class of restrictions upon an owner’s right of use consists
of those which flow from the existence of encumbrances vested in other
persons. These are artificial limits which may or may not exist. My land
may be mortgaged, leased, charged, bound by restrictive covenants, and
so on, yet I remain the owner of it none the less. For I am still
entitled to the residue of its uses, and whatever right over it is not
specifically vested in some one else is vested in me. The residuary use
so left to me may be of very small dimensions; some encumbrancer may own
rights over it much more valuable than mine; but the ownership of it is
in me and not in him. Were his right to determine to-morrow in any
manner, my own, relieved from the encumbrance which now weighs it down,
would forthwith spring up to its full stature and have again its full
effect. No right loses its identity because of an encumbrance vested in
some one else. That which is a right of ownership when there are no
encumbrances, remains a right of ownership notwithstanding any number of
them.
Inasmuch as the right of ownership is a right to the aggregate of the
uses of the thing, it follows that ownership is necessarily permanent.
No person having merely a temporary right to the use of a thing can be
the owner of the thing, however general that right may be while it
lasts. He who comes after him is the owner; for it is to him that the
residue of the uses of the thing pertains. It is to be understood,
however, that by a permanent right is meant nothing more than a right
which is capable of lasting as long as the thing itself which is its
subject-matter, however long or short that duration may be.
Even as the generality of ownership involves its permanence, so its
permanence involves the further essential feature of inheritance. The
only permanent rights which can be owned by a mortal man are those which
can be handed down by him to his successors or representatives on his
death. All others are temporary, their duration being necessarily
limited to the lifetime of him in whom they are vested. The right of
ownership, therefore, is essentially an inheritable right. It is capable
of surviving its owner for the time being. It belongs to the class of
rights which are divested by death but are not extinguished by it.
Summing up the conclusions to which we have attained, we may define the
right of ownership in a material thing as the general, permanent, and
inheritable right to the uses of that thing.[410]
According to the rigour of English legal doctrine there can be no
owner of _land_ except the Crown itself. The fee simple of land—the
greatest right in it which a subject can possess—is not in truth
ownership, but a mere encumbrance upon the ownership of the Crown. It
is a tenancy or lease granted to a man and his heirs. It is a
temporary not a permanent right of user. It will come to its natural
termination on the death of the tenant without leaving an heir or
devisee in whom the right may be continued. The land will thereupon
revert or escheat to the Crown; that is to say, the Crown’s ownership,
which has never been divested, but has merely been encumbered by the
fee simple, will through the destruction of this encumbrance become
once more free and absolute. In the case of chattels it is otherwise.
They can be owned by the subject no less than by the Crown. It is true
that if the owner of them dies intestate without kin, they will go to
the Crown as _bona vacantia_, just as land will go to the Crown as an
escheat. But between these two processes there is a profound
difference in legal theory. In the case of chattels the Crown succeeds
to the right which was vested in the dead man; his ownership is
continued in the Crown, just as it would have been continued in his
next of kin had there been any. But in the case of escheat, as already
said, the right of the dead man has come to an end, and the Crown
succeeds to no right of his, but simply comes into its own again.
This distinction, however, between the fee simple of land and the
ownership of it is a matter of form rather than of substance. In fact,
if not in legal theory, the right of a tenant in fee simple is
permanent; for escheat takes place only on an intestacy, and therefore
can be prevented by the act of the tenant. We are at liberty,
therefore, to disregard this technicality of real property law, and to
speak of the fee simple of land as the ownership of it, the right of
the Crown being viewed, accordingly, not as vested and continuing
ownership subject to an encumbrance, but as a contingent right of
succession to an intestate owner.
§ 155. =Movable and Immovable Property.=
Among material things the most important distinction is that between
movables and immovables, or, to use terms more familiar in English law,
between chattels and land. In all legal systems these two classes of
objects are to some extent governed by different rules, though in no
system is the difference so great as in our own.
Considered in its legal aspect, an immovable, that is to say, a piece of
land, includes the following elements:—
1. A determinate portion of the earth’s surface.
2. The ground beneath the surface down to the centre of the world. All
the pieces of land in England meet together in one terminal point at the
earth’s centre.
3. Possibly the column of space above the surface _ad infinitum_. “The
earth,” says Coke,[411] “hath in law a great extent upwards, not only of
water as hath been said, but of ayre and all other things even up to
heaven; for _Cujus est solum, ejus est usque ad coelum_.” The
authenticity of this doctrine, however, is not wholly beyond dispute. It
would prohibit as an actionable trespass all use of the air-space above
the appropriated surface of the earth, at whatever height this use took
place, and however little it could affect the interests of the
landowner. If a man is carried in a balloon at a distance of half a mile
above the ground, does he infringe the rights of those who own the
surface? It may be that the law recognises no right of ownership in the
air-space at all, or at least no right of exclusive use, but merely
prohibits all acts which by their nature or their proximity interfere
with the full enjoyment and use of the surface.[412] By the German Civil
Code,[413] the owner of land owns the space above it, but has no right
to prohibit acts so remote from the surface that they in no way affect
his interests.
4. All objects which are on or under the surface in its natural state;
for example, minerals and natural vegetation. All these are part of the
land, even though they are in no way physically attached to it. Stones
lying loose upon the surface are in the same category as the stone in a
quarry.
5. Lastly all objects placed by human agency on or under the surface,
with the intention of permanent annexation. These become part of the
land, and lose their identity as separate movables or chattels; for
example, buildings, walls, and fences. _Omne quod inaedificatur solo
cedit_, said the Roman law.[414] Provided that the requisite intent of
permanent annexation is present, no physical attachment to the surface
is required. A wall built of stones without mortar or foundations is
part of the land on which it stands.[415] Conversely physical
attachment, without the intent of permanent annexation, is not in itself
enough. Carpets, tapestries, or ornaments nailed to the floors or walls
of a house are not thereby made part of the house. Money buried in the
ground is as much a chattel[416] as money in its owner’s pocket.[417]
It is clear that the distinction between movables and immovables is in
truth and in fact applicable to material objects only. Yet, the law
has made an unfortunate attempt to apply it to _rights_ also. Rights
no less than things are conceived by the law as having a local
situation, and as being either movable or permanently fixed in a
definite locality. The origin of this illogical conception is to be
found in the identification of rights of ownership with the material
things which are the objects of them. I am said to own land and
chattels, as well as easements, shares, debts, contracts, and patents.
All these things are equally property, and since some of them have a
local situation and can be truly classed as movable or immovable, the
law has been led by inadvertence to attribute these qualities to all
of them. It has recognised in things which are incorporeal certain
attributes which in truth pertain to things corporeal only. It has
divided the whole sphere of proprietary rights by reference to a
distinction which is truly applicable not to rights at, all, but to
physical objects. Nor is this merely a peculiarity of English law, for
it is found in Continental systems also.[418]
On what principle, then, does the law determine whether a right is to
be classed as immovable or as movable? The general rule is that a
right has in this respect the same quality as its subject-matter.
Every right over an immovable thing, whether it is a right of
ownership, or a lease, or a servitude, or a security, or any other
_jus in re aliena_, is itself immovable, and every right over a
movable thing is itself movable. So far there is no difficulty. What
shall we say, however, of those rights which have no material objects
at all, such as a copyright, a patent, the good-will of a business, a
trade-mark, or the benefit of a contract? The answer is that all such
rights are classed by the law as movable. For the class of movable
property is residuary, and includes all rights which can make good no
claim to be classed as immovable.
The law not merely classifies rights as movable and immovable, but
goes further in the same direction, and attributes local situation to
them. It undertakes to say not merely _whether_ a right exists, but
_where_ it exists. Nor is this a difficult task in the case of those
rights which have determinate material things as their objects. A
servitude or other _jus in re aliena_ over a piece of land is situated
in law where the land is situated in fact. A right over a chattel is
movable property, and where the chattel goes the right goes also. But
where there is no material object at all, what are we to say as to the
local situation of the right? Where is a debt situated, or a share, in
a company, or the benefit of a contract, or a copyright? Such
questions can be determined only by more or less arbitrary rules based
upon analogy, and it is to be regretted that it has been thought
needful to ask and answer them at all. As the law stands, however, it
contains several rules based on the assumption that all property which
exists must exist _somewhere_,[419] and for the application of these
rules the determination of the local situation of rights is necessary,
even though it leads into the region of legal fictions. “The legal
conception of property,” says Lord Lindley,[420] “appears to me to
involve the legal conception of existence somewhere.... To talk of
property as existing nowhere is to use language which to me is
unintelligible.”
The leading principle as to the local situation of rights is that they
are situated where they are exercised and enjoyed. Rights over
material things, therefore, have the same situation as those things
themselves. The good-will of a business is situated in the place where
the business is carried on.[421] Debts are in general situated in the
place where the debtor resides,[422] since it is there that the
creditor must go to get his money.[423]
§ 156. =Real and Personal Property.=
Derived from and closely connected with the distinction between
immovable and movable property is that between real and personal
property. These are two cross divisions of the whole sphere of
proprietary rights. Real property and immovable property form
intersecting circles which are very nearly though not quite coincident.
The law of real property is almost equivalent to the law of land, while
the law of personal property is all but identical with the law of
movables. The partial failure of coincidence is due not to any logical
distinction, but to the accidental course of legal development; and to
this extent the distinction between real and personal property is purely
arbitrary and possesses no scientific basis. Real property comprises all
rights over land, with such additions and exceptions as the law has seen
fit to establish. All other proprietary rights, whether _in rem_ or _in
personam_, pertain to the law of personal property.
The distinction between real and personal property has no logical
connexion with that between real and personal rights. There is,
however, an historical relation between them, inasmuch as they are
both derived from the same source, namely the Roman distinction
between actions _in rem_ and actions _in personam_. Real property
meant originally that which was recoverable in a real action, while
personal property was that which was recoverable in a personal action,
and this English distinction between real and personal actions was
derived by Bracton and the other founders of our law from the
_actiones in rem_ and _in personam_ of Justinian, though not without
important modifications of the Roman doctrine.[424]
In connexion with the distinctions between movable and immovable, and
between real and personal property, we must notice the legal
significance of the term chattel. This word has apparently three
different meanings in English law:—
1. A movable physical object; for example, a horse, a book, or a
shilling, as contrasted with a piece of land.
2. Movable property, whether corporeal or incorporeal; that is to say,
chattels in the first sense together with all proprietary rights
except those which are classed as immovable. In this usage debts,
shares, contracts, and other choses in action are chattels, no less
than furniture or stock in trade. So also are patents, copyrights, and
other rights _in rem_ which are not rights over land. This double use
of the word chattel to indicate both material things and rights is
simply an application, within the sphere of movable property, of the
metonymy which is the source of the distinction between corporeal and
incorporeal property.
3. Personal property, whether movable or immovable, as opposed to real
property. In this sense leaseholds are classed as chattels, because of
the special rule by which they are excluded from the domain of real
property.
§ 157. =Rights _in re propria_ in Immaterial Things.=
The subject-matter of a right of property is either a material or an
immaterial thing. A material thing is a physical object; an immaterial
thing is anything else which may be the subject-matter of a right.[425]
It is to things of the former class that the law of property almost
wholly relates. In the great majority of cases a right of property is a
right to the uses of a material object. It is the chief purpose of this
department of the law to allot to every man his portion in the material
instruments of human well-being—to divide the earth and the fulness of
it among the men who live in it. The only immaterial things which are
recognised by law as the subject-matter of rights of this description
are the various _immaterial products of human skill and labour_.
Speaking generally we may say that in modern law every man owns that
which he creates. That which he produces is his, and he has an exclusive
right to the use and benefit of it. The immaterial product of a man’s
brains may be as valuable as his land or his goods. The law, therefore,
gives him a proprietary right in it, and the unauthorised use of it by
other persons is a violation of his ownership, no less than theft or
trespass is. These immaterial forms of property are of five chief
kinds:—[426]
1. _Patents._ The subject-matter of a patent-right is an invention. He
whose skill or labour produces the idea of a new process, instrument, or
manufacture, has that idea as his own in law. He alone is entitled to
use it and to draw from it the profit inherent in it.
2. _Literary copyright._ The subject-matter of this right is the
literary expression of facts or thoughts. He to whose skill or labour
this expression is due has in it a proprietary right of exclusive use.
3. _Artistic copyright._ Artistic design in all its various forms, such
as drawing, painting, sculpture, and photography, is the subject-matter
of a right of exclusive use analogous to literary copyright. The
creations of an artist’s skill or of a photographer’s labour are his
exclusive property. The object of this right is not the material thing
produced, but the _form_ impressed upon it by the maker. The picture, in
the concrete sense of the material paint and canvas, belongs to him who
purchases it; but the picture, in the abstract sense of the artistic
form made visible by that paint and canvas, belongs to him who made it.
The former is material property, the latter is immaterial. The right in
each case is one of exclusive use. The right to the material picture is
infringed by destroying it or taking it away. The right to the
immaterial picture is infringed by making material pictures which embody
it.
4. _Musical and dramatic copyright._ A fourth class of immaterial things
consists of musical and dramatic works. The immaterial product of the
skill of the musician or the playwright is the subject-matter of a
proprietary right of exclusive use which is infringed by any
unauthorised performance or representation.
5. _Commercial good-will; trade-marks and trade-names._ The fifth and
last species of immaterial things includes commercial good-will and the
special forms of it known as trade-marks and trade-names. He who by his
skill and labour establishes a business acquires thereby an interest in
the good-will of it, that is to say, in the established disposition of
customers to resort to him. To this good-will he has an exclusive right
which is violated by any one who seeks to make use of it for his own
advantage, as by falsely representing to the public that he is himself
carrying on the business in question. Special forms of this right of
commercial good-will are rights to trade-names and trade-marks. Every
man has an exclusive right to the name under which he carries on
business or sells his goods—to this extent at least that no one is at
liberty to use that name for the purpose of deceiving the public and so
injuring the owner of it. He has a similar right to the exclusive use of
the marks which he impresses upon his goods, and by which they are known
and identified in the market as his.
§ 158. =Leases.=
Having now considered the different kinds of rights _in re propria_
which fall within the law of property, we proceed to deal with the
various rights _in re aliena_ to which they may be subject. As already
stated,[427] the chief of these are four in number, namely Leases,
Servitudes, Securities, and Trusts. The nature of a trust has been
sufficiently examined in another connexion,[428] and it is necessary
here to consider the other three only.[429] And first of leases or
tenancies.
Although a lease of land and a bailment of chattels are transactions of
essentially the same nature, there is no term which, in its recognised
use, is sufficiently wide to include both. The term bailment is never
applied to the tenancy of land, and although the term lease is not
wholly inapplicable in the case of chattels, its use in this connexion
is subject to arbitrary limitations. It is necessary, therefore, in the
interests of orderly classification, to do some violence to received
usage, in adopting the term lease as a generic expression to include not
merely the tenancy of land, but all kinds of bailments of chattels, and
all encumbrances of incorporeal property which possess the same
essential nature as a tenancy of land.
A lease, in this generic sense, is that form of encumbrance which
consists in a right to the possession and use of property owned by some
other person. It is the outcome of the rightful separation of ownership
and possession. We have seen that possession is the continuing exercise
of a right, and that although a right is normally exercised by the owner
of it, it may in special cases be exercised by some one else. This
separation of ownership and possession may be either rightful or
wrongful, and if rightful it is an encumbrance of the owner’s
title.[430]
The right which is thus encumbered by a lease is usually the ownership
of a material object, and more particularly the ownership of land. Here
as elsewhere the material object is identified in speech with the right
itself. We say that the _land_ is leased, just as we say that the land
is owned or possessed. The lessee of land is he who rightfully possesses
it, but does not own it. The lessor of land is he who owns it, but who
has transferred the possession of it to another. Encumbrance by way of
lease is not confined, however, to the right of ownership of a material
object. All rights may be leased which can be possessed, that is to say,
which admit of continuing exercise; and no rights can be leased which
cannot be possessed, that is to say, which are extinguished by their
exercise. A servitude appurtenant to land, such as a right of way, is
leased along with the land itself. The owner of a lease may encumber it
with a sub-lease. The owner of a patent or copyright may grant a lease
of it for a term of years, entitling the lessee to the exercise and use
of the right but not to the ownership of it. Even obligations may be
encumbered in the same fashion, provided that they admit of continuing
or repeated exercise; for example, annuities, shares, money in the
public funds, or interest-bearing debts. All these may be rightfully
possessed without being owned, and owned without being possessed, as
when they are settled in trust for a tenant for life with remainder to
some one else.
Is it essential that a lease should be of less duration than the right
which is subject to it? This is almost invariably the case; land is
leased for a term of years or for life, but not in perpetuity; the
owner of a thing owns it for ever, but the lessee of it possesses it
for a time. We may be tempted, therefore, to regard this difference of
duration as essential, and to define a lease as a right to the
temporary exercise of a right vested in some one else. But this is not
so. There is no objection in principle to a lease of land in
perpetuity, or to a lease of a patent or copyright for the full term
of its existence. It may be objected that a lease of this description
would not be a true lease or encumbrance at all, but an assignment of
the right itself; that the grantee would become the owner of the
right, and not a mere encumbrancer; and in favour of this contention
it may be pointed out that a sub-lease for the whole term is construed
in English law as an assignment of the term, a sub-lease being
necessarily shorter than the term, if only by a single day.[431]
Whatever the actual rule of English law may be, however, there is
nothing in legal theory to justify us in asserting that any such
difference of duration is essential to the existence of a true lease.
A lease exists whenever the rightful possession of a thing is
separated from the ownership of it; and although this separation is
usually temporary, there is no difficulty in supposing it permanent. I
may own a permanent right to exercise another right, without owning
the latter right itself. The ownership may remain dormant, deprived of
any right of exercise and enjoyment, in the hands of the lessor. I am
not necessarily the owner of a patent, because I have acquired by
contract with the owner a right to the exclusive use of it during the
whole term of its duration. So far as legal principle is concerned, I
may still remain the owner of a lease, although I may have granted a
sub-lease to another for the whole residue of the term. To assign a
lease and to sublet it for the whole term are in the intention of the
parties and in legal theory two entirely different transactions. The
assignment is a substitution of one tenant for another, the assignor
retaining no rights whatever. The sub-lease, on the contrary, is
designed to leave the original relation of landlord and tenant
untouched, the sub-lessee being the tenant of the lessee and not of
the original lessor.[432]
§ 159. =Servitudes.=
A servitude is that form of encumbrance which consists in a right to the
limited use of a piece of land without the possession of it; for
example, a right of way over it, a right to the passage of light across
it to the windows of a house on the adjoining land, a right to depasture
cattle upon it, or a right to derive support from it for the foundations
of an adjoining building.[433]
It is an essential characteristic of a servitude that it does not
involve the possession of the land over which it exists. This is the
difference between a servitude and a lease. A lease of land is the
rightful possession and use without the ownership of it, while a
servitude over land is the rightful use without either the ownership or
the possession of it. There are two distinct methods in which I may
acquire a road across another man’s property. I may agree with him for
the exclusive possession of a defined strip of the land; or I may agree
with him for the use of such a strip for the sole purpose of passage,
without any exclusive possession or occupation of it. In the first case
I acquire a lease; in the second a servitude.[434]
Servitudes are of two kinds, which may be distinguished as private and
public. A private servitude is one vested in a determinate individual;
for example, a right of way, of light, or of support, vested in the
owner of one piece of land over an adjoining piece, or a right granted
to one person of fishing in the water of another, or of mining in
another’s land. A public servitude is one vested in the public at large
or in some class of indeterminate individuals; for example, the right of
the public to a highway over land in private ownership, the right of the
public to navigate a river of which the bed belongs to some private
person, the right of the inhabitants of a parish to use a certain piece
of private ground for the purposes of recreation.
Servitudes are further distinguishable in the language of English law as
being either appurtenant or in gross. A servitude appurtenant is one
which is not merely an encumbrance of one piece of land, but is also
accessory to another piece. It is a right of using one piece for the
benefit of another; as in the case of a right of way from A.’s house to
the high road across B.’s field, or a right of support for a building,
or a right to the access of light to a window. The land which is
burdened with such a servitude is called the servient land or tenement;
that which has the benefit of it is called the dominant land or
tenement. The servitude runs with each of the tenements into the hands
of successive owners and occupiers. Both the benefit and the burden of
it are concurrent with the ownership of the lands concerned. A servitude
is said to be in gross, on the other hand, when it is not so attached
and accessory to any dominant tenement for whose benefit it exists. An
example is a public right of way or of navigation or of recreation, or a
private right of fishing, pasturage, or mining.[435]
§ 160. =Securities.=
A security is an encumbrance, the purpose of which is to ensure or
facilitate the fulfilment or enjoyment of some other right (usually
though not necessarily a debt) vested in the same person.[436] Such
securities are of two kinds, which may be distinguished as mortgages and
liens, if we use the latter term in its widest permissible sense.[437]
In considering the nature of this distinction we must first notice a
plausible but erroneous explanation. A mortgage, it is sometimes said,
is a security created by the _transfer_ of the debtor’s property to the
creditor, while a lien is merely an encumbrance of some sort created in
favour of the creditor over property which remains vested in the debtor;
a mortgagee is the owner of the property, while a pledgee or other
lienee is merely an encumbrancer of it. This, however, is not a strictly
accurate account of the matter, though it is true in the great majority
of cases. A mortgage may be created by way of encumbrance, no less than
by way of transfer;[438] and a mortgagee does not necessarily become the
owner of the property mortgaged. A lease, for example, is commonly
mortgaged, not by the assignment of it, but by the grant of a sub-lease
to the creditor, so that the mortgagee becomes not the owner of the
lease but an encumbrancer of it. Similarly freehold land may be
mortgaged by the grant to the mortgagee of a long term of years.
Inasmuch, therefore, as a mortgage is not necessarily the transfer of
the property to the creditor, what is its essential characteristic? The
question is one of considerable difficulty, but the true solution is
apparently this. A lien is a right which is _in its own nature_ a
security for a debt and nothing more; for example, a right to retain
possession of a chattel until payment, a right to distrain for rent, or
a right to receive payment out of a certain fund. A mortgage, on the
contrary, is a right which is in its own nature an independent or
principal right, and not a mere security for another right, but which is
artificially cut down and limited, so that it may serve in the
particular case as a security and nothing more; for example the fee
simple of land, a lease of land for a term of years, or the ownership of
a chattel. The right of the lienee is vested in him _absolutely_, and
not merely by way of security; for it is itself nothing more than a
security. The right of a mortgagee, on the contrary, is vested in him
conditionally and _by way of security only_, for it is in itself
something more than a mere security. A lien cannot survive the debt
secured; it ceases and determines _ipso jure_ on the extinction of the
debt. It is merely the shadow, so to speak, cast by the debt upon the
property of the debtor. But the right vested in a mortgagee has an
independent existence. It will, or may, remain outstanding in the
mortgagee even after the extinction of the debt. When thus left
outstanding, it must be re-transferred or surrendered to the mortgagor,
and the right of the mortgagor to this re-assignment or surrender is
called his right or equity of redemption. The existence of such an
equity of redemption is therefore the test of a mortgage. In liens there
is no such right, for there is nothing to redeem. The creditor owns no
right which he can be bound to give back or surrender to his debtor. For
his right of security has come to its natural and necessary termination
with the termination of the right secured.[439]
Mortgages are created either by the transfer of the debtor’s right to
the creditor, or by the encumbrance of it in his favour. The first of
these methods is by far the more usual and important. Moreover it is
peculiar to mortgages, for liens can be created only by way of
encumbrance. Whenever a debtor _transfers_ his right to the creditor by
way of security, the result is necessarily a mortgage; for there can be
no connexion between the duration of the debt so secured and the natural
duration of the right so transferred. The right transferred may survive
the debt, and the debtor therefore retains the right of redemption which
is the infallible test of a mortgage. When on the other hand a debtor
_encumbers_ his right in favour of the creditor, the security so created
is either a mortgage or a lien according to circumstances. It is a
mortgage, if the encumbrance so created is independent of the debt
secured in respect of its natural duration; for example a term of years
or a permanent servitude. It is a lien, if the encumbrance is in respect
of its natural duration dependent on, and coincident with the debt
secured; for example a pledge, a vendor’s lien, a landlord’s right of
distress, or an equitable charge on a fund.
Speaking generally, any alienable and valuable right whatever may be the
subject-matter of a mortgage. Whatever can be transferred can be
transferred by way of mortgage; whatever can be encumbered can be
encumbered by way of mortgage. Whether I own land, or chattels, or
debts, or shares, or patents, or copyrights, or leases, or servitudes,
or equitable interests in trust funds, or the benefit of a contract, I
may so deal with them as to constitute a valid mortgage security. Even a
mortgage itself may be transferred by the mortgagee to some creditor of
his own by way of mortgage, such a mortgage of a mortgage being known as
a sub-mortgage.
In a mortgage by way of transfer the debtor, though he assigns the
property to his creditor, remains none the less the beneficial or
equitable owner of it himself. A mortgagor, by virtue of his equity of
redemption, has more than a mere personal right against the mortgagee to
the reconveyance of the property; he is already the beneficial owner of
it. This double ownership of mortgaged property is merely a special form
of trust. The mortgagee holds in trust for the mortgagor, and has
himself no beneficial interest, save so far as is required for the
purposes of an effective security. On the payment or extinction of the
debt the mortgagee becomes a mere trustee and nothing more; the
ownership remains vested in him, but is now bare of any vestige of
beneficial interest. A mortgage, therefore, has a double aspect and
nature. Viewed in respect of the _nudum dominium_ vested in the
mortgagee, it is a transfer of the property; viewed in respect of the
beneficial ownership which remains vested in the mortgagor, it is merely
an encumbrance of it.
The prominence of mortgage as the most important form of security is a
peculiarity of English law. In Roman law, and in the modern Continental
systems based upon it, the place assumed by mortgages in our system is
taken by the lien (_hypotheca_) in its various forms. The Roman mortgage
(_fiducia_) fell wholly out of use before the time of Justinian, having
been displaced by the superior simplicity and convenience of the
_hypotheca_; and in this respect modern Continental law has followed the
Roman. There can be no doubt that a similar substitution of the lien for
the mortgage would immensely simplify and improve the law of England.
The complexity and difficulty of the English law of security—due
entirely to the adoption of the system of mortgages—must be a source of
amazement to a French or German lawyer. Whatever can be done by way of
mortgage in securing a debt can be done equally well by way of lien, and
the lien avoids all that extraordinary disturbance and complication of
legal relations which is essentially involved in the mortgage. The best
type of security is that which combines the most efficient protection of
the creditor with the least interference with the rights of the debtor,
and in this latter respect the mortgage falls far short of the ideal.
The true form of security is a lien, leaving the full legal and
equitable ownership in the debtor, but vesting in the creditor such
rights and powers (as of sale, possession, and so forth) as are
required, according to the nature of the subject-matter, to give the
creditor sufficient protection, and lapsing _ipso jure_ with the
discharge of the debt secured.[440]
Liens are of various kinds, none of which present any difficulty or
require any special consideration.
1. _Possessory liens_—consisting in the right to retain possession of
chattels or other property of the debtor. A power of sale may or may
not be combined with this right of possession. Examples are pledges of
chattels, and the liens of innkeepers, solicitors, and vendors of
goods.
2. _Rights of distress or seizure_—consisting in the right to take
possession of the property of the debtor, with or without a power of
sale. Examples are the right of distress for rent, and the right of
the occupier of land to distrain cattle trespassing on it.
3. _Powers of sale._ This is a form of security seldom found in
isolation, for it is usually incidental to the right of possession
conferred by one or other of the two preceding forms of lien. There is
no reason, however, why it should not in itself form an effective
security.
4. _Powers of forfeiture_—consisting in a power vested in the creditor
of destroying in his own interest some adverse right vested in the
debtor. Examples are a landlord’s right of re-entry upon his tenant,
and a vendor’s right of forfeiting the deposit paid by the purchaser.
5. _Charges_—consisting in the right of a creditor to receive payment
out of some specific fund or out of the proceeds of the realisation of
specific property. The fund or property is said to be charged with the
debt which is thus payable out of it.
§ 161. =Modes of Acquisition: Possession.=
Having considered the various forms which proprietary rights _in rem_
assume, we proceed to examine the modes of their acquisition. An attempt
to give a complete list of these titles would here serve no useful
purpose, and we shall confine our attention to four of them which are of
primary importance. These are the following: Possession, Prescription,
Agreement, and Inheritance.
The possession of a material object is a title to the ownership of it.
The _de facto_ relation between person and thing brings the _de jure_
relation along with it. He who claims a chattel or a piece of land as
his, and makes good his claim in _fact_ by way of possession, makes it
good in _law_ also by way of ownership. There is, however, an important
distinction to be drawn. For the thing so possessed may, or may not,
already belong to some other person. If, when possession of it is taken
by the claimant, it is as yet the property of no one—_res nullius_ as
the Romans said—the possessor acquires a title good against all the
world. The fish of the sea and the fowls of the air belong by an
absolute title to him who first succeeds in obtaining possession of
them. This mode of acquisition is known in Roman law as _occupatio_.
On the other hand, the thing of which possession is taken may already be
the property of some one else. In this case the title acquired by
possession is good, indeed, against all third persons, but is of no
validity at all against the true owner. Possession, even when
consciously wrongful, is allowed as a title of right against all persons
who cannot show a better, because a prior, title in themselves. Save
with respect to the rights of the original proprietor, my rights to the
watch in my pocket are much the same, whether I bought it honestly, or
found it, or abstracted it from the pocket of some one else. If it is
stolen from me, the law will help me to the recovery of it. I can
effectually sell it, lend it, give it away, or bequeath it, and it will
go on my death intestate to my next of kin. Whoever acquires it from me,
however, acquires in general nothing save my limited and imperfect title
to it, and holds it, as I do, subject to the superior claims of the
original owner.
A thing owned by one man and thus adversely possessed by another has in
truth two owners. The ownership of the one is absolute and perfect,
while that of the other is relative and imperfect, and is often called,
by reason of its origin in possession, possessory ownership.
If a possessory owner is wrongfully deprived of the thing by a person
other than the true owner, he can recover it. For the defendant cannot
set up as a defence his own possessory title, since it is later than,
and consequently inferior to, the possessory title of the plaintiff. Nor
can he set up as a defence the title of the true owner—the _jus tertii_,
as it is called; the plaintiff has a better, because an earlier, title
than the defendant, and it is irrelevant that the title of some other
person, not a party to the suit, is better still. The expediency of this
doctrine of possessory ownership is clear. Were it not for such a rule,
force and fraud would be left to determine all disputes as to
possession, between persons of whom neither could show an unimpeachable
title to the thing as the true owner of it.[441]
§ 162. =Prescription.=
Prescription[442] may be defined as the effect of lapse of time in
creating and destroying rights; it is the operation of time as a
vestitive fact. It is of two kinds, namely (1) positive or acquisitive
prescription and (2) negative or extinctive prescription. The former is
the creation of a right, the latter is the destruction of one, by the
lapse of time. An example of the former is the acquisition of a right of
way by the _de facto_ use of it for twenty years. An instance of the
latter is the destruction of the right to sue for a debt after six years
from the time at which it first became payable.
Lapse of time, therefore, has two opposite effects. In positive
prescription it is a title of right, but in negative prescription it is
a divestitive fact. Whether it shall operate in the one way or in the
other depends on whether it is or is not accompanied by _possession_.
Positive prescription is the investitive operation of lapse of time
_with_ possession, while negative prescription is the divestitive
operation of lapse of time _without_ possession. Long possession creates
rights, and long want of possession destroys them. If I possess an
easement for twenty years without owning it, I begin at the end of that
period to own as well as to possess it. Conversely if I own land for
twelve years without possessing it, I cease on the termination of that
period either to own or to possess it. In both forms of prescription,
fact and right, possession and ownership, tend to coincidence. _Ex facto
oritur jus._ If the root of fact is destroyed, the right growing out of
it withers and dies in course of time. If the fact is present, the right
will in the fulness of time proceed from it.
In many cases the two forms of prescription coincide. The property which
one person loses through long dispossession is often at the same time
acquired by some one else through long possession. Yet this is not
always so, and it is necessary in many instances to know whether legal
effect is given to long possession, in which case the prescription is
positive, or to long want of possession, in which case the prescription
is negative. I may, for example, be continuously out of possession of my
land for twelve years, without any other single person having
continuously held possession of it for that length of time. It may have
been in the hands of a series of trespassers against me and against each
other. In this case, if the legally recognised form of prescription is
positive, it is inoperative, and I retain my ownership. But if the law
recognises negative prescription instead of positive (as in this case
our own system does) my title will be extinguished. Who in such
circumstances will acquire the right which I thus lose, depends not on
the law of prescription, but on the rules as to the acquisition of
things which have no owner. The doctrine that prior possession is a good
title against all but the true owner, will confer on the first of a
series of adverse possessors a good title against all the world so soon
as the title of the true owner has been extinguished by negative
prescription.
The rational basis of prescription is to be found in the presumption of
the coincidence of possession and ownership, of fact and of right.
Owners are usually possessors, and possessors are usually owners. Fact
and right are normally coincident; therefore the former is evidence of
the latter. That a thing is possessed _de facto_ is evidence that it is
owned _de jure_. That it is not possessed raises a presumption that it
is not owned either. Want of possession is evidence of want of title.
The longer the possession or want of possession has continued, the
greater is its evidential value. That I have occupied land for a day
raises a very slight presumption that I am the owner of it; but if I
continue to occupy it for twenty years, the presumption becomes
indefinitely stronger. If I have a claim of debt against a man,
unfulfilled and unenforced, the lapse of six months may have but little
weight as evidence that my claim is unfounded or that it has been
already satisfied; but the lapse of ten years may amount to ample proof
of this.
If, therefore, I am in possession of anything in which I claim a right,
I have evidence of my right which differs from all other evidence,
inasmuch as it grows stronger instead of weaker with the lapse of years.
The tooth of time may eat away all other proofs of title. Documents are
lost, memory fails, witnesses die. But as these become of no avail, an
efficient substitute is in the same measure provided by the probative
force of long possession. So also with long want of possession as
evidence of want of title; as the years pass, the evidence in favour of
the title fades, while the presumption against it grows ever stronger.
Here, then, we have the chief foundation of the law of prescription. For
in this case, as in so many others, the law has deemed it expedient to
confer upon a certain species of evidence conclusive force. It has
established a conclusive presumption in favour of the rightfulness of
long possession, and against the validity of claims which are vitiated
by long want of possession. Lapse of time is recognised as creative and
destructive of rights, instead of merely as evidence for and against
their existence. In substance, though not always in form, prescription
has been advanced from the law of evidence to a place in the substantive
law.
The conclusive presumption on which prescription is thus founded falls,
like all other conclusive presumptions, more or less wide of the truth.
Yet in the long run, if used with due safeguards, it is the instrument
of justice. It is not true as a matter of fact that a claim unenforced
for six years is always unfounded, but it may be wise for the law to act
as if it were true. For the effect of thus exaggerating the evidential
value of lapse of time is to prevent the persons concerned from
permitting such delays as would render their claims in reality doubtful.
In order to avoid the difficulty and error that necessarily result from
the lapse of time, the presumption of the coincidence of fact and right
is rightly accepted as final after a certain number of years. Whoever
wishes to dispute this presumption must do so within that period;
otherwise his right, if he has one, will be forfeited as a penalty for
his neglect. _Vigilantibus non dormientibus jura subveniunt._
Prescription is not limited to rights _in rem_. It is found within the
sphere of obligations as well as within that of property. Positive
prescription, however, is possible only in the case of rights which
admit of possession—that is to say, continuing exercise and enjoyment.
Most rights of this nature are rights _in rem_. Rights _in personam_ are
commonly extinguished by their exercise, and therefore cannot be
possessed or acquired by prescription. And even in that minority of
cases in which such rights do admit of possession, and in which positive
prescription is therefore theoretically possible, modern law, at least,
has seen no occasion for allowing it. This form of prescription,
therefore, is peculiar to the law of property. Negative prescription, on
the other hand, is common to the law of property and to that of
obligations. Most obligations are destroyed by the lapse of time, for
since the ownership of them cannot be accompanied by the possession of
them, there is nothing to preserve them from the destructive influence
of delay in their enforcement.[443]
Negative prescription is of two kinds, which may be distinguished as
perfect and imperfect. The latter is commonly called the limitation of
actions, the former being then distinguished as prescription in a narrow
and specific sense. Perfect prescription is the destruction of the
principal right itself, while imperfect prescription is merely the
destruction of the accessory _right of action_, the principal right
remaining in existence. In other words, in the one case the right is
wholly destroyed, but in the other it is merely reduced from a perfect
and enforceable right to one which is imperfect and unenforceable.
An example of perfect prescription is the destruction of the ownership
of land through dispossession for twelve years. The owner of land who
has been out of possession for that period does not merely lose his
right of action for the recovery of it, but also loses the right of
ownership itself. An example of imperfect prescription, on the other
hand, is the case of the owner of a chattel who has been out of
possession of it for six years. He loses his right of action for the
recovery of it, but he remains the owner of it none the less. His
ownership is reduced from a perfect to an imperfect right, but it still
subsists. Similarly a creditor loses in six years his right of action
for the debt; but the debt itself is not extinguished, and continues to
be due and owing.
§ 163. =Agreement.=
We have already considered the general theory of agreement as a title of
right. It will be remembered that we used the term to include not merely
contracts but all other bilateral acts in the law, that is to say, all
expressions of the consenting wills of two or more persons directed to
an alteration of their legal relations. Agreement in this wide sense is
no less important in the law of property than in that of obligations.
As a title of proprietary rights _in rem_, agreement is of two kinds,
namely assignment and grant. By the former, existing rights are
transferred from one owner to another; by the latter, new rights are
created by way of encumbrance upon the existing rights of the grantor.
The grant of a lease of land is the creation by agreement, between
grantor and grantee, of a leasehold vested in the latter and encumbering
the freehold vested in the former. The assignment of a lease, on the
other hand, is the transfer by agreement of a subsisting leasehold from
the assignor to the assignee.
Agreement is either formal or informal. We have already sufficiently
considered the significance of this formal element in general. There is,
however, one formality known to the law of property which requires
special notice, namely, the delivery of possession. That _traditio_ was
an essential element in the voluntary transfer of _dominium_ was a
fundamental principle of Roman law. _Traditionibus et usucapionibus
dominia rerum, non nudis pactis transferuntur._[444] So in English law,
until the year 1845, land could in theory be conveyed in no other method
than by the delivery of possession. No deed of conveyance was in itself
of any effect. It is true that in practice this rule was for centuries
evaded by taking advantage of that fictitious delivery of possession
which was rendered possible by the Statute of Uses. But it is only by
virtue of a modern statute,[445] passed in the year mentioned, that the
ownership of land can in legal theory be transferred without the
possession of it. In the case of chattels the common law itself
succeeded, centuries ago, in cutting down to a very large extent the
older principle. Chattels can be assigned by deed without delivery, and
also by sale without delivery. But a _gift_ of chattels requires to this
day to be completed by the transfer of possession.[446]
In this requirement of _traditio_ we may see a curious remnant of an
earlier phase of thought. It is a relic of the times when the law
attributed to the fact of possession a degree of importance which at the
present day seems altogether disproportionate. Ownership seems to have
been deemed little more than an accessory of possession. An owner who
had ceased to possess had almost ceased to own, for he was deprived of
his most important rights. A person who had not yet succeeded in
obtaining possession was not an owner at all, however valid his claim to
the possession may have been. The transfer of a thing was conceived as
consisting essentially in the transfer of the possession of it. The
transfer of _rights_, apart from the visible transfer of _things_, had
not yet been thought of.
So far as the requirement of _traditio_ is still justifiably retained by
the law, it is to be regarded as a formality accessory to the agreement,
and serving the same purposes as other formalities. It supplies evidence
of the agreement, and it preserves for the parties a _locus
poenitentiae_, lest they be prematurely bound by unconsidered consent.
It is a leading principle of law that the title of a grantee or assignee
cannot be better than that of his grantor or assignor. _Nemo plus juris
ad alium transferre potest, quam ipse haberet._[447] No man can transfer
or encumber a right which is not his. To this rule, however, there is a
considerable number of important exceptions. The rule is ancient, and
most of the exceptions are modern; and we may anticipate that the future
course of legal development will show further derogations from the early
principle. There are two conflicting interests in the matter. The older
rule is devised for the security of established titles. Under its
protection he who succeeds in obtaining a perfect title may sit down in
peace and keep his property against all the world. The exceptions, on
the contrary, are established in the interests of those who seek to
_acquire_ property, not of those who seek to _keep_ it. The easier it is
to acquire a title with safety, the more difficult it is to keep one in
safety; and the law must make a compromise between these two adverse
interests. The modern tendency is more and more to sacrifice the
security of tenure given by the older rule, to the facilities for safe
and speedy acquisition and disposition given by the exceptions to it.
These exceptions are of two kinds: (1) those due to the separation of
legal from equitable ownership, and (2) those due to the separation of
ownership from possession. We have seen already that when the legal
ownership is in one man and the equitable in another, the legal owner is
a trustee for the equitable. He holds the property on behalf of that
other, and not for himself; and the obligation of this trusteeship is an
encumbrance upon his title. Yet he may, none the less, give an
unencumbered title to a third person, provided that that person gives
value for what he gets, and has at the time no knowledge of the
existence of the trust. This rule is known as the equitable doctrine of
purchase for value without notice. No man who ignorantly and honestly
purchases a defective legal title can be affected by any adverse
equitable title vested in any one else. To this extent a legal owner can
transfer to another more than he has himself, notwithstanding the maxim,
_Nemo dat quod non habet_.
The second class of exceptions to the general principle includes the
cases in which the possession of a thing is in one person and the
ownership of it in another. Partly by the common law, and partly by
various modern statutes, the possessor is in certain cases enabled to
give a good title to one who deals with him in good faith believing him
to be the owner. The law allows men in these cases to act on the
presumption that the possessor of a thing is the owner of it; and he who
honestly acts on this presumption will acquire a valid title in all
events. The most notable example is the case of negotiable instruments.
The possessor of a bank-note may have no title to it; he may have found
it or stolen it; but he can give a good title to any one who takes it
from him for value and in good faith. Similarly mercantile agents, in
possession of goods belonging to their principals, can effectively
transfer the ownership of them,[448] whether they are authorised thereto
or not.[449]
§ 164. =Inheritance.=
The fourth and last mode of acquisition that we need consider is
Inheritance. In respect of the death of their owners all rights are
divisible into two classes, being either inheritable or uninheritable. A
right is inheritable, if it survives its owner; uninheritable, if it
dies with him. This division is to a large extent, though far from
completely, coincident with that between proprietary and personal
rights. The latter are in almost all cases so intimately connected with
the personality of him in whom they are vested, that they are incapable
of separate and continued existence. They are not merely _divested_ by
death (as are rights of every sort), but are wholly _extinguished_. In
exceptional cases, however, this is not so. Some personal rights are
inheritable, just as property is, an instance being the status of
hereditary nobility and the political and other privileges accessory
thereto.
Proprietary rights, on the other hand, are usually inheritable. In
respect of them death is a divestitive, but not an extinctive fact. The
exceptions, however, are numerous. A lease may be for the life of the
lessee instead of for a fixed term of years. Joint ownership is such
that the right of him who dies first is wholly destroyed, the survivor
acquiring an exclusive title by the _jus accrescendi_ or right of
survivorship. Rights of action for a tort die with the person wronged,
except so far as the rule of the common law has been altered by statute.
In the great majority of cases, however, death destroys merely the
ownership of a proprietary right, and not the right itself.
The rights which a dead man thus leaves behind him vest in his
_representative_. They pass to some person whom the dead man, or the law
on his behalf, has appointed to represent him in the world of the
living. This representative bears the person of the deceased, and
therefore has vested in him all the inheritable rights, and has imposed
upon him all the inheritable liabilities of the deceased. Inheritance is
in some sort a legal and fictitious continuation of the personality of
the dead man, for the representative is in some sort identified by the
law with him whom he represents. The rights which the dead man can no
longer own or exercise _in propria persona_, and the obligations which
he can no longer _in propria persona_ fulfil, he owns, exercises, and
fulfils in the person of a living substitute. To this extent, and in
this fashion, it may be said that the legal personality of a man
survives his natural personality, until, his obligations being duly
performed, and his property duly disposed of, his representation among
the living is no longer called for.[450]
The representative of a dead man, though the property of the deceased is
vested in him, is not necessarily the beneficial owner of it. He holds
it on behalf of two classes of persons, among whom he himself may or may
not be numbered. These are the creditors and the beneficiaries of the
estate. Just as many of a man’s rights survive him, so also do many of
his liabilities; and these inheritable obligations pass to his
representative, and must be satisfied by him. Being, however, merely the
representative of another, he is not liable _in propria persona_, and
his responsibility is limited by the amount of the property which he has
acquired from the deceased. He possesses a double personality or
capacity, and that which is due from him in right of his executorship
cannot be recovered from him in his own right.
The beneficiaries, who are entitled to the residue after satisfaction of
the creditors, are of two classes: (1) those nominated by the last will
of the deceased, and (2) those appointed by the law in default of any
such nomination. The succession of the former is testamentary (_ex
testamento_); that of the latter is intestate (_ab intestato_). As to
the latter there is nothing that need here be said, save that the law is
chiefly guided by the presumed desires of the dead man, and confers the
estate upon his relatives in order of proximity. In default of any known
relatives the property of an intestate is claimed by the state itself,
and goes as _bona vacantia_ to the Crown.
Testamentary succession, on the other hand, demands further
consideration. Although a dead man has no rights, a man while yet alive
has the right to determine the disposition after he is dead of the
property which he leaves behind him. His last will, duly declared in the
document which we significantly call by that name, is held inviolable by
the law. For half a century and more, the rights and responsibilities of
living men may thus be determined by an instrument which was of no
effect until the author of it was in his grave and had no longer any
concern with the world or its affairs. This power of the dead hand
(_mortua manus_) is so familiar a feature in the law, that we accept it
as a matter of course, and have some difficulty in realising what a very
singular phenomenon it in reality is.
It is clear that some limitation must be imposed by the law upon this
power of the dead over the living, and these restrictions are of three
chief kinds:
(1) _Limitations of time._ It is only during a limited period after his
death, that the directions of a testator as to the disposition of his
property are held valid. He must so order the destination of his estate
that within this period the whole of it shall become vested absolutely
in some one or more persons, free from all testamentary conditions and
restrictions. Any attempt to retain the property _in manu mortua_ beyond
that limit makes the testamentary disposition of it void. In English law
the period is determined by a set of elaborate rules which we need not
here consider.
(2) _Limitations of amount._ A second limitation of testamentary power,
imposed by most legal systems, though not by our own, is that a testator
can deal with a certain proportion of his estate only, the residue being
allotted by the law to those to whom he owes a duty of support, namely
his wife and children.
(3) _Limitations of purpose._ The power of testamentary disposition is
given to a man that he may use it for the benefit of other men who
survive him; and to this end only can it be validly exercised. The dead
hand will not be suffered to withdraw property from the uses of the
living. No man can validly direct that his lands shall lie waste, or
that his money, shall be buried with him, or thrown into the sea.[451]
SUMMARY.
Divisions of the substantive civil law:
1. Law of Property—Proprietary rights _in rem_.
2. Law of Obligations—Proprietary rights _in personam_.
3. Law of Status—Personal rights.
Meanings of the term property:
1. All legal rights.
2. All proprietary rights.
3. All proprietary rights _in rem_.
4. Rights of ownership in material things.
Divisions of the law of property:
1. Ownership of material things—Corporeal property.
2. Rights _in re propria_ in immaterial things: _e.g._ patents and
trade-marks.
3. Rights _in re aliena_ over material or immaterial things: _e.g._
leases, trusts, and securities.
The ownership of material things.
Its essential qualities:
1. Generality.
2. Permanence.
3. Inheritance.
Ownership of land in English law.
Movable and immovable property. Land and chattels.
Movable and immovable rights.
The local situation of rights.
Real and personal property.
Meanings of the term chattel.
Rights _in re propria_ in immaterial things:
1. Patents.
2. Literary copyright.
3. Artistic copyright.
4. Musical and dramatic copyright.
5. Good-will, trade-marks, and trade-names.
Encumbrances over property:
1. Leases.
Their nature.
Their subject-matter.
Their duration.
2. Servitudes.
Their nature.
Their kinds:
1. Public and private.
2. Appurtenant and in gross.
3. Securities.
Their nature.
Mortgages and Liens.
The essential nature of a mortgage.
Equities of redemption.
Mortgages { By way of assignment.
{ By way of encumbrance.
The double ownership of mortgaged property.
The reduction of mortgages to liens.
The kinds of liens.
Modes of acquiring property:
I. Possession.
1. Absolute title to _res nullius_. Absolute ownership.
2. Relative title to _res aliena_. Possessory ownership.
II. Prescription.
1. Positive or acquisitive.
2. Negative or extinctive.
Rational basis of prescription.
Presumption of coincidence of possession and ownership.
Classes of rights subject to prescription.
Prescription { Perfect.
{ Imperfect—the limitation of actions.
III. Agreement.
{ 1. Assignment.
{ 2. Grant.
{ 1. Formal.
{ 2. Informal.
The efficacy of agreement.
Nemo dat quod non habet.
Exceptions:
1. Separation of legal and equitable ownership.
2. Separation of ownership and possession.
IV. Inheritance.
Rights { Inheritable.
{ Uninheritable.
The representatives of dead men.
The creditors of dead men.
The beneficiaries of dead men.
1. _Ab intestato._
2. _Ex testamento._
The limits of testamentary power.
CHAPTER XXI.
THE LAW OF OBLIGATIONS.
§ 165. =The Nature of Obligations.=
Obligation in its popular sense is merely a synonym for duty. Its legal
sense, derived from Roman law, differs from this in several respects. In
the first place, obligations are merely one class of duties, namely
those which are the correlatives of rights _in personam_. An obligation
is the _vinculum juris_, or bond of legal necessity, which binds
together two or more determinate individuals.[452] It includes, for
example, the duty to pay a debt, to perform a contract, or to pay
damages for a tort, but not the duty to refrain from interference with
the person, property, or reputation of others. Secondly, the term
obligation is in law the name not merely of the duty, but also of the
correlative right. It denotes the legal relation or _vinculum juris_ in
its entirety, including the right of the one party, no less than the
liability of the other. Looked at from the point of view of the person
entitled, an obligation is a right; looked at from the point of view of
the person bound, it is a duty. We may say either that the creditor
acquires, owns, or transfers an obligation, or that the debtor has
incurred or been released from one. Thirdly and lastly, all obligations
pertain to the sphere of _proprietary_ rights. They form part of the
estate of him who is entitled to them. Rights which relate to a person’s
_status_, such as those created by marriage, are not obligations, even
though they are rights _in personam_. An obligation, therefore, may be
defined as a proprietary right _in personam_ or a duty which corresponds
to such a right.
The person entitled to the benefit of an _obligatio_ was in Roman law
termed _creditor_, while he who was bound by it was called _debitor_. We
may venture to use the corresponding English terms creditor and debtor
in an equally wide sense. We shall speak of every obligation, of
whatever nature, as vested in or belonging to a creditor, and availing
against a debtor. There is, of course, a narrower sense, in which these
terms are applicable only to those obligations which constitute _debts_;
that is to say, obligations to pay a definite or liquidated sum of
money.
A technical synonym for obligation is _chose in action_ or _thing in
action_. A chose in action means, in our modern use of it, a proprietary
right _in personam_; for example, a debt, a share in a joint-stock
company, money in the public funds, or a claim for damages for a tort. A
non-proprietary right _in personam_, such as that which arises from a
contract to marry, or from the contract of marriage, is no more a chose
in action in English law than it is an _obligatio_ in Roman law.
Choses in action are opposed to choses in possession, though the
latter term has all but fallen out of use. The true nature of the
distinction thus expressed has been the subject of much discussion. At
the present day, if any logical validity at all is to be ascribed to
it, it must be identified with that between real and personal rights,
that is to say, with the Roman distinction between _dominium_ and
_obligatio_. A chose in action is a proprietary right _in personam_.
All other proprietary rights (including such objects of rights as are
identified with the rights themselves) are choses in possession. If we
regard the matter historically, however, it becomes clear that this is
not the original meaning of the distinction. In its origin a chose in
possession was any thing or right which was accompanied by
_possession_; while a chose in action was any thing or right of which
the claimant had no possession, but which he must obtain, if need be,
by way of an _action_ at law. Money in a man’s purse was a thing in
possession; money due to him by a debtor was a thing in action. This
distinction was largely, though not wholly, coincident with that
between real and personal rights, for real rights are commonly
possessed as well as owned, while personal rights are commonly owned
but not possessed. This coincidence, however, was not complete. A
chattel, for example, stolen from its owner was reduced, so far as he
was concerned, to a thing in action; but his right of ownership was
not thereby reduced to a mere _obligatio_.[453]
The extraordinary importance attributed to the fact of possession was
a characteristic feature of our early law. As this importance
diminished, the original significance of the distinction between
things in possession and things in action was lost sight of, and these
terms gradually acquired a new meaning. Originally shares and
annuities would probably have been classed as things in possession,
but they are now things in action. Conversely lands and chattels are
now things in possession, whether the owner retains possession of them
or not. Obligations were always the most important species of things
in action, and they are now the only species. Neither the old law nor
the new gives any countenance to the suggestion made by some that
immaterial property, such as patents, copyrights, and trade-marks,
should be classed as choses in action.[454]
§ 166. =Solidary Obligations.=
The normal type of obligation is that in which there is one creditor and
one debtor. It often happens, however, that there are two or more
creditors entitled to the same obligation, or two or more debtors under
the same liability. The case of two or more creditors gives rise to
little difficulty, and requires no special consideration. It is, in most
respects, merely a particular instance of co-ownership, the co-owners
holding either jointly or in common, according to circumstances. The
case of two or more debtors, however, is of some theoretical interest,
and calls for special notice.
Examples of it are debts owing by a firm of partners, debts owing by a
principal debtor and guaranteed by one or more sureties, and the
liability of two or more persons who together commit a tort. In all such
cases each debtor is liable for the whole amount due. The creditor is
not obliged to divide his claim into as many different parts as there
are debtors. He may exact the whole sum from one, and leave that one to
recover from his co-debtors, if possible and permissible, a just
proportion of the amount so paid. A debt of £100 owing by two partners,
A. and B., is not equivalent to one debt of £50 owing by A. and another
of the same amount owing by B. It is a single debt of £100 owing by each
of them, in such fashion that each of them may be compelled to pay the
whole of it, but that when it is once paid by either of them, both are
discharged from it.[455]
Obligations of this description may be called solidary, since in the
language of Roman law, each of the debtors is bound _in solidum_ instead
of _pro parte_; that is to say, for the whole, and not for a
proportionate part. A solidary obligation, therefore, may be defined as
one in which two or more debtors owe the same thing to the same
creditor. In English law they are of three distinct kinds, being either
(1) several, (2) joint, or (3) joint and several.
1. Solidary obligations are several, when, although the thing owed is
the same in each case, there are as many distinct obligations and causes
of action, as there are debtors. Each debtor is bound to the creditor by
a distinct and independent _vinculum juris_, the only connexion between
them being that in each case the subject-matter of the obligation is the
same, so that performance by one of the debtors necessarily discharges
all the others also.
2. Solidary obligations are joint, on the other hand, when, though there
are two or more debtors, there is only one debt or other cause of
action, as well as only one thing owed. The _vinculum juris_ is single,
though it binds several debtors to the same creditor. The chief effect
of this unity of the obligation is that all the debtors are discharged
by anything which discharges any one of them. When the _vinculum juris_
has once been severed as to any of them, it is severed as to all. Where,
on the contrary, solidary obligations are several and not joint,
performance by one debtor will release the others, but in all other
respects the different _vincula juris_ are independent of each other.
3. The third species of solidary obligation consists of those which are
both joint and several. As their name implies, they stand half-way
between the two extreme types which we have already considered. They are
the product of a compromise between two competing principles. For some
purposes the law treats them as joint, and for other purposes as
several. For some purposes there is in the eye of the law only one
single obligation and cause of action, while for other purposes the law
consents to recognise as many distinct obligations and causes of action
as there are debtors.
On what principle, then, does the law determine the class of which any
solidary obligation belongs? Speaking generally, we may say that such
obligations are several, when, although they have the same
subject-matter, they have different sources; they are several in their
nature, if they are distinct in their origin. They are joint, on the
other hand, when they have not merely the same subject-matter, but the
same source. Joint and several obligations, in the third place, are
those joint obligations which the law, for special reasons, chooses to
treat in special respects as if they were several. Like those which are
purely and simply joint, they have the same source as well as the same
subject-matter; but the law does not regard them consistently as
comprising a single _vinculum juris_.
The following are examples of solidary obligations which are several
in their nature:
(1) The liability of a principal debtor and that of his surety,
provided that the contract of suretyship is subsequent to, or
otherwise independent of the creation of the debt so guaranteed. But
if the two debts have the same origin, as where the principal debtor
and the surety sign a joint bond, the case is one of joint obligation.
(2) The liability of two or more co-sureties who guarantee the same
debt independently of each other.[456] They may make themselves joint,
or joint and several debtors, on the other hand, by joining in a
single contract of guarantee.
(3) Separate judgments obtained in distinct actions against two or
more persons liable for the same debt. Two persons, for example,
jointly and severally liable on the same contract may be separately
sued, and judgment may be obtained against each of them. In such a
case they are no longer jointly liable at all; each is now severally
liable for the amount of his own judgment; but these two obligations
are solidary, inasmuch as the satisfaction of one will discharge the
other.
(4) The liability of independent wrongdoers whose acts cause the same
damage. This is a somewhat rare case, but is perfectly possible. Two
persons are not joint wrongdoers, simply because they both act
wrongfully and their acts unite to cause a single mischievous result.
They must have committed a joint act; that is to say, they must have
acted together with some common purpose. If not, they may be liable
_in solidum_ and severally for the common harm to which their separate
acts contribute; but they are not liable as joint wrongdoers. In
_Thompson_ v. _The London County Council_[457] the plaintiff’s house
was injured by the subsidence of its foundations, this subsidence
resulting from excavations negligently made by A., taken in
conjunction with the negligence of B., a water company, in leaving a
water-main insufficiently stopped. It was held that A. and B.,
inasmuch as their acts were quite independent of each other, were not
joint wrongdoers, and could not be joined in the same action. It was
said by Lord Justice Collins:[458] “The damage is one, but the causes
of action which have led to that damage are two, committed by two
distinct personalities.” The liability of the parties was solidary,
but not joint.[459] So also successive acts of wrongful conversion may
be committed by two or more persons in respect of the same chattel.
Each is liable in the action of trover to the owner of the chattel for
its full value. But they are liable severally, and not jointly. The
owner may sue each of them in different actions; though payment of the
value by any one of them will discharge the others.[460]
Examples of joint obligations are the debts of partners, and all other
solidary obligations _ex contractu_ which have not been expressly made
joint and several by the agreement of the parties.
Examples of joint and several obligations are the liabilities of those
who jointly commit a tort or breach of trust, and also all contractual
obligations which are expressly made joint and several by the
agreement of the parties.
§ 167. =The Sources of Obligations.=
Classed in respect of their sources or modes of origin, the obligations
recognised by English law are divisible into the following four classes:
(1) Contractual—_Obligationes ex contractu_.
(2) Delictal—_Obligationes ex delicto_.
(3) Quasi-contractual—_Obligationes quasi ex contractu_.
(4) Innominate.
§ 168. =Obligations arising from Contracts.=
The first and most important class of obligations consists of those
which are created by contract. We have in a former chapter sufficiently
considered the nature of a contract,[461] and we there saw that it is
that kind of agreement which creates rights _in personam_ between the
parties to it. Now of rights _in personam_ obligations are the most
numerous and important kind, and of those which are not obligations
comparatively few have their source in the agreement of the parties. The
law of contract, therefore, is almost wholly comprised within the law of
obligations, and for the practical purposes of legal classification it
may be placed there with sufficient accuracy. The coincidence, indeed,
is not logically complete: a promise of marriage, for example, being a
contract which falls within the law of status, and not within that of
obligations. Neglecting, however, this small class of _personal_
contracts, the general theory of contract is simply a combination of the
general theory of agreement with that of obligation, and does not call
for any further examination in this place.[462]
§ 169. =Obligations arising from Torts.=
The second class of obligations consists of those which may be termed
delictal, or in the language of Roman law _obligationes ex delicto_. By
an obligation of this kind is meant the duty of making pecuniary
satisfaction for that species of wrong which is known in English law as
a _tort_. Etymologically this term is merely the French equivalent of
the English wrong—tort (_tortum_), being that which is twisted, crooked,
or wrong; just as right (_rectum_) is that which is straight. As a
technical term of English law, however, tort has become specialised in
meaning, and now includes merely one particular class of civil wrongs.
A tort may be defined as a civil wrong, for which the remedy is an
action for damages, and which is not solely the breach of a contract or
the breach of a trust or other merely equitable obligation. This
definition contains four essential elements, there being four kinds of
wrongs excluded by it from the sphere of tort.
1. A tort is a civil wrong; crimes are wrongs, but are not in themselves
torts, though there is nothing to prevent the same act from belonging to
both these classes at once.
2. Even a civil wrong is not a tort, unless the appropriate remedy for
it is an action for damages. There are several other forms of civil
remedy besides this; for example, injunctions, specific restitution of
property, and the payment of liquidated sums of money by way of penalty
or otherwise. Any civil injury which gives rise exclusively to one of
these other forms of remedy stands outside the class of torts. The
obstruction of a public highway, for example, is to be classed as a
civil injury, inasmuch as it may give rise to civil proceedings
instituted by the Attorney-General for an injunction; but although a
civil injury, it is not a tort, save in those exceptional instances in
which, by reason of special damage suffered by an individual, it gives
rise to an action for damages at his suit.
3. No civil wrong is a tort, if it is exclusively the breach of a
contract. The law of contracts stands by itself, as a separate
department of our legal system, over against the law of torts; and to a
large extent liability for breaches of contract and liability for torts
are governed by different principles. It may well happen, however, that
the same act is both a tort and a breach of contract, and this is so in
at least two classes of cases.
(_a_) The first and simplest of these is that in which a man undertakes
by contract the performance of a duty which lies on him already,
independently of any contract. Thus he who refuses to return a borrowed
chattel commits both a breach of contract and also the tort known as
conversion: a breach of contract, because he promised expressly or
impliedly to return the chattel; but not _merely_ a breach of contract,
and therefore also a tort, because he would have been equally liable for
detaining another man’s property, even if he had made no such contract
at all.
(_b_) The second class of cases is one which involves considerable
difficulty, and the law on this point cannot yet be said to have been
thoroughly developed. In certain instances the breach of a contract made
with one person creates liability towards another person, who is no
party to the contract. It is a fundamental principle, indeed, that no
person can sue on an _obligatio ex contractu_, except a party to the
contract; nevertheless it sometimes happens that one person can sue _ex
delicto_ for the breach of a contract which was not made with him, but
from the breach of which he has suffered unlawful damage. That is to
say, a man may take upon himself, by a contract with A., a duty which
does not already or otherwise rest upon him, but which, when it has once
been undertaken, he cannot break without doing such damage to B., a
third person, as the law deems actionable. Thus, if X. lends his horse
to Y., who delivers it to Z., a livery stablekeeper, to be looked after
and fed, and the horse is injured or killed by insufficient feeding,
presumably Z. is liable for this, not only in contract to Y., but also
in tort to X., the owner of the horse. It is true that, apart from his
contract with Y., Z. was under no obligation to feed the animal; apart
from the contract, this was a mere omission to do an act which he was
not bound to do. Yet having taken this duty upon himself, he has thereby
put himself in such a situation that he cannot break the duty without
inflicting on the owner of the horse damage of a kind which the law
deems wrongful. The omission to feed the horse, therefore, although a
breach of contract, is not exclusively such, and is therefore a tort,
inasmuch as it can be sued on by a person who is no party to the
contract. How far damage thus caused to one man by the breach of a duty
undertaken by contract with another is actionable as a tort at the suit
of the former, is a question to be determined by the detailed rules of
the concrete legal system, and need not be here considered.[463]
Before the abolition of forms of action the relation between contract
and tort was complicated and obscured by the existence of a class of
fictitious torts—wrongs which were in reality pure breaches of
contract and nothing more, and which nevertheless were remediable by
delictal forms of action. Forms of action were classed as either
contractual or delictal, but contractual actions were illogically
allowed in cases in which there was no true contract, but only a
quasi-contract; and delictal actions in cases in which there was no
true tort, but a mere breach of contract. There seems to be no longer
any occasion for recognising the existence of such quasi-torts, for
they were merely a product of historical accident, which may and
should be now eliminated from the law. They are a relic of the days
when contractual remedies were so imperfectly developed that they had
to be supplemented by the use of delictal remedies in cases of breach
of contract. The contractual action of _assumpsit_ is, in its origin,
merely a variant of the delictal action of _case_. It is not
surprising, therefore, that until the abolition of all forms of
action, our law failed to draw with accuracy the line between torts
and breaches of contract.[464]
4. The fourth and last class of wrongs which are not torts consists of
breaches of trusts or other equitable obligations. The original reason
for their exclusion and separate classification is the historical fact,
that the law of trusts and equitable obligations originated and
developed in the Court of Chancery, and was wholly unknown to those
courts of common law in which the law of torts grew up. But even now,
although the distinction between law and equity is abolished, it is
still necessary to treat breaches of trust as a form of wrong distinct
from torts, and to deal with them along with the law of trusts itself,
just as breaches of contract are dealt with along with the law of
contract. Torts, contracts, and trusts developed separately, the
principles of liability in each case are largely different, and they
must be retained as distinct departments of the law.
By some writers a tort has been defined as the violation of a right
_in rem_, giving rise to an obligation to pay damages. There is a
tempting simplicity and neatness in this application of the
distinction between rights _in rem_ and _in personam_, but it may be
gravely doubted whether it does in truth conform to the actual
contents of the English law of torts. Most torts undoubtedly are
violations of rights _in rem_, because most rights _in personam_ are
created by contract. But there are rights _in personam_ which are not
contractual, and the violation of which, if it gives rise to an action
for damages, must be classed as a tort. The refusal of an innkeeper to
receive a guest is a tort, yet it is merely the breach of a
non-contractual right _in personam_. So with any actionable refusal or
neglect on the part of a public official to perform his statutory
duties on behalf of the plaintiff.
§ 170. =Obligations arising from Quasi-Contracts.=
Both in Roman and in English law there are certain obligations which are
not in truth contractual, but which the law treats as if they were. They
are contractual in law, but not in fact, being the subject-matter of a
fictitious extension of the sphere of contract to cover obligations
which do not in reality fall within it. The Romans called them
_obligationes quasi ex contractu_. English lawyers call them
quasi-contracts or implied contracts, or often enough contracts simply
and without qualification. We are told, for example, that a judgment is
a contract, and that a judgment debt is a contractual obligation.[465]
“Implied [contracts],” says Blackstone,[466] “are such as reason and
justice dictate, and which, therefore, the law presumes that every man
undertakes to perform.” “Thus it is that every person is bound, and hath
virtually agreed, to pay such particular sums of money as are charged on
him by the sentence, or assessed by the interpretation, of the
law.”[467] So the same author speaks, much too widely indeed, of the
“general implication and intendment of the courts of judicature that
every man hath engaged to perform what his duty or justice
requires.”[468]
From a quasi-contract, or contract implied in _law_, we must carefully
distinguish a contract implied in _fact_. The latter is a true contract,
though its existence is only inferred from the conduct of the parties,
instead of being expressed. Thus when I enter an omnibus, I impliedly,
yet actually agree to pay the usual fare. A contract implied in law, on
the contrary, is merely fictitious, for the parties to it have not
agreed at all, either expressly or tacitly.
In what cases, then, does the law recognise this fiction of
quasi-contract? What classes of obligations are regarded as contractual
in law, though they are not so in fact? To this question it is not
possible to give any complete answer here. We can, however, single out
two classes of cases, which include most, though not all, of the
quasi-contractual obligations known to English law.
1. In the first place we may say in general, that in the theory of the
common law all _debts_ are deemed to be contractual in origin. A debt is
an obligation to pay a liquidated sum of money, as opposed to an
obligation to pay an unliquidated amount, and as opposed also to all
non-pecuniary obligations. Most debts are _obligationes ex contractu_ in
truth and in fact, but there are many which have a different source. A
judgment creates a debt which is non-contractual; so also does the
receipt of money paid by mistake or obtained by fraud. Nevertheless, in
the eye of the common law they all fall within the sphere of contract;
for the law conclusively presumes that every person who owes a debt has
promised to pay it. “Whatever, therefore,” says Blackstone,[469] “the
laws order any one to pay, that becomes instantly a debt which he hath
beforehand contracted to discharge.”
Hence it is, that a judgment debtor is in legal theory liable _ex
contractu_ to satisfy the judgment. “The liability of the defendant,”
says Lord Esher,[470] “arises upon the implied contract to pay the
amount of the judgment.” Similarly all pecuniary obligations of
restitution are in theory contractual, as in the case of money paid by
mistake, or obtained by fraud or duress. “If the defendant,” says Lord
Mansfield,[471] “be under an obligation, from the ties of natural
justice, to refund, the law implies a debt, and gives this action
founded on the equity of the plaintiff’s case, as it were upon a
contract (_quasi ex contractu_, as the Roman law expresses it).” So
also with pecuniary obligations of indemnity; when, for example, the
goods of a stranger are distrained and sold by a landlord for rent due
by his tenant, the law implies a promise by the tenant to repay their
value to the owner thus deprived of them.[472] A similar fictitious
promise is the ground on which the law bases obligations of
contribution. If, for example, two persons acting independently of
each other guarantee the same debt, and one of them is subsequently
compelled to pay the whole, he can recover half of the amount from the
other, as due to him under a contract implied in law, although there
is clearly none in fact.
2. The second class of quasi-contracts includes all those cases in which
a person injured by a tort is allowed by the law to waive the tort and
sue in contract instead. That is to say, there are certain obligations
which are in truth delictal, and not contractual, but which may at the
option of the plaintiff be treated as contractual, if he so pleases.
Thus if one wrongfully takes away my goods and sells them, he is guilty
of the tort known as trespass, and his obligation to pay damages for the
loss suffered by me is in reality delictal. Nevertheless I may, if I
think it to my interest, waive the tort, and sue him on a fictitious
contract, demanding from him the payment of the money so received by him
as having rightly sold the goods as my agent, and therefore as being
indebted to me in respect of the price received by him; and he will not
be permitted to plead his own wrongdoing in bar of any such claim.[473]
So if a man obtains money from me by fraudulent misrepresentation, I may
sue him either in tort for damages for the deceit, or on a fictitious
contract for the return of the money.
The reasons which have induced the law to recognise the fiction of
quasi-contractual obligation are various. The chief of them, however,
are the three following:—
(1) The traditional classification of the various forms of personal
actions, as being based either on contract or on tort. This
classification could be rendered exhaustive and sufficient only by
forcing all liquidated pecuniary obligations into the contractual
class, regardless of their true nature and origin. The theory that all
common law actions are either contractual or delictal is received by
the legislature even at the present day,[474] and its necessary
corollary is the doctrine of quasi-contract.
(2) The desire to supply a theoretical basis for new forms of
obligation established by judicial decision. Here as elsewhere, legal
fictions are of use in assisting the development of the law. It is
easier for the courts to say that a man is bound to pay because he
must be taken to have so promised, than to lay down for the first time
the principle that he is bound to pay whether he has promised or not.
(3) The desire of plaintiffs to obtain the benefit of the superior
efficiency of contractual remedies. In more than one respect, it was
better in the old days of formalism to sue on contract than on any
other ground. The contractual remedy of _assumpsit_ was better than
the action of debt, for it did not allow to the defendant the resource
of wager of law. It was better than trespass and other delictal
remedies, for it did not die with the person of the wrongdoer, but was
available against his executors. Therefore plaintiffs were allowed to
allege fictitious contracts, and to sue on them in _assumpsit_,
whereas in truth their appropriate remedy was debt or some action _ex
delicto_.
It seems clear that a rational system of law is free to get rid of the
conception of quasi-contractual obligation altogether. No useful
purpose is served by it at the present day. It still remains, however,
part of the law of England, and requires recognition accordingly.
§ 171. =Innominate Obligations.=
The foregoing classification of obligations as either contractual,
delictal, or quasi-contractual, is not exhaustive, for it is based on no
logical scheme of division, but proceeds by simple enumeration only.
Consequently, it is necessary to recognise a final and residuary class
which we may term innominate, as having no comprehensive and distinctive
title.[475] Included in this class are the obligations of trustees
towards their beneficiaries, a species, indeed, which would be
sufficiently important and distinct to be classed separately as
co-ordinate with the others which have been named, were it not for the
fact that trusts are more appropriately treated in another branch of the
law, namely in that of property.
SUMMARY.
Obligations defined.
Choses in action.
Solidary obligations:
Their nature.
Their kinds:
1. Several.
2. Joint.
3. Joint and several.
Contractual obligations.
Delictal obligations:
The nature of a tort:
1. A civil wrong.
2. Actionable by way of damages.
3. Not a mere breach of contract.
4. Not a mere breach of trust or other equitable obligation.
Quasi-contractual obligations:
The nature of quasi-contract.
Instances of quasi-contracts.
Reasons of their recognition.
Innominate obligations.
CHAPTER XXII.
THE LAW OF PROCEDURE.
§ 172. =Substantive Law and the Law of Procedure.=
It is no easy task to state with precision the exact nature of the
distinction between substantive law and the law of procedure, and it
will conduce to clearness if we first consider a plausible but erroneous
explanation. In view of the fact that the administration of justice in
its typical form consists in the application of remedies to the
violations of rights, it may be suggested that substantive law is that
which defines the _rights_, while procedural law determines the
_remedies_. This application, however, of the distinction between _jus_
and _remedium_ is inadmissible. For in the first place there are many
rights which belong to the sphere of procedure; for example, a right of
appeal, a right to give evidence on one’s own behalf, a right to
interrogate the other party, and so on. In the second place, rules
defining the remedy may be as much a part of the substantive law as are
those which define the right itself. No one would call the abolition of
capital punishment, for instance, a change in the law of criminal
procedure. The substantive part of the criminal law deals not with
crimes alone, but with punishments also. So in the civil law, the rules
as to the measure of damages pertain to the substantive law, no less
than those declaring what damage is actionable; and rules determining
the classes of agreements which will be specifically enforced are as
clearly substantive as are those determining the agreements which will
be enforced at all. To define procedure as concerned not with rights,
but with remedies, is to confound the remedy with the process by which
it is made available.
What, then, is the true nature of the distinction? The law of procedure
may be defined as that branch of the law which governs the process of
litigation. It is the law of actions—_jus quod ad actiones
pertinet_—using the term action in a wide sense to include all legal
proceedings, civil or criminal. All the residue is substantive law, and
relates not to the process of litigation, but to its purposes and
subject-matter. Substantive law is concerned with the ends which the
administration of justice seeks; procedural law deals with the means and
instruments by which those ends are to be attained. The latter regulates
the conduct and relations of courts and litigants in respect of the
litigation itself; the former determines their conduct and relations in
respect of the matters litigated. Procedural law is concerned with
affairs inside the courts of justice; substantive law deals with matters
in the world outside.
A glance at the actual contents of the law of procedure will enable us
to judge of the accuracy of this explanation. Whether I have a right to
recover certain property is a question of substantive law, for the
determination and the protection of such rights are among the ends of
the administration of justice; but in what courts and within what time I
must institute proceedings are questions of procedural law, for they
relate merely to the modes in which the courts fulfil their functions.
What facts constitute a wrong is determined by the substantive law; what
facts constitute proof of a wrong is a question of procedure. For the
first relates to the subject-matter of litigation, the second to the
process merely. Whether an offence is punishable by fine or by
imprisonment is a question of substantive law, for the existence and
measure of criminal liability are matters pertaining to the end and
purpose of the administration of justice. But whether an offence is
punishable summarily or only on indictment is a question of procedure.
Finally it may be observed that, whereas the abolition of capital
punishment would be an alteration of the substantive law, the abolition
of imprisonment for debt was merely an alteration in the law of
procedure. For punishment is one of the ends of the administration of
justice, while imprisonment for debt was merely an instrument for
enforcing payment.
So far as the administration of justice is concerned with the
application of remedies to violated rights, we may say that the
substantive law defines the remedy and the right, while the law of
procedure defines the modes and conditions of the application of the one
to the other.
Although the distinction between substantive law and procedure is
sharply drawn in theory, there are many rules of procedure which in
their practical operation are wholly or substantially equivalent to
rules of substantive law. In such cases the difference between these two
branches of the law is one of form rather than of substance. A rule
belonging to one department may by a change of form pass over into the
other without materially affecting the practical issue. In legal history
such transitions are frequent, and in legal theory they are not without
interest and importance.
Of these equivalent procedural and substantive principles there are at
least three classes sufficiently important to call for notice here.
1. An exclusive evidential fact is practically equivalent to a
constituent element in the title of the right to be proved. The rule of
evidence that a contract can be proved only by a writing corresponds to
a rule of substantive law that a contract is void unless reduced to
writing. In the former case the writing is the exclusive evidence of
title; in the latter case it is part of the title itself. In the former
case the right exists but is imperfect, failing in its remedy through
defect of proof. In the latter case it fails to come into existence at
all. But for most purposes this distinction is one of form rather than
of substance.
2. A conclusive evidential fact is equivalent to, and tends to take the
place of, the fact proved by it. All conclusive presumptions pertain in
form to procedure, but in effect to the substantive law. That a child
under the age of seven years is incapable of criminal intention is a
rule of evidence, but differs only in form from the substantive rule
that no child under that age is punishable for a crime. That the acts of
a servant done about his master’s business are done with his master’s
authority is a conclusive presumption of law, and pertains to procedure;
but it is the forerunner and equivalent of our modern substantive law of
employer’s liability. A bond (that is to say, an admission of
indebtedness under seal) was originally operative as being conclusive
proof of the existence of the debt so acknowledged; but it is now itself
creative of a debt; for it has passed from the domain of procedure into
that of substantive law.
3. The limitation of actions is the procedural equivalent of the
prescription of rights. The former is the operation of time in severing
the bond between right and remedy; the latter is the operation of time
in destroying the right. The former leaves an imperfect right
subsisting; the latter leaves no right at all. But save in this respect
their practical effect is the same, although their form is different.
The normal elements of judicial procedure are five in number, namely
Summons, Pleading, Proof, Judgment, and Execution. The object of the
first is to secure for all parties interested an opportunity of
presenting themselves before the court and making their case heard.
Pleading formulates for the use of the court and of the parties those
questions of fact or law which are in issue. Proof is the process by
which the parties supply the court with the _data_ necessary for the
decision of those questions. Judgment is this decision itself, while
execution, the last step in the proceeding, is the use of physical force
in the maintenance of the judgment, when voluntary submission is
withheld. Of these five elements of judicial procedure one only, namely
proof, is of sufficient theoretical interest to repay such abstract
consideration as is here in place. The residue of this chapter,
therefore, will be devoted to an analysis of the essential nature of the
law of evidence.
§ 173. =Evidence.=
One fact is evidence of another when it tends in any degree to render
the existence of that other probable. The quality by virtue of which it
has such an effect may be called its _probative force_, and evidence may
therefore be defined as any fact which possesses such force. Probative
force may be of any degree of intensity. When it is great enough to form
a rational basis for the inference that the fact so evidenced really
exists, the evidence possessing it is said to constitute _proof_.
It is convenient to be able to distinguish shortly between the fact
which is evidence, and the fact of which it is evidence. The former may
be termed the _evidential fact_, the latter the _principal fact_. Where,
as is often the case, there is a chain of evidence, A. being evidence of
B., B. of C., C. of D. and so on, each intermediate fact is evidential
in respect of all that follow it and principal in respect of all that
precede it.
1. Evidence is of various kinds, being in the first place either
_judicial_ or _extrajudicial_. Judicial evidence is that which is
produced to the court; it comprises all evidential facts that are
actually brought to the personal knowledge and observation of the
tribunals. Extrajudicial evidence is that which does not come directly
under judicial cognizance, but nevertheless constitutes an intermediate
link between judicial evidence and the fact requiring proof. Judicial
evidence includes all testimony given by witnesses in court, all
documents produced to and read by the court, and all things personally
examined by the court for the purposes of proof. Extrajudicial evidence
includes all evidential facts which are known to the court only by way
of inference from some form of judicial evidence. Testimony is
extrajudicial, when it is judicially known only through the relation of
a witness who heard it. A confession of guilt, for example, is judicial
evidence if made to the court itself, but extrajudicial if made
elsewhere and proved to the court by some form of judicial evidence.
Similarly a document is judicial evidence if produced, extrajudicial if
known to the court only through a copy, or through the report of a
witness who has read it. So the _locus in quo_ or the material
subject-matter of a suit becomes judicial evidence, when personally
viewed by the court, but is extrajudicial when described by witnesses.
It is plain that in every process of proof some form of judicial
evidence is an essential element. Extrajudicial evidence may or may not
exist. When it is present, it forms an intermediate link or a series of
intermediate links in a chain of proof, the terminal links of which are
the principal fact at one end and the judicial evidence at the other.
Judicial evidence requires production merely; extrajudicial evidence
stands itself in need of proof.
2. In the second place evidence is either _personal_ or _real_. Personal
evidence is otherwise termed _testimony_. It includes all kinds of
statements regarded as possessed of probative force in respect of the
facts stated. This is by far the most important form of evidence. There
are few processes of proof that do not contain it—few facts that are
capable of being proved in courts of justice otherwise than by the
testimony of those who know them. Testimony is either oral or written,
and either judicial or extrajudicial. There is a tendency to restrict
the term to the judicial variety, but there is no good reason for this
limitation. It is better to include under the head of testimony or
personal evidence all statements, verbal or written, judicial or
extrajudicial, so far as they are possessed of probative force. Real
evidence, on the other hand, includes all the residue of evidential
facts. Anything which is believed for any other reason than that some
one has said so, is believed on real evidence. This, too, is either
judicial or extrajudicial, though here also there is a tendency to
restrict the term to the former use.
3. Evidence is either _primary_ or _secondary_. Other things being
equal, the longer any chain of evidence the less its probative force,
for with each successive inference the risk of error grows. In the
interests of truth, therefore, it is expedient to shorten the process,
to cut out as many as possible of the intermediate links of
extrajudicial evidence, and to make evidence assume the judicial form at
the earliest practicable point. Hence the importance of the distinction
between primary and secondary evidence. Primary evidence is evidence
viewed in comparison with any available and less immediate instrument of
proof. Secondary evidence is that which is compared with any available
and more immediate instrument of proof. Primary evidence of the contents
of a written document is the production in court of the document itself;
secondary evidence is the production of a copy or of oral testimony as
to the contents of the original. Primary evidence that A. assaulted B.
is the judicial testimony of C. that he saw the assault; secondary
evidence is the judicial testimony of D. that C. told him that he saw
the assault. That secondary evidence should not be used when primary
evidence is available is, in its general form, a mere counsel of
prudence; but in particular cases, the most important of which are those
just used as illustrations, this counsel has hardened into an obligatory
rule of law. Subject to certain exceptions, the courts will receive no
evidence of a written document save the document itself, and will listen
to no hearsay testimony.
4. Evidence is either _direct_ or _circumstantial_. This is a
distinction important in popular opinion rather than in legal theory.
Direct evidence is testimony relating immediately to the principal fact.
All other evidence is circumstantial. In the former case the only
inference required is one from testimony to the truth of it. In the
latter the inference is of a different nature, and is generally not
single but composed of successive steps. The testimony of A. that he saw
B. commit the offence charged, or the confession of B. that he is
guilty, constitutes direct evidence. If we believe the truth of the
testimony or confession, the matter is concluded, and no further process
of proof or inference is required. On the other hand, the testimony of
A. that B. was seen by him leaving the place where the offence was
committed, and having the instrument of the offence in his possession,
is merely circumstantial evidence; for even if we believe this
testimony, it does not follow without a further inference, and therefore
a further risk of error, that B. is guilty. Direct evidence is commonly
considered to excel the other in probative force. This, however, is not
necessarily the case, for witnesses lie, and facts do not.
Circumstantial evidence of innocence may well prevail over direct
evidence of guilt; and circumstantial evidence of guilt may be
indefinitely stronger than direct evidence of innocence.
§ 174. =The Valuation of Evidence.=
The law of evidence comprises two parts. The first of these consists of
rules for the measurement or determination of the _probative force_ of
evidence. The second consists of rules determining the modes and
conditions of the _production_ of evidence. The first deals with the
effect of evidence when produced, the second with the manner in which it
is to be produced. The first is concerned with evidence in all its
forms, whether judicial or extrajudicial; the second is concerned with
judicial evidence alone. The two departments are intimately connected,
for it is impossible to formulate rules for the production of evidence
without reference and relation to the effect of it when produced.
Nevertheless the two are distinct in theory, and for the most part
distinguishable in practice. We shall deal with them in their order.
In judicial proceedings, as elsewhere, the accurate measurement of the
evidential value of facts is a condition of the discovery of truth.
Except in the administration of justice, however, this task is left to
common sense and personal discretion. Rules and maxims, when recognised
at all, are recognised as proper for the _guidance_ of individual
judgment, not for the _exclusion_ of it. But in this, as in every other
part of judicial procedure, law has been generated, and, in so far as it
extends, has made the estimation of probative force or the weighing of
evidence a matter of inflexible rules excluding judicial discretion.
These rules constitute the first and most characteristic portion of the
law of evidence. They may be conveniently divided into five classes,
declaring respectively that certain facts amount to:—
1. Conclusive proof—in other words, raise a conclusive presumption;
2. Presumptive proof—in other words, raise a conditional or rebuttable
presumption;
3. Insufficient evidence—that is to say, do not amount to proof, and
raise no presumption, conclusive or conditional;
4. Exclusive evidence—that is to say, are the only facts which in
respect of the matter in issue possess any probative force at all;
5. No evidence—that is to say, are destitute of evidential value.
I. _Conclusive presumptions._—By conclusive proof is meant a fact
possessing probative force of such strength as not to admit of effective
contradiction. In other words, this fact amounts to proof irrespective
of the existence or non-existence of any other facts whatsoever which
may possess probative force in the contrary direction. By a conclusive
presumption is meant the acceptance or recognition of a fact by the law
as conclusive proof.
Presumptive or conditional proof, on the other hand, is a fact which
amounts to proof, only so long as there exists no other fact amounting
to disproof. It is a provisional proof, valid until overthrown by
contrary proof. A conditional or rebuttable presumption is the
acceptance of a fact by the law as conditional proof.[476]
One of the most singular features in early systems of procedure is the
extent to which the process of proof is dominated by conclusive
presumptions. The chief part of the early law of evidence consists of
rules determining the species of proof which is necessary and sufficient
in different cases, and allotting the benefit or burden of such proof
between the parties. He who would establish his case must maintain it,
for example, by success in that judicial battle the issue of which was
held to be the judgment of Heaven (_judicium Dei_); or he must go
unscathed through the ordeal, and so make manifest his truth or
innocence; or he must procure twelve men to swear in set form that they
believe his testimony to be true; or it may be sufficient if he himself
makes solemn oath that his cause is just. If he succeeds in performing
the conditions so laid upon him, he will have judgment; if he fails even
in the slightest point, he is defeated. His task is to satisfy the
requirements of the law, not to convince the court of the truth of his
case. What the court thinks of the matter is nothing to the point. The
whole procedure seems designed to take away from the tribunals the
responsibility of investigating the truth, and to cast this burden upon
providence or fate. Only gradually and reluctantly did our law attain to
the conclusion that there is no such royal road in the administration of
justice, that the heavens are silent, that the battle goes to the
strong, that oaths are naught, and that there is no just substitute for
the laborious investigation of the truth of things at the mouths of
parties and witnesses.
The days are long since past in which conclusive presumptions played any
great part in the administration of justice. They have not, however,
altogether lost their early importance. They are, indeed, almost
necessarily more or less false, for it is seldom possible in the
subject-matter of judicial procedure to lay down with truth a general
principle that any one thing is conclusive proof of the existence of any
other. Nevertheless such principles may be just and useful even though
not wholly true. We have already seen how they are often merely the
procedural equivalents of substantive rules which may have independent
validity. They have also been of use in developing and modifying by way
of legal fictions the narrow and perverted principles of the early law.
As an illustration of their employment in modern law we may cite the
maxim _Res judicata pro veritate accipitur_. A judgment is conclusive
evidence as between the parties, and sometimes as against all the world,
of the matters adjudicated upon. The courts of justice may make
mistakes, but no one will be heard to say so. For their function is to
terminate disputes, and their decisions must be accepted as final and
beyond question.
II. _Conditional presumptions._—The second class of rules for the
determination of probative force are those which establish rebuttable
presumptions. For example, a person shown not to have been heard of for
seven years by those who would naturally have heard of him if he had
been alive, is presumed to be dead. So also a negotiable instrument is
presumed to have been given for value. So also a person accused of any
offence is presumed to be innocent.
Many of these presumptions are based on no real estimate of
probabilities, but are established for the purpose of placing the burden
of proof upon the party who is best able to bear it, or who may most
justly be made to bear it. Persons accused of crime are probably guilty,
but the presumption of their innocence is in most cases and with certain
limitations clearly expedient.
III. _Insufficient evidence._—In the third place the law contains rules
declaring that certain evidence is insufficient, that its probative
force falls short of that required for proof, and that it is therefore
not permissible for the courts to act upon it. An example is the rule
that in certain kinds of treason the testimony of one witness is
insufficient—almost the sole recognition by English law of the general
principle, familiar in legal history, that two witnesses are necessary
for proof.
IV. _Exclusive evidence._—In the fourth place there is an important
class of rules declaring certain facts to be exclusive evidence, none
other being admissible. The execution of a document which requires
attestation can be proved in no other way than by the testimony of an
attesting witness, unless owing to death or some other circumstance his
testimony is unavailable. A written contract can be proved in no other
way than by the production of the writing itself, whenever its
production is possible. Certain kinds of contracts, such as one for the
sale of land, cannot be proved except by writing, no verbal testimony
being of virtue enough in the law to establish the existence of them.
It is only in respect of very special kinds of contracts that written
evidence can wisely be demanded by the law. In the case of all ordinary
mercantile agreements such a requirement does more harm than good; and
the law would do well in accepting the principle that a man’s word is as
good as his bond. The Statute of Frauds, by which most of these rules of
exclusive evidence have been established, is an instrument for the
encouragement of frauds rather than for the suppression of them. How
much longer is it to remain in force as a potent instrument for the
perversion of English law? Its repeal would sweep away at one stroke the
immense accumulation of irrational technicality and complexity that has
grown in the course of centuries from this evil root.
V. _Facts which are not evidence._—Fifthly and lastly there are rules
declaring that certain facts are not evidence, that is to say, are
destitute of any probative force at all. Such facts are not to be
produced to the court, and if produced no weight is to be attributed to
them, for no accumulation of them can amount to proof. For example,
hearsay is no evidence, the bond of connexion between it and the
principal fact so reported at second hand being in the eye of the law
too slight for any reliance to be justly placed upon it. Similarly the
general bad character of an accused person is no evidence that he is
guilty of any particular offence charged against him; although his good
character is evidence of his innocence.
These rules of exclusion or irrelevancy assume two distinct forms,
characteristic respectively of the earlier and later periods in the
development of the law. At the present day they are almost wholly rules
for the exclusion of _evidence_; in earlier times they were rules for
the exclusion of _witnesses_. The law imposed testimonial incapacity
upon certain classes of persons on the ground of their antecedent
incredibility. No party to a suit, no person possessing any pecuniary
interest in the event of it, no person convicted of any infamous
offence, was a competent witness. His testimony was deemed destitute of
evidential value on account of the suspicious nature of its source. The
law has now learned that it is not in this fashion that the truth is to
be sought for and found. It has now more confidence in individual
judgment and less in general rules. It no longer condemns witnesses
unheard, but receives the testimony of all, placing the old grounds of
exclusion at their proper level as reasons for suspicion but not for
antecedent rejection. Whether rules for the exclusion of evidence are
not in general exposed to the same objections that have already
prevailed against the roles for the exclusion of witnesses is a question
which we shall presently consider.
§ 175. =The Production of Evidence.=
The second part of the law of evidence consists of rules regulating its
production. It deals with the process of adducing evidence, and not with
the effect of it when adduced. It comprises every rule relating to
evidence, except those which amount to legal determinations of probative
force. It is concerned for example with the manner in which witnesses
are to be examined and cross-examined, not with the weight to be
attributed to their testimony. In particular it includes several
important rules of exclusion based on grounds independent of any
estimate of the probative force of the evidence so excluded.
Considerations of expense, delay, vexation, and the public interest
require much evidence to be excluded which is of undoubted evidential
value. A witness may be able to testify to much that is relevant and
important in respect of the matters in issue, and nevertheless may not
be compelled or even permitted to give such testimony. A public
official, for example, cannot be compelled to give evidence as to
affairs of state, nor is a legal adviser permitted or compellable to
disclose communications made to him by or on behalf of his client.
The most curious and interesting of all these rules of exclusion is the
maxim, _Nemo tenetur se ipsum accusare_. No man, not even the accused
himself, can be compelled to answer any question the answer to which may
tend to prove him guilty of a crime. No one can be used as the unwilling
instrument of his own conviction. He may confess, if he so pleases, and
his confession will be received against him; but if tainted by any form
of physical or moral compulsion, it will be rejected. The favour with
which this rule has been received is probably due to the recoil of
English law from the barbarities of the old Continental system of
torture and inquisitorial process. Even as contrasted with the modern
Continental procedure, in which the examination of the accused seems to
English eyes too prominent and too hostile, the rule of English law is
not without merits. It confers upon a criminal trial an aspect of
dignity, humanity, and impartiality, which the contrasted inquisitorial
process is too apt to lack. Nevertheless it seems impossible to resist
Bentham’s conclusion that the rule is destitute of any rational
foundation, and that the compulsory examination of the accused is an
essential feature of sound criminal procedure. Even its defenders admit
that the English rule is extremely favourable to the guilty, and in a
proceeding the aim of which is to convict the guilty, this would seem to
be a sufficient condemnation. The innocent have nothing to fear from
compulsory examination, and everything to gain; the guilty have nothing
to gain, and everything to fear. A criminal trial is not to be
adequately conceived as a fight between the accused and his accuser; and
there is no place in it for maxims whose sole foundation is a supposed
duty of generous dealing with adversaries. Subject always to the
important qualification that a good _prima facie_ case must first be
established by the prosecutor, every man should be compellable to answer
with his own lips the charges that are made against him.[477]
A matter deserving notice in connexion with this part of the law of
evidence is the importance still attached to the ceremony of the oath.
One of the great difficulties involved in the process of proof is that
of distinguishing between true testimony and false. By what test is the
lying witness to be detected, and by what means is corrupt testimony to
be prevented? Three methods commended themselves to the wisdom of our
ancestors. These were the judicial combat, the ordeal, and the oath. The
first two of these have long since been abandoned as ineffective, but
the third is still retained as a characteristic feature of judicial
procedure, though we may assume with some confidence that its rejection
will come in due time, and will in no way injure the cause of truth and
justice.
Trial by battle, so soon as it acquired a theory at all, became in
reality a form of ordeal. In common with the ordeal commonly so called,
it is the _judicium Dei_; it is an appeal to the God of battles to make
manifest the right by giving the victory to him whose testimony is true.
Successful might is the divinely appointed test of right. So in the
ordeal, the party or witness whose testimony is impeached calls upon
Heaven to bear witness to his truth by saving him harmless from the
fire. The theory of the oath is generically the same. “An oath,” says
Hobbes,[478] “is a form of speech added to a promise; by which he that
promiseth, signifieth that unless he perform, he renounceth the mercy of
his God, or calleth to him for vengeance on himself. Such was the
heathen form, Let Jupiter kill me else, as I kill this beast. So is our
form, I shall do thus and thus, so help me God.” The definition is
correct save that it is restricted to promissory, instead of including
also declaratory oaths. A man may swear not only that he will speak the
truth, but that certain statements are the truth.
The idea of the oath, therefore, is that his testimony is true who is
prepared to imprecate divine vengeance on his own head in case of
falsehood. Yet it needs but little experience of courts of justice to
discover how ineffective is any such check on false witness and how
little likely is the retention of it to increase respect either for
religion or for the administration of justice. The true preventive of
false testimony is an efficient law for its punishment as a crime.
Punishment falling swiftly and certainly upon offending witnesses would
purge the courts of an evil which the cumbrous inefficiency of the
present law of perjury has done much to encourage, and which all the
oaths in the world will do nothing to abate.[479]
§ 176. =Criticism of the Law of Evidence.=
We have in a former chapter considered the advantages and disadvantages
of that substitution of predetermined principles for judicial discretion
which constitutes the essential feature of the administration of justice
according to law. In no portion of our legal system is this question of
more immediate importance than in the law of evidence. Here, if
anywhere, the demerits of law are at a maximum, and those of the
opposing system at a minimum. General rules for the predetermination of
probative force are of necessity more or less false. It is impossible to
say with truth and _a priori_ what evidence is or is not sufficient for
proof. It is not true that hearsay is absolutely destitute of evidential
value; it is not true that a contract for the sale of land cannot be
satisfactorily proved by oral testimony; it is not true that the
contents of a document cannot be well proved by a copy of it. To elevate
these maxims and such as these from their proper position as counsels
for warning and guidance, to the level of rigid and peremptory rules, is
to be inevitably led astray by them. Like all general principles they
are obtained by way of abstraction and elimination of elements which may
be, in particular instances, of the first importance. To apply such
abstract principles to concrete cases without making the needful
allowance for the special circumstances of these cases is as wise as to
apply the laws of motion without allowing for the disturbing influence
of friction.
No unprejudiced observer can be blind to the excessive credit and
importance attached in judicial procedure to the _minutiae_ of the law
of evidence. This is one of the last refuges of legal formalism. Nowhere
is the contrast more striking between the law’s confidence in itself and
its distrust of the judicial intelligence. The fault is to be remedied
not by the abolition of all rules for the measurement of evidential
value, but by their reduction from the position of rigid and peremptory
to that of flexible and conditional rules.[480] Most of them have their
source in good sense and practical experience, and they are profitable
for the guidance of individual discretion, though mischievous as
substitutes for it. The cases are few in which we can rightly place such
rules upon the higher level. In general, courts of justice should be
allowed full liberty to reject as irrelevant, superfluous, or vexatious,
whatever evidence they will, and to accept at such valuation as they
please whatever evidence seems good to them. We must learn to think less
highly of the wisdom of the law, and less meanly of the understanding
and honour of its administrators, and we may anticipate with confidence
that in this department at least of judicial practice the change will be
in the interests of truth and justice.
SUMMARY.
Law { Substantive—relating to the subject-matter of litigation.
{ Procedural—relating to the process of litigation.
The occasional equivalence of substantive and procedural rules.
Procedure. Its elements: Summons, Pleading, Proof, Judgment, and
Execution.
The Law of Evidence.
Evidence and proof defined.
Judicial and Extrajudicial.
Kinds of Evidence Personal and Real.
Primary and Secondary.
Direct and Circumstantial.
Divisions of the Law of Evidence.
I. Rules determining probative force.
1. Conclusive proof.
2. Conditional proof.
3. Insufficient evidence.
4. Exclusive evidence.
5. No evidence.
II. Rules determining the production of evidence.
Nemo tenetur se ipsum accusare.
Oaths.
Criticism of the law of evidence.
APPENDICES
I. THE NAMES OF THE LAW.
II. THE THEORY OF SOVEREIGNTY.
III. THE MAXIMS OF THE LAW.
IV. THE DIVISIONS OF THE LAW.
V. THE LITERATURE OF JURISPRUDENCE.
APPENDIX I.
THE NAMES OF THE LAW.
The purpose of the following pages is to consider, in respect of their
origin and relations, the various names and titles which have been borne
by the law in different languages. This seems an inquiry fit to be
undertaken in the hope that judicial terms may be found to throw some
light upon the juridical ideas of which they are the manifestation. A
comparison of diverse usages of speech may serve to correct misleading
associations, or to suggest relations that may be easily overlooked by
any one confining his attention to a single language.
The first fact which an examination of juridical nomenclature reveals,
is that all names for law are divisible into two classes, and that
almost every language possesses one or more specimens of each. To the
first class belong such terms as _jus_, _droit_, _recht_, _diritto_,
_equity_. To the second belong _lex_, _loi_, _gesetz_, _legge_, _law_,
and many others. It is a striking peculiarity of the English language
that it does not possess any _generic_ term falling within the first of
these groups; for equity, in the technical juridical sense, means only a
special department of civil law, not the whole of it, and therefore is
not co-extensive with _jus_, _droit_, and the other foreign terms with
which it is classed. Since, therefore, we have in English no pair of
contrasted terms adequate for the expression of the distinction between
these two groups of names, we are constrained to have recourse to a
foreign language, and we shall employ for this purpose the terms _jus_
and _lex_, using each as typical of and representing all other terms
which belong to the same group as itself.
What, then, are the points of difference between _jus_ and _lex_; what
is the importance and the significance of the distinction between the
two classes of terms? In the first place _jus_ has an ethical as well as
a juridical application, while _lex_ is purely juridical. _Jus_ means
not only law but also right. _Lex_ means law and not also right. Thus
our own _equity_ has clearly the double meaning; it means either the
rules of natural justice, or that special department of the civil law
which was developed and administered in the Court of Chancery. The
English _law_, on the other hand, has a purely juridical application;
justice in itself, and as such, has no claim to the name of _law_. So
also with _droit_ as opposed to _loi_, with _recht_ as opposed to
_gesetz_, with _diritto_ as opposed to _legge_.
If we inquire after the cause of this duplication of terms we find it in
the double aspect of the complete juridical conception of law. Law
arises from the union of justice and force, of right and might. It is
justice recognised and established by authority. It is right realised
through power. Since, therefore, it has two sides and aspects, it may be
looked at from two different points of view, and we may expect to find,
as we find in fact, that it acquires two different names. _Jus_ is law
looked at from the point of view of right and justice; _lex_ is law
looked at from the point of view of authority and force. _Jus_ is the
rule of right which becomes law by its authoritative establishment;
_lex_ is the authority by virtue of which the rule of right becomes law.
Law is _jus_ in respect of its _contents_, namely the rule of right; it
is _lex_ in respect of its _source_, namely, its recognition and
enforcement by the state. We see, then, how it is that so many words for
law mean justice also; since justice is the content or subject-matter of
law, and from this subject-matter law derives its title. We understand
also how it is that so many words for law do not also mean justice; law
has another side and aspect from which it appears, not as justice
realised and established, but as the instrument through which its
realisation and establishment are effected.
_A priori_ we may presume that in the case of those terms which possess
a double application, both ethical and legal, the ethical is
historically prior, and the legal later and derivative. We may assume
that justice comes to mean law, not that law comes to mean justice. This
is the logical order, and is presumably the historical order also. As a
matter of fact this presumption is, as we shall see, correct in the case
of all modern terms possessing the double signification. In the case of
_recht_, _droit_, _diritto_, _equity_, the ethical sense is undoubtedly
primary, and the legal secondary. In respect of the corresponding Greek
and Latin terms (_jus_, δίκαιον) the data would seem insufficient for
any confident conclusion. The reverse order of development is perfectly
possible; there is no reason why lawful should not come to mean in a
secondary sense rightful, though a transition in the opposite direction
is more common and more natural. The significant fact is the union of
the two meanings in the same word, not the order of development.
A second distinction between _jus_ and _lex_ is that the former is
usually _abstract_, the second _concrete_.[481] The English term law
indeed combines both these uses in itself. In its abstract application
we speak of the law of England, criminal law, courts of law. In its
concrete sense, we say that Parliament has enacted or repealed a law. In
foreign languages, on the other hand, this union of the two
significations is unusual. _Jus_, _droit_, _recht_ mean law in the
abstract, not in the concrete. _Lex_, _loi_, _gesetz_ signify, at least
primarily and normally, a legal enactment, or a rule established by way
of enactment, not law in the abstract. This, however, is not invariably
the case. _Lex_, _loi_, and some other terms belonging to the same group
have undoubtedly acquired a secondary and abstract signification in
addition to their primary and concrete one. In medieval usage the law of
the land is _lex terrae_, and the law of England is _lex et consuetudo
Angliae_. So in modern French _loi_ is often merely an equivalent for
_droit_. We cannot therefore regard the second distinction between _jus_
and _lex_ as essential. It is closely connected with the first, but,
though natural and normal, it is not invariable. The characteristic
difference between English and foreign usage is not that our _law_
combines the abstract and concrete significations (for so also do
certain Continental terms), but that the English language contains no
generic term which combines ethical and legal meanings as do _jus_,
_droit_, and _recht_.
RECHT, DROIT, DIRITTO.—These three terms are all closely connected with
each other and with the English _right_. The French and Italian words
are derivatives of the Latin _directus_ and _rectus_, these being
cognate with _recht_ and _right_. We may with some confidence assume the
following order of development among the various ideas represented by
this group of expressions:—
1. The original meaning was in all probability _physical straightness_.
This use is still retained in our _right_ angle and _direct_. The root
is RAG, to stretch or straighten. The group of connected terms ruler,
_rex_, _rajah_, regulate, and others, would seem to be independently
derived from the same root, but not to be in the same line of
development as right and its synonyms. The ruler or regulator is he who
keeps things straight or keeps order, not he who establishes the right.
Nor is the right that which is established by a ruler.
2. In a second and derivative sense the terms are used metaphorically to
indicate moral approval—ethical rightness, not physical. Moral
disapproval is similarly expressed by the metaphorical expressions wrong
and tort, that is to say, crooked or twisted. These are metaphors that
still commend themselves; for the honest man is still the straight and
upright man, and the ways of wickedness are still crooked. In this
sense, therefore, _recht_, _droit_, and _diritto_ signify justice and
right.
3. The first application being physical and the second ethical, the
third is juridical. The transition from the second to the third is easy.
Law is justice as recognised and protected by the state. The rules of
law are the rules of right, as authoritatively established and enforced
by tribunals appointed to that end. What more natural, therefore, than
for the ethical terms to acquire derivatively a juridical application?
At this point, however, our modern English _right_ has parted company
with its Continental relatives. It has remained physical and ethical,
being excluded from the juridical sphere by the superior convenience of
the English _law_.
4. The fourth and last use of the terms we are considering may be
regarded as derivative of both the second and third. It is that in which
we speak of _rights_, namely, claims, powers, or other advantages
conferred or recognised by the rule of right or the rule of law. That a
debtor should pay his debt to his creditor is not merely right, it is
_the_ right of the creditor. Right is _his_ right for whose benefit it
exists. So, also, wrong is _the_ wrong of him who is injured by it. The
Germans distinguish this use of the term by the expression _subjectives
Recht_ (right as vested in a subject) as opposed to _objectives Recht_,
namely, the rule of justice or of law as it exists objectively. The
English _right_ has been extended to cover legal as well as ethical
_claims_, though it has, as we have seen, been confined to ethical
_rules_.
A.S. RIHT.—It is worthy of notice that the Anglo-Saxon _riht_, the
progenitor of our modern _right_, possessed like its Continental
relatives the legal in addition to the ethical meaning. The common law
is _folc-riht_.[482] The divine law is _godes riht_.[483] A plaintiff
claims property as “his by _folc-riht_,”[484] even as a Roman would have
claimed it as being _dominus ex jure Quiritium_. The usage, however, did
not prosper. It had to face the formidable and ultimately successful
rivalry of the English (originally Danish) _law_, and even
Norman-French, on its introduction into England, fell under the same
influence. For a time, indeed, in the earlier books we find both _droit_
and _ley_ as competing synonyms,[485] but the issue was never doubtful.
The archaism of “common right” as a synonym for “common law” is the sole
relic left in England of a usage universal in Continental languages.
EQUITY.—The English term equity has pursued the same course of
development as the German _recht_ and the French _droit_.
1. Its primitive meaning, if we trace the word back to its Latin source,
_aequum_, is physical equality or evenness, just as physical
straightness is the earliest meaning of right and its analogues.
2. Its secondary sense is ethical. Just as rightness is straightness, so
equity is equality. In each case there is an easy and obvious
metaphorical transition from the physical to the moral idea. Equity
therefore is justice.
3. In a third and later stage of its development the word takes on a
juridical significance. It comes to mean a particular portion of the
civil law—that part, namely, which was developed by and administered in
the Court of Chancery. Like _recht_ and _droit_ it passed from the sense
of justice in itself to that of the rules in accordance with which
justice is administered.
4. Fourthly and lastly we have to notice a legal and technical use of
the term equity, as meaning any claim or advantage recognised or
conferred by a rule of equity, just as a right signifies any claim or
advantage derived from a rule of right. An equity is an equitable, as
opposed to a legal right. “When the equities are equal,” so runs the
maxim of Chancery, “the law prevails.” So a debt is assignable “subject
to equities.”
JUS.—We have to distinguish in the case of _jus_ the same three uses
that have already been noticed in the case of _recht_, _droit_, and
equity.
1. Right or Justice. “_Id quod semper aequum ac bonum est jus dicitur_,”
says Paulus.[486] From _jus_ in this sense are derived _justitia_ and
_justum_.
2. Law. This is the most usual application of the term, the juridical
sense having a much greater predominance over the ethical in the case of
_jus_, than in that of its modern representatives _recht_ and _droit_.
_Jus_, in its ethical signification, is distinguished as _jus naturale_,
and in its legal sense as _jus civile_. It is often contrasted with
_fas_, the one being human and the other divine law. _Jus_, however, is
also used in a wider sense to include both of these—_jus divinum et
humanum_.
3. A right, moral or legal: _jus suum cuique tribuere_.[487]
The origin and primary signification of _jus_ are uncertain. It is
generally agreed, however, that the old derivation from _jussum_ and
_jubere_ is not merely incorrect, but an actual reversal of the true
order of terms and ideas. _Jussum_ is a derivative of _jus_. _Jubere_
is, in its proper and original sense, to declare, hold, or establish
anything as _jus_. It was the recognised expression for the legislative
action of the Roman people. _Legem jubere_ is to give to a statute
(_lex_) the force of law (_jus_). Only in a secondary and derivative
sense is _jubere_ equivalent to _imperare_.
The most probable opinion is that _jus_ is derived from the Aryan root
YU, to join together (a root which appears also in _jugem_, _jungo_, and
in the English _yoke_). It has been suggested accordingly that _jus_ in
its original sense means that which is fitting, applicable, or suitable.
If this is so, there is a striking correspondence between the history of
the Latin term and that of the modern words already considered by us,
the primary sense in all cases being physical, the ethical sense being a
metaphorical derivative of this, and the legal application coming last.
The transition from the physical to the ethical sense in the case of the
English _fit_ and _fitting_ is instructive in this connexion. Another
suggestion, however, is that _jus_ means primarily that which is
_binding_—the bond of moral and subsequently of legal obligation. But no
definite conclusion on this matter is possible.[488]
Δίκη. τό δίκαιον.—The Greek term which most nearly corresponds to the
Latin _jus_ is δίκη. These words cannot, however, be regarded as
synonymous. The juridical use of _jus_ is much more direct and
predominant than the corresponding use of δίκη. Indeed, we may say of
the Greek term that it possesses juridical implications, rather than
applications. Its chief uses are the following, the connexion between
them being obvious: (1) custom, usage, way; (2) right, justice; (3) law,
or at least legal right; (4) judgment; (5) a lawsuit; (6) a penalty; (7)
a court of law. The primary sense is said to be that first mentioned,
viz. custom. The transition is easy from the idea of the customary to
that of the right, and from the idea of the right to that of the lawful.
In the case of the Latin _mos_ we may trace an imperfect and tentative
development in the same direction.[489] Professor Clark, on the other
hand, prefers to regard judgment as the earliest meaning of δίκη, the
other ethical and legal applications being derivatives from this, and
δίκη in the sense of custom being an independent formation from the
original root.[490] Such an order of development seems difficult and
unnatural. Analogy and the connexion of ideas seem to render more
probable the order previously suggested, viz. custom, right, law, and
finally the remaining legal uses.[491]
Θέμις Θέμιστες.—As δίκη corresponds to _jus_, so θέμις apparently
corresponds to _fas_. While _fas_, however, preserved its original
signification as that which is right by divine ordinance, and never
acquired any secondary legal applications or implications, the Greek
term proved more flexible, and consequently has to be reckoned with in
the present connection. The matter is one of very considerable
difficulty, and no certain conclusions seem possible, but the following
order of development would seem to commend itself as the most probable:—
1. Θέμις, divine ordinance, the will of the gods. The term is derived
from the Aryan root DHA, to set, place, appoint, or establish, which
appears also in θεσμός, a statute or ordinance.[492] This latter term,
however, included _human_ enactments, while θέμις was never so used. The
Greek term is cognate with _thesis_ and _theme_, and with our English
_doom_, a word whose early legal uses we shall consider later.
2. Θέμις, right. The transition is easy from that which is decreed and
willed by the gods, to that which it is right for mortal men to do.
3. Θέμιστες, the rules of right, whether moral or legal, so far as any
such distinction was recognised in that early stage of thought to which
these linguistic usages belong.
4. Θέμιστες, judgments, judicial declarations of the rules of right and
law.[493]
LEX.—So far we have dealt solely with those words which belong to the
class of _jus_, namely, those which possess a double signification,
ethical and legal. We proceed now to the consideration of the second
class, represented by _lex_. And first of _lex_ itself. The following
are its various uses given in what is probably the historical order of
their establishment.
1. Proposals, terms, conditions, offers made by one party and accepted
by another.[494] Thus, _ea lege ut_,[495] on condition that; _dicta tibi
est lex_,[495] you know the conditions; _his legibus_,[495] on these
conditions. So _legis pacis_[495] are the terms and conditions of peace:
_pax data Philippo in has leges est_.[495] Similarly in law, _leges
locationis_ are the terms and conditions agreed upon between lender and
borrower. So we have the legal expressions _lex mancipii_, _lex
commissoria_, and others.
2. A statute enacted by the _populus Romanus_ in the _comitia
centuriata_ on the proposal of a magistrate. This would seem to be a
specialised application of _lex_ in the first-mentioned sense. Such a
statute is conceived rather as an agreement than as a command. It is a
proposal made by the consuls and accepted by the Roman people. It is
therefore _lex_, even as a proposal of peace made and accepted between
the victor and the vanquished is _lex_. “_Lex_,” says Justinian, “_est
quod populus Romanus senatorio magistratu interrogante, veluti consule,
constituebat_.”[496]
3. Any statute howsoever made—whether by way of authoritative
imposition, or by way of agreement with a self-governing people.
4. Any rule of action imposed or observed, e.g. _lex loquendi_, _lex
sermonis_. This is simply an analogical extension similar to that which
is familiar in respect of the corresponding terms in modern languages,
_law_, _loi_, _gesetz_.
5. Law in the abstract sense. _Lex_, so used, cannot be regarded as
classical Latin, although in certain instances, as in Cicero’s
references to _lex naturae_, we find what seems a very close
approximation to it. In medieval Latin, however, the abstract
signification is quite common, as in the phrases _lex Romana_, _lex
terrae_, _lex communis_, _lex et consuetudo_.[497] _Lex_ has become
equivalent to jus in its legal applications. This use is still retained
in certain technical expressions of private international law, such as
_lex fori_, _lex domicilii_, and others.
It is possible that we have here an explanation of the very curious fact
that so celebrated and important a word as _jus_ failed to maintain
itself in the Romance languages. Of the two terms _jus_ and _lex_,
bequeathed to later times by the Latin language, one was accepted (_loi_
= _lex_) and the other rejected and supplanted by a modern substitute
(_droit_, _diritto_). Why was this? May it not have been owing to that
post-classical use of _lex_ in the abstract sense, whereby it became
synonymous and co-extensive with _jus_? If _lex Romana_ was _jus
civile_, why should the growing languages of modern Europe cumber
themselves with both terms? The survivor of the two rivals was _lex_. At
a later stage the natural evolution of thought and speech conferred
juridical uses on the ethical terms _droit_ and _diritto_ and the
ancient duality of legal nomenclature was restored.
6. Judgment. This, like the last and like the three following uses, is a
medieval addition to the meanings of _lex_. We have already seen the
transition from law to judgment in the case of _jus_, δίκη, and θέμις.
_Legem facere_ is to obey or fulfil the requirements of a judgment.
_Legem vadiare_, the English wager of law, is to give security for such
obedience and fulfilment.[498]
7. The penalty, proof, or other matter imposed or required by a
judgment: _lex ignea_, the ordeal of fire; _lex duelli_, trial by
battle.[499]
8. Legal rights, regarded collectively as constituting a man’s legal
standing or status. _Legem amittere_ (in English, to lose one’s law) was
in early English law an event analogous to the _capitis deminutio_ and
_infamia_ of the Romans. It was a loss of legal status, a partial
deprivation of legal rights and capacities.[500]
Νόμος.—As δίκη corresponds to _jus_ and θέμις to _fas_, so νόμος is the
Greek equivalent of _lex_. We have to distinguish two uses of the term,
one earlier and general, the other later and specialised.
1. Νόμος is used in a very wide sense to include any human institution,
anything established or received among men, whether by way of custom,
opinion, convention, law or otherwise. It was contrasted, at least in
the language of the philosophers, with φύσις, or nature. That which is
natural is το φυσικόν; that which is artificial, owing its origin to the
art and invention of mankind, is τὸ νομικόν. It is often said that the
earliest meaning of νόμος is custom. The original conception, however,
seems to include not merely that which is established by long usage, but
that which is established, received, ordained, or appointed in whatever
fashion. Νόμος is _institutum_, rather than _consuetudo_.
Νόμος in a later, secondary, and specialised application, means a
statute, ordinance, or law. So prominent among human institutions are
the laws by which men are governed, so greatly with increasing political
development do the spheres and influence of legislation extend
themselves, that the νόμοι became in a special and pre-eminent sense the
laws of the state. Νόμος was a word unknown to Homer, but it became in
later times the leading juridical term of the Greek language. The Greeks
spoke and wrote of the laws (νόμοι), while the Romans, perhaps with a
truer legal insight, concerned themselves with the law (_jus_). When,
like Cicero, they write _de legibus_, it is in imitation of Greek usage.
LAW.—Law is by no means the earliest legal term acquired by the English
language. Curiously enough, indeed, it would seem not even to be
indigenous, but to be one of those additions to Anglo-Saxon speech which
are due to the Danish invasions and settlements. Of the earlier terms
the commonest, and the most significant for our present purpose, is
_dom_, the ancestor of our modern _doom_.[501] A _dom_ or _doom_ is
either (1) a law, ordinance, or statute, or (2) a judgment. It does not
seem possible to attribute with any confidence historical priority to
either of these senses. In modern English the idea of judgment has
completely prevailed over and excluded that of ordinance, but we find no
such predominance of either meaning in Anglo-Saxon usage. The word has
its source in the Aryan root DHA, to place, set, establish, appoint, and
it is therefore equally applicable to the decree of the judge and to
that of the lawgiver. In the laws of King Alfred we find the term in
both its senses. “These are the dooms which Almighty God himself spake
unto Moses and commanded him to keep.”[502] “Judge then not one doom to
the rich and another to the poor.”[503] In the following passage of the
laws of Edgar the laws of the Danes are plainly equivalent to the dooms
of the English: “I will that secular right stand among the Danes with as
good laws as they best may choose. But with the English let that stand
which I and my Witan have added to the dooms of my forefathers.”[504]
Doom is plainly cognate to θέμις. The religious implication, however,
which, in the Greek term, is general and essential, is, in the English
term, special and accidental. In modern English doom is, like θέμις, the
will, decree and judgment of Heaven—fate or destiny; but the Anglo-Saxon
_dom_ included the ordinances and judgments of mortal men, no less than
those of the gods. Θέμις, therefore, acquired the sense of human law
only derivatively through the sense of right, and so belongs to the
class of _jus_, not of _lex_; while doom, like θεσμός, acquired
juridical applications directly, and so stands besides lex and νόμος.
_Dom_, together with all the other Anglo-Saxon legal terms, including,
strangely enough, _right_ itself, was rapidly superseded by _lagu_,
which is the modern _law_. The new term makes its appearance in the
tenth century, and the passage cited above from the laws of King Edgar
is one of the earliest instances of its use. _Lagu_ and law are derived
from the root LAGH, to lay, settle, or place. Law is that which is laid
down. There is a considerable conflict of opinion as to whether it is
identical in origin with the Latin _lex_ (_leg-_). Schmidt and others
decide in the affirmative,[505] and the probabilities of the case seem
to favour this opinion. The resemblance between law and _lex_ seems too
close to be accidental. If this is so, the origin of _lex_ is to be
found in the Latin _lego_, not in its later sense of reading, but in its
original sense of laying down or setting (as in the derivative
_lectus_), which is also the primary signification of the Greek λέγῳ,
the German _legen_, and the English _lay_.[506] If this is so, then law
and _lex_ are alike that which is laid down, just as _Gesetz_ is that
which is set (_setzen_). This interpretation is quite consistent with
the original possession by _lex_ of a wider meaning than statute, as
already explained. We still speak of laying down terms, conditions, and
propositions, no less than of laying down commands, rules, and laws.
_Lex_, however, is otherwise and variously derived from or connected
with, _ligare_, to bind,[507] _legere_, to read,[508] and λέγειν, to say
or speak.[509]
It is true indeed that by several good authorities it is held that the
original meaning of _lagu_ and law is that which lies, not that which
has been laid or settled—that which is customary, not that which is
established by authority.[510] The root LAGH, however, must contain both
the transitive and intransitive senses, and I do not know what evidence
there is for the exclusion of the former from the signification of the
derivative _law_. Moreover, there seems no ground for attributing to
_lagu_ the meaning of custom. It seems from the first to have meant the
product of authority, not that of use and wont. It is _statutum_, not
_consuetudo_. As soon as we meet with it, it is equivalent to _dom_. The
analogy also of _lex_, _gesetz_, _dom_, θεσμός, and other similar terms
is in favour of the interpretation here preferred.[511]
APPENDIX II.
THE THEORY OF SOVEREIGNTY.
In discussing the theory of the state, we noticed the distinction
between sovereign and subordinate power.[512] The former is that which,
within its own sphere, is absolute and uncontrolled, while the latter is
that which is subject to the control of some power superior and external
to itself. We have now to consider in relation to this distinction a
celebrated doctrine which we may term Hobbes’s theory of sovereignty. It
was not, indeed, originated by the English philosopher, but is due
rather to the celebrated French publicist Bodin, from whom it first
received definite recognition as a central element of political
doctrine. In the writings of Hobbes, however, it assumes greater
prominence and receives more vigorous and clear-cut expression, and it
is to his advocacy and to that of his modern followers that its
reception in England must be chiefly attributed.
The theory in question may be reduced to three fundamental
propositions:—
1. That sovereign power is essential in every state;
2. That sovereign power is indivisible;
3. That sovereign power is unlimited and illimitable.
The first of these propositions must be accepted as correct, but the
second and third would seem to have no solid foundation. The matter,
however, is one of very considerable obscurity and complexity, and
demands careful consideration.
1. _Sovereignty essential._ It seems clear that every political society
involves the presence of supreme power. For otherwise all power would be
subordinate, and this supposition involves the absurdity of a series of
superiors and inferiors _ad infinitum_. Yet although this is so, there
is nothing to prevent the sovereignty which is thus essential from being
wholly or partly _external_ to the state. It is, indeed, only in the
case of those states which are both independent and fully sovereign that
the sovereignty is wholly internal, no part of it being held or
exercised _ab extra_ by any other authority. When a state is dependent,
that is to say, merely a separately organised portion of a larger body
politic, the sovereign power is vested wholly or in part in the larger
unity, and not in the dependency itself. Similarly when a state, though
independent, is only semi-sovereign, its autonomy is impaired through
the possession and exercise of a partial sovereignty by the superior
state. In all cases, therefore, sovereign power is necessarily present
somewhere, but it is not in all cases to be found in its entirety within
the borders of the state itself.
2. _Indivisible sovereignty._—Every state, it is said, necessarily
involves not merely sovereignty, but a _sovereign_, that is to say, one
person or one body of persons in whom the totality of sovereign power is
vested. Such power, it is said, cannot be shared between two or more
persons. It is not denied that the single supreme body may be composite,
as the English Parliament is. But it is alleged that whenever there are
in this way two or more bodies of persons in whom sovereign power is
vested, they necessarily possess it as joint tenants of the whole, and
cannot possess it as tenants in severalty of different parts. The whole
sovereignty may be in A., or the whole of it in B., or the whole of it
in A. and B. jointly, but it is impossible that part of it should be in
A. and the residue in B.
We may test this doctrine by applying it to the British constitution. We
shall find that this constitution in no way conforms to the principles
of Hobbes on this point, but is on the contrary a clear instance of
divided sovereignty. The _legislative_ sovereignty resides in the Crown
and the two Houses of Parliament, but the _executive_ sovereignty
resides in the Crown by itself, the Houses of Parliament having no share
in it. It will be understood that we are here dealing exclusively with
the law or legal theory of the constitution. The practice is doubtless
different; for in practice the House of Commons has obtained complete
control over the executive government. In practice the ministers are the
servants of the legislature and responsible to it. In law they are the
servants of the Crown, through whom the Crown exercises that sovereign
executive power which is vested in it by law, independently of the
legislature altogether.
In law, then, the executive power of the Crown is sovereign, being
absolute and uncontrolled within its own sphere. This sphere is not
indeed unlimited. There are many things which the Crown cannot do; it
cannot pass laws or impose taxes. But what it can do it does with
sovereign power. By no other authority in the state can its powers be
limited, or the exercise of them controlled, or the operation of them
annulled. It may be objected by the advocates of the theory in question
that the executive is under the control of the legislature, and that the
sum total of sovereign power is therefore vested in the latter, and is
not divided between it and the executive. The reply is that the Crown is
not merely itself a part of the legislature, but a part without whose
consent the legislature cannot exercise any fragment of its own power.
No law passed by the two Houses of Parliament is operative unless the
Crown consents to it. How, then, can the legislature control the
executive? Can a man be subject to himself? A power over a person, which
cannot be exercised without that person’s consent, is no power over him
at all. A person is subordinate to a body of which he is himself a
member, only if that body has power to act notwithstanding his dissent.
A dissenting minority, for example, may be subordinate to the whole
assembly. But this is not the position of the Crown.
The English constitution, therefore, recognises a sovereign executive,
no less than a sovereign legislature. Each is supreme within its own
sphere; and the two authorities are kept from conflict by the fact that
the executive is one member of the composite legislature. The supreme
legislative power is possessed jointly by the Crown and the two Houses
of Parliament, but the supreme executive power is held in severalty by
the Crown. When there is no Parliament, that is to say, in the interval
between the dissolution of one Parliament and the election of another,
the supreme legislative power is non-existent, but the supreme executive
power is retained unimpaired by the Crown.[513]
This is not all, however, for, until the passing of the Parliament Act,
1911, the British constitution recognised a supreme judicature, as well
as a supreme legislature and executive. The House of Lords in its
judicial capacity as a court of final appeal was sovereign. Its
judgments were subject to no further appeal, and its acts were subject
to no control. What it declared for law no other authority known to the
constitution could dispute. Without its own consent its judicial powers
could not be impaired or controlled, nor could their operation be
annulled. The consent of this sovereign judicature was no less essential
to legislation, than was the consent of the sovereign executive. The
House of Lords, therefore, held in severalty the supreme judicial power,
while it shared the supreme legislative power with the Crown and the
House of Commons.[514]
3. _Illimitable sovereignty._ Sovereign power is declared by the theory
in question to be not merely essential and indivisible, but also
illimitable. Not only is it uncontrolled within its own province, but
that province is infinite in extent. “It appeareth plainly to my
understanding,” says Hobbes,[515] “both from reason and Scripture, that
the sovereign power, whether placed in one man, as in monarchy, or in
one assembly of men, as in popular and aristocratical commonwealths, is
as great as possibly men can be imagined to make it.... And whosoever,
thinking sovereign power too great, will seek to make it less, must
subject himself to the power that can limit it; that is to say, to a
greater.” So Austin:[516] “It follows from the essential difference of a
positive law and from the nature of sovereignty and independent
political society, that the power of a monarch properly so called, or
the power of a sovereign number in its collegiate and sovereign
capacity, is incapable of legal limitation.... Supreme power limited by
positive law is a flat contradiction in terms.”
This argument confounds the limitation of power with the subordination
of it. That sovereignty cannot within its own sphere be subject to any
control is self-evident, for it follows from the very definition of this
species of power. But that this sphere is necessarily universal is a
totally different proposition, and one which cannot be supported. It
does not follow that if a man is free from the constraint of any one
stronger than himself, his physical power is therefore infinite.
In considering this matter we must distinguish between power in fact and
power in law. For here as elsewhere that which is true in law may not be
true in fact, and _vice versa_. A _de facto_ limitation of sovereign
power may not be also a _de jure_ limitation of it, and conversely the
legal theory of the constitution may recognise limitations which are
non-existent in fact.[517]
That sovereign power may be, and indeed necessarily is, limited _de
facto_ is sufficiently clear. Great as is the power of the government of
a modern and civilised state, there are many things which it not merely
ought not to do, but cannot do. They are in the strictest sense of the
term beyond its _de facto_ competence. For the power of a sovereign
depends on and is measured by two things: first the physical force which
he has at his command, and which is the essential instrument of his
government; and second, the disposition of the members of the body
politic to submit to the exercise of this force against themselves.
Neither of these two things is unlimited in extent, therefore the _de
facto_ sovereignty which is based upon them is not unlimited either.
This is clearly recognised by Bentham.[518] “In this mode of
limitation,” he says, “I see not what there is that need surprise us. By
what is it that any degree of power (meaning political power) is
established? It is neither more nor less ... than a habit of and a
disposition to obedience.... This disposition it is as easy, or I am
much mistaken, to conceive as being absent with regard to one sort of
acts, as present with regard to another. For a body, then, which is in
other respects supreme, to be conceived as being with respect to a
certain sort of acts limited, all that is necessary is that this sort of
acts be in its description distinguishable from every other.... These
bounds the supreme body in question has marked out to its authority: of
such a demarcation, then, what is the effect? Either none at all, or
this: that the disposition to obedience confines itself within these
bounds. Beyond them the disposition is stopped from extending; beyond
them the subject is no more prepared to obey the governing body of his
own state than that of any other. What difficulty, I say, there should
be in conceiving a state of things to subsist, in which the supreme
authority is thus limited—what greater difficulty in conceiving it with
this limitation, than without any, I cannot see. The two states are, I
must confess, to me alike conceivable: whether alike expedient, alike
conducive to the happiness of the people, is another question.”
The follower of Hobbes may admit the _de facto_, but deny the _de jure_
limitation of sovereign power. He may contend that even if there are
many things which the sovereign has no power to do in fact, there is and
can be nothing whatever which he has no power to do in law. The law, he
may say, can recognise no limitations in that sovereign power from which
the law itself proceeds.
In reply to this it is to be observed that the law is merely the theory
of things as received and operative within courts of justice. It is the
reflection and image of the outer world seen and accepted as authentic
by the tribunals of the state. This being so, whatever is possible in
fact is possible in law, and more also. Whatsoever limitations of
sovereign power may exist in fact may be reflected in and recognised by
the law. To allow that _de facto_ limitations are possible is to allow
the possibility of corresponding limitations _de jure_. If the courts of
justice habitually act upon the principle that certain functions or
forms of activity do not, according to the constitution, pertain to any
organ in the body politic, and therefore lie outside the scope of
sovereign power as recognised by the constitution, then that principle
is by virtue of its judicial application a true principle of law, and
sovereign power is limited in law no less than in fact.
The contrary view is based on that unduly narrow view of the nature of
law which identifies it with the command of the sovereign issued to his
subjects. In this view, law and legal obligation are co-extensive, and
the legal limitation of supreme power appears to involve the subjection
of the possessor of it to legal obligations in respect to the exercise
of it. This, of course, conflicts with the very definition of sovereign
power, and is clearly impossible.[519] That sovereign power may be
legally controlled within its own province is a self-contradictory
proposition; that its province may have legally appointed bounds is a
distinct and valid principle.
There is one application of the doctrine of illimitable sovereignty
which is of sufficient importance and interest to deserve special
notice. Among the chief functions of sovereign power is legislation. It
follows from the theory in question, that in every political society
there necessarily exists some single authority possessed of unlimited
legislative power. This power is, indeed, alleged to be the infallible
test of sovereignty. In seeking for that sovereign who, according to the
doctrine of Hobbes, is to be found somewhere in every body politic, all
that is necessary is to discover the person who possesses the power of
making and repealing all laws without exception. He and he alone is the
sovereign of the state, for he necessarily has power over all, and in
all, and is subject to none.
As to this it is to be observed, that the extent of legislative power
depends on and is measured by the recognition accorded to it by the
tribunals of the state. Any enactment which the law courts decline to
recognise and apply is by that very fact _not law_, and lies beyond the
legal competence of the body whose enactment it is. And this is so,
whether the enactment proceeds from a borough council or from the
supreme legislature. As the law of England actually stands, there are no
legal limitations on the legislative power of the Imperial Parliament.
No statute passed by it can be rejected as _ultra vires_ by any court of
law. This legal rule of legislative omnipotence may be wise or it may
not; but it is difficult to see by what process of reasoning the jurist
can demonstrate that it is theoretically necessary.
At no very remote period it was considered to be the law of England,
that a statute made by Parliament was void if contrary to reason and the
law of God.[520] The rule has now been abandoned by the courts, but it
seems sufficiently obvious that its recognition involves no theoretical
absurdity or impossibility, however inexpedient it may be. Yet it
clearly involves the limitation of the power of the legislature by a
rule of law. To take another example, the most striking illustration of
the legislative omnipotence of the English Parliament is its admitted
power of extending the term for which an existing House of Commons has
been elected. Delegates appointed by the people for a fixed time have
the legal power of extending the period of their own delegated
authority. It is difficult to see any theoretical objection to a rule of
the opposite import. Why should not the courts of law recognise and
apply the principle that an existing Parliament is sovereign only during
the limited time for which it was originally appointed, and is destitute
of any power of extending that time? And in such a case would not the
authority of the supreme legislature be limited by a rule of law?
The exercise of legislative power is admittedly subject to legal
_conditions_; why not, then, to legal _limitations_? If the law can
regulate the _manner_ of the exercise of legislative power, why not also
its _matter_? As the law stands, Parliament may repeal a statute in the
same session and in the same manner in which it was passed. What, then,
would be the effect of a statute providing that no statute should be
repealed save by an absolute majority in both Houses? Would it not
create good law, and so prevent either itself or any other statute from
being repealed save in manner so provided? What if it is provided
further, that no statute shall be repealed until after ten years from
the date of its enactment? Is such a statutory provision void? And if
valid, will it not be applied by the law courts, so that any attempt to
repeal either it or any other statute less than ten years old will be
disregarded, as beyond the competence of Parliament? And if a statute
can be made unrepealable for ten years, how is it _legally impossible_
that it should be made unrepealable for ever? Such a rule may be very
unwise, but by what argument are we to prove that it involves a logical
absurdity?
In respect of its legislative omnipotence the English Parliament is
almost unique in modern times. Most modern constitutions impose more or
less stringent limitations upon the powers of the legislature In the
United States of America neither Congress nor any State Legislature
possesses unrestricted powers. They cannot alter the constitutions by
which they have been established, and those constitutions expressly
withdraw certain matters from their jurisdiction. Where, then, is the
sovereignty vested? The reply made is that these constitutions contain
provisions for their alteration by some other authority than the
ordinary legislature, and that the missing legislative power is
therefore to be found in that body to which the right of altering the
constitution has been thus entrusted. In the United States the
sovereignty, it is said, is vested not in Congress, but in a majority of
three-fourths of the State Legislatures; this composite body has
absolute power to alter the constitution, and is therefore unbound by
any of the provisions of it, and is so possessed of unlimited
legislative power.
Now, whenever the constitution has thus entrusted absolute powers of
amendment to some authority other than the ordinary legislature, this is
a perfectly valid reply. But what shall we say of a constitution which,
while it prohibits alteration by the ordinary legislature, provides no
other method of effecting constitutional amendments? There is no logical
impossibility in such a constitution, yet it would be clearly
unalterable in law. That it would be amended in defiance of the law
cannot be doubted, for a constitution which will not bend will sooner or
later break. But all questions as to civil and supreme power are
questions as to what is possible within, not without, the limits of the
constitution. If there is no constitution which meets with due
observance, there is no body politic, and the theory of political
government is deprived of any subject-matter to which it can apply. The
necessary _datum_ of all problems relating to sovereignty is the
existence and observance of a definite scheme of organised structure and
operation, and it is with this _datum_ and presupposition that we must
discuss the question of the extent of legislative power.
Even where a constitution is not wholly, it may be partly unchangeable
in law. Certain portions of it may on their original establishment be
declared permanent and fundamental, beyond the reach even of the
authority to which in other respects the amendment of the constitution
is entrusted. Article V. of the Constitution of the United States of
America provides that no State shall be deprived of its equal suffrage
in the Senate without its own consent. Having regard to this provision,
what body is there in the United States which has vested in it unlimited
legislative power? The same Article provides that certain portions of
the Constitution shall be unalterable until the year 1808. What became
of sovereign power in the meantime?[521]
APPENDIX III.
THE MAXIMS OF THE LAW.
Legal maxims are the proverbs of the law. They have the same merits and
defects as other proverbs, being brief and pithy statements of partial
truths. They express general principles without the necessary
qualifications and exceptions, and they are therefore much too absolute
to be taken as trustworthy guides to the law. Yet they are not without
their uses. False and misleading when literally read, these established
formulae provide useful means for the expression of leading doctrines of
the law in a form which is at the same time brief and intelligible. They
constitute a species of legal shorthand, useful to the lawyer, but
dangerous to any one else; for they can be read only in the light of
expert knowledge of that law of which they are the elliptical
expression.
The language of legal maxims is almost invariably Latin, for they are
commonly derived from the civil law, either literally or by adaptation,
and most of those which are not to be found in the Roman sources are the
invention of medieval jurists. The following is a list of the more
familiar and important of them, together with brief comments and
references.
1. ACTUS NON FACIT REUM NISI MENS SIT REA.
Leges Henrici Primi, V. 28. (Thorpe’s Ancient Laws and Institutes of
England, I. 511.) Coke’s Third Institute, f. 6.
The act alone does not make the doer of it guilty, unless it is done
with a guilty mind. Material without formal wrongdoing is not a ground
of liability. The presence either of wrongful intent or of culpable
negligence is a necessary condition of responsibility. See §§ 127, 132,
145.
2. ADVERSUS EXTRANEOS VITIOSA POSSESSIO PRODESSE SOLET.
D. 41. 2. 53.
Prior possession is a good title of ownership against all who cannot
show a better. In the civil law, however, from which this maxim is
derived, it has a more special application, and relates to the
conditions of possessory remedies. See § 161.
3. APICES JURIS NON SUNT JURA.
10 Co. Rep. 126. _Cf._ D. 17. 1. 29. 4: Non congruit de apicibus juris
disputare.
Legal principles must not be carried to their most extreme consequences,
regardless of equity and good sense. A principle valid within certain
limits becomes false when applied beyond these limits. The law must
avoid the falsehood of extremes. See § 10.
4. CESSANTE RATIONE LEGIS CESSAT LEX IPSA.
In the application of this maxim we must distinguish between common and
statute law.
(1) _Common law._ A legal principle must be read in the light of the
reason for which it was established. It must not be carried further than
this reason warrants, and if the _ratio legis_ wholly fails, the law
will fail also.
(2) _Statute law._ To statute law the maxim has only a limited
application, for such law depends upon the authority of the _litera
legis_. It is only when the letter of the law is imperfect, that
recourse may be had to the reason of it as a guide to its due
interpretation. The maxim in question, therefore, is valid only as a
rule of restrictive interpretation. The complementary rule of extensive
interpretation is, Ubi eadem ratio ibi idem jus. See Vangerow, I. sect.
25.
5. =Cogitationis poenam nemo patitur.=
D. 48. 19. 18.
The thoughts and intents of men are not punishable. The law takes notice
only of the overt and external act. In exceptional cases, however, the
opposite maxim is applicable: Voluntas reputatur pro facto—The law takes
the will for the deed. See § 137.
6. COMMUNIS ERROR FACIT JUS.
Coke’s Fourth Inst. f. 240. _Cf._ D. 33. 10. 3. 5: Error jus facit.
A precedent, even though erroneous, will make valid law, if its
authority has been so widely accepted and relied on that its reversal
has become inexpedient in the interests of justice. See § 65.
7. CUIUS EST SOLUM EIUS EST USQUE AD COELUM.
Co. Litt. 4 a. 9 Co. Rep. 54. See § 155.
8. DE MINIMIS NON CURAT LEX.
Cro. Eliz. 353. _Cf._ the medieval maxim of the Civilians: Minima non
curat praetor. Dernburg, Pandekten, I. § 140. n. 5.
The law takes no account of trifles. This is a maxim which relates to
the ideal, rather than to the actual law. The tendency to attribute
undue importance to mere matters of form—the failure to distinguish
adequately between the material and the immaterial—is a characteristic
defect of legal systems. See § 10.
9. EX NUDO PACTO NON ORITUR ACTIO.
_Cf._ D. 2. 14. 7. 4: Nuda pactio obligationem non parit. C. 4. 65. 27:
Ex nudo pacto ... actionem jure nostro nasci non potuisse.
In English law this maxim expresses the necessity of a legal
consideration for the validity of a contract. _Nudum pactum_ is _pactum
sine causa promittendi_. In the civil law, however, the maxim means, on
the contrary, that an agreement, to become binding, must fall within one
of the recognised classes of legally valid contracts. There was no
general principle that an agreement, as such, had the force of law. See
§ 124.
10. EX TURPI CAUSA NON ORITUR ACTIO.
_Cf._ D. 47. 2. 12. 1: Nemo de improbitate sua consequitur actionem.
An agreement contrary to law or morals can give rise to no right of
action in any party to it, either for the enforcement of it, or for the
recovery of property parted with in pursuance of it. _Cf._ the maxim: In
pari delicto potior est conditio defendentis. See § 124.
11. IGNORANTIA FACTI EXCUSAT, IGNORANTIA JURIS NON EXCUSAT.
_Cf._ D. 22. 6. 9. pr. Regula est juris quidem ignorantiam cuique
nocere, facti vero ignorantiam non nocere. See §§ 146. 147.
12. IMPOSSIBILIUM NULLA OBLIGATIO EST.
D. 50. 17. 185.
Otherwise: Lex non cogit ad impossibilia. Impossibility is an excuse for
the non-performance of an obligation—a rule of limited application.
13. IN JURE NON REMOTA CAUSA SED PROXIMA SPECTATUR.
Bacon’s Maxims of the Law, 1.
A man is not liable for all the consequences of his acts, but only for
those which are natural and probable—that is to say, those which he
foresaw or ought to have foreseen.
14. IN PARI CAUSA POTIOR EST CONDITIO POSSIDENTIS.
_Cf._ D. 50. 17. 128. pr.: In pari causa possessor potior haberi debet.
Also D. 20. 1. 10. D. 6. 2. 9. 4.
Possession and ownership—fact and right—enjoyment and title—are presumed
by the law to be coincident. Every man may therefore keep what he has
got, until and unless some one else can prove that he himself has a
better title to it. See § 107.
15. IN PARI DELICTO POTIOR EST CONDITIO DEFENDENTIS.
_Cf._ D. 50. 17. 154: Cum par delictum est duorum, semper oneratur
petitor.
Identical in effect with the maxim: Ex turpi causa non oritur actio.
16. INTER ARMA LEGES SILENT.
Cicero, Pro Milone, IV. 10.
This maxim has a double application: (1) As between the state and its
external enemies, the laws are absolutely silent. No alien enemy has any
claim to the protection of the laws or of the courts of justice. He is
destitute of any legal standing before the law, and the government may
do as it pleases with him and his. (2) Even as regards the rights of
subjects and citizens, the law may be put to silence by _necessity_ in
times of civil disturbance. Necessitas non habet legem. Extrajudicial
force may lawfully supersede the ordinary process and course of law,
whenever it is needed for the protection of the state and the public
order against illegal violence. See § 36.
17. INVITO BENEFICIUM NON DATUR.
D. 50. 17. 69.
The law confers upon a man no rights or benefits which he does not
desire. Whoever waives, abandons, or disclaims a right will lose it. See
§ 122.
18. JURIS PRAECEPTA SUNT HAEC: HONESTE VIVERE, ALTERUM NON LAEDERE, SUUM
CUIQUE TRIBUERE.
D. 1. 1. 10. 1. Just. Inst. 1. 1. 3.
“These are the precepts of the law: to live honestly, to hurt no one,
and to give to every man his own.” Attempts have been sometimes made to
exhibit these three _praecepta juris_ as based on a logical division of
the sphere of legal obligation into three parts. This, however, is not
the case. They are simply different modes of expressing the same thing,
and each of them is wide enough to cover the whole field of legal duty.
The third of them, indeed, is simply a variant of the received
definition of justice itself: Justitia est constans et perpetua voluntas
jus suum cuique tribuendi. D. 1. 1. 10 pr. Just. Inst. 1. 1. 1.
19. JUS PUBLICUM PRIVATORUM PACTIS MUTARI NON POTEST.
D. 2. 14. 38. _Cf._ D. 50. 17. 45. 1.
By _jus publicum_ is meant that portion of the law in which the public
interests are concerned, and which, therefore, is of absolute authority
and not liable to be superseded by conventional law made by the
agreement of private persons. _Cf._ the maxim: Modus et conventio
vincunt legem. See § 124.
20. MODUS ET CONVENTIO VINCUNT LEGEM.
2 Co. Rep. 73.
The common law may in great measure be excluded by conventional law.
Agreement is a source of law between the parties to it. See §§ 11. 122.
21. NECESSITAS NON HABET LEGEM.
_Cf._ Bacon’s Maxims of the Law, 5: Necessitas inducit privilegium. A
recognition of the _jus necessitatis_. See § 139.
22. NEMINEM OPORTET LEGIBUS ESSE SAPIENTIOREM.
Bacon, De Augmentis, Lib. 8. Aph. 58. _Cf._ Aristotle, Rhetoric, I. 15.
12.
It is not permitted to be wiser than the laws. In the words of Hobbes
(Leviathan, ch. 29), “the law is the public conscience,” and every
citizen owes to it an undivided allegiance, not to be limited by any
private views of justice or expediency. See § 9.
23. NEMO PLUS JURIS AD ALIUM TRANSFERRE POTEST, QUAM IPSE HABERET.
D. 50. 17. 54.
The title of an assignee can be no better than that of his assignor.
_Cf._ the maxim: Nemo dat qui non habet. See § 163.
24. NEMO TENETUR SE IPSUM ACCUSARE.
The law compels no man to be his own accuser or to give any testimony
against himself—a principle now limited to the criminal law. See § 175.
25. NEMO DAT QUI NON HABET.
No man can give a better title than that which he himself has. See §
163.
26. NON OMNE QUOD LICET HONESTUM EST.
D. 50. 15. 144. pr.
All things that are lawful are not honourable. The law is constrained by
the necessary imperfections of its methods to confer many rights and
allow many liberties which a just and honourable man will not claim or
exercise.
27. NULLUS VIDETUR DOLO FACERE, QUI SUO JURE UTITUR.
D. 50. 17. 55.
A malicious or improper motive cannot make wrongful in law an act which
would be rightful apart from such motive. The rule, however, is subject
to important limitations. See § 136.
28. QUI FACIT PER ALIUM, FACIT PER SE.
Co. Litt. 258a.
He who does a thing by the instrumentality of another is considered as
if he had acted in his own person.
29. QUI PRIOR EST TEMPORE POTIOR EST JURE.
_Cf._ C. 8. 17. 3: Sicut prior est tempore, ita potior jure.
Where two rights or titles conflict, the earlier prevails, unless there
is some special reason for preferring the later. See § 85.
30. QUOD FIERI NON DEBET, FACTUM VALET.
5 Co. Rep. 38.
A thing which ought not to have been done may nevertheless be perfectly
valid when it _is_ done. The penalty of nullity is not invariably
imposed upon illegal acts. For example, a marriage may be irregularly
celebrated, and yet valid; and a precedent may be contrary to
established law, and yet authoritative for the future. See § 66.
31. RES JUDICATA PRO VERITATE ACCIPITUR.
D. 1. 5. 25.
A judicial decision is conclusive evidence _inter partes_ of the matter
decided. See § 67.
32. RESPONDEAT SUPERIOR.
Coke’s Fourth Inst. 114.
Every master must answer for the defaults of his servant as for his own.
See § 149.
33. SIC UTERE TUO UT ALIENUM NON LAEDAS.
9 Co. Rep. 59.
Every man must so use his own property as not to harm that of another.
This is the necessary qualification of the maxim that every man may do
as he will with his own. See § 154.
34. SUMMUM JUS SUMMA INJURIA.
Cicero, De Off. I. 10. 33.
The rigour of the law, untempered by equity, is not justice but the
denial of it. See §§ 10. 13.
35. SUPERFICIES SOLO CEDIT.
Gaius 2. 73.
Whatever is attached to the land forms part of it. _Cf._ Just. Inst. 2.
1. 29: Omne quod inaedificatur solo cedit. See § 155.
36. UBI EADEM RATIO, IBI IDEM JUS.
This is the complement of the maxim, Cessante ratione legis, cessat lex
ipsa. A rule of the common law should be extended to all cases to which
the same _ratio_ applies, and in the case of imperfect statute law
extensive interpretation based on the _ratio legis_ is permissible. See
Vangerow, I. sect. 25.
37. UBI JUS IBI REMEDIUM.
_Cf._ the maxim of the Civilians: Ubi jus non deest nee actio deese
debet. Puchta II. sect. 208. n.b.
Whenever there is a right, there should also be an action for its
enforcement. That is to say, the substantive law should determine the
scope of the law of procedure, and not _vice versa_. Legal procedure
should be sufficiently elastic and comprehensive to afford the requisite
means for the protection of all rights which the substantive law sees
fit to recognise. In early systems this is far from being the case. We
there find remedies and forms of action determining rights, rather than
rights determining remedies. The maxim of primitive law is rather, Ubi
remedium ibi jus.
38. VIGILANTIBUS NON DORMIENTIBUS JURA SUBVENIUNT.
_Cf._ D. 42. 8. 24: Jus civile vigilantibus scriptum est.
The law is provided for those who wake, not for those who slumber and
sleep. He who neglects his rights will lose them. It is on this
principle that the law of prescription is founded. See § 162.
39. VOLENTI NON FIT INJURIA.
_Cf._ D. 47. 10. 1. 5: Nulla injuria est, quae in volentem fiat.
No man who consents to a thing will be suffered thereafter to complain
of it as an injury. He cannot waive his right and then complain of its
infringement.
APPENDIX IV.
THE DIVISIONS OF THE LAW.
English law possesses no received and authentic scheme of orderly
arrangement. Exponents of this system have commonly shown themselves too
little careful of appropriate division and classification, and too
tolerant of chaos. Yet we must guard ourselves against the opposite
extreme, for theoretical jurists have sometimes fallen into the contrary
error of attaching undue importance to the element of form. They have
esteemed too highly both the possibility and the utility of ordering the
world of law in accordance with the straitest principles of logical
development. It has been said by a philosopher concerning human
institutions in general, and therefore concerning the law and its
arrangement, that they exist for the uses of mankind, and not in order
that the angels in heaven may delight themselves with the view of their
perfections. In the classification of legal principles the requirements
of practical convenience must prevail over those of abstract theory. The
claims of logic must give way in great measure to those of established
nomenclature and familiar usage; and the accidents of historical
development must often be suffered to withstand the rules of scientific
order. Among the various points of view of which most branches of the
law admit, there are few, if any, which may be wisely adopted throughout
their whole extent, and among the various alternative principles of
classification, expedience allows of no rigidly exclusive and consistent
choice. There are few distinctions, however important in their leading
applications, which may not rightly, as they fade towards the boundary
line, be replaced by others which there possess a deeper significance.
We may rest content, therefore, if, within the limits imposed by the
needful conformity to received speech and usage, each portion of the law
is dealt with in such of its aspects as best reveals its most important
characters and relations, and in such order as is most consistent with
lucid and concise exposition.
1. _The Introductory Portion of the Law._
The first portion of the _corpus juris_ is of an introductory nature,
consisting of all those rules which by virtue of their preliminary
character or of the generality of their application cannot be
appropriately relegated to any special department. This introduction may
be divided into four parts. The first of them is concerned with the
sources of law. It comprises all those rules in accordance with which
new law obtains recognition and the older law is modified or abrogated.
It is here, for example, that we must look for the legal doctrine as to
the operation of precedent, custom, and legislation. The second part of
the Introduction deals with the interpretation of law. Here we shall
find the rules in accordance with which the language of the law is to be
construed, and also the definitions of those terms which are fitly dealt
with here, because common to several departments of the law. In the
third place the Introduction comprises the principles of private
international law—the principles, that is to say, which determine the
occasional exclusion of English law from English courts of justice, and
the recognition and enforcement therein of some foreign system which
possesses for some reason a better claim to govern the case in hand.
Fourthly and lastly, it is necessary to treat as introductory a number
of miscellaneous rules which are of so general an application as not to
be appropriately dealt with in any special department of the legal
system.
2. _Private and Public Law._
After the Introduction comes the body of Private Law as opposed to that
of Public Law. By general consent this Roman distinction between _jus
privatum_ and _jus publicum_ is accepted as the most fundamental
division of the _corpus juris_. Public law comprises the rules which
specially relate to the structure, powers, rights, and activities of the
state. Private law includes all the residue of legal principles. It
comprises all those rules which specially concern the subjects of the
state in their relations to each other, together with those rules which
are common to the state and its subjects. In many of its actions and
relations the state stands on the same level as its subjects, and
submits itself to the ordinary principles of private law. It owns land
and chattels, makes contracts, employs agents and servants, and enters
into various forms of commercial undertaking; and in respect of all
these matters it differs little in its juridical position from its own
subjects. Public law, therefore, is not the _whole_ of the law that is
applicable to the state and to its relations with its subjects, but only
those parts of it which are different from the private law concerning
the subjects of the state and their relations to each other. For this
reason private law precedes public in the order of exposition. The
latter presupposes a knowledge of the former.
The two divisions of public law are constitutional and administrative
law. It is impossible, however, to draw any rigid fine between these
two, for they differ merely in the degree of importance pertaining to
their subject-matters. Constitutional law deals with the structure,
powers, and functions of the supreme power in the state, together with
those of all the more important of the subordinate departments of
government. Administrative law, on the other hand, is concerned with the
multitudinous forms and instruments in and through which the lower
ranges of governmental activity manifest themselves.
3. _Civil and Criminal Law._
Within the domain of private law the division which calls for primary
recognition is that between civil and criminal law. Civil law is that
which is concerned with the enforcement of rights, while criminal law is
concerned with the punishment of wrongs. We have examined and rejected
the opinion that crimes are essentially offences against the state or
the community at large, while civil wrongs are committed against private
persons. According to the acceptance or rejection of this opinion,
criminal law pertains either to public or to private law. Our
classification of it as private is unaffected by the fact that certain
crimes, such as treason and sedition, are offences against the state. As
already explained, logical consistency in the division of the law is
attainable only if we are prepared to disregard the requirements of
practical convenience. Greater weight is wisely attributed to the fact
that treason and robbery are both crimes, than to the fact that the one
is an offence against the state and the other an offence against an
individual.
Just as the law which is common to both state and subject is considered
under the head of private law alone, so the law which is common to
crimes and to civil injuries is dealt with under the head of civil law
alone. It is obvious that there is a great body of legal principles
common to the two departments. The law as to theft involves the whole
law as to the acquisition of property in chattels, and the law of bigamy
involves a considerable portion of the law of marriage. The arrangement
sanctioned by usage and convenience is, therefore, to expound first the
civil law in its entirety, and thereafter, under the title of criminal
law, such portions of the law of crime as are not already comprehended
in the former department.
4. _Substantive Law and the Law of Procedure._
Civil and criminal law are each divisible into two branches, namely
substantive law and the law of procedure, a distinction the nature of
which has already been sufficiently considered.
5. _Divisions of the Substantive Civil Law._
The substantive civil law may be conveniently divided, by reference to
the nature of the rights with which it is concerned, into three great
branches, namely the law of property, the law of obligations, and the
law of status. The first deals with proprietary rights _in rem_, the
second with proprietary rights _in personam_, and the third with
personal as opposed to proprietary rights.
6. _The Law of Property._
Although the distinction between the law of property and that of
obligations is a fundamental one, which must be recognised in any
orderly scheme of classification, there is a great part of the
substantive civil law which is common to both of these branches of it.
Thus the law of inheritance or succession concerns all kinds of
proprietary rights whether _in rem_ or _in personam_. So also with the
law of trusts and that of securities. In general the most convenient
method of dealing with these common elements is to consider them once
for all in the law of property, thus confining the law of obligations to
those rules which are peculiar to obligations: just as the elements
common to civil and criminal law are dealt with in the civil law, and
those common to private and public law in private law.
The law of property is divisible into the following chief branches: (1)
the law of corporeal property, namely the ownership of land and
chattels; (2) the law of immaterial objects of property, such as
patents, trade-marks, and copyrights; (3) the law of encumbrances or
_jura in re aliena_, such as tenancies, servitudes, trusts, and
securities; (4) the law of testamentary and intestate succession.
7. _The Law of Obligations._
The law of obligations comprises the law of contracts, the law of torts,
and the law of those miscellaneous obligations which are neither
contractual nor delictal. It may be convenient to consider under the
same head the law of insolvency, inasmuch as the essential significance
of insolvency is to be found in its operation as a method of discharging
debts and liabilities. Alternatively, however, this branch of law may be
included in the law of property, inasmuch as it deals with one mode of
divesting proprietary rights in general. In the law of obligations is
also to be classed the law of companies, this being essentially a
development of the law of the contract of partnership. Under the head of
companies are to be comprised all forms of _contractual_ incorporation,
all other bodies corporate pertaining either to public law or to special
departments of private law with which they are exclusively concerned.
The _general_ doctrine as to corporations is to be found in the
introductory department of the law.
8. _The Law of Status._
The law of status is divisible into two branches dealing respectively
with domestic and extra-domestic status. The first of these is the law
of family relations, and deals with the nature, acquisition, and loss of
all those personal rights, duties, liabilities, and disabilities which
are involved in domestic relationship. It falls into three divisions,
concerned respectively with marriage, parentage, and guardianship. The
second branch of the law of status is concerned with all the personal
rights, duties, liabilities, and disabilities, which are external to the
law of the family. It deals, for example, with the personal status of
minors (in relation to others than their parents), of married women (in
relation to others than their husbands and children), of lunatics,
aliens, convicts, and any other classes of persons whose personal
condition is sufficiently characteristic to call for separate
consideration.[522]
There is one class of personal rights which ought in logical strictness
to be dealt with in the law of status, but is commonly and more
conveniently considered elsewhere—those rights, namely, which are called
_natural_, because they belong to all men from their birth, instead of
being subsequently acquired: for example, the rights of life, liberty,
reputation, and freedom from bodily harm. These are personal rights and
not proprietary; they constitute part of a man’s status, not part of his
estate; yet we seldom find them set forth in the law of status.[523] The
reason is that such rights, being natural and not acquired, call for no
consideration, except in respect of their _violation_. They are
adequately dealt with, therefore, under the head of civil and criminal
wrongs. The exposition of the law of libel, for example, which is
contained in the law of torts, involves already the proposition that a
man has a right to his reputation; and there is no occasion, therefore,
for a bald statement to that effect in the later law of status.
SUMMARY.
THE DIVISIONS OF THE LAW.
{ A. Sources of the Law.
{ B. Interpretation and Definitions.
I. Introduction. { C. Private International Law.
{ D. Miscellaneous Introductory Principles.
{ 1. Corporeal { Land.
{ Property { Chattels.
{ 2. Immaterial { Patents
{ Property { Trade-marks,
{ { &c.
{ Property { { Leases.
{ { { Servitudes.
{ { 3. Encumbrances { Trusts.
{ { { Securities,
{ { { &c.
{ { { Testamentary.
{ { 4. Succession { Intestate.
{
{ { 1. Contracts { General Part.
{ { { Special Part.
{ Substantive { Obligations { 2. Torts { General Part,
{ { { { Special Part.
{ { { 3. Miscellaneous Obligations.
{ { { 4. Insolvency.
{ { { 5. Companies.
{ {
{ { { Marriage.
{ { { Parentage.
{ Civil { { { Domestic { Guardianship.
{ Law { { { Status
{ { { { { Infants.
{ { { Status { { Married
{ { { Extra-domestic { women.
{ { { Status { Lunatics.
II. Private { { { Aliens.
Law { { { Convicts, &c.
{ { { Practice.
{ { Procedure { Evidence.
{
{ { General Part.
{ { Substantive {
{ Criminal { { Special Part.
{ Law { Procedure.
{ Constitutional Law.
III. Public Law { Administrative Law.
APPENDIX V.
THE LITERATURE OF JURISPRUDENCE.
The following list is intended to serve partly by way of explanation of
the references contained in the text and notes, and partly as a guide to
the literature of the subject. Nothing, however, is here attempted save
a selection of the more important works which bear with more or less
directness upon the abstract theory of the law. Many of them are
primarily ethical or political, rather than legal, and of those which
are strictly legal, many are devoted to some special branch of law
rather than to general theory. But all of them are relevant, in whole or
in part, to the subject-matter of this work. The editions mentioned are
those to which the references in the text and notes relate, and are not
invariably the latest.
_Ahrens._—Cours de Droit Naturel, ou de Philosophie du Droit. 8th ed.
1892, Paris. (A good example of the modern Continental literature of
Natural Law.)
_Amos._—The Science of Jurisprudence, 1872. The Science of Law, 6th
ed. 1885.
_Anson, Sir W. R._—Principles of the English Law of Contract. 13th ed.
1912.
_Aquinas, St. Thomas._—Tractatus de Legibus and Tractatus de Justitia
et Jure, included in his Summa Theologiae.
(The scholastic philosophy of the Middle Ages included within its
scope the more abstract portions of juridical science, and the
legal and ethical doctrines of the schoolmen found their most
authoritative expression in the above-mentioned work of Aquinas in
the thirteenth century.)
_Arndts._—Juristische Encyklopädie und Methodologie. 9th ed.
Stuttgart, 1895. Lehrbuch der Pandekten. 14th ed. Stuttgart, 1889.
_Austin._—Lectures on Jurisprudence or the Philosophy of Positive Law.
5th ed. 1885.
Abridgement by Campbell for the use of Students. 9th ed. 1895.
The Austinian Theory of Law, by Professor W. J. Brown. An edition of
the more essential portions of Austin’s work, with notes and
excursus by the editor. 1906.
(Almost unknown, and entirely unhonoured on the Continent, Austin’s
work has had immense influence in England, and he is the founder
of a distinct school of juridical speculation.)
_Baudry-Lacantinerie._—Traité Théorique et Pratique de Droit Civil.
Paris, 1895—.
(A series of commentaries on French law by various writers.)
_Beccaria._—Dei Delitti e delle Pene. (Crimes and Punishments.) 1764.
Engl. transl. by Farrer, 1880.
_Bentham._—The Principles of Morals and Legislation. Clarendon Press
ed. 1879.
Theory of Legislation. Translated from the French of Dumont, by
Hildreth. 8th ed. 1894.
A Fragment on Government. Ed. by Montague, 1891. Oxford.
Collected Works. Edited by Bowring, 11 vols., 1843.
_Bierling._—Juristische Prinzipienlehre. 1894.
_Birkmeyer._—Encyklopädie der Rechtswissenschaft. 1901, Berlin.
_Blackstone, Sir William._—Commentaries on the Laws of England. 4
vols. 1765–1769.
_Bluntschli._—Allgemeine Staatslehre. (Engl. transl. The Theory of the
State, 2nd ed. 1895, Oxford.)
_Bodin._—De la République, 1576. Latin version, De Republica, 1586.
(A work of great influence and celebrity in its day. Bodin may be
regarded as one of the founders of the political science of modern
times.)
_Bracton_.—De Legibus Angliae.
(One of the earliest of English legal treatises, dating from the
reign of Henry III. Printed in 1569. Edited, with translation, by
Twiss, in the Rolls Series, but in a manner very discreditable to
English scholarship.)
_Brown._—The Austinian Theory of Law. 1906.
_Bruns._—Das Recht des Besitzes in Mittelalter und in der Gegenwart.
Tübingen, 1848.
_Bryce._—Studies in History and Jurisprudence. 1901, Oxford, 2 vols.
_Burlamaqui._—Principes du Droit de la Nature et des Gens. 1766.
Edited by Dupin, 1820, Paris, 5 vols.
_C._—The Code of the Emperor Justinian.
(A collection of the statute law of the Roman Empire, made by order
of Justinian, A.D. 534, and forming one portion of the Corpus
Juris Civilis.)
_Clark, E. C._—Practical Jurisprudence; a Comment on Austin.
Cambridge, 1883.
Analysis of Criminal Liability. Cambridge, 1880.
_Co. Litt._—Coke’s Commentary upon Littleton.
_Cosack._—Lehrbuch des deutschen bürgerlichen Rechts. 2 vols. Jena,
1901.
_D._—The Digest or Pandects of the Emperor Justinian.
(A compilation of extracts from the writings of the chief Roman
lawyers, made by order of Justinian, A.D. 533, as part of the
Corpus Juris Civilis.)
_Dernburg._—Pandekten. 3 vols. 6th ed. 1900, Berlin.
(This is one of the best examples of the German works on
Pandektenrecht, that is to say, the modern Roman law which was in
force as the common law of Germany until superseded by the recent
Codes.)
Das bürgerliche Recht des Deutschen Reichs. 3 vols. 1901.
_Franck._—Réformateurs et Publicistes de l’Europe. 3 vols. 1864, 1881,
1893, Paris.
Philosophie du Droit Civil. Paris, 1886.
Philosophie du Droit Pénal. Paris, 4th ed. 1893.
_French Codes._—Codes et Lois Usuelles; edited by Roger and Sorel.
Paris.
_Fustel de Coulanges._—La Cité Antique. Paris, 15th ed. 1895.
_Gaius._—Institutiones.
(An institutional compendium of Roman law by a jurist of the second
century of the Christian era. It is of great value as the chief
source of our knowledge of the earlier law of Rome.)
_Gareis._—Rechts-Encyklopädie. 2nd ed. 1900, Giessen. English
translation by Kocourek, Introduction to the Science of Law. Boston,
1911.
_German Civil Code._—Das bürgerliche Gesetzbuch.
(A codification of the civil law of the German Empire, which came
into force in 1900. French trans. by Grasserie, Code Civil
Allemand, Paris, 1901.)
_German Criminal Code._—Das Strafgesetzbuch für das Deutsche Reich,
1872. Annotated edition by Oppenhoff, 1896, Berlin.
_Gierke._—Deutsches Privatrecht. 2 vols. 1895–1905. Leipzig.
(The First Book or General Part of this work contains an admirable
exposition of the first principles of legal theory.)
_Girard._—Manuel Elémentaire de Droit Romain. 2nd ed. 1898, Paris.
_Goadby._—Introduction to the Study of the Law. 1910.
_Graham._—English Political Philosophy. 1899.
_Gray, J. C._—The Nature and Sources of the Law. New York, 1909.
_Green, T. H._—Lectures on the Principles of Political Obligation.
(Collected Works, vol. ii. 3rd ed. 1893.)
_Grotius._—De Jure Belli ac Pacis, 1625. Edited, with English
translation, by Whewell. Cambridge, 3 vols.
(Grotius confines his attention for the most part to international
law, of which he was one of the founders. This work, however, is
not without importance with respect to the theory of civil law
also.)
_Hearn._—The Theory of Legal Duties and Rights. 1883, Melbourne.
_Heron._—Introduction to the History of Jurisprudence, 1860.
_Hobbes._—Leviathan; or the Matter, Form, and Power of a Commonwealth,
Ecclesiastical and Civil. 1651. (English Works, edited by
Molesworth, vol. iii. Published separately, Cambridge University
Press, 1904.)
De Cive. 1642. (Latin Works, edited by Molesworth. Vol. ii.)
_Holdsworth._—History of English Law. 3 vols. 1903–1909.
_Holland._—Elements of Jurisprudence. 11th ed. 1910, Oxford.
_Holmes, O. W._—The Common Law. 1887.
_Holtzendorff._—Encyklopädie der Rechtswissenschaft. 6th ed. 1904,
Berlin.
_Hooker._—Ecclesiastical Polity. Book I. 1594. (Works in 3 vols. 1888,
Oxford.)
(Remarkable as the first adequate presentation in the English
language of the abstract theory of law. Hooker’s doctrine is
essentially that of the scholastic philosophy.)
_Hunter._—A Systematic and Historical Exposition of Roman Law; with an
historical Introduction by A. F. Murison. 4th ed. 1904.
_Ihering._—Geist des römischen Rechts. 3 vols. 5th ed. 1891, Leipzig.
French translation by Meulenaere, L’Esprit du Droit Romain, 4 vols.
1877.
Der Zweck im Recht. 2 vols. 3rd ed. 1893, Leipzig. French
translation by Meulenaere, L’Evolution du Droit. 1901.
Grund des Besitzesschutzes. 2nd ed. 1869, Jena.
Der Besitzwille. 1889, Jena.
_Inst. Just._—The Institutes of the Emperor Justinian.
(A text-book of Roman law for the use of students, compiled by order
of Justinian, A.D. 533, and forming part of the Corpus Juris
Civilis.)
_Italian Civil Code._—French trans. by Prudhomme. Paris, 1896.
_Italian Penal Code._—French trans. by Turrel. Paris, 1890.
_Janet._—Histoire de la Science Politique. 2 vols. 3rd ed. 1887,
Paris.
_Jellinek._—Allgemeine Staatslehre. 1900. Berlin. (The first volume of
Das Recht des modernen Staates.)
_Kant._—Rechtslehre. 1796. English translation by Hastie, Kant’s
Philosophy of Law, 1887.
(With Kant, jurisprudence fell for the first time into the hands of
the metaphysicians, and this union of law and metaphysics has
since characterised a considerable portion of German juridical
literature.)
_Kenny._—Outlines of Criminal Law, 4th ed. 1909.
_Korkunov._—The General Theory of Law. Translated from the Russian by
W. G. Hastings. Boston, 1909.
_L.Q.R._—Law Quarterly Review. London, 1885–.
_L.R._—The Law Reports, from 1865 onwards.
Q.B. or K.B.—Reports of cases decided in the Court of Queen’s Bench
or the Queen’s (or King’s) Bench Division of the High Court of
Justice. Thus L.R. 10 Q.B. 27, is the 10th volume of the Queen’s
Bench Law Reports; and (1900) 1 Q.B. 27, is the first volume of
the Queen’s Bench Reports for the year 1900.
Ch. D.—Reports of cases in the Chancery Division of the High Court
of Justice.
A.C.—Appeal Cases, _i.e._, reports of cases in the House of Lords
and Privy Council.
C.P. or C.P.D.—Reports of cases in the Court of Common Pleas, or the
Common Pleas Division of the High Court.
Ex. or Ex.D.—Reports of cases in the Court of Exchequer, or the
Exchequer Division of the High Court.
_Lea._—Superstition and Force. 4th ed. Philadelphia, 1892.
_Lee._—Historical Jurisprudence; an Introduction to the Systematic
Study of the Development of Law. 1900.
_Lightwood._—A Treatise on Possession of Land. 1894.
The Nature of Positive Law. 1883.
_Lindley, Lord._—An Introduction to the Study of Jurisprudence. 1855.
(A translation, with copious notes, of the General Part of Thibaut’s
Pandektenrecht.)
_Locke._—Two Treatises on Civil Government. 1690.
_Lorimer._—The Institutes of Law; a Treatise of the Principles of
Jurisprudence as determined by Nature. 2nd ed. 1880.
_Maine, Sir Henry._—Ancient Law. 1861; edited with introduction and
notes by Sir F. Pollock. 1906.
The Early History of Institutions. 1875. Early
Law and Custom. 1883.
(Sir Henry Maine is a leading representative in England of the
scientific treatment of legal conceptions in respect of their
origin and historical development.)
_Markby, Sir W._—Elements of Law. 6th ed. 1905, Oxford.
_Merkel._—Lehrbuch des Deutschen Strafrechts. 1889, Stuttgart.
_Merriam._—History of the Theory of Sovereignty since Rousseau. New
York, 1899.
_Miller._—The Data of Jurisprudence. Edinburgh. 1903.
_Montesquieu._—L’Esprit des Lois. 1748.
_Moyle, J. B._—Imperatoris Justiniani Institutionum Libri Quattuor;
with Introductions, Commentary, and Excursus. Oxford, 5th ed. 1913.
_Muirhead._—Historical Introduction to the Private Law of Rome. 2nd
ed. 1899.
_Pollock, Sir F._—First Book of Jurisprudence. 2nd ed. 1904.
Essays in Jurisprudence and Ethics. 1882.
Introduction to the History of the Science of Politics. 1897.
_Pollock and Wright._—Possession in the Common Law. 1888.
_Pollock and Maitland._—The History of English Law before the Time of
Edward I. 2 vols. Cambridge, 1895. 2nd ed. 1898.
_Pothier._—Works, 10 vols. ed. by Bugnet. 3rd ed. 1890, Paris.
(Pothier, _ob._ 1772, is one of the most celebrated of French
lawyers. His admirably lucid and methodical expositions of
Roman-French law are the source of great part of the Codes
prepared in France at the beginning of the 19th century and still
in force there.)
_Puchta._—Cursus der Institutionen. 10th ed. 1893, 2 vols. Leipzig.
(A treatise of Roman law. Puchta, _ob._ 1846, was one of the leading
representatives of the Historical School of German Jurisprudence,
and the introductory portion of this work is of importance as
setting forth the abstract theory of law as understood by that
school. This portion is translated by Hastie, Outlines of the
Science of Jurisprudence, 1887, Edinburgh.)
_Pufendorf._—De Jure Naturae et Gentium. 1672. English trans. by
Kennet, 1729:—The Law of Nature and Nations.
(This is one of the earliest and most celebrated examples of a form
of literature which was once of considerable repute and
importance, but has now all but disappeared, namely, Natural
Jurisprudence, or the Theory of Natural Law and Justice.)
_Pulszky._—The Theory of Law and Civil Society. 1888, London.
_Rattigan, Sir W. H._—The Science of Jurisprudence. 3rd ed. 1909.
_Regelsberger._—Pandekten. Vol. i. 1903.
_Rehm._—Allgemeine Staatslehre. 1899, Freiburg.
_Ritchie._—Natural Rights; a Criticism of some Political and Ethical
Conceptions. 1895.
_Rousseau._—Du Contrat Social; ou Principes du Droit Politique. 1762.
_Saleilles._—De la Déclaration de Volonté. 1901.
De la Possession des Meubles. 1907. De la Personnalité
Juridique. 1910.
_Savigny._—System des heutigen römischen Rechts. 1840–1849. French
translation by Guenoux, Traité de Droit Romain. 8 vols.
Das Obligationenrecht. 1851–1853. French translation by Gérardin and
Jozon, Le Droit des Obligations. 2 vols. 2nd ed. 1873.
Das Recht des Besitzes. 1803. English translation by Perry, Von
Savigny’s Treatise on Possession. 1848.
_Schmidt._—Allgemeine Staatslehre. 1901, Leipzig.
_Select Essays in Anglo-American Legal History._—By various authors.
Edited by a Committee of the Association of American Law Schools. 3
vols. 1907–1909.
_Sidgwick, H._—Elements of Politics. 2nd ed. 1897.
_Spencer, Herbert._—Principles of Sociology. Vol. ii. Part V.
Political Institutions. 3rd ed. 1893.
Principles of Ethics. Vol. ii. Part IV.
Justice. 1893.
_Spinoza._—Tractatus Politicus. 1677, posthumous.
(Works edited by Van Vloten and Land. 3 vols. English translation by
Elwes. 2nd ed. 1889.)
_Stephen, Sir J. F._—History of the Criminal Law of England. 3 vols.
1883.
General View of the Criminal Law. 2nd ed.
1890.
_Street._—Foundations of Legal Liability. 3 vols. 1906, New York.
_Suarez._—De Legibus et de Deo Legislatore. 1613.
(Suarez was a Spanish Jesuit of the sixteenth century. In this work
he sums up, with the greatest completeness and elaboration, the
scholastic doctrine of the law.)
_Tarde._—Les Transformations du Droit. 2nd ed. 1894. Paris.
La Philosophie Pénale. 5th ed. 1900. Paris.
_Terry._—Leading Principles of Anglo-American Law. 1884, Philadelphia.
(A treatise of Theoretical Jurisprudence.)
_Thomasius, C._—Institutionum Jurisprudentiae Divinae Libri Tres.
1687.
Fundamenta Juris Naturae et Gentium. 1705.
(Thomasius is chiefly noteworthy as the originator of that
distinction between natural jurisprudence, or the science of
justice strictly so called, and ethics or the science of virtue,
which was subsequently adopted by Kant, and through his influence
became a characteristic feature of Continental doctrine.)
_Vangerow._—Lehrbuch der Pandekten. 3 vols. 7th ed. 1876, Leipzig.
_Windscheid._—Lehrbuch des Pandektenrechts. 3 vols. 8th ed. 1900.
Frankfurt.
(Windscheid was one of the most distinguished of the German
exponents of modern Roman law, and this work is an admirable
example of the scientific study of a legal system.)
_Woolsey._—Political Science or the State. 2 vols. 1877.
_Y.B._—The Year Books, viz., the early Law Reports from the reign of
Edward I. to that of Henry VIII. The Year Books of Edward I. and
some others are published with a translation in the Rolls Series;
others by the Selden Society. The rest are to be found in a black
letter folio edition of 1678.
INDEX
Abrath _v._ North Eastern Ry. Co., 289.
Accessory rights, distinguished from principal, 216;
examples of, 216;
rights both accessory and dominant, 217.
Accident, distinguished from mistake, 371;
culpable and inevitable, 372;
defence of, 372;
absolute liability for, 372.
Actio furti, 86, _n._
Actio in rem and in personam, 207.
Actio personalis moritur cum persona, 376, 377.
Acts, their generic nature, 323;
positive and negative, 323;
internal and external, 323;
intentional and unintentional, 324;
their circumstances and consequences, 325;
place of, 330;
time of, 330
Acts in the law, 301–304;
unilateral and bilateral, 302;
two classes of unilateral, 303.
_See_ Agreements.
Acts of the law, 302.
Acts of Parliament, public and private, 30;
said formerly to be void if unreasonable, 146.
_See_ Legislation, Statute law.
Actus non facit reum, &c., 322, 474.
_See_ Mens rea.
Administration of justice, necessity of, 11, 65–67;
logically prior to the law, 12;
possible without law, 13;
origin of, 67–70;
civil and criminal, 70–75;
specific and sanctional enforcement of rights, 85;
penal and remedial proceedings, 88;
secondary functions of courts of law, 89–91;
an essential function of the state, 93;
compared with war or the extrajudicial use of force, 94–98;
element of force usually latent in, 97;
not the substitution of arbitration for force, 97.
Aequitas sequitur legem, 34.
Agere non valenti non currit praescriptio, 412 _n._
Agreements, a source of law, 31, 54, 124;
constitutive and abrogative power of, 124, 307;
nature of, 303;
different uses of the term, 303;
unilateral and bilateral, 304 _n._;
importance of, as a vestitive fact, 305;
grounds of operation of, 305;
compared with legislation, 306;
classes of, 307–309;
void and voidable, 309;
unenforceable, 310 _n._;
formal and informal, 310;
illegal, 311;
effect of error on, 312;
effect of coercion on, 313;
want of consideration for, 313–317;
a title to property, 412–416.
Ahrens, his Cours de Droit Naturel, 2;
on proprietary rights, 208 _n._;
his definition of property, 387.
Alfred, laws of King, on private war, 69, _n._;
on accidental homicide, 373.
Alienative facts, 300.
Aliens, members of the state if resident in its territory, 100;
disabilities of, 101.
Allegiance, nature of, 105;
permanent and temporary, 105.
_See_ Citizenship.
Allen _v._ Flood, 192, 341, 342.
Analogy, a source of judicial principles, 175.
Ancona _v._ Rogers, 253.
Animals, possess no legal personality, 273;
have no legal rights, 274;
effect of trusts for, 274;
punishment of, in early law, 273, 373;
liability of owner of, 273, 372.
Animus possidendi, essential to possession, 242;
its nature, 242;
need not be rightful, 242;
must be exclusive, 242;
need not be a claim of ownership, 243;
need not be on one’s own behalf, 243;
need not be specific, 243.
Anson, Sir W., his definition of contract, 303 _n._
Apices juris, 474.
Appeals of felony, abolition of, 69, _n._
Aquinas, his distinction between jus naturale and jus positivum, 3
_n._;
on equity, 36;
on the lex aeterna, 42;
on agreement as a title of right, 306;
his Tractatus de Legibus, 487.
Arbitration, international, dependent on the development of
international law, 22.
Aristotle, on being wiser than the laws, 22, 478;
on the arbitrium judicis, 26;
on law and equity, 36;
on the law of nature, 45.
Armory _v._ Delamirie, 249, 270, 408.
Arndts, on Juridical Encyklopaedia, 7;
on customary law, 155.
Asher _v._ Whitlock, 270, 408.
Ashford _v._ Thornton, 69.
Assignment. _See_ Transfer.
Assumpsit, 435.
Attempts, criminal, their nature, 343;
distinguished from preparation, 343;
by impossible means, 345.
Att.-Gen. _v._ Dean of Windsor, 165.
Att.-Gen. _v._ Dimond, 394.
Attornment, 258.
Austin, on general jurisprudence, 6;
his definition of law, 47;
his use of the term legislation, 127;
his theory of customary law, 156;
on illimitable sovereignty, 469;
his influence on English thought, 488.
Autonomous law, the product of autonomous legislation, 130;
its relation to conventional law, 131.
Azo, on equity, 37.
Backhouse _v._ Bonomi, 331.
Bacon, Sir F., on being wiser than the laws, 23, _n._;
on the arbitrium judicis, 26.
Barnet _v._ Brandao, 29.
Battle, trial by, its origin, 69;
its duration in English law, 69, _n._;
a mode of authenticating testimony, 451.
Baudry-Lacantinerie, on proprietary rights, 208, _n._;
on ownership, 224, _n._;
on corporeal and incorporeal possession, 264, _n._;
on movable and immovable property, 392, _n._
Beamish _v._ Beamish, 165.
Beardman _v._ Wilson, 399.
Beati possidentes, 265.
Bechuanaland Exploration Co. _v._ London Trading Bank, 150.
Beneficial ownership. _See_ Trust.
Bentham, his objections to case-law, 134, _n._;
on natural rights, 182;
his use of the term property, 387;
on compulsory examination of accused persons, 450, _n._;
on the limitations of sovereign power, 470.
Bill of Rights, 109.
Bills of Exchange, formerly governed by law merchant, 29.
Black _v._ Christchurch Finance Co., 372.
Blackstone, his definition of law, 40;
on civil and criminal wrongs, 73;
on written and unwritten law, 128;
on the supremacy of the Imperial Parliament, 129;
on customary law, 144;
his use of the term property, 385;
on implied contracts, 433.
Bodin, his theory of sovereignty, 467;
his treatise De Republica, 488.
Bona vacantia, 418.
Bracton, on equity, 37.
Bridges _v._ Hawkesworth, 248, 249, 270.
Bromage _v._ Prosser, 341.
Brown _v._ Burdett, 419.
Brown, W. Jethro, on customary law, 156, _n._;
on sovereignty, 473, _n._
Bruns, his theory of possession, 263, _n._, 264, _n._
Bryant _v._ Foot, 150.
Bryce, on the sources of law, 49, _n._;
on sovereignty, 473.
Burlamaqui, on natural law, 8.
By-laws, a form of special law, 30;
void if unreasonable, 146.
Cain _v._ Moon, 257.
Calvin’s case, 278, 295.
Canon law, a form of positive law, 3, _n._;
on immemorial custom and prescription, 150–152;
on the distinction between jus commune and consuetudines, 151.
Cartwright _v._ Green, 248.
Castro _v._ R., 163.
Cessante ratione legis, &c., 475.
Chancery, precedents in, 162.
_See_ Equity.
Charge, a form of lien, contrasted with mortgage, 406.
Chattel, meanings of the term, 395.
Chisholm _v._ Doulton, 367, 374.
Chose in action, a kind of incorporeal thing, 226;
nature of, 423;
history of the term, 423.
Christian Thomasius, on law of nature, 46, 494.
Cicero, on subjection to the law as the means of freedom, 22;
on jus and aequitas, 30, 39, _n._;
on the law of nature, 45.
Citizens’ Life Assurance _v._ Brown, 289.
Citizenship, one form of state-membership, 99;
distinction between citizens and subjects, 100, _n._;
distinction between citizens and aliens, 100;
privileges and liabilities of citizens, 101;
diminishing importance of, 101;
modes of acquiring, 101;
relation between citizenship and nationality, 103.
Civil law, the subject-matter of civil jurisprudence, 1;
the term partly superseded by positive law, 3;
different meanings of the term, 3, _n._, 483.
_See_ Law.
Civil wrongs. _See_ Wrongs, Liability.
Clark, _In re_, 394.
Cochrane _v._ Moore, 413.
Code of Justinian, 488.
Codification, 136.
Cogitationis poenam nemo patitur, 345, 475.
Coke, on customary law, 152, _n._;
on the distinction between custom and prescription, 157;
on the personality of unborn children, 277;
on corporations aggregate and sole, 281;
on the ownership of the space above the surface of land, 390.
Colonial Bank _v._ Whinney, 286, 424.
Commissioners of Stamps _v._ Hope, 394.
Common law, opposed to special law, 33;
different uses of the term, 33, 57;
opposed to equity, 34–38;
history of the term, 33.
_See_ jus commune.
Communis error facit jus, 166, 168, 475.
Compensation, one of the objects of civil justice, 85, 86.
_See_ Penal redress.
Compossessio, 256.
Conditions precedent and subsequent, 234.
_See_ Contingent ownership.
Conservatism of the law, 24.
Consideration, required in simple contracts, 313;
its nature, 313;
valuable, 314;
not valuable, 315;
rational grounds of the doctrine, 316;
compared with the causa of Roman and French law, 316.
Consolidated Co. _v._ Curtis, 370.
Constitution of the state, 105–110;
nature of, 105;
rigid and flexible constitutions, 107;
law and practice of, 107;
extra-legal origin of, 108;
possibility of legally unchangeable, 473.
Constitutional law, nature of, 106;
its relation to constitutional fact, 107–110.
Constitutum possessorium, 257.
Constructive delivery, 257.
Constructive intention, 361.
Constructive possession, 237.
Contingent ownership, 232;
distinguished from vested, 232;
distinguished from contingent existence of the right owned, 233;
distinguished from spes acquisitionis, 233;
distinguished from determinable ownership, 234.
Contracts. _See_ Agreements.
Conventional law, created by agreement, 31, 54, 120, 124;
reasons for allowance of, 121, 122.
Co-ownership, 226.
Coppin _v._ Coppin, 278.
Copyright, its subject-matter, 189;
nature and kinds of, 396.
Cornford _v._ Carlton Bank, 288, 289.
Corporation of Bradford _v._ Pickles, 342.
Corporations, nature of, 281, _ff._;
aggregate and sole, 287;
fictitious nature of, 282;
may survive their members, 283, 293;
realistic theory of, 284;
act through agents, 285;
exist on behalf of beneficiaries, 285;
membership of, 286;
may be members of other corporations, 287;
authority of agents of, 287;
liability of, 287–289;
purposes of incorporation, 289–293;
creation and extinction of, 293;
foreign, recognised by English law, 294, _n._;
the state not a corporation aggregate, 294–298;
the king a corporation sole, 295.
Corporeal possession, 239.
Corporeal property, 221, 225, 386, 396, _n._
Corporeal things, 225, 396, _n._
Corpus possessionis, essential to possession, 241;
its nature, 244–251.
Correality, _See_ Solidary obligations.
Coughlin _v._ Gillison, 355.
Court of Appeal, absolutely bound by its own decisions, 165.
Cowan _v._ O’Connor, 331.
Crimes. _See_ Wrongs. Liability.
Crouch _v._ Crédit Foncier, 150.
Crown of England, claims against, heard in courts of law, 90;
not a legal person, 296;
the supreme executive, 468.
Cujus est solum, ejus est usque ad coelum, 390, 475.
Culpa, lata, and levis, 358.
Cundy _v._ Lindsay, 312.
Custody distinguished from possession, 237.
Custom, local, a source of special law, 29;
mercantile, a source of special law, 29;
grounds of the operation of, 120–122, 144–146;
its relation to prescription, 124, 157;
all unenacted law deemed customary in earlier English theory, 129,
144;
importance of, gradually diminishing, 143;
its continued recognition, 144;
historical relation between law and custom, 144–145;
general and particular customs, 148;
invalid if unreasonable, 146;
invalid if contrary to statute law, 147;
unless general must be immemorial, 148
(_see_ Time immemorial);
mercantile need not be immemorial, 148, 150 _n._;
unless immemorial, must conform to the common law, 152;
reasons for gradual disappearance of, as a source of law, 153;
conventional customs, 153;
theories of the operation of custom, 154–157;
has no legal validity apart from the will of the state, 155;
a material not a formal source of law, 156;
Austin’s theory of, 156;
the relation of custom to prescription, 157;
local and personal customs, 157.
Customary law, 55.
_See_ Custom.
Damages, measure of 383.
Damnum sine injuria, 329.
Danubian Sugar Factories _v._ Commissioners of Inland Revenue 394.
Darley Main Colliery Co. _v._ Mitchell. 331.
De Falbe, _In re_, 392.
De minimis non curat lex, 25, 475.
De mortuis nil nisi bonum, 276.
Dead bodies, not subjects of ownership, 275;
indignities offered to, a criminal offence, 276.
Dean, _In re_, 274, 276.
Decisions, judicial. _See_ Precedents.
Delivery of possession, actual and constructive, 257;
traditio brevi manu, 257;
constitutum possessorium, 257;
attornment, 258;
a mode of transferring ownership, 406.
Deodans, 373.
Dependent states, 111–113.
Dernburg, on proprietary rights, 208, _n._;
on possession, 245, _n._;
his Pandekten, 489.
Derry _v._ Peek, 354.
Detention, distinguished from possession, 237.
Determinable ownership, distinguished from contingent, 234.
Dicta, judicial, their nature and authority, 163, 174.
Digest of Justinian, 489.
Dike, dikaion, meanings and derivation of the terms, 461.
Diligence, archaic use of the term to mean care, 349, _n._
Diogenes Laertius, anecdote of Solon, 81, _n._
Disability, defined, and distinguished from liability and duty, 194.
Divestitive facts, their nature and kinds, 300, 301.
Dolus, meaning of the term, 341;
its relation to culpa lata, 359.
Dominant rights. _See_ Encumbrances.
Dominium, its significance in Roman law, 207.
Doom, early legal uses of the term, 464.
Doorman _v._ Jenkins, 359.
Droit, distinguished from loi, 10;
ethical and juridical significations of, 52;
different uses of term, 465;
derivation of term, 459.
Droit de suite, 416, _n._
Duress, 313.
Dutch West India Co. _v._ Van Moses, 294.
Duties, defined, 180;
moral and legal, 180;
of imperfect obligation, 180, 197, 198;
correlation of rights and duties, 184;
alleged distinction between absolute and relative duties, 184;
distinguished from liabilities and disabilities, 194;
personal and proprietary, 209.
Easements. _See_ Servitudes.
Edelstein _v._ Schuler, 29, 150.
Edie _v._ East India Co., 29, 153.
Edmundson _v._ Render, 331.
Electricity, deemed a chattel in law, 395, _n._
Ellis _v._ Loftus Iron Co., 273, 372, 391.
Elmore _v._ Stone, 254, 255, 258.
Elwes _v._ Brigg Gas Co., 249, 250.
Emphyteusis, 400, _n._
Employer’s liability, 374–376.
Enacted law, distinguished from unenacted, 128.
_See_ Statute law.
Encumbrances, 212–216;
distinguished from ownership, 221;
termed jura in re aliena by the civilians, 212;
distinguished from the natural limits of rights, 213;
are concurrent with the property encumbered, 214;
not necessarily rights in rem, 215;
classes of, 216;
often accessory to other rights, 217;
always incorporeal property, 223.
Encyclopædia, juridicial, a branch of German legal literature, 7.
Equitable rights, distinguished from legal, 217;
distinction not abolished by the Judicature Act, 217;
present importance of distinction, 218;
destroyed by conflict with legal rights, 218, 415.
Equitable ownership, 231;
distinguished from legal, 231;
distinguished from equitable rights, 231;
distinguished from beneficial ownership, 231.
Equity, different meanings of the term, 34–38, 460;
origin of jurisdiction of Chancery, 34, 37;
fusion of law and equity by Judicature Act, 35;
equity in the courts of common law, 36;
compared with jus praetorium, 38.
Equity of a statute, 39, _n._
Equity of redemption, 403.
Error, effect of, on agreements, 312;
essential and unessential, 312.
Estate, distinguished from status or personal condition, 208, 209.
_See_ Proprietary rights.
Evidence, nature of, 440;
judicial and extrajudicial, 441;
personal and real, 442;
primary and secondary, 442;
direct and circumstantial, 443;
valuation of, 444–449;
conclusive, 439, 445;
presumptive, 446;
insufficient, 447;
exclusive, 439, 447;
inadmissible, 448;
of accused persons, 449;
policy of law of evidence considered, 27, 452.
Ex facto oritur jus, 172, 409.
Ex nudo pacto non oritur actio, 314, 476.
Ex turpi causa non oritur actio, 476.
Exall _v._ Partridge, 433.
Executors, 417.
_See_ Inheritance.
Expedit reipublicae ut sit finis litium, 170.
Expiation, as the end of punishment, 83.
Extinctive facts, 300.
Fact, distinguished from law, 15–18.
Fas, distinguished from jus, 461.
Fay _v._ Prentice, 391.
Federal states, their nature, 115;
distinguished from unitary states, 115;
distinguished from imperial states, 115.
Fiducia, 405.
Filburn _v._ Aquarium Co., 372.
Finding, as a title of right, 248–250.
Fixtures, 391.
Flexibility of the law, advantages of, 27.
Flitcroft’s case, 282.
Fookes _v._ Beer, 167.
Forbearance, distinguished from omission, 324.
Foreign law, recognition of, in English courts, 30;
a form of special law, 30;
no judicial notice of, 31.
Formalism of the law, 25.
Foster _v._ Dodd, 276.
Fraud, in law and in fact, 18;
meanings of the term, 341;
distinguished from force and malice, 341;
its relation to gross negligence, 359–361.
Freeman _v._ Pope, 366.
French law, on time of memory, 152;
precedents in, 159, _n._;
on possession, 264, _n._;
on requirement of cause in a contract, 316;
possession vaut titre, 416;
jurisprudence, 8.
Gaius, on natural law, 46;
his Institutiones, 489.
Gautret _v._ Egerton, 355.
George and Richard, The, 277.
German law, as to immemorial prescription, 152;
as to precedents, 159, _n._;
as to mediate possession, 252, _n._;
as to malicious exercise of rights, 342, _n._;
as to criminal attempts, 344;
as to the jus necessitatis, 349, _n._
Gierke, on the nature of corporations, 285, _n._
Glanville, on equity, 37, _n._
Good-will, a form of immaterial property, 397.
Goodwin _v._ Robarts, 150, 152.
Gorgier _v._ Mieville, 150.
Grant, distinguished from assignment, 308.
Grant _v._ Easton, 432, 433.
Great Eastern Ry. Co. _v._ Turner, 282.
Green _v._ London General Omnibus Co., 289.
Greenwell _v._ Low Beechburn Colliery, 332.
Grill _v._ General Iron Screw Collier Co., 349, 359.
Grotius, De Jure Belli, 490.
Haig _v._ West, 254.
Hale, on customary law, 143;
on precedents, 161;
on subjects and aliens, 100, _n._
Hall _v._ Duke of Norfolk, 331.
Hallett, _In re_, 162, 173.
Hammack _v._ White, 357.
Heineccius, on natural law, 8.
Hereditas jacens, 186, 275.
Hill, _Ex parte_, 340.
Hinton _v._ Dibbin, 359.
Hoare _v._ Osborne, 276.
Hobbes, his definition of law, 48;
men and arms make the force of the laws, 49;
on the law of nature and nations, 59;
bellum omnium contra omnes, 65;
on the swords of war and justice, 94;
on the jus necessitatis, 347;
his use of the term property, 386;
his definition of an oath, 451;
his theory of sovereignty, 467;
as to limitations of sovereignty. 469.
Holmes, on the sources of judicial principles, 176;
his definition of an act, 320;
his definition of intention, 335, _n._
Hooker, on laws as the voices of right reason, 19;
his definition of law, 40, 43;
on the law of nature, 43, 46;
on the impartiality of the law, 22;
his Ecclesiastical Polity, 490.
House of Lords, absolutely bound by its own decisions, 164;
formerly a supreme judicature, 469.
Hypotheca, 405.
Ignorantia juris neminem excusat, 368, 476.
Ihering, on the imperative theory of law, 54;
his definition of a right, 182;
on possession, 247, _n._, 264, 264, _n._, 266, _n._;
on Savigny’s theory of possession, 259, _n._
Illegality, a ground of invalidity of agreements, 311.
Immaterial property, 189, 395–397.
Immovables, their nature, 390–392;
rights classed as, 392, 393.
Immunities, distinguished from rights, liberties, and powers, 194, _n._
Imperative theory of law, 47–54;
historical argument against, 49;
answer to this argument, 49–51;
defects of imperative theory, 51–54;
no recognition of idea of justice, 51;
no recognition of non-imperative rules, 52.
Imperfect rights, 184, 197–199;
their nature, 197;
imperfect nature of rights against the state, 199–201;
may serve as a defence, 199;
sufficient to support security, 199;
may become perfect, 199.
Imperial states, 115.
Imperitia culpae adnumeratur, 353.
Impossibilium nulla obligatio est, 476.
Inadvertence, not identical with negligence, 349, 361–363.
Incorporeal ownership and property, 221–224, 387.
Incorporeal possession, 239, 261–264.
_See_ Possession.
Incorporeal things, 225;
classed as movable or immovable, 392;
local situation of, 393.
Informality, a ground of invalidity in agreements, 310.
Inheritance, 416–419;
heritable and uninheritable rights, 416;
the representatives of a deceased person, 417;
the beneficiaries of a deceased person, 417;
testamentary and intestate succession, 418;
limits of testamentary power, 418.
Injury. _See_ Wrongs, Liability.
Inland Revenue Commissioners _v._ Muller & Co.’s Margarine, 331, 393,
394.
Innominate obligations, 435.
Intention, nature of, 324, 335–338;
distinguished from expectation, 336;
extends to means and necessary concomitants of the end desired, 337;
immediate and ulterior, 338;
distinguished from motive, 338;
actual and constructive, 360.
Inter arma leges silent, 96, 477.
International law, 56–64;
its influence in maintaining peace, 22;
has its source in international agreement, 57;
definition of, 57;
conventional and customary law of nations, 57;
common and particular law of nations, 58;
different views as to nature of, 58;
viewed as a form of national law, 59, 60;
viewed as a form of customary law, 60, 61;
viewed as a form of imperative law, 61–64;
distinguished from international morality, 63;
private international law, 31, 482.
Interpretation of contracts, 141, _n._
Interpretation of enacted law, 137–142;
grammatical and logical, 138;
litera legis and sententia legis, 138;
when logical interpretation allowable, 139;
strict and equitable interpretation, 139;
extensive and restrictive interpretation, 139.
Intestacy, ownership of property of intestate, 186, 275.
_See_ Inheritance.
Investitive facts, 300.
Invito beneficium non datur, 305, 477.
Italian Civil Code definition of possession, 264, _n._
Jefferys _v._ Boosey, 100.
Jewish law, lex talionis, 83;
as to the offences of beasts, 273, 373;
as to vicarious liability, 374.
Joint obligations. _See_ Solidary obligations.
Judicial notice, nature of, 28;
test of distinction between common and special law, 28, 32.
Judicium Dei, 69, 445, 451.
Juris praecepta, 477.
Jurisprudence, 1–8;
the science of law in general, 1;
civil, the science of civil law, 3;
systematic, 3;
historical, 3;
critical, 3;
theoretical, 4–7;
foreign, compared with English, 7, 8.
Juristic law, produced by professional opinion, 120.
Jury, questions of fact to be answered by, 17, 176.
Jus, distinguished from lex, 10, 132, 457;
ethical and legal meanings of, 52, 457;
different senses of, 460;
derivation of, 461;
disappearance of term from modern languages, 463.
Jus ad rem, 206.
Jus accrescendi, 227, 416.
Jus civile, 3, _n._, 39.
Jus commune, history of the term, 33;
different meanings of the term, 33, 34;
in Roman law, 33, _n._;
in the Canon law, 33;
adopted by the English from Canon law, 33;
in the sense of natural law, 44.
Jus edicendi, the legislative power of the Roman praetor, 134.
Jus gentium, 44, 46.
Jus in re aliena, 212–216.
_See_ Encumbrances.
Jus in re propria, 212–216.
_See_ Ownership.
Jus in rem and in personam, significance of the terms, 202–207;
origin of the terms, 207.
_See_ Real rights.
Jus naturale. _See_ Natural law.
Jus necessitatis. _See_ Necessity.
Jus positivum. _See_ Positive law.
Jus possessionis, 241, _n._
Jus possidendi, 241, _n._
Jus praetorium, 38, 134.
Jus publicum, 311, 482.
Jus scriptum and jus non scriptum, 44, 129.
Jus singulare. 33, _n._
Jus strictum, opposed to aequitas, 35.
Jus tertii, defence of, 269, 408.
Justice, natural and positive, 43, 44;
an essential element in the idea of law, 51.
_See_ Administration of justice and Natural law.
Justinian, on law of nature, 46.
Kant, on retributive punishment, 82;
his Rechtslehre, 491.
Kettlewell _v._ Watson, 349, 360.
King, the source of justice, 37, 294;
a corporation sole, 295.
King’s peace, 70, _n._
King _v._ Smith, 312.
Land, nature of, in law, 390–392;
ownership of, 389.
Lavy _v._ L.C.C., 165.
Law, definition of, 9;
abstract and concrete senses of the term, 9;
relation of, to the administration of justice, 12–14;
law and fact, 15–18;
advantages of fixed rules of law, 19–22;
defects of the law, 23–27;
contrasted with equity, 34–39;
imperative theory of, 48–54;
includes rules governing the secondary functions of courts of
justice, 91;
sources of (_see_ Sources of the law);
origin of the term, 464.
Law, merchant. _See_ Mercantile Custom.
Law of nations. _See_ International law.
Law of nature. _See_ Natural law.
Lawrence _v._ Hitch, 150.
Law reports, mode of citation of, 491.
Leases, nature of, 216, 397–400;
subject-matter of, 398;
may be perpetual, 399.
Leask _v._ Scott, 163.
Legal ownership, distinguished from equitable, 231.
Legal rights, distinguished from equitable, 217.
Legislation, its efficiency as an instrument of legal reform, 25;
private legislation a source of special law, 30;
nature of, 127;
various senses of the term, 127, 128;
direct and indirect, 128;
supreme and subordinate, 129;
colonial, 129;
executive, 130;
judicial, 130;
municipal, 130;
autonomous, 130;
not necessarily the act of the state, 130;
late development of the conception of, 132;
merits and defects of statute law, 133–136;
codification, 136;
interpretation of statute law, 137–142;
subordinate legislation sometimes invalid if unreasonable, 146;
legal limitations of the power of the legislature, 471–473.
Le Lievre _v._ Gould, 354, 360.
Lex, distinguished from jus, 10, 132, 457;
different meanings of term, 462;
derivation of, 465.
Lex aeterna, 42.
Lex posterior derogat priori, 148.
Lex talionis, 82.
Liability, civil and criminal, 70, 319;
penal and remedial, 88, 321;
distinction between penal and criminal liability, 89;
distinguished from duty and disability, 194;
remedial, theory of, 320;
penal, theory of, 321;
absolute, 332, 366–368;
vicarious, 374–377;
employer’s, 375;
survival of, 376;
measure of criminal, 377
(_see_ Punishment);
measure of civil, 382.
Libel, on dead person, 276.
Liberties, classed as rights in a wide sense, 190;
distinguished from rights in strict sense, 190;
distinguished from powers, 193.
Licence, revocation, of, 193, _n._
Lien, distinguished from mortgage, 402;
classes of, 406.
Lightly _v._ Clouston, 434.
Lilley, on expiation as the purpose of punishment, 83.
Limitation of actions, at common law, 149, _n._;
by the Statute of Westminster, 49, _n._
_See_ Prescription.
Limited liability, of shareholders, 292.
Littleton on customary law, 152, _n._
Locke, on the necessity of fixed principles of law, 21;
his classification of laws, 48, _n._;
on the state of nature, 68;
his use of the term property, 386.
London and Midland Bank _v._ Mitchell, 199.
London Street Tramways Co. _v._ L.C.C., 165.
Lorimer, his Institutes of Law, 2.
Low _v._ Routledge, 100.
Macarthy _v._ Young, 355.
Magna Carta, the prohibition of extrajudicial force, 96, _n._
Maine, Sir H. S., his influence on English jurisprudence, 492.
Maitland, on corporations sole, 282, _n._;
on the nature of corporations, 285, _n._
Malice, meanings of the term, 340;
when a ground of liability, 342–346, 478.
Marais, Ex parte, 96.
Marvin _v._ Wallace, 254, 258.
Maxims, legal, their nature and uses, 474;
list of, 474–480.
Mediate possession, 252–256.
Mens rea, a condition of penal liability, 322, 332;
its two forms, intention and negligence, 322, 332;
exceptions to requirement of, 332, 366.
Mercantile custom, a source of special law, 29;
judicial notice of, when once proved, 29;
possesses no abrogative power, 124;
need not be immemorial, 150, _n._
Mercer, _Ex parte_, 360.
Merger, nature of, 279.
Merkel, on negligence, 250, _n._, 252, _n._
Merry _v._ Green, 244, 248.
Metropolitan Ry. Co. _v._ Jackson, 357.
Middleton _v._ Pollock, 304.
Midland Ry. Co. _v._ Wright, 392.
Mills _v._ Jennings, 165.
Mistake, effect of, on agreements, 312.
Mistake of fact, a defence in criminal law, 370;
no defence in civil law, 370;
origin of the rule, 370;
distinguished from accident, 371.
Mistake of law, no defence, 368;
reasons for the rule, 368.
Modus et conventio vincunt legem, 31, 124, 307, 311, 477.
Mogul, SS. _v._ McGregor, 341.
Monti _v._ Barnes, 391, 392.
Moral law, 43, 48, _n._
_See_ Natural law.
Morris _v._ Robinson, 427.
Mortgage, distinguished from liens, 402;
not necessarily a transfer of the property, 402;
involves equity of redemption, 403;
what may be mortgaged, 404;
complexity of, as compared with liens, 405.
Moses _v._ Macferlan, 433.
Motives, nature of, 338;
distinguished from intention, 338;
concurrent, 339;
relevance of, in law, 341.
Moult _v._ Halliday, 29.
Muller and Co’s Margarine _v._ Inland Revenue Commissioners, 331, 393,
394.
Musgrove _v._ Toy, 192.
Nasciturus pro jam nato habetur, 277.
Nation, its relation to the state, 103.
Nationality, its relation to citizenship, 103.
Natural law, the subject-matter of natural jurisprudence, 1, 7;
opposed to positive law, 3. _n._, 44;
in the sense of physical law, 41;
in the sense of moral law, 43–47;
synonyms of, 44;
various definitions of, 45, 46;
relation of, to jus gentium, 46, 47;
relation of, to international law, 59.
Natural rights, 182;
denial of, by Bentham and others, 182.
Nature, state of, transition from, to civil state, 68.
Necessitas non habet legem, 347, 478.
Necessity, a ground of justification, 347;
limited recognition of, by English law, 348.
Negligence, subjective and objective uses of the term, 349;
opposed to intention, 349, 351;
not necessarily inadvertent, 349, 362;
consists essentially in indifference, 350;
defined, 350;
Merkel’s definition of, 350, _n._;
a sufficient ground of liability, 351;
simple and wilful, 351;
want of skill is negligence, 353;
culpable only when carefulness is a legal duty, 354;
the standard of care, 355–358;
in law and in fact, 357;
no degrees of negligence in English law, 358;
equivalence of gross negligence and intention, 359;
negligence and constructive intent, 360;
negligence distinguished from inadvertence, 362;
objective theory of negligence, 363.
Negotiable instruments, 29, 415.
Nemo plus juris, &c., 414, 478.
Nemo tenetur se ipsum accusare, 449, 478.
Newby _v._ Van Oppen, 294.
Nomos, different uses of the term, 464.
Non dat qui non habet, 415, 478.
Northey Stone Co. _v._ Gidney, 331.
Noxal actions, 373.
Oath, form of judicial, 13;
nature of 451;
utility of, 451.
Object of a right, its nature, 185;
different uses of the term, 185;
an essential element in every right, 187;
classes of objects, 187–190;
sometimes identified with the right by metonymy, 222–224.
Obligatio, significance of the term in Roman law, 207, 422.
Obligations, law of, 422, 484;
obligations defined, 422;
solidary, 424
(_see_ Solidary obligations);
contractual, 427
(_see_ Agreements);
delictal, 428;
quasi-contractual, 432
(_see_ Quasi-contract);
innominate, 435.
Occupatio, 407.
Omission, meaning of the term, 323.
Opinio necessitatis, one of the requisites of a valid custom, 147.
Ordeal, theory of, 450.
Osborne _v._ Rowlett, 173.
Ownership, no rights without owners, 186;
rights owned by incertae personae, 186;
defined, 220;
contrasted with possession, 220, 264–267;
contrasted with encumbrances, 221;
kinds of, 221;
corporeal and incorporeal, 221;
corporeal ownership a figure of speech, 222;
the right of ownership and the ownership of rights, 224;
defined by Sir F. Pollock, 224. _n._;
co-ownership, 226;
trust and beneficial ownership, 227;
direct ownership, 228, _n._;
legal and equitable, 231;
vested and contingent, 232.
Ownership of material things, 221, 387–390.
Ownership of immaterial things, 395–397.
Pandektenrecht, nature of, 7.
Parker _v._ Alder, 374.
Parliament, Imperial, its supreme authority, 129, 472.
Parsons, _In re_, 163.
Patent rights, 189, 396.
Penal actions, nature of, 86;
pertain to civil justice, 86.
Penal proceedings, distinguished from remedial, 88.
Penal redress, 87, 88;
not justified except as punishment of defendant, 366;
merits and defects of the system, 383.
_See_ Liability.
Penalty. _See_ Punishment.
Perry _v._ Clissold, 408.
Personal property, distinguished from real, 394;
origin of the distinction, 394.
Personal rights, ambiguity of the term, 208, _n._;
as opposed to real rights—_See_ Real rights;
as opposed to proprietary rights—_See_ Proprietary rights.
Persons, the subjects of rights and duties, 185;
rights of unborn, 186, 277;
the objects of rights, 189;
not capable of being owned, 190;
nature of, 272;
natural and legal, 273;
animals are not persons, 273;
dead men are not persons, 275;
double personality, 278, 417;
legal persons the product of personification, 279;
kinds of legal persons, 280.
_See_ Corporations.
Persons, law of, 211.
Petitions of right, their nature, 90;
a secondary function of courts of law, 90.
Petitorium opposed to possessorium, 267.
Phillips _v._ Homfray, 434.
Philo Judaeus, on law of nature, 46.
Physical law, 41.
Pickard _v._ Smith, 372.
Plato, on the offences of animals, 373;
on vicarious liability, 374.
Pledge _v._ Carr, 165.
Pluckwell _v._ Wilson, 358.
Plures eandem rem possidere non possunt, 256.
Pollock, Sir F., on the sources of law, 49, _n._;
his definition of ownership, 224, _n._;
on acts in the law, 302, _n._;
his use of the terms contract and agreement, 303, _n._
Pollock and Wright, on possession, 245, 246.
Positive law, origin of the term, 3, _n._;
improperly used to signify civil law exclusively, 3, _n._
Possession, distinguished from ownership, 224, 264–267;
difficulty of the conception, 236;
consequences of, 236;
possession in fact and law, 237;
constructive, 237;
possession and detention, 237;
possession and seisin, 238;
corporeal and incorporeal, 239;
a matter of fact, not of right, 240;
corporeal possession defined, 241;
its two elements, animus and corpus, 241;
animus possidendi (_q.v._), 242;
corpus possessionis, 244–251;
possession of land not necessarily that of chattels thereon, 247;
mediate and immediate possession, 252–256;
concurrent possession, 256;
acquisition of possession, 256–258;
Savigny’s theory of, 258–261;
incorporeal, 261–264;
generic nature of possession, 264;
possession and ownership, 264–267;
possessory remedies, 267–270;
possessory titles, 407;
possession a title of ownership, 407;
delivery of, required for transfer of property, 413;
modes of delivery, 257, 258;
constructive delivery, 257.
Possessorium, opposed to petitorium, 267.
Possessory ownership, 407.
Possessory remedies, nature of, 267;
origin of, 267;
reasons for, 268;
rejection of, by English law, 269.
Pothier, his definition of a contract, 303, _n._;
his works, 492.
Power, political, 110;
legislative, judicial, and executive, 110;
sovereign and subordinate, 111.
_See_ Sovereignty.
Powers, classed as rights in wide sense, 192;
distinguished from rights in strict sense, 192;
distinguished from liberties, 193.
Practical law, 56.
Precedents, reasons for their operation as a source of law, 121, 170;
possess no abrogative power, 123, 168;
their relation to codified law, 136;
not originally regarded as a source of law, 143;
their importance in English law, 159;
declaratory and original, 160;
declaratory theory of, 161;
their operation in Chancery, 162;
authoritative and persuasive, 163;
classes of persuasive precedents, 163;
absolute and conditional authority of precedents, 164;
disregard of, when justified, 165;
effect of lapse of time on, 167;
distinction between overruling and refusing to follow, 168;
retrospective operation of the overruling of, 166, 169;
transform questions of fact into questions of law, 171;
rationes decidendi, 173;
the sources of judicial principles, 174;
respective functions of judges and juries with reference to, 176.
Prescription, its relation to immemorial custom, 124, 157;
periods of, in Roman law, 151;
in Canon law, 151;
in English law, 152;
in Continental law, 152;
operation of, in case of mediate possession, 254, 255;
origin of term, 408, _n._;
nature of, 408;
positive and negative, 408;
rational basis of, 410;
what rights subject to, 411;
perfect and imperfect, 412.
Presumptio juris, 445, _n._
Presumptions, conclusive, 445;
rebuttable, 446.
Primary rights, opposed to sanctioning, 84.
Principal rights, distinguished from accessory, 216.
Principle, contrasted with authority, 173.
Private war, its gradual exclusion by public justice, 69, 70.
Privy Council decisions of, not authoritative in England, 163.
Probative force, 440.
_See_ Evidence.
Procedure, distinguished from substantive law, 437;
occasional equivalence of procedural and substantive rules, 439.
Proceedings, civil and criminal, 70–75;
specific and sanctional enforcement of rights, 84;
forms of sanctional enforcement, 85–87;
a table of legal proceedings, 88;
penal and remedial, 88;
secondary functions of courts of law, 89–91;
petitions of right, 90;
declarations of right, 90;
judicial administration of property, 91;
secondary functions included in civil justice, 91.
Professional opinion, as a source of law, 120, 121.
Proof, nature of, 441;
conclusive and presumptive, 445–447;
modes of, in early law, 450.
Property, material, 387–390;
immaterial, 395–397;
corporeal and incorporeal, 221–224, 386;
different meanings of the term, 385–387, 491;
movable and immovable, 390–393;
real and personal, 394.
Proprietary rights, distinguished from personal, 207–212;
constitute a person’s property or estate, 208;
may be either real or personal, 208;
subject-matter of the law of things, 211;
not necessarily transferable, 210.
Protectorates, 113.
Puchta, his theory of customary law, 154;
his Institutionen, 492.
Pufendorf, his treatise on Natural Law, 2, 492;
his relation to modern English jurisprudence, 8;
his definition of law, 47.
Pugh _v._ Golden Valley Ry. Co., 167.
Punishment, purposes of, 75–84;
deterrent, 75;
preventive, 75;
reformative, 76–80;
retributive, 80–84;
expiative, 83;
measure of, 377–382.
Quasi-contracts, 432–435;
their nature, 432;
instances of, 433, 434;
reasons for recognition of, 434.
Quasi possessio, 239.
Questions of fact, distinguished from questions of law, 15–18;
examples of, 15;
mixed questions of law and fact, 16;
answered by jury, 17;
but sometimes by the judge, 17, 177;
transformation of, into questions of law by judicial decision, 18,
_n._, 171–173;
sometimes treated fictitiously as questions of law, 178.
Questions of law, distinguished from questions of fact, 15–18;
examples of, 15;
wrongly regarded as including all questions answered by judges
instead of juries, 18, _n._
Qui prior est tempore potior est jure, 218, 269, 479.
Quod fieri non debet factum valet, 169, 479.
R. _v._ Armstrong, 330.
R. _v._ Birmingham and Gloucester Ry. Co., 288.
R. _v._ Brown, 345.
R. _v._ Collins, 345.
R. _v._ Coombes, 330.
R. _v._ Dudley, 348.
R. _v._ Edwards, 167.
R. _v._ Ellis, 331.
R. _v._ Great North of England Ry. Co., 288.
R. _v._ Harvey, 360.
R. _v._ Joliffe, 150.
R. _v._ Keyn, 57, 330.
R. _v._ Labouchere, 276.
R. _v._ Moore, 248.
R. _v._ Mucklow, 243, 249.
R. _v._ Price, 276.
R. _v._ Prince, 367, 370.
R. _v._ Raynes, 276.
R. _v._ Ring, 345.
R. _v._ Roberts, 345.
R. _v._ Senior, 277.
R. _v._ Stewart, 276.
R. _v._ Tolson, 367.
R. _v._ West, 277.
Raffles _v._ Wichelhaus, 312.
Rationes decidendi, their nature, 173;
their sources, 174.
Real property, distinguished from personal, 394;
personal, 394;
origin of the distinction, 394.
Real rights, 202–207;
distinguished from personal, 202–207;
always negative, 203;
distinction between real and personal rights not strictly exhaustive,
205;
significance of the terms real and personal, 205;
origin of terms in rem and in personam, 207;
significance of term jus ad rem, 206.
Recht, different meanings of the term, 459;
derivation of, 459;
subjective and objective, 460.
Redress. _See_ Penal Redress.
Reformation, one of the ends of punishment, 76–80.
Release, 308, 309.
Remedial proceedings distinguished from penal, 88.
Remedies, legal. _See_ Proceedings.
Remoteness of damage, 476.
Reputation, the object of a right 188;
of the dead, 276.
Res, meaning of the term in Roman law, 211;
corporalis and incorporalis, 225, 226.
Res judicata pro veritate accipitur, 121, 171, 446, 479.
Respondeat superior, 375, 479.
Responsibility. _See_ Liability.
Retribution, one of the purposes of punishment, 80;
Kant’s opinion as to, 82.
Revenge, its transformation into criminal justice, 81, 83.
Reynolds _v._ Ashby, 392.
Richer _v._ Voyer, 257.
Ridsdale _v._ Clifton, 167.
Rights, enforcement of, the object of civil justice, 70, 84;
primary and sanctioning, 84;
specific and sanctional enforcement of, 85–87;
defined, 181–185;
of animals, 181, _n._;
natural and legal, 182;
denial of natural rights by Bentham, 182;
correlation of rights and duties, 184;
alleged distinction between relative and absolute duties, 184;
elements of legal rights, 185;
the subjects of, 186;
the contents of, 185;
the objects of, 187;
the titles of, 185, 299;
rights over one’s own person, 187;
right of reputation, 188;
rights in respect of domestic relations, 188;
rights in respect of other rights, 188;
rights over immaterial property, 189;
wide and narrow use of the term right, 190;
rights in wide sense defined, 190;
rights distinguished from liberties, powers, and immunities, 190–194;
perfect and imperfect rights, 184, 197–199;
rights against the state, 199;
positive and negative rights, 201;
real and personal, 202–207;
in rem and in personam, 202–207;
ad rem, 206;
proprietary and personal, 207–212;
rights of ownership and encumbrances, 212–216;
dominant and servient, 212;
principal and accessory, 216;
legal and equitable, 217;
local situation of, 393;
in re propria and in re aliena, 212.
Rigidity of the law, 23.
Rigor juris, opposed to aequitas, 35.
Roman law, jus civile, 3, _n._;
jus commune, 33, _n._;
jus singulare, 33, _n._;
aequitas and strictum jus, 36;
jus praetorium, 38;
actio furti, 86, _n._;
professional opinion as a source of, 121;
jus scriptum and non scriptum, 129;
relation between custom and enacted law, 147;
dominium, 207;
obligatio, 207, 422;
actio in rem, 207;
res corporales and incorporates, 226, _n._;
traditio brevi manu, 257;
constitutum possessorium, 257;
malicious exercise of rights, 342, _n._;
noxal actions, 373;
emphyteusis, 400, _n._;
traditio as a title to property, 413;
culpa and dolus, 359.
Rylands _v._ Fletcher, 372.
Sadler _v._ Great Western Ry. Co., 427.
Saga of Burnt Njal, 70.
Salomon _v._ Salomon & Co., 282.
Sanctional enforcement of rights, 84–87.
Sanctioning rights, 84, 85.
Sanctions, nature and kinds of, 11.
Savigny, his system of modern Roman law, 8;
on the relation between enacted and customary law, 148;
his theory of customary law, 154;
his theory of possession, 258–261.
Scaramanga _v._ Stamp, 163.
Scientific law, 41.
Scottish law, on the relation between enacted and customary law, 148,
_n._
Securities, 402–406;
nature of, 216, 402;
mortgages and liens, 403.
_See_ Mortgage.
Seisin, its nature and importance in early law, 238.
Semi-sovereign states, 113.
Sententia legis, contrasted with litera legis, 138.
_See_ Interpretation.
Servient rights, 212.
_See_ Encumbrances.
Servitudes, nature of, 216, 400;
distinguished from leases, 400;
public and private, 401;
appurtenant and in gross, 401;
easements, 402, _n._
Shares in companies, nature of, 286, _n._
Sharp _v._ Jackson, 304.
Sheddon _v._ Goodrich, 167.
Sheil, _Ex parte_, 199.
Sic utere tuo ut alienum non laedas, 214, 479.
Simpson _v._ Wells, 150.
Sloman _v._ Government of New Zealand, 296.
Smelting Co. of Australia _v._ Commissioners of Inland Revenue, 394.
Smith _v._ Baker, 434.
Smith _v._ Hughes, 313.
Smith _v._ Keal, 167.
Solidary obligations, 424–427;
their nature, 424;
their kinds, 425–427.
Solon, on making men just, 81, _n._
Sources of the law, formal and material, 117;
legal and historical, 117–120;
list of legal sources, 120;
grounds of the authority of these sources, 120–123;
constitutive and abrogative operation of, 123, 124;
sources of law and sources of rights, 124;
ultimate legal principles without legal sources, 125;
literary sources of the law, 120, _n._
South Staffordshire Water Co. _v._ Sharman, 249.
Sovereignty, nature of, 111, 467–473;
essential in a state, 467;
divisibility of, 468, 469;
limitations of, 469–473.
Space, ownership of, 390, 395, _n._
Special law, contrasted with common law, 28;
kinds of, 29–32;
local customs, 29;
mercantile customs, 29;
private legislation, 30;
foreign law, 30;
conventional law, 31.
Specific enforcement of rights, 85;
the general rule, 320;
not always possible, 321;
not always expedient, 321.
Spencer, H., on the essential functions of the state, 94, _n._;
on the gradual differentiation of these functions, 98, _n._;
on natural rights, 182.
Spinoza, on the rule of reason and of force, 11.
Starey _v._ Graham, 192.
State, its will the sole source of law, 49, 117, 155;
its nature, 93–98;
defined, 99;
its essential functions, war and the administration of justice,
93–98;
generic identity of these two functions, 94;
their specific difference, 95;
secondary differences, 96–98;
secondary functions of the state, 98;
its territory, 99;
non-territorial states, 99;
membership of the state, 99;
citizens and aliens, 100;
personal and territorial idea of the state, 102;
its constitution, 105–110;
its government, 110;
independent and dependent states, 111–114;
different meanings of the term state, 113, _n._;
fully sovereign and semi-sovereign states, 113;
unitary and composite states, 114;
imperial and federal states, 115;
rights against the state, 199;
legal personality of the state, 294–298.
Status distinguished from estate, 208–212;
different uses of the term, 210;
subject-matter of the law of persons, 211;
the law of, 484.
Statute law, the typical form of law in modern times, 132;
compared with case-law, their relative merits and defects, 133–136;
interpretation of, 137–142.
_See_ Interpretation.
Statutes referred to: Interpretation Act, 30;
Judicature Act, 34, 217, 231;
Statute of Marlborough, 70;
Westminster I., 149;
Prescription Act, 158;
Magna Carta, 96;
Sale of Goods Act, 258;
Lord Campbell’s Act, 277;
Statute of Uses, 413;
Factors Act, 416;
Statute of Frauds, 447;
Parliament Act, 469.
Stephen, Sir J. F., his definition of criminal attempts, 344.
Suarez, his distinction between lex positiva and lex naturalis, 3,
_n._;
on opinio necessitatis in customary law, 147, _n._;
on time immemorial, 152;
his treatise De Legibus, 493.
Subject of a right, different uses of the term, 185;
no rights without subjects, 186.
Subjects. _See_ Citizenship.
Substantive law, distinguished from procedure, 437.
Subtilty of law and lawyers, 26.
Succession, 416.
_See_ Inheritance.
Summum jus opposed to aequitas, 35.
Summum jus summa injuria, 24, 36, 479.
Suretyship, 402, _n._
Suzerainty, 113.
Sydney _v._ The Commonwealth, 298.
Taylor, Jeremy, on the uncertainty of natural justice, 21;
on men and wolves, 65.
Taylor, _Ex parte_, 340.
Territory, of a state, 99.
Terry, analysis of rights, 194, _n._
Text-books, authority of, 164, _n._
Tharsis Sulphur Co. _v._ Loftus, 355.
Themis, meanings and derivation of the term, 462.
Things, different senses of the term, 225;
material and immaterial, 225, 387;
corporeal and incorporeal, 225, 387;
law of, 211;
in action and in possession, 423.
Things, law of, 211.
Thomasius, on the law of nature, 46;
his distinction between jurisprudence and ethics, 494.
Thompson _v._ London County Council, 427.
Tillett _v._ Ward, 357.
Time immemorial, a requisite of particular customs, 148–152;
rule derived from canon, through civil law, 149, 150;
original meaning of rule, 149;
how affected by Statute of Westminster, 149;
reason for requirement of immemorial antiquity in custom, 150.
Titles, their nature, 185, 299;
original and derivative, 299, 301;
origin of term, 300, _n._
Torts, their nature, 428–432;
waiver of, 434.
Trade-marks, a form of immaterial property, 397.
Traditio brevi manu, 257.
Transfer of rights, 299, 300, 301, 414.
Trial by battle. _See_ Battle.
Trusts, a kind of encumbrance, 216;
their nature, 227–231;
their purposes, 228, 291;
distinguished from contracts, 229;
distinguished from agency, 230;
how created and destroyed, 230;
distinguished from the relation between legal and equitable
ownership, 232;
not recognised at common law, 232;
for animals, 274;
for maintenance of tombs, 276.
Turquand, _Ex parte_, 29.
Ubi eadem ratio, ibi idem jus, 479.
Ubi jus ibi remedium, 198, 480.
Ultimate rules of law, without legal sources, 125.
Unitary states, 114.
United States _v._ Davis, 330.
Universitas, use of the term in Roman law, 283, _n._
Unus homo plures personas sustinet, 278.
Vaughan, _In re_, 276.
Vera, Cruz, The, 165.
Vested ownership, 232–235.
Vestitive facts, 299–301.
Vigilantibus non dormientibus, jura subveniunt, 411, 480.
Volenti non fit injuria, 480.
Waiver of torts, 434.
Walker _v._ Great Northern Ry. Co., 277.
Wallis, _In re_, 167.
Wandsworth Board of Works _v._ United Telegraph Co., 391.
War, an essential function of the state, 93–98;
compared with the administration of justice, 93–98;
not governed by law, 96;
private, 70, _n._
Ward _v._ National Bank, 426.
West Rand Co. _v._ Rex, 57.
Williams _v._ Howarth, 296.
Williams _v._ Williams, 275, 276.
Wilson _v._ Brett, 359.
Windscheid, on the relation between enacted and customary law, 148;
his theory of customary law, 155;
on the nature of rights, 182;
on proprietary rights, 208, _n._;
on ownership, 224, _n._;
on the possession of rights, 266, _n._;
his Pandektenrecht, 494.
Winter _v._ Winter, 257.
Witnesses, exclusion of, in early law, 27, 448
Wood _v._ Leadbitter, 193.
Woolsey, on retribution as the essential end of punishment, 82, _n._
Written and unwritten law, 128.
Wrongs, civil and criminal, 71;
private and public, 72;
these distinctions not equivalent, 73;
historical relation between public wrongs and crimes, 74;
definition of, 179;
moral and legal, 179.
_See_ Liability.
Year books, 494.
-----
Footnote 1:
See on this subject Reid’s Philosophical Works, Essay on the Active
Powers, V. 3. (Of systems of natural jurisprudence.) Also Dugald
Stewart’s Works, VII. 256 (Hamilton’s ed.).
Footnote 2:
The term civil law, though once in common use to indicate the law of
the land, has been partly superseded in recent times by the improper
substitute, _positive_ law. _Jus positivum_ was a title invented by
medieval jurists to denote law made or established (_positum_) by
human authority, as opposed to that _jus naturale_ which was uncreated
and immutable. It is from this contrast that the term derives all its
point and significance. It is not permissible, therefore, to confine
positive law to the law of the land. All is positive which is not
natural. International and canon law, for example, are kinds of _jus
positivum_ no less than the civil law itself. See Aquinas, Summa, 2.
2. q. 57 (De Jure) art. 2. Utrum jus convenienter dividatur in jus
naturale et jus positivum. See also Suarez, De Legibus, I. 3. 13:
(Lex) positiva dicta est, quasi addita naturali legi.
The term civil law possesses several other meanings, which are not
likely, however, to create any confusion. It often means the law of
Rome (_corpus juris civilis_) as opposed more especially to the canon
law (_corpus juris canonici_), these being the two great systems by
which, in the Middle Ages, State and Church were respectively
governed. At other times it is used to signify not the whole law of
the land, but only the residue of it after deducting some particular
portion having a special title of its own. Thus civil is opposed to
criminal law, to ecclesiastical law, to military law, and so on.
The term civil law is derived from the _jus civile_ of the Romans.
Quod quisque populus ipse sibi jus constituit, id ipsius proprium
civitatis est vocaturque jus civile, quasi jus proprium ipsius
civitatis. Just. Inst. I. 2. 1.
Footnote 3:
It will be understood that this list is not intended as an exhaustive
statement of the proper contents of a work of abstract jurisprudence,
but merely as illustrative of the kinds of matters with which this
branch of legal learning justly concerns itself.
Footnote 4:
Austin, p. 1077.
Footnote 5:
Arndts, Juristische Encyklopädie und Methodologie, p. 5. 9th ed. 1895.
See also Puchta’s Encyklopädie, being the introductory portion of his
Cursus der Institutionen, translated by Hastie (Outlines of
Jurisprudence, 1887). The term general jurisprudence (allgemeine
Rechtslehre) is occasionally applied to this form of literature. See
Holtzendorff’s Encyklopädie der Rechtswissenschaft, 5th ed. 1890.
(Elemente der allgemeinen Rechtslehre, by Merkel.)
Footnote 6:
_Jurisprudentia universalis_ or _generalis_ was originally merely a
synonym for _jurisprudentia naturalis_.
Footnote 7:
The term jurisprudence is used by French lawyers as the equivalent of
that which English lawyers call case-law—the development of the law by
judicial decisions. “Jurisprudence—la manière dont un tribunal juge
habituellement telle ou telle question” (Littré). Jurisprudence in
this sense is contrasted with doctrine, _i.e._, extrajudicial legal
literature.
Footnote 8:
On the distinction between law in the concrete and law in the abstract
senses, see Pollock’s Jurisprudence, pp. 15–19, and Bentham’s
Principles, p. 324, n. (Works I. 148 n.)
Footnote 9:
Tractatus Politicus, I. 5.
Footnote 10:
The term sanction is derived from Roman law. The _sanctio_ was
originally that part of a statute which established a penalty, or made
other provision in respect of the disregard of its injunctions. D. 48.
19. 41. By an easy transition it has come to mean the penalty itself.
Footnote 11:
It is to be noted, therefore, that the distinction between law and
fact depends not on the person by whom, but on the manner in which,
the matter is determined. Yet, although this is so, an illogical and
careless usage of speech sometimes classes as questions of law all
those which are for the decision of judges, irrespective of the
existence or non-existence of legal principles for their
determination.
It is worth notice that questions of fact, left to the determination
of judges, tend to be transformed into questions of law, by the
operation of judicial precedent. In the hands of judges decisions of
fact beget principles of law, while the decisions of juries have no
such law-creating efficacy. This is a matter which we shall consider
at length in connection with the theory of precedent.
The distinction between law and fact, with special reference to trial
by jury, is very fully considered by Thayer in his Preliminary
Treatise on the Law of Evidence, pp. 183–262. See also Terry’s Leading
Principles of Anglo-American Law, pp. 53–62.
Footnote 12:
Ductor Dubitantium (Works XII. 209. Heber’s ed.).
Footnote 13:
Treatise of Government, II. 11. 136.
Footnote 14:
Pro Cluentio, 53. 146.
Footnote 15:
Ecclesiastical Polity, I. 10. 7.
Footnote 16:
Rhetoric, I. 15. See also Bacon, De Augmentis, Lib. 8, Aph. 58:
Neminem oportere legibus esse sapientiorem.
Footnote 17:
Bacon, De Augmentis, Lib. 8, Aph. 46; Aristotle’s Rhetoric, I. 1.
Footnote 18:
_Edie_ v. _East India Co._, 2 Burr 1226; _Barnet_ v. _Brandao_, 6 M. &
G. at p. 665; _Moult_ v. _Halliday_, (1898) 1 Q. B. 125; _Ex parte
Turquand_, 14 Q. B. D. 636; _Edelstein_ v. _Schuler_, (1902) 2 K. B.
144.
Footnote 19:
By the Interpretation Act, 1889, s. 9, it is provided that “Every Act
passed after the year 1850 ... shall be a public Act, and shall be
judicially noticed as such, unless the contrary is expressly provided
by the Act.”
Footnote 20:
As to equity, see the next section.
Footnote 21:
The term _jus commune_ is found in the civil law also, but in senses
unconnected with that which here concerns us. It sometimes signifies
_jus naturale_ as opposed to _jus civile_ (D. 1. 1. 6. pr.), while at
other times it is contrasted with _jus singulare_, that is to say,
anomalous rules of law inconsistent with general legal principles, but
established _utilitatis causa_ to serve some special need or occasion.
D. 28. 6. 15. D. 1. 3. 16.
Footnote 22:
Y. B. 20 & 21 Ed. I. 329. See Pollock and Maitland’s History of
English Law, I. 155.
Footnote 23:
Y. B. 21 & 22 Ed. I. 213.
Footnote 24:
Y. B. 21 & 22 Ed. I. 458.
Footnote 25:
Y. B. 21 & 22 Ed. I. 55.
Footnote 26:
Bracton, 48 b.
Footnote 27:
Nic. Ethics V. 10. 3. The Greeks knew equity under the name epieikeia.
Footnote 28:
Rhet. I. 13. 19.
Footnote 29:
De Officiis I. 10. 33. See also Pro Caecina 23. 65: Ex aequo et bono,
non ex callido versutoque jure rem judicari oportere. De Oratore I.
56. 240: Multa pro aequitate contra jus dicere. De Officiis III. 16.
67.
Footnote 30:
In omnibus quidem, maxime tamen in jure, aequitas spectanda est. D.
50. 17. 90. Placuit in omnibus rebus praecipuam esse justitiae
aequitatisque, quam stricti juris rationem. C. 3. 1. 8. Haec aequitas
suggerit, etsi jure deficiamur. D. 39. 3. 2. 5. A constitution of
Constantine inserted in Justinian’s Code, however, prohibits all
inferior courts from substituting equity for strict law, and claims
for the emperor alone the right of thus departing from the rigour of
the jus scriptum: Inter aequitatem jusque interpositam
interpretationem nobis solis et oportet et licet inspicere. C. 1. 14.
1.
Footnote 31:
Summa Theologiae 2. 2. q. 120. art. 1. De epieikeia seu aequitate:—In
his ergo et similibus casibus malum est sequi legem positam; bonum
autem est praetermissis verbis legis, sequi id quod poscit justitiae
ratio et communis utilitas. Et ad hoc ordinatur epieikeia, quae apud
nos dicitur aequitas.
Footnote 32:
Pollock and Maitland, History of English Law, I. 168; Glanville VII.
1.: Aliquando tamen super hoc ultimo casu in curia domini Regis de
consilio curiao ita ex aequitate consideratum est. Bracton in
discussing the various meanings of jus says (f. 3. a.):—Quandoque pro
rigore juris, ut cum dividitur inter jus et aequitatem. Following Azo,
who follows Cicero (Topica IV. 23), he says:—Aequitas autem est rerum
convenientia, quae in paribus causis paria desiderat jura (f. 3. a).
See also f. 12. b. and f. 23. b. Aequitas tamen sibi locum vindicat in
hac parte. See also Y. B. 30 and 31 Ed. I. 121:—Et hoc plus de rigore
quam de aequitate.
Footnote 33:
Cited in Spence’s Equitable Jurisdiction of the Court of Chancery, I.
408, note (_a_).
Footnote 34:
D. 1. 1. 7. 1.
Footnote 35:
A special application by English lawyers of the term equity in its
original sense, as opposed to _strictum jus_ is to be seen in the
phrase, _the equity of a statute_. By this is meant the spirit of a
law as opposed to its letter. A matter is said to fall within the
equity of a statute, when it is covered by the reason of the statute,
although through defective draftsmanship it is not within its actual
terms. “Valeat aequitas,” says Cicero, “quae paribus in causis paria
jura desiderat.” Topica IV. 23.
Footnote 36:
Ecc. Pol. I. 3. 1.
Footnote 37:
Comm. I. 38.
Footnote 38:
Proverbs, 8. 29.
Footnote 39:
Job, 28. 26.
Footnote 40:
Summa, 1. 2. q. 91. art. 1.
Footnote 41:
Summa, 1. 2. q. 93. art. 1.
Footnote 42:
Natural law, _lex naturae_, is either (1) the law of _human_ nature,
_i.e._, the moral law, or (2) the law of nature in the sense of the
universe, _i.e._, physical law.
Footnote 43:
Ecc. Pol. I. 3. 2.
Footnote 44:
Ecc. Pol. I. 16. 8.
Footnote 45:
Rhet. I. 10.
Footnote 46:
Rhet. I. 13.
Footnote 47:
De Rep. III. 22. 23.
Footnote 48:
Works, III. 516 (Bohn’s Ecc. Library). On the Virtuous being also
Free.
Footnote 49:
Institutes, I. 1.
Footnote 50:
Institutes, I. 2. 11.
Footnote 51:
Ecc. Pol. I. 1. 10. 1.
Footnote 52:
Inst. Jurisp. Div. I. 2. 97.
Footnote 53:
See Nettleship, Contributions to Latin Lexicography, _sub. voc. jus
gentium_; Burle, Essai historique sur le développement de la notion du
droit naturel dans l’antiquité grecque; Phillipson, The International
Law and Custom of Ancient Greece and Rome, vol. I. ch. 3; Bryce,
Studies in History and Jurisprudence, I. pp. 112–171; Pollock, Journ.
Compar. Legisl. 1900, p. 418; 1901, p. 204; Clark, Practical
Jurisprudence, ch. 13.
Footnote 54:
De Officio Hominis et Civis, I. 2. 2.
Footnote 55:
I. 96.
Footnote 56:
“The moral law is the declaration of the will of God to mankind,
directing and binding every one to ... obedience thereunto ... in
performance of all those duties of holiness and righteousness which he
oweth to God and man: promising life upon the fulfilling, and
threatening death upon the breach of it.” Larger Catechism of the
Westminster Assembly of Divines, Quest. 93.
Footnote 57:
“The laws that men generally refer their actions to, to judge of their
rectitude or obliquity, seem to me to be these three: 1. The divine
law; 2. The civil law; 3. The law of opinion or reputation, if I may
so call it. By the relation they bear to the first of these, men judge
whether their actions are sins or duties; by the second, whether they
be criminal or innocent; and by the third, whether they be virtues or
vices.” Locke on the Human Understanding, Bk. II. ch. 28, § 7.
Footnote 58:
Eng. Wks. II. 185.
Footnote 59:
Principles of Morals and Legislation, p. 330 (Cl. Press ed.), Works,
I. 151.
Footnote 60:
I. 86.
Footnote 61:
Leviathan, ch. 46.
Footnote 62:
See, for example, Bryce’s Studies in History and Jurisprudence, vol.
ii. pp. 44 and 249: “Broadly speaking, there are in every community
two authorities which can make law: the State, _i.e._, the ruling and
directing power, whatever it may be, in which the government of the
community resides, and the People, that is, the whole body of the
community, regarded not as incorporated in the state, but as being
merely so many persons who have commercial and social relations with
one another.... Law cannot be always and everywhere the creation of
the state, because instances can be adduced where law existed in a
community before there was any state.” See also Pollock’s First Book
of Jurisprudence, p. 24: “That imperative character of law, which in
our modern experience is its constant attribute, is found to be
wanting in societies which it would be rash to call barbarous, and
false to call lawless.... Not only law, but law with a good deal of
formality, has existed before the State had any adequate means of
compelling its observance, and indeed before there was any regular
process of enforcement at all.” See also Maine’s Early History of
Institutions, Lect. 12, p. 364, and Lect. 13, p. 380; Walker’s Science
of International Law, pp. 11–21.
Footnote 63:
Commentaries, I. 44.
Footnote 64:
See, for example, Bentham’s Principles, p. 330 (Works I. 151);
Ihering, Zweck im Recht, I. p. 334 (3rd ed.).
Footnote 65:
That part of the civil law which has its source in agreement is itself
called conventional law. See _ante_, § 11, and _post_, § 46. This use
of the term must be distinguished from that which is here adopted.
Conventional law in the present sense is not a part of the civil law,
but a different _kind_ of law.
Footnote 66:
Notice that the term customary law is ambiguous in the same manner as
the term conventional law. It means either (1) the kind of law
described in the text, or (2) that part of the civil law which has its
source in custom. See § 56.
Footnote 67:
They are the expression of what Kant and other moralists have termed
hypothetical imperatives, as opposed to the categorical imperative of
the moral law.
Footnote 68:
L. Q. R. XII. p. 313. Adopted by Lord Alverstone, C. J., in _West Rand
Gold Mining Co._ v. _Rex_, (1905) 2 K. B. at p. 407.
Footnote 69:
_Reg._ v. _Keyn_, 2 Ex. D. p. 63.
Footnote 70:
_Reg._ v. _Keyn_, 2 Ex. D. p. 131.
Footnote 71:
_Reg._ v. _Keyn_, 2 Ex. D. p. 202.
Footnote 72:
De Corpore Politico, Eng. Wks. IV. 228.
Footnote 73:
Fundamenta Juris Nat. et Gent. I. 5. 67.
Footnote 74:
De Jure Nat. et Gent. II. 3. 23.
Footnote 75:
Principes du droit de la nature et des gens, vol. iv. p. 16, ed. 1820.
Footnote 76:
It is maintained by such writers as Hall, Rivier, Bluntschli, Nys,
Sidgwick, Westlake, Walker, Lawrence, and Oppenheim.
Footnote 77:
“The sole source of (international) law,” says Dr. Walker in his
History of International Law, vol. i. p. 21, “is actual observance.”
This law, he adds, p. 31, is “the embodiment of state practice.” It is
not easy to make a list of the genuine adherents of this opinion,
because so many writers introduce vagueness and uncertainty into their
exposition by speaking of international _consent_ as well as of
international practice as a source of law; and they fail to make it
clear whether such practice is operative _per se_, or only as evidence
of underlying consent. Moreover, the word consent is itself used
ambiguously and vaguely, and it is often difficult to know whether it
means international agreement, or international opinion, or the
harmonious practice of states.
Footnote 78:
I. p. 187.
Footnote 79:
See Westlake, International Law, p. 7; Chapters on the Prls. of Int.
Law, p. 2; Hall, Int. Law, p. 1; Sidgwick, Elements of Politics, Ch.
17. pp. 274 _sqq._ 1st ed.; Oppenheim, International Law, I. § 5.
Footnote 80:
Jeremy Taylor’s Works, XIII. 306, Heber’s ed.
Footnote 81:
Hobbes’ Leviathan, ch. 13: “Hereby it is manifest that during the time
men live without a common power to keep them all in awe, they are in
that condition which is called war; and such a war as is of every man
against every man.... Whatsoever therefore is consequent to a time of
war, where every man is enemy to every man, the same is consequent to
the time wherein men live without other security than what their own
strength and their own invention shall furnish them withal. In such
condition there is no place for industry ... no arts, no letters, no
society, and, which is worst of all, continual fear and danger of
violent death; and the life of man, solitary, poor, nasty, brutish,
and short.”
Footnote 82:
Treatise on Government, II. ch. 2.
Footnote 83:
In the year 1818 in a private prosecution for murder (an appeal of
murder) the accused demanded to be tried by battle, and the claim was
allowed by the Court of King’s Bench. The prosecutor was not prepared
to face the risks of this mode of litigation, and the accused was
discharged: _Ashford_ v. _Thornton_, 1 Barn. & Ald. 405. This case led
to the abolition of appeals of felony and of trial by battle by the
statute 59 Geo. III. c. 46.
Footnote 84:
Laws of King Alfred, 42. (Thorpe’s Ancient Laws and Institutes of
England, I. 91): “We also command that he who knows his foe to be at
home fight not before he demand justice of him. If he have such power
that he can beset his foe and besiege him, let him keep him within for
seven days, and attack him not, if he will remain within.... But if he
have not sufficient power to besiege him, let him ride to the
ealdorman, and beg aid of him. If he will not aid him, let him ride to
the king before he fights.”
Footnote 85:
As late as the closing years of Henry III. it was found necessary to
resort to special statutory enactments against a lawless recurrence to
the older system. The statute of Marlborough (52 Hen. III. c. 1)
recites that “At the time of a commotion late stirred up within this
realm, and also since, many great men and divers other have disdained
to accept justice from the King and his Court, like as they ought and
were wont in time of the King’s noble progenitors, and also in his
time, but took great revenges and distresses of their neighbours and
of others, until they had amends and fines at their own pleasure.” The
statute thereupon provides that “All persons, as well of high as of
low estate, shall receive justice in the King’s Court, and none from
henceforth shall take any such revenge or distress of his own
authority without award of our Court.” Long after the strength of the
law of England had succeeded in suppressing the practice, the right of
private war continued to be recognised and regulated by law in the
more feebly governed states of the Continent. An interesting account
of the matter is given by M. Nys in his Origines du Droit
International (1894), ch. 5. A reminiscence of the older doctrine and
practice may be seen to this day in England in that “peace of our Lord
the King” which every criminal is formally charged in his indictment
with having broken. The King of England made good at an early date his
monopoly of war, and all private war or violence was and is a
violation of his peace. As to the King’s peace, see Sir F. Pollock’s
Oxford Lectures, pp. 65–90; Select Essays in Anglo-American Legal
History, II. pp. 403–417. An interesting picture of the relations
between law and private force in the primitive community of Iceland is
to be found in the Saga of Burnt Njal (Dasent’s translation).
Footnote 86:
Commentaries, III. 2.
Footnote 87:
Austin’s theory of the distinction is somewhat different from
Blackstone’s, for he makes the distinction between public and private
wrongs, and therefore between criminal and civil wrongs, turn not on
the public or private nature of the right violated, but solely on the
public or private nature of the proceeding taken in respect of its
violation. “Where the wrong,” he says (p. 502), “is a civil injury,
the sanction is enforced at the discretion of the party whose right
has been violated. Where the wrong is a crime, the sanction is
enforced at the discretion of the sovereign.” This theory, however, is
exposed to the same objections as those which may be made to
Blackstone’s, and it need not be separately considered.
Footnote 88:
Numbers, xxxv. 31.
Footnote 89:
Diogenes Laertius tells us that when Solon was asked how men might
most effectually be restrained from committing injustice, he answered:
“If those who are not injured feel as much indignation as those who
are.”
Footnote 90:
Kant’s Rechtslehre (Hastie’s trans. p. 195). The like opinion is
expressed in Woolsey’s Political Science, I. p. 334: “The theory that
in punishing an evildoer the state renders to him his deserts, is the
only one that seems to have a solid foundation.... It is fit and right
that evil, physical or mental, suffering or shame, should be incurred
by the wrongdoer.” See also Fry, Studies by the Way (The Theory of
Punishment), pp. 43–71.
Footnote 91:
Deuteronomy, xix. 21.
Footnote 92:
Lilley, Right and Wrong, p. 128.
Footnote 93:
It is worth notice that an action may be purely penal even though the
penalty is payable to the person injured. It is enough in such a case
that the receipt of the penalty should not be reckoned as or towards
the compensation of the recipient. A good example of this is the Roman
_actio furti_ by which the owner of stolen goods could recover twice
their value from the thief by way of penalty, without prejudice
nevertheless to a further action for the recovery of the goods
themselves or their value.
Footnote 94:
I. Samuel, viii. 20.
Footnote 95:
English Works, II. 76: “Both swords, therefore, as well this of war as
that of justice, ... essentially do belong to the chief command.”
Footnote 96:
“The primary function of the state,” says Herbert Spencer (Principles
of Ethics II. 204. 208. 214) “or of that agency in which the powers of
the state are centralised, is the function of directing the combined
actions of the incorporated individuals in war. The first duty of the
ruling agency is national defence. What we may consider as measures to
maintain inter-tribal justice, are more imperative, and come earlier,
than measures to maintain justice among individuals.... Once
established, this secondary function of the state goes on developing;
and becomes a function next in importance to the function of
protecting against external enemies.... With the progress of
civilisation the administration of justice continues to extend and to
become more efficient.... Between these essential functions and all
other functions there is a division, which, though it cannot in all
cases be drawn with precision, is yet broadly marked.”
Footnote 97:
It is to be noted that the term war is commonly applied only to the
more extreme forms of extrajudicial force. Rioting would not be termed
civil war, although the difference between them is merely one of
degree. Nor would the punitive expedition of an armed cruiser against
a village in the South Sea Islands be dignified with the name of war,
though it differs only in degree from the blockade or bombardment of
the ports of a civilised state. To be perfectly accurate, therefore,
we should oppose the administration of justice not to war, but to the
extrajudicial use of force, counting war as the most important species
of the latter. War, however, so greatly overshadows in importance all
other forms of such force, that it is more convenient to take it as
representing the genus, and to disregard the others.
Footnote 98:
The prohibition of the use of extrajudicial force by the King against
his subjects is one of the main provisions of Magna Carta (sec. 39):
“No free man shall be taken or imprisoned or disseized or outlawed or
exiled or anyways destroyed, nor will we go against him, nor will we
send against him, save by the lawful judgment of his peers, or by the
law of the land.” It is submitted that, subject only to the _jus
necessitatis_, this is still the law of England, notwithstanding the
doctrine of military absolutism laid down by Lord Halsbury, in the
name of the Privy Council, in the case of _Ex parte Marais_, (1902) A.
C, 109.
Footnote 99:
On the original identity and gradual differentiation of the two
functions of the state, see Spencer’s Sociology, II. pp. 493 _sqq._
“The sword of justice,” he says at p. 494, “is a phrase sufficiently
indicating the truth that action against the public enemy and action
against the private enemy are in the last resort the same.”
Footnote 100:
Speaking generally, we may say that the terms subject and citizen are
synonymous. Subjects and citizens are alike those whose relation to
the state is personal and not merely territorial, permanent and not
merely temporary. This equivalence, however, is not absolute. For in
the first place, the term subject is commonly limited to monarchical
forms of government, while the term citizen is more specially
applicable in the case of republics. A British subject becomes by
naturalisation a citizen of the United States of America or of France.
In the second place, the term citizen brings into prominence the
rights and privileges of the status, rather than its correlative
obligations, while the reverse is the case with the term subject.
Finally it is to be noticed that the term subject is capable of a
different and wider application, in which it includes all members of
the body politic, whether they are citizens (_i.e._ subjects _stricto
sensu_) or resident aliens. All such persons are subjects, as being
subject to the power of the state and to its jurisdiction, and as
owing to it, at least temporarily, fidelity and obedience. Thus it has
been said that: “Every alien coming into a British colony becomes
temporarily a subject of the Crown—bound by, subject to, and entitled
to the benefit of the laws which affect all British subjects.” _Low_
v. _Routledge_, 1 Ch. App. at p. 47. See also _Jeffreys_ v. _Boosey_,
4 H. L. C. 815. So in Hale’s Pleas of the Crown, I. 542, it is said:
“Though the statute speaks of the king’s subjects, it extends to
aliens, ... for though they are not the king’s natural born subjects,
they are the king’s subjects when in England by a local allegiance.”
Footnote 101:
The possession of political rights is so characteristic and important
a feature of citizenship, that some may be tempted to regard it as the
essence of the matter. This, however, is not so. Women have no
political rights, yet a wife is as much a British subject as her
husband is. The distinction between subject and alien may exist under
a despotic government, neither class possessing any political rights
at all.
Footnote 102:
British nationality is acquired in the following ways:—
(a) By birth in British dominions.
(b) By descent from a father or a father’s father born in British
dominions.
(c) By the marriage of an alien woman to a British subject.
(d) By naturalisation.
(e) By continued residence in a territory after it has been conquered
or otherwise acquired by the British Crown.
Footnote 103:
On this transition from the national to the territorial idea of the
state, see Maine, Early History of Institutions, pp. 72–76. As to the
history of the conception and law of citizenship, see Salmond on
Citizenship and Allegiance, L. Q. R. xvii. 270, and xviii. 49.
Footnote 104:
Although states are established for the protection of their members,
it is not necessary that this protection should be absolutely limited
to members. In exceptional cases and to a limited extent the state
will use its powers for the defence and benefit of outsiders. War way
be waged on behalf of an oppressed nation, and the state may
intervene, in the interests of justice, in a quarrel not its own. Nor
will it necessarily refuse to administer justice in its courts even to
non-resident aliens. But such external protection is exceptional and
accidental, and does not pertain to the essence of government. A state
is established, not for the defence of all mankind, and not for the
maintenance of right throughout all the earth, but solely for the
security of its own members, and the administration of its own
territory. A state which absolutely refused its protection to all
outsiders would none the less adequately fulfil the essential purposes
of a political society.
Footnote 105:
The conception of sovereignty is made by many writers the central
point in their theory of the state. They lay down certain fundamental
propositions with respect to the nature of this power: namely, (1)
that its existence is essential in every state; (2) that it is
indivisible, and incapable of being shared between two or more
different authorities; and (3) that it is necessarily absolute and
unlimited in law, that is to say, its sphere of action is legally
indeterminate. A discussion of this difficult and important branch of
political theory will be found in an Appendix.
Footnote 106:
In international law, therefore, the word state commonly means an
independent state. This is a convenient place in which to call
attention to the variety of allied meanings possessed by the term
state. They are the following:
(a) A political society dependent or independent.
(b) An independent political society.
(c) The government of a political society.
(d) The territory of a political society.
Except where the context shows that it is not so, we shall use the
term in the first of these senses.
Footnote 107:
A composite state may be of a mixed nature, being partly imperial and
partly federal. A federal state may have dependencies, over which it
exercises an imperial government—the foreign conquests, for example,
of the United States of America. So an imperial state may have
dependencies, which are themselves federal states. The Commonwealth of
Australia is a federal union which is a dependency under imperial
government.
Footnote 108:
D. 50. 17. 207.
Footnote 109:
In addition to the formal, historical, and legal sources of the law,
it is necessary to note and distinguish what may be termed its
literary sources, though this is a Continental, rather than an English
use of the term source. The literary sources are the sources of our
knowledge of the law, or rather the original and authoritative sources
of such knowledge, as opposed to later commentary or literature. The
sources of Roman law are in this sense the compilations of the Emperor
Justinian, as contrasted with the works of commentators. So the
sources of English law are the statute-book, the reports, and the
older and authoritative text-books, such as Littleton. The literature,
as opposed to the sources of our law, comprises all modern text-books
and commentaries.
Footnote 110:
In the succeeding chapters we shall consider more particularly three
of the legal sources which have been already mentioned, namely
legislation, custom, and precedent. Professional opinion as a source
of law pertains to the Roman, rather than to the English system, and
does not call for special examination here. For an account of it see
Bryce, Studies in History and Jurisprudence, II. pp. 255–269.
Agreement will be considered later, in its aspect as a title of
rights, instead of here as a source of law.
Footnote 111:
Austin, p. 538.
Footnote 112:
Austin, p. 531.
Footnote 113:
Constat autem jus nostrum aut ex scripto aut ex non scripto.... Ex non
scripto jus venit, quod usus comprobavit. Just. Inst. 1. 2. 3.; 1. 2.
9.
“The municipal law of England may with sufficient propriety be divided
into two kinds: the lex non scripta, the unwritten or common law; and
the lex scripta, the written or statute law.” Blackstone, I. 63.
Footnote 114:
Blackstone, I. 161.
Footnote 115:
The mere fact that a person who becomes a shareholder must be taken to
have impliedly agreed to be bound not only by the articles as they
stand, but by any subsequent modification of them, does not render
subsequent modifications conventional instead of legislative in their
nature. The immediate source of the new rules is not agreement, but
imposition by superior authority.
Footnote 116:
Plato’s Laws, 624. Spencer’s Sociology, II. pp. 515 _et seq._
Footnote 117:
On this and other grounds “judge-made law,” as he called it, was the
object of constant denunciation by Bentham. “It is the judges,” he
says in his vigorous way (Works, V. 235), “that make the common law.
Do you know how they make it? Just as a man makes laws for his dog.
When your dog does anything you want to break him of, you wait till he
does it and then beat him. This is the way you make laws for your dog,
and this is the way the judges make laws for you and me.”
Footnote 118:
D. 1. 3. 17.
Footnote 119:
Strict interpretation is an equivocal expression, for it means either
literal or narrow. When a provision is ambiguous, one of its meanings
may be wider than the other, and the strict (_i.e._ narrow) sense is
not necessarily the strict (_i.e._ literal) sense. When the equitable
interpretation of a law is wider than the literal, it is called
extensive; when narrower, it is called restrictive.
Footnote 120:
In the interpretation of contracts, no less than in that of statutes,
there is to be noticed this distinction between the real and the
latent intention of the parties. The difficulty of construing a
contract arises more often from the fact that the parties had no clear
intention at all as to the particular point, than from the fact that
they failed to express an intention which they actually had.
Footnote 121:
Hale’s History of the Common Law, chap. ii.
Footnote 122:
Blackstone, I. 63.
Footnote 123:
Co. Litt. 141 a; The Case of Tanistry, Dav. Rep. 32; Blackstone, I.
77.
Footnote 124:
“If any general custom were directly against the law of God, or if any
statute were made directly against it, ... the custom and statute were
void.” Doctor and Student, Dial. I. ch. 6. See also Bonham’s Case, 8
Co. Rep. 118a; Coke’s 2nd Inst. 587; Hobart, 87; Blackstone, I. 91;
Pollock and Maitland, History of English Law, I. 491; Pollock,
Jurisprudence, pp. 262–267.
Footnote 125:
Dernburg, Pandekten, I. sect. 27. 3.
Footnote 126:
Blackstone, I. 78. Suarez, de Legibus, VII. 14. 7: Ad consuetudinem
necessarium esse, ut eo animo et intentione servetur, ut jus in
posterum fiat.
Footnote 127:
Blackstone, I. 76. Co. Litt. 113 a.
Footnote 128:
Quare rectissime etiam illud receptum est, ut leges non solum
suffragio legislatoris. sed etiam tacito consensu omnium per
desuetudinem abrogentur. D. 1. 3. 32. 1. Considerable doubt, however,
exists as to the true relation between custom and statute in Roman
law, owing to a passage in the Code (C. 8. 53. 2.) which, if read
literally, conflicts with the doctrine expressed in the Digest, and
declares custom to be destitute of legal effect if contrary to statute
law. The ingenuity of German jurists has suggested numerous solutions
of the apparent inconsistency, but with no convincing result. See
Savigny’s System, vol. i. Appendix II. Vangerow, Pandekten, I. sect.
16. Dernburg, Pandekten, I. sect. 28.
Footnote 129:
System, sect. 18.
Footnote 130:
Vol. i. sect. 18.
Footnote 131:
For the similar doctrine of Scottish law, see Erskine’s Institutes, I.
19.
Footnote 132:
It is to be noticed that the term custom is often used to mean
particular custom exclusively. Custom (meaning local usage having
legal validity) is opposed to law (meaning the common law of the
land). When we find in the books any proposition laid down as to the
legal efficacy or requirements of custom, it must be carefully
ascertained from the context whether the term does or does not extend
to general customs.
Footnote 133:
Both in English and foreign law, however, the time of memory was
extended by the allowance of tradition within defined limits. A
witness might testify not only to that which he had himself seen, but
to that which he had been told by others who spoke of their own
knowledge. D. 22. 3. 28. Bracton f. 373 a. 318 b. By French law time
of memory was held to extend for one hundred years. Pothier, De la
Prescription, sects. 278–288.
Footnote 134:
The statute of Westminster I. c. 39, imposed a limitation upon actions
for the recovery of land. It provided that no such action should lie,
unless the claimant or his predecessor in title had had possession of
the land claimed at some time subsequent to the accession of Richard
I. The previous common law rule of limitation for such actions was no
other than the rule as to time immemorial. At common law the claimant
had to prove his title and his seisin by the testimony of living men;
therefore he or his predecessors must have been in possession within
time of human memory. The enactment in question was accordingly
construed as laying down a statutory definition of the term time of
memory, and this supposed statutory definition was accepted by the
courts as valid in all departments of the law in which the idea of
time immemorial was relevant. See Blackstone, II. 31; Littleton, sect.
170.
Footnote 135:
_R._ v. _Joliffe_, 2 B. & C. 54; _Bryant_ v. _Foot_, L. R. 3 Q. B.
497; _Lawrence_ v. _Hitch_, L. R. 3 Q. B. 521; _Simpson_ v. _Wells_,
L. R. 7 Q. B. 214.
Footnote 136:
In limiting the requirement of immemorial antiquity to local customs,
we have, for the sake of simplicity, spoken somewhat more absolutely
than the present state of the authorities warrants. The more common,
and, it is believed, the better opinion is that the law is as stated
in the text. There is, however, some authority for saying that the
same requirement exists in the case of certain general customs also.
In _Crouch_ v. _Crédit Foncier_, L. R. 8 Q. B. 374, it was held that
modern mercantile custom was powerless to render an English instrument
negotiable, although it is well settled that foreign instruments, such
as the bonds of foreign governments, may be made negotiable in this
way. _Gorgier_ v. _Mieville_, 27 R. R. 290. The authority, however, of
the case in question is exceedingly doubtful. See _Goodwin_ v.
_Robarts_, L. R. 10 Ex. 337; _Bechuanaland Exploration Co._ v. _London
Trading Bank_, (1898) 2 Q. B. 658; _Edelstein_ v. _Schuler_, (1902) 2
K. B. 144; L. Q. R. XV. 130 and 245. There is no doubt that a great
part of our mercantile law has been derived from modern mercantile
custom, and we may assume with some confidence that such custom still
retains the law-creating efficacy which it formerly possessed.
Footnote 137:
Decretals, I. 4. 8. Gloss. (Ed. of 1671. Vol. ii. p. 92). Secundum jus
canonicum non valet consuetudo, nisi praescripta sit et rationabilis.
Decretum, Dist. I. 4. Gloss. (Vol. i. p. 3). Ad hoc ergo ut consuetudo
juri communi praejudicet, requiritur primo quod rationabilis sit, et
quod sit praescripta. Decretals, I. 4. 11. 8. Gloss. (Vol. ii. p. 96).
Footnote 138:
Suarez, De Legibus, VII. 15. 5.
Footnote 139:
Novel. 131. ch. 6.
Footnote 140:
Decretals, I. 4. 11. Gloss. (Vol. ii. p. 96). Illa consuetudo
praejudicat juri, quae excedit hominum memoriam. Decretum, Dist. VIII.
c. 7. Gloss. (Vol. i. p. 25).
Footnote 141:
D. 43. 20. 3. 4. Fossam jure factam aut cuius memoria non exstat. D.
39. 3. 2. 7.
Footnote 142:
Pothier, De la Prescription, sects. 278–288; Baudry-Lacantinerie, De
la Prescription, sects. 12, 21; Windscheid, I. sect. 113.
Footnote 143:
Suarez, De Legibus, VII. 15. 2. Aliqui enim antiqui immemoriale tempus
postulabant, tamen sine fundamento, et ita relicta et antiquata est
illa sententia.
Footnote 144:
Y. B. 20 and 21 Ed. I. 136. As to the history of immemorial
prescription see Die Lehre von der unvordenklichen Zeit, by
Friedländer, 1843.
Footnote 145:
Littleton (sect. 169) tells us that: Consuetudo ex certa causa
rationabili usitata privat communen legem. And to this Coke (113 a)
adds by way of commentary the canonical maxim: Consuetudo praescripta
et legitima vincit legem. In _Goodwin_ v. _Robarts_, L. R. 10 Ex. at
p. 357, it is said: “We must by no means be understood as saying that
mercantile usage, however extensive, should be allowed to prevail if
contrary to positive law, including in the latter such usages as
having been made the subject of legal decision, and having been
sanctioned and adopted by the courts, have become, by such adoption,
part of the common law. To give effect to a usage which involves a
defiance or disregard of the law would be obviously contrary to a
fundamental principle. And we quite agree that this would apply quite
as strongly to an attempt to set up a new usage against one which has
become settled and adopted by the common law as to one in conflict
with the more ancient rules of the common law itself.” See also to the
same effect _Edie_ v. _East India Company_, 2 Burr. 1216.
Footnote 146:
Pothier on Obligations, sect. 95.
Footnote 147:
Encyklopädie, sect. 20.
Footnote 148:
Pandektenrecht, I. sect. 15.
Footnote 149:
Austin, p. 538. An able and forcible defence of the Austinian position
will be found in Professor W. J. Brown’s Austinian Theory of Law,
Excursus D.—“Customary Law in Modern England.”
Footnote 150:
Co. Litt. 113 b.
Footnote 151:
The importance of reported decisions has, however, been increasing in
both France and Germany for some time, and Continental law shows a
distinct tendency to follow the example of English in this matter.
Footnote 152:
Hale’s History of the Common Law, p. 89 (ed. of 1820).
Footnote 153:
Hale’s History of the Common Law, p. 88.
Footnote 154:
_In re Hallett_, 13 Ch. D. at p. 710.
Footnote 155:
_Castro_ v. _R._, 6 A. C. p. 249; _Scaramanga_ v. _Stamp_, 5 C. P. D.
p. 303.
Footnote 156:
_In re Parsons_, 45 Ch. D. 62: “Decisions of the Irish Courts, though
entitled to the highest respect, are not binding on English judges.”
Footnote 157:
In _Leask_ v. _Scott_, 2 Q. B. D. 376, at p. 380, it is said by the
Court of Appeal, speaking of such a decision: “We are not bound by its
authority, but we need hardly say that we should treat any decision of
that tribunal with the greatest respect, and rejoice if we could agree
with it.”
Footnote 158:
Persuasive efficacy, similar in kind though much less in degree, is
attributed by our courts to the civil law and to the opinions of the
commentators upon it; also to English and American text-books of the
better sort.
Footnote 159:
_London Street Tramways Company_ v. _London County Council_, (1898) A.
C. 375, at p. 379. This is said to be so even when the House of Lords
is equally divided in opinion, so that the judgment appealed from
stands unreversed and so authoritative. _Beamish_ v. _Beamish_, 9 H.
L. C. p. 338; _Att.-Gen._ v. _Dean of Windsor_, 8 H. L. C. p. 392. As
to the equal division of other courts, see _The Vera Cruz_, 9 P. D. p.
98.
Footnote 160:
_Pledge_ v. _Carr_, (1895) 1 Ch. 51; _Lavy_ v. _London County
Council_, (1895) 2 Q. B. at p. 581, per Lindley, L.J. See, however,
_Mills_ v. _Jennings_, 13 C. D. p. 648.
Footnote 161:
It is to be remembered that the overruling of a precedent has a
retrospective operation. In this respect it is very different from the
repeal or alteration of a statute.
Footnote 162:
_Sheddon_ v. _Goodrich_, 8 Ves. 497.
Footnote 163:
_Pugh_ v. _Golden Valley Railway Company_, 15 Ch. D. at p. 334.
Footnote 164:
_Smith_ v. _Keal_, 9 Q. B. D. at p. 352. See also _In re Wallis_, 25
Q. B. D. 180; _Queen_ v. _Edwards_, 13 Q. B. D. 590; _Ridsdale_ v.
_Clifton_, 2 P. D. 306; _Fookes_ v. _Beer_, 9 A. C. at p. 630: “We
find the law to have been accepted as stated for a great length of
time, and I apprehend that it is not now within our province to
overturn it.”
Footnote 165:
_In re Hallett_, 13 Ch. D. at p. 712.
Footnote 166:
_Osborne_ v. _Rowlett_, 13 Ch. D. at p. 785.
Footnote 167:
It is clearly somewhat awkward to contrast in this way the terms
authority and principle. It is odd to speak of deciding a case on
principle because there is no legal principle on which it can be
decided. To avoid misapprehension, it may be advisable to point out
that decisions as to the meaning of statutes are always general, and
therefore establish precedents and make law. For such interpretative
decisions are necessarily as general as the statutory provisions
interpreted. A question of statutory interpretation is one of fact to
begin with, and is decided on principle; therefore it becomes one of
law, and is for the future decided on authority.
Footnote 168:
Holmes, The Common Law, p. 35.
Footnote 169:
On the decision by judges of questions of fact under the guise of
questions of law, see Thayer’s Preliminary Treatise on the Law of
Evidence, pp. 202, 230, 249.
Footnote 170:
This statement, to be strictly correct, must be qualified by a
reference to the interests of the lower animals. It is unnecessary,
however, to complicate the discussion at this stage by any such
consideration. The interests and rights of beasts are moral, not
legal.
Footnote 171:
Pandekt. I. sect. 37.
Footnote 172:
Geist d. r. R. III. p. 339, 4th ed.
Footnote 173:
Theory of Legislation, pp. 82–84. See also Works, III. 217.
Footnote 174:
Principles of Ethics, II. p. 63.
Footnote 175:
The denial of natural rights is not rendered any more defensible by
the recognition of other _positive_ rights in addition to the strictly
legal rights which are created by the state; for example, rights
created by international law, or by the so-called law of public
opinion.
Footnote 176:
See Austin, Lect. 17.
Footnote 177:
The terms subject and object are used by different writers in a
somewhat confusing variety of senses:—
(_a_) The subject of a right means the owner of it; the object of a
right means the thing in respect of which it exists. This is the usage
which has been here adopted: Windscheid, I. sect. 49.
(_b_) The subject of a right means its subject-matter (that is to say,
its object in the previous sense). The object of a right means the act
or omission to which the other party is bound (that is to say, its
content): Austin, pp. 47, 712.
(_c_) Some writers distinguish between two kinds of subjects—active
and passive. The active subject is the person entitled; the passive
subject is the person bound: Baudry-Lacantinerie, Des Biens, sect. 4.
Footnote 178:
As to ownerless rights, see Windscheid, I. sect. 49, n. 3. Dernburg,
Pandekten, I. sect. 49.
Footnote 179:
See as to rights to rights, Windscheid, I. sect. 48 a (Rechte an
Rechten).
Footnote 180:
_Musgrove_ v. _Toy_, (1891) A. C. 272.
Footnote 181:
On the distinction between liberties and rights, see Bentham’s Works,
III. p. 217; _Starey_ v. _Graham_, (1899) 1 Q. B. at p. 411, per
Channell, J.; _Allen_ v. _Flood_, (1898) A. C. at p. 29, per Cave, J.;
Terry, p. 90; Brown’s Austinian Theory of Law, p. 180.
Footnote 182:
A power is usually combined with a liberty to exercise it; that is to
say, the exercise of it is not merely effectual but rightful. This,
however, is not necessarily the case. It may be effectual and yet
wrongful; as when, in breach of my agreement, I revoke a licence given
by me to enter upon my land. Such revocation is perfectly effectual,
but it is a wrongful act, for which I am liable to the licensee in
damages. I had a right (in the sense of power) to revoke the licence,
but I had no right (in the sense of liberty) to do so: _Wood_ v.
_Leadbitter_, 13 M. & W. 838; _Kerrison_ v. _Smith_, (1897) 2 Q. B.
445.
Footnote 183:
On the distinction between powers and other kinds of rights, see
Windscheid, I. sect. 37; Terry, p. 100.
Footnote 184:
This division of rights into rights (_stricto sensu_), liberties, and
powers, is not intended to be exhaustive. These are the most important
kinds of advantages conferred by the law, but they are not the only
kinds. Thus, the term right is sometimes used to mean an _immunity_
from the legal power of some other person. The right of a peer to be
tried by his peers, for example, is neither a right in the strict
sense, nor a liberty, nor a power. It is an exemption from trial by
jury—an immunity from the power of the ordinary criminal courts.
Footnote 185:
A very thorough examination of the conception of a legal right is to
be found in Terry’s Principles of Anglo-American Law (Philadelphia,
1884), a work of theoretical jurisprudence too little known in
England, and characterised by much subtle analysis of legal
conceptions. Rights are there divided (ch. 6, pp. 84–138) into four
kinds, which the author distinguishes as (1) permissive rights (which
we have here termed liberties), (2) facultative rights (which we have
here termed powers), (3) correspondent rights (which are so called
because they correspond to duties, and which we have here termed
rights in the strict sense), and (4) protected rights. These last we
have not recognised as being in truth a class of rights at all. They
are, if I understand Mr. Terry correctly, not rights but the _objects_
of rights _stricto sensu_; for example, life, reputation, liberty,
property, domestic relations, &c. That is to say, they are the things
in which a person has an interest, and to which, therefore, he has a
right, so soon as, but not until, the law protects that interest by
imposing duties in respect of it upon other persons. There is no right
to reputation apart from and independent of the right that other
persons shall not publish defamatory statements.
Footnote 186:
The distinction here drawn between duty and liability may seem to
conflict with the common usage, by which certain kinds of duties are
apparently spoken of as liabilities. Thus we say that a man is liable
for his debts. This, however, may be construed as meaning that he is
liable to be sued for them. We certainly cannot regard liability as a
generic term including all kinds of duty. We do not say that a man is
liable not to commit murder, or not to defraud other persons.
Footnote 187:
Of the three classes of rights or legal interests which we have
considered, the first, consisting of those which are the correlative
of duties, are by far the most important. So predominant are they,
indeed, that we may regard them as constituting the principal
subject-matter of the law, while the others are merely accessory. In
future, therefore, we shall use the term right in this narrow and
specific sense, except when the context indicates a different usage;
and we shall commonly speak of the other forms of rights by their
specific designations.
Footnote 188:
The term enforcement is here used in a wide sense to include the
maintenance of a right or duty by any form of compulsory legal
process, whether civil or criminal. There is a narrower use of the
term, in which it includes only the case of civil proceedings. It is
in this sense that we have already defined civil justice as being
concerned with the enforcement of rights, and criminal justice as
being concerned with the punishment of wrongs. As to the distinction
between recognising and enforcing a right, see Dicey, Conflict of
Laws, p. 31, 2nd ed.
Footnote 189:
There is another use of the term imperfect duty which pertains to
ethics rather than to jurisprudence, and must be distinguished from
that adopted in the text. According to many writers, an imperfect duty
is one of such a nature that it is not fit for enforcement, but ought
properly to be left to the free will of him whose duty it is. A
perfect duty, on the other hand, is one which a man not merely _ought_
to perform, but may be _justly compelled_ to perform. The duty to give
alms to the poor is imperfect; that of paying one’s debts is perfect.
Perfect duties pertain to the sphere of justice; imperfect to that of
benevolence. The distinction is not equivalent to that between legal
duties and those which are merely moral. A duty may be a perfect duty
of justice, although the actual legal system takes no notice of it;
and conversely an imperfect duty of benevolence may be unjustly made
by law the subject of compulsion. It does not seem possible, however,
so to divide the sphere of duty by a hard and fast line. One of the
most noteworthy attempts to do so is to be seen in Spencer’s
Principles of Ethics.
Footnote 190:
_Ex parte Sheil_, 4 Ch. D. 789. _London & Midland Bank_ v. _Mitchell_,
(1899) 2 Ch. 161.
Footnote 191:
As to rights against the state see Brown’s Austinian Theory of Law, p.
194.
Footnote 192:
Some writers treat _jus in personam_ and _jus ad rem_ as synonymous
terms. It seems better, however, to use the latter in a narrower
sense, as including merely one species, although the most important
species, of _jura in personam_. Savigny, System, sect. 56, n. b.
Footnote 193:
Gaius, IV. 2.
Footnote 194:
A personal as opposed to a proprietary right is not to be confounded
with a personal as opposed to a real right. It is a misfortune of our
legal nomenclature that it is necessary to use the word personal in
several different senses. The context, however, should in all cases be
sufficient to indicate the particular signification intended. The more
flexible language of the Germans enables them to distinguish between
_personliche Rechte_ (as opposed to _dingliche Rechte_ or real rights)
and _Personenrechte_ (as opposed to _Vermögensrechte_ or proprietary
rights). See Dernburg, Pandekten, I. sect. 22, note 7.
Footnote 195:
Ahrens, sect. 55: Tous les biens, soit matériels en eux-mêmes, soit
susceptibles d’être estimés en argent comme équivalent (par aestimatio
et condemnatio pecuniaria) appartenant à une personne, forment son
avoir ou son patrimoine.
Baudry-Lacantinerie, Des Biens, sect. 2. Le patrimoine est un ensemble
de droits et de charges appréciables en argent.
Dernburg, Pandekten, I. sect. 22. Vermögen ist die Gesammtheit der
geldwerthen Rechte einer Person.
Windscheid, I. sect. 42, note: Vermögensrechte sind die Rechte von
wirthschaftlichem Werth.
See also to the same effect Savigny, System, sect. 56, and Puchta,
Institutionen, II. sect. 193.
Footnote 196:
The words status and estate are in their origin the same. As to the
process of their differentiation in legal meaning, see Pollock and
Maitland, History of English Law, II. pp. 10 and 78 (1st ed.). The
other uses of the term property will be considered by us later, in
chapter xx.
Footnote 197:
See Dicey, Conflict of Laws, p. 458, 2nd ed.
Footnote 198:
See Maine’s Ancient Law, Ch. 5 ad fin.; Markby’s Elements of Law, §
178; Hunter’s Roman Law, p. 138, 3rd ed.
Footnote 199:
See Savigny, System, § 59; Moyle, Inst. Just. pp. 86–94, 183–193.
Footnote 200:
The Romans termed them _servitutes_, but the English term servitude is
used to include one class of _jura in re aliena_ only, namely the
_servitutes praediorum_ of Roman Law.
Footnote 201:
The owner of an encumbrance may be termed the encumbrancer of the
servient right or property over which it exists.
Footnote 202:
In addition to the distinctions between different kinds of rights
considered in this chapter, there must be borne in mind the important
distinction between Primary and Sanctioning Rights, but this has
already been sufficiently dealt with in the chapter on the
Administration of Justice.
Footnote 203:
Pollock, Jurisprudence, p. 175: “Ownership may be described as the
entirety of the powers of use and disposal allowed by law.... The
owner of a thing is not necessarily the person who at a given time has
the whole power of use and disposal; very often there is no such
person. We must look for the person having the residue of all such
power when we have accounted for every detached and limited portion of
it; and he will be the owner even if the immediate power of control
and use is elsewhere.”
Footnote 204:
The figurative identification of a right with its object is not
absolutely limited to the case of material things, though this is by
far the most important instance. Similar reasons of convenience of
speech and ease of thought lead to a similar metonymy in other cases,
when the object of a _jus in re propria_ has a recognised name. We
speak, for example, of the ownership of a trade-mark, or of that of
the good-will of a business; meaning thereby the ownership of a _jus
in re propria_ in respect of these things.
Footnote 205:
A similar explanation of the distinction between corporeal and
incorporeal ownership is given by the following writers:—
Windscheid I. sect. 42: “A very common form of speech ... substitutes
for the right of ownership (Eigenthumsrecht) the thing in respect of
which it exists.”
Baudry-Lacantinerie, Des Biens, sect. 9: “This confusion finds its
excuse, if not its justification, in the consideration that the right
of ownership, being the most complete right which can exist in respect
of a thing, since it is absolute and exclusive, is identified with the
thing itself.”
Bruns, Das Recht des Besitzes, p. 477.
Girard, Droit Romain, p. 244.
Footnote 206:
Austin, p. 358. German Civil Code, sect. 90: Sachen im Sinne des
Gesetzes sind nur körperliche Gegenstände.
Footnote 207:
Vide supra, § 73.
Footnote 208:
This use of the term thing (_res_) and the distinction between _res
corporalis_ and _res incorporalis_ are derived from Roman Law. Just.
Inst. II. 2:—Quaedam praeterea res corporales sunt, quaedam
incorporales. Corporales eae sunt, quae sui natura tangi possunt:
veluti fundus, homo, vestis, aurum, argentum, et denique aliae res
innumerables. Incorporales autem sunt, quae tangi non possunt. Qualia
sunt ea, quae in jure consistunt: sicut hereditas, usufructus,
obligationes quoque modo contractae.
Footnote 209:
The same explanation is applicable to the distinction between
corporeal and incorporeal _property_. A person’s property consists
sometimes of material objects and sometimes of rights. As to the
different uses of the term property, see infra, ch. xx.
Footnote 210:
He who owns property for his own use and benefit, without the
intervention of any trustee, may be termed the _direct_ owner of it,
as opposed to a mere trustee on the one hand, and to a beneficial
owner or beneficiary on the other. Thus if A. owns land, and makes a
declaration of trust in favour of B., the direct ownership of A. is
thereby changed into trust-ownership, and a correlative beneficial
ownership is acquired by B. If A. then conveys the land to B., the
ownership of B. ceases to be merely beneficial, and becomes direct.
Footnote 211:
On the nature of trusts see Law Quarterly Review, vol. 28, p. 290 (The
Place of Trust in Jurisprudence, by W. G. Hart).
Footnote 212:
Vide supra, § 85.
Footnote 213:
On investitive and divestitive facts, see chapter xvi., § 120.
Footnote 214:
On vested and contingent ownership, see Windscheid, I. sects. 86–95;
Dernburg, Pandekten, I. 82. 105–112; Austin, Lecture 53.
Footnote 215:
Possession in law is sometimes used in a narrow sense to denote
possession which is such in law only and not both in law and in
fact—that is to say, to denote constructive possession (_possessio
fictitia_). In the wider sense it denotes all possession which is
recognised by the law, whether it does or does not at the same time
exist in fact.
Footnote 216:
See, as to the idea of seisin and the consequences attributed to its
presence or absence, a series of interesting articles by Maitland in
the L. Q. R., I. 324, II. 481. IV. 24, 286. See also Lightwood,
Possession of Land, pp. 4–8.
Footnote 217:
_Possessio_ is the _de facto_ relation between the possessor and the
thing possessed. _Jus possessionis_ is the right (if any) of which
possession is the source or title. _Jus possidendi_ is the right (if
any) which a man has to acquire or to retain possession.
Footnote 218:
D. 41. 2. 3. 1.
Footnote 219:
It must be remembered that we are speaking of possession in fact.
Whether possession in law and the various advantages conferred by it
are to be attributed to all possessors in fact or only to some of them
is a different question with which we are not here concerned. Roman
Law, save in exceptional cases, allowed possessio corporis only to
those who possessed as owners and on their own behalf. In English law,
on the other hand, there is no such limitation of legal possession;
though even here the possession of a servant sometimes fails to obtain
legal recognition.
Footnote 220:
_R._ v. _Mucklow_, 1 Moody C. C. 160.
Footnote 221:
_Merry_ v. _Green_, 7 M. & W. 623.
Footnote 222:
Pollock and Wright, Possession in the Common Law, p. 14.
Footnote 223:
“Absolute security for the future,” says Dernburg, Pandekten, I. sect.
169, “is not requisite. For it is not to be had.... All that is
necessary is that according to the ordinary course of affairs one is
able to count on the continuing enjoyment of the thing.” See also I.
sect. 178. See also Pollock and Wright, Possession, p. 13: “That
occupation is effective which is sufficient as a rule and for
practical purposes to exclude strangers from interfering with the
occupier’s use and enjoyment.”
Footnote 224:
Pollock and Wright, Possession, p. 15: “Physical or _de facto_
possession readily follows the reputation of title.”
Footnote 225:
In the words of Ihering: “The visibility of possession is of decisive
importance for its security.” Grund des Besitzesschutzes, p. 190.
Footnote 226:
21 L. J. Q.B. 75.
Footnote 227:
L. & C. 1.
Footnote 228:
7 M. & W. 623.
Footnote 229:
8 Ves. 405. 7 R. R. 99.
Footnote 230:
1 Moody C. C. 160.
Footnote 231:
33 Ch. D. 562.
Footnote 232:
(1896) 2 Q. B. 44.
Footnote 233:
1 Smith L. C, 10th ed. 343; 1 Strange 504.
Footnote 234:
See for a criticism of the _ratio decidendi_ of this case Clerk and
Lindsell’s Law of Torts, Appendix.
Footnote 235:
33 Ch. D. 562 at p. 568.
Footnote 236:
The explicit recognition of mediate possession (mittelbarer Besitz) in
its fullest extent is a characteristic feature of the German Civil
Code (sects. 868–871): “If any one possesses a thing as usufructuary,
pledgee, tenant, borrower, or depositee, or in any similar capacity by
virtue of which he is entitled or bound with respect to some other
person to keep possession of the thing for a limited time, then that
other person has possession of it also (mediate possession).” See
Dernburg, Das bürgerliche Recht, III. sect. 13. Windscheid, I. pp.
697–701.
Footnote 237:
In _Ancona_ v. _Rogers_ (1 Ex. D. at p. 292) it is said in the
judgment of the Exchequer Chamber: “There is no doubt that a bailor
who has delivered goods to a bailee to keep them on account of the
bailor, may still treat the goods as being in his own possession, and
can maintain trespass against a wrongdoer who interferes with them. It
was argued, however, that this was a mere legal or constructive
possession of the goods.... We do not agree with this argument. It
seems to us that goods which have been delivered to a bailee to keep
for the bailor, such as a gentleman’s plate delivered to his banker,
or his furniture warehoused at the Pantechnicon, would in a popular
sense as well as in a legal sense be said to be still in his
possession.”
Footnote 238:
(1893) 2 Q. B. 30, 31.
Footnote 239:
1 Taunt. 458; 10 R. R. 578.
Footnote 240:
6 El. & B. 726.
Footnote 241:
At p. 735.
Footnote 242:
D. 41. 2. 3. 5.
Footnote 243:
These terms, however, are not strictly accurate, inasmuch as the
so-called constructive delivery is a perfectly real transfer of
possession, and involves no element of fiction whatever.
Footnote 244:
For examples of _traditio brevi manu_, see _Winter_ v. _Winter_, 4 L.
T. (N.S.) 639; _Cain_ v. _Moon_, (1896) 2 Q. B. 283; _Richer_ v.
_Voyer_, L. R. 5 P. C. 461.
Footnote 245:
For examples of _constitutum possessorium_, see _Elmore_ v. _Stone_, 1
Taunt. 458; 10 R. R. 578; _Marvin_ v. _Wallace_, 6 El. & Bl. 726. See
supra § 101.
Footnote 246:
_Constitutum possessorium_, also, may be termed attornment in a wide
sense.
Footnote 247:
Delivery by attornment is provided for by the Sale of Goods Act, 1893,
sect. 29 (3): “Where the goods at the time of sale are in the
possession of a third person, there is no delivery by seller to buyer
unless and until such third person acknowledges to the buyer that he
holds the goods on his behalf.”
Footnote 248:
The theory here considered is that which has been made familiar by
Savigny’s celebrated treatise on Possession (Recht des Besitzes,
1803). The influence of this work was long predominant on the
Continent and considerable in England, and it still finds no small
amount of acceptance. A forcible statement of the objections to
Savigny’s doctrine is contained in Ihering’s Grund des
Besitzesschutzes, pp. 160–193.
Footnote 249:
Bruns rejects the definition of possession as consisting in the
continuing exercise of a right, and defines it as the continuous
possibility of exercising a right at will. “Just as corporeal
possession,” he says (Recht des Besitzes, p. 475) “consists not in
actual dealing with the thing, but only in the power of dealing with
it at will, so incorporeal possession consists not in the actual
exercise of a right, but in the power of exercising it at will; and it
is only because the existence of this power does not become visible as
an objective fact until actual exercise of the right has taken place,
that such actual exercise is recognised as an essential condition of
the commencement of possession.” This however seems incorrect.
Possession consists not in the power of exercising a claim in the
future, but in the power of _continuing to exercise it_ from now
onwards.
Footnote 250:
Thus in the Civil Code of France it is said (sect. 2228): La
possession est la détention ou la jouissance d’une chose ou d’un droit
que nous tenons ou que nous exerçons par nous-mêmes ou par un autre
qui la tient ou qui l’exerce en notre nom.
The definition of the Italian Civil Code is similar (sect. 685):
“Possession is the detention of a thing or the enjoyment of a right by
any person either personally or through another who detains the thing
or exercises the right in his name.”
A good analysis of the generic conception of possession, and of the
relation between its two varieties, is to be found in
Baudry-Lacantinerie’s Traité de Droit Civil (De la Prescription, sect.
199): “Possession is nothing else than the exercise or enjoyment,
whether by ourselves or through the agency of another, of a real right
which we have or claim to have over a thing. It makes no difference
whether this right is one of ownership or one of some other
description, such as _ususfructus_, _usus_, _habitatio_, or
_servitus_. The old distinction between possession and
quasi-possession, which was recognised by Roman law and is still to be
found in the doctrine of Pothier, has been rejected, and rightly so.
It was in our opinion nothing more than a result of that confusion
between the right of ownership and the object of that right, which has
been at all times prevalent. Possession is merely the exercise of a
right; in reality it is not the thing which we possess, but the right
which we have or claim to have over the thing. This is as true of the
right of ownership as of the right of servitude and usufruct; and
consequently the distinction between the possession of a thing and the
quasi-possession of a right is destitute of foundation.
See to the same effect Ihering, Grund des Besitz, p. 159: “Both forms
of possession consist in the exercise of a right (die Ausübung eines
Rechts).” Bruns, also, recognises the figure of speech on which the
distinction between corporeal and incorporeal possession is based.
Recht des Besitzes, p. 477.
Footnote 251:
Grund des Besitz, p. 179: Der Besitz die Thatsächlichkeit des
Eigenthums. See also at p. 192: Der Besitz ist die Thatsächlichkeit
des Rechts.
Footnote 252:
In saying that possession is the _de facto_ counterpart of ownership,
it is to be remembered that we use both terms in their widest sense,
as including both the corporeal and incorporeal forms. If we confine
our attention to corporeal ownership and possession, the
correspondence between them is incomplete. Many claims constitute
corporeal possession if exercised _de facto_, but incorporeal
ownership if recognised _de jure_. Thus tenants, bailees, and pledgees
have corporeal possession but incorporeal ownership. They possess the
land or the chattel, but own merely an encumbrance over it. The
ownership of a book means the ownership of the _general or residuary
right_ to it; but the possession of a book means merely the possession
of an _exclusive right to it for the time being_. That is to say, the
figurative usage of speech is not the same in possession as in
ownership, therefore much corporeal possession is the counterpart of
incorporeal ownership.
Footnote 253:
Windscheid II. sect. 464: “If we ask what other rights, in addition to
real rights, admit of possession, the answer is that in principle no
right is incapable of possession, which is capable of continuing
exercise (dauernde Ausübung).”
So Ihering, Grund des Besitz, p. 158: “The conception of possession
is applicable to all rights which admit of realisation
(Thatsächlichkeit), that is to say, which admit of a continuing
visible exercise.” Ihering defines possession generally (p. 160) as
“Thatsächlichkeit der mit dauernder Ausübung verbundenen Rechte.”
See also Bruns, Recht des Besitzes, pp. 479, 481.
Footnote 254:
See for example the German Civil Code, sects. 858, 861, 864, and the
Italian Civil Code, sects. 694–697.
Footnote 255:
_Asher_ v. _Whitlock_, L. R. 1 Q. B. 1. _Armorie_ v. _Delamirie_, 1
Stra. 504. 1 Sm. L. C. 10th ed. 343. _Bridges_ v. _Hawkesworth_, 21 L.
J. Q. B. 75.
Footnote 256:
Legal persons are also termed fictitious, juristic, artificial, or
moral.
Footnote 257:
Exodus xxi. 28. To the same effect see Plato’s Laws, 873.
Footnote 258:
_Ellis_ v. _Loftus Iron Company_, L. R. 10 C. P. at p. 13: “In the
case of animals trespassing on land the mere act of the animal
belonging to a man which he could not foresee, or which he took all
reasonable means of preventing, may be a trespass, inasmuch as the
same act if done by himself would have been a trespass.” _Cf._ Just.
Inst. iv. 9.
Footnote 259:
D. 1. 5. 2.
Footnote 260:
_In re Dean_, 41 Ch. D. 552.
Footnote 261:
Ibid. p. 557.
Footnote 262:
Hereditas personae vice fungitur. D. 46. 1. 22. Creditum est
hereditatem dominam esse, defuncti locum obtinere. D. 28. 5. 31. 1.
Footnote 263:
_Williams_ v. _Williams_, 20 Ch. D. 659.
Footnote 264:
_R._ v. _Raynes_, 2 East P. C. 652.
Footnote 265:
_Foster_ v. _Dodd_, L. R. 3 Q. B. at p. 77: “Whether in ground
consecrated or unconsecrated indignities offered to human remains in
improperly and indecently disinterring them, are the ground of an
indictment.”
Footnote 266:
_R._ v. _Stewart_, 12 Ad. and El. 777. As to the lawfulness of
cremation see _Reg._ v. _Price_, 12 Q. B. D. 247.
Footnote 267:
_Williams_ v. _Williams_, 20 Ch. D. 659.
Footnote 268:
2 & 3 Wm. IV. c. 75, sect. 7.
Footnote 269:
_In re Vaughan_, 33 Ch. D. 187; _Hoare_ v. _Osborne_, 1 Eq. 587.
Footnote 270:
_In re Dean_, 41 Ch. D. 557.
Footnote 271:
5 Co. Rep 125 a: _R._ v. _Labouchere_, 12 Q. B. D. 320; Stephen’s
Digest of Criminal Law, sect. 291. 5th ed.
Footnote 272:
7 Co. Rep. 8 b. Compare D. 1. 5. 26: Qui in utero sunt in toto paene
jure civili intelleguntur in rerum natura esse.
Footnote 273:
_The George and Richard_, L. R. 3 Ad. and Ecc. 466.
Footnote 274:
_R._ v. _Senior_, 1 Moody, C. C. 344; _R._ v. _West_, 2 Car. and Kir.
784.
Footnote 275:
_Walker_ v. _Great Northern Ry. Co. of Ireland_, 28 L. R. Ir. 69.
Footnote 276:
The maxim of the law is: Quum duo jura in una persona concurrunt,
aequum est ac si essent in duobus. _Calvin’s Case_, 2 State Trials
584. _Coppin_ v. _Coppin_, 2 P. W. 295.
Footnote 277:
D. 8. 2. 26.
Footnote 278:
German writers term it the _substratum_ or _Unterlage_ of the
fictitious person. Windscheid, I. sect. 57. Vangerow, I. sect. 53.
Puchta, II. 192.
Footnote 279:
Co. Litt. 2. a.
Footnote 280:
8 Ed. VII. c. 48, s. 33.
Footnote 281:
39 & 40 Vict. c. 18, s. 1.
Footnote 282:
18 & 19 Vict. c. 117, s. 2.
Footnote 283:
Corporations sole are not a peculiarity of English law. The
distinction between the two forms of incorporation is well known to
foreign jurists. See Windscheid, I. sect. 57. Vangerow, I. sect. 53.
The English law as to corporations sole is extremely imperfect and
undeveloped, but the conception itself is perfectly logical, and is
capable of serious and profitable uses. Maitland has traced the
history of this branch of the law in two articles in the L. Q. R. XVI.
p. 335. and XVII. p. 131.
Footnote 284:
Savigny, System, sect. 90: “The aggregate of the members who compose a
corporation differs essentially from the corporation itself.” _The
Great Eastern Ry. Co._ v. _Turner_, L. R. 8 Ch. at p. 152: “The
Company is a mere abstraction of law.” _Flitcroft’s Case_, 21 Ch. D.
at p. 536: “The corporation is not a mere aggregate of shareholders.”
_Salomon_ v. _Salomon & Co._ (1897) A. C. at p. 51: “The company is at
law a different person altogether from the subscribers to the
memorandum.”
Footnote 285:
D. 3. 4. 7. 2. Cum jus omnium in unum reciderit, et stet nomen
universitatis. _Universitas_ is the generic title of a corporation in
Roman law, a title retained to this day in the case of that particular
form of corporation which we know as a university.
Footnote 286:
Blackstone, I. 485.
Footnote 287:
Lindley on Companies, II. p. 822 (6th ed.): “A company which is
incorporated by act of parliament can be dissolved only as therein
provided, or by another act of parliament.”
Footnote 288:
That a corporation may survive the last of its members is admitted by
Savigny (System, sect. 89), and Windscheid (I. sect. 61).
Footnote 289:
The leading advocate of this realistic theory is Gierke (Die
Genossenschaftstheorie, 1887. Deutsches Privatrecht, 1895). See also
Dernburg, Pandekten, I. sect. 59, and Mestre, Les Personnes Morales,
1899. In England it has received sympathetic exposition, if not
express support, from Maitland in the Introduction to his translation
of part of Gierke’s Genossenschaftsrecht (Political Theories of the
Middle Ages, 1900). See also, to the same effect, Pollock,
Jurisprudence, p. 113, and L. Q. R. vol. 27, p. 219; Brown, Austinian
Theory of Law, Excursus A; 22 L. Q. R. 178, The Legal Personality of a
Foreign Corporation, by E. H. Young. Savigny and Windscheid are
representative adherents of the older doctrine. For further
discussions of this question see Harvard Law Review, vol. xxiv. pp.
253, 347 (Corporate Personality, by A. W. Machen); Law Quarterly
Review, vol. xxvii. p. 90 (Legal Personality, by Prof. W. M. Geldart);
Gray’s Nature and Sources of the Law, ch. 2; Saleilles, De la
personnalité juridique.
Footnote 290:
The relation between a corporation and its beneficiaries may or may
not amount to a _trust_ in the proper sense of the term. A share in a
company is not the beneficial ownership of a certain proportion of the
company’s property, but the benefit of a contract made by the
shareholder with the company, under which he is entitled to be paid a
share of the profits made by the company, and of the surplus assets on
its dissolution. A share is a chose in action—an _obligation_ between
the company and the shareholder. _Colonial Bank_ v. _Whinney_, 11 A.
C. 426.
Footnote 291:
_Cornford_ v. _Carlton Bank_, (1899) 1 Q. B. 392; (1900) 1 Q. B. 22.
Footnote 292:
_Reg._ v. _Birmingham and Gloucester Ry. Coy._, 3 Q. B. 223; _Reg._ v.
_Great North of England Ry. Coy._, 9 Q. B. 315.
Footnote 293:
As to the liability of corporations, see Salmond’s Law of Torts, § 18;
Pollock’s Law of Torts, p. 60, 8th ed.; _Cornford_ v. _Carlton Bank_,
(1899) 1 Q. B. 392; _Citizens’ Life Assurance Co._ v. _Brown_, (1904)
A. C. 423; _Green_ v. _London General Omnibus Coy._, 7 C. B. (N. S.)
290; _Abrath_ v. _North Eastern Railway Co._, 11 A. C. 247, per Baron
Bramwell; Dernburg, Pandekten, I. sect. 66; Windscheid, I. sect. 59;
Savigny, System, sects. 94, 95; D. 4. 3. 15. 1.
Footnote 294:
D. 3. 4. 7. 1.
Footnote 295:
It is a somewhat curious circumstance that the legal persons created
by one system of law receive full recognition from other systems. This
form of legal fiction has acquired extraterritorial and international
validity. A French corporation can sue and be sued in an English court
of justice as if it were a real person. _The Dutch West India Co._ v.
_Van Moses_, 1 Str. 611; _Newby_ v. _Van Oppen_, L. R. 7 Q. B. 293.
Footnote 296:
_Calvin’s Case_, 2 State Trials, at p. 624: “The King hath two
capacities in him: one a natural body, being descended of the blood
royal of the realm; and this body is of the creation of Almighty God,
and is subject to death, infirmity, and such like: the other is a
politick body or capacity, so called because it is framed by the
policy of man; and in this capacity the King is esteemed to be
immortal, invisible, not subject to death, infirmity, infancy.” As to
the history of this idea see Holdsworth’s History of English Law, III.
pp. 357–362.
Footnote 297:
_Sloman_ v. _Government of New Zealand_, 1 C. P. D. 563. This was an
action brought in England against the “Governor and Government of the
Colony of New Zealand.” It failed because there was no such person or
body corporate known to the law.
Footnote 298:
See _Williams_ v. _Howarth_, (1905) A. C. 551.
Footnote 299:
The Commonwealth of Australia, for example, and also the constituent
Australian states are now to be deemed for certain purposes bodies
politic and corporate. For by virtue of Australian legislation they
can now sue and be sued in their own names, and possess other
attributes of personality; thus an action will now lie at the suit of
the State of Victoria against the State of New South Wales. The
corporate character thus bestowed upon these states, however, is
concurrent with, and not exclusive of the old common law principle
which identifies the state with the King. Public lands in Australia,
for example, are still the lands of the Crown, except so far as they
may be expressly vested in the corporate state by statute.
Footnote 300:
_Supra_, § 112.
Footnote 301:
It has been expressly recognised by the High Court of Australia, so
far as regards the Commonwealth of Australia and the constituent
states: _Municipal Council of Sydney_ v. _The Commonwealth_, 1
Commonwealth L. R. at p. 231, per Griffith, C. J.: “It is manifest
from the whole scope of the Constitution that just as the Commonwealth
and State are regarded as distinct and separate sovereign bodies,...so
the Crown as representing those several bodies is to be regarded not
as one, but as several juristic persons.”
Footnote 302:
Title meant originally a mark, sign, or inscription; _e.g._, the title
of a book; _titulus sepulchri_, an epitaph. “Pilate wrote a title and
put it on the cross.” John xix. 19. Thence more specifically it came
to mean signs or evidence of right or ownership; _e.g._, _titulus_, a
boundary-stone; _titulus_, a title-deed (Ducange). Thence the _ground_
of right or ownership, viz., an investitive fact.
Footnote 303:
Bentham calls such facts _dispositive_.
Footnote 304:
We may term them, with Bentham, _translative_ facts.
Footnote 305:
We here use the term transfer in its generic sense, as including both
voluntary and involuntary changes of ownership. It has also a specific
sense in which it includes only the former. Succession _ab intestato_,
for example, is a transfer of rights in the wide sense, but not in the
narrow.
Footnote 306:
This nomenclature has been suggested and adopted by Sir Frederick
Pollock (Jurisprudence, p. 142). Other writers prefer to indicate acts
in the law by the term juristic acts. The Germans call them
Rechtsgeschäfte.
Footnote 307:
The use of the terms agreement and contract is curiously unsettled.
_a._ Agreement and contract are often used as synonyms, to mean a
bilateral act in the law directed to the creation of an obligation,
that is to say a right _in personam_. The objection to this usage is
that we cannot afford so to waste one of these terms.
_b._ Contract is sometimes used to mean an agreement (in the preceding
sense) enforceable by law. Pollock, Principles of Contract, p. 8.
Indian Contract Act, sect. 2 (h). This, also, seems the sacrifice of a
useful term to an inadequate purpose. Moreover the distinction does
not conform to established usage. We habitually and conveniently speak
of void, invalid, or illegal _contracts_.
_c._ Contract is sometimes used in the wide sense of any bilateral act
in the law. Holland, pp. 225, 226. This, however, is very unusual, and
it is certainly better to use agreement in this sense. Contract, being
derived from _contrahere_, involves the idea of binding two persons
together by the _vinculum juris_ of an obligation. An assignment is
not a contract, and a release is the very reverse of a contract.
_d._ There remains the usage suggested and adopted in the text. An
agreement is a bilateral act in the law. Est pactio duorum pluriumve
in idem placitum et consensus. D. 2. 14. 1. 2. A contract, on the
other hand, is that particular kind of agreement which is intended to
create a right _in personam_ between the parties. This is the
distinction adopted by Sir W. Anson in his work on Contracts, p. 2:
“Contract is that form of agreement which directly contemplates and
creates an obligation.” So Pothier, Traité des Obligations, sect. 3;
L’espèce de convention qui a pour objet de former quelque engagement
est celle qu’on appelle contrat. _Cf._ French Civil Code, Art. 1101.
The Germans use _Vertrag_ as equivalent to agreement in this sense;
while a contract is _obligatorischer Vertrag_, or _Vertrag_ in a
narrower sense. Savigny, System, sect. 141. Puchta, sect. 271.
Dernburg, Pandekten, I. sect. 92.
Footnote 308:
_Middleton_ v. _Pollock_, 2 Ch. D. 104; _Sharp_ v. _Jackson_, (1899)
A. C. 419.
Footnote 309:
The terms unilateral and bilateral possess another signification
distinct from that which is attributed to them in the text. In the
sense there adopted all agreements are bilateral, but there is another
sense in which some of them are bilateral and others unilateral. An
agreement is bilateral, in this latter signification, if there is
something _to be done_ by each party to it, while it is unilateral if
one party is purely passive and free from legal obligation, all the
activity and obligation being on the other side. An agreement to lend
money is bilateral, while an agreement to give money is unilateral.
Footnote 310:
D. 50, 17. 69.
Footnote 311:
Summa, 2. 2. q. 57. art. 2.
Footnote 312:
In respect of the efficacy of contracts, there is a special case which
requires a word of notice. A contract may be neither void nor
voidable, but yet _unenforceable_. That is to say, no action will lie
for the enforcement of it. The obligation created by it is imperfect.
See _ante_, § 78. An example is a verbal contract which ought to be in
writing under the Statute of Frauds.
Footnote 313:
D. 50. 17. 45. 1.
Footnote 314:
_Cundy_ v. _Lindsay_, 3 A.C. 459; _Raffles_ v. _Wichelhaus_, 2 H. & C.
906.
Footnote 315:
_King_ v. _Smith_, (1900) 2 Ch. 425.
Footnote 316:
_Smith v. Hughes_, L. R. 6 Q. B. 597.
Footnote 317:
In addition to the ease of misrepresentation, unessential error
affects any agreement which has been expressly or impliedly made
conditional on the existence of the fact erroneously supposed to
exist. A contract of sale, for example, is conditional on the present
existence of the thing sold; if it is already destroyed, the contract
for the purchase of it is void.
Footnote 318:
With the exception of contracts under seal and contracts of record, to
which the doctrine of consideration is inapplicable.
Footnote 319:
_Cf._ D. 44. 4. 2. 3. Si quis sine causa ab aliquo fuerit stipulatus,
deinde ex ea stipulatione experiatur, exceptio utique doli mali ei
nocebit. See also D. 12. 7. 1. pr.
Footnote 320:
Salmond, Essays in Jurisprudence and Legal History, p. 219.
Footnote 321:
The French law as to the cause or consideration of a contract will be
found in Pothier, Obligations, sects. 42–46, and Baudry-Lacantinerie,
Obligations, sects. 295–327. Whether the English doctrine of
consideration is historically connected with the _causa_ of the civil
law in a matter of dispute, and there is much to be said on both
sides.
Footnote 322:
We have already seen that the term liability has also a wider sense,
in which it is the correlative of _any_ legal power or liberty, and
not merely of the right of action or prosecution vested in a person
wronged. Supra, § 77.
Footnote 323:
Supra, § 27.
Footnote 324:
Supra, § 34.
Footnote 325:
Supra, § 78.
Footnote 326:
Gaius, III. 211.
Footnote 327:
The distinction between material and formal wrongdoing has long been
familiar in moral philosophy. The material badness of an act depends
on the actual nature, circumstances, and consequences of it. Its
formal badness depends on the state of mind or will of the actor. The
madman who kills his keeper offends materially but not formally; so
also with him who in invincible ignorance breaks the rule of right.
Material without formal wrongdoing is no ground of culpability.
Footnote 328:
Holmes, Common Law, p. 91. So Austin, p. 419: “The bodily movements
which immediately follow our desires of them are the only human acts,
strictly and properly so called.”
Footnote 329:
It is unfortunate that there is no recognised name for the origin or
initial stage of the act, as contrasted with the totality of it.
Bentham calls the former the _act_ and the latter the _action_.
Principles, ch. 8, sect. 2. Works, I. p. 40. But in common usage these
two terms are synonymous, and to use them in this special sense would
only lead to confusion.
Footnote 330:
See Salmond on Torts, p. 165, 3rd ed.
Footnote 331:
_Reg._ v. _Coombes_, 1 Lea. Cr. C. 388.
Footnote 332:
_United States_ v. _Davis_, 2 Sumner, 482.
Footnote 333:
_Reg._ v. _Armstrong_, 13 Cox, C. C. 184; _Reg._ v. _Keyn_, 2 Ex. D.
63.
Footnote 334:
_Cowan_ v. _O’Connor_, 20 Q. B. D. 640.
Footnote 335:
_Muller & Co’s Margarine, Limited_ v. _Inland Revenue Commissioners_,
(1900) 1 Q. B. 310; (1901) A. C. 217.
Footnote 336:
_Reg._ v. _Ellis_, (1899) 1 Q. B. 230.
Footnote 337:
The question is fully discussed in the case of _Reg._ v. _Keyn_, 2 Ex.
D. 63, in which the captain of a German steamer was tried in England
for manslaughter by negligently sinking an English ship in the Channel
and drowning one of the passengers. One of the minor questions in the
case was that of the place in which the offence was committed. Was it
on board the English ship, or on board the German steamer, or on board
neither of them? Four of the judges of the Court for Crown Cases
Reserved, namely, Denman, J., Bramwell, B., Coleridge, C.J., and
Cockburn, C.J., agreed that if the offence had been wilful homicide it
would have been committed on the English ship. Denman, J., and
Coleridge, C.J., applied the same rule to negligent homicide.
Cockburn, C.J., doubted as to negligent homicide. Bramwell, B., said
(p. 150): “If the act was wilful, it is done where the will intends it
should take effect; aliter when it is negligent.” For a further
discussion of the matter, see Stephen’s History of Criminal Law, II.
pp. 9–12, and Oppenhoff’s annotated edition of the German Criminal
Code (13th ed. 1896), p. 28. The German doctrine is that an act is
committed in the place where it is begun. See also Terry, Principles
of Anglo-American Law, pp. 598–606, and _Edmundson_ v. _Render_,
(1905) 2 Ch. 320.
Footnote 338:
_Northey Stone Co._ v. _Gidney_, (1894) 1 Q. B. 99.
Footnote 339:
If the law dates the commission of a wrong from the completion of it,
it follows that there are cases in which a man may commit a wrong
after his death. If A. excavates his own land so as to cause, after an
interval, the subsidence of the adjoining land of B., there is no
wrong done until the subsidence happens; _Backhouse_ v. _Bonomi_, 9 H.
L. C. 503; _Darley Main Colliery Co._ v. _Mitchell_, 11 A. C. 127.
What shall be said, then, if A. is dead in the meantime? The wrong, it
seems, is not done by his successors in title: _Hall_ v. _Duke of
Norfolk_, (1900) 2 Ch. 493; _Greenwell_ v. _Low Beechburn Colliery_,
(1897) 2 Q. B. 165. The law, therefore, must hold either that there is
no wrong at all, or that it is committed by a man who is dead at the
date of its commission.
Footnote 340:
Holmes, Common Law, p. 53: “Intent will be found to resolve itself
into two things; foresight that certain consequences will follow from
an act, and the wish for those consequences working as a motive which
induces the act.”
Footnote 341:
It is to be noticed, however, that the part which _was_ intended may
constitute in itself an independent intentional wrong included in the
larger and unintentional wrong of which it forms a part. Intentionally
to discharge firearms in a public street is a wilful wrong, if such an
act is prohibited by law. But accidentally to kill a person by the
intentional discharge of firearms in a public street is a wrong of
negligence.
Footnote 342:
See however § 143, infra, as to constructive intent. Wrongful intent
is sometimes imputed in law when there is none in fact.
Footnote 343:
For a discussion of this matter, see _Ex parte Hill_, 23 Ch. D. 695,
per Bowen, L. J., at p. 704; also _Ex parte Taylor_, 18 Q. B. D. 295.
Footnote 344:
See for example D. 4. 3. 1. pr.
Footnote 345:
It is to malice in one only of these two uses that the well-known
definition given in _Bromage_ v. _Prosser_ (4 Barn & C. 247; 28 R. R.
241) is applicable: “Malice in common acceptation means ill-will
against a person; but in its legal sense it means a wrongful act done
intentionally, without just cause or excuse.” See, to the same effect,
_Mogul Steamship Co._ v. _McGregor Gow & Co._, 23 Q. B. D. at p. 612,
per Bowen, L. J.; and _Allen_ v. _Flood_, (1898) A. C. at p. 94, per
Lord Watson.
Footnote 346:
D. 4. 3. 1. 2.
Footnote 347:
_Allen_ v. _Flood_, (1898) A. C. at p. 123.
Footnote 348:
_Corporation of Bradford_ v. _Pickles_, (1895) A. C. 587 at p. 598.
Footnote 349:
_Allen_ v. _Flood_, (1898) A. C. 92 at p. 152.
Footnote 350:
The Roman law as to the rights of adjoining proprietors was different.
Harm done _animo nocendi_, that is to say, with a malicious motive,
was actionable. D. 39. 3. 1. 12. The German Civil Code, sect. 226,
provides quite generally that the exercise of a right is unlawful when
its only motive is to harm another person.
Footnote 351:
Art. 50, 5th ed.
Footnote 352:
Strafgesetzbuch, sect. 43. _Cf._ the French Code Pénal, Art. 2.
Footnote 353:
_Roberts’ Case_, Dearsly C. C. 539. Per Parke, B., at p. 551: “An
attempt at committing a misdemeanour is not an indictable attempt
unless it is an act directly approximating to the commission of an
offence, and I think this act is a sufficient approximation. I do not
see for what lawful purpose the dies of a foreign coin can be used in
England, or for what purpose they could have been procured except to
use them for coining.” Per Wightman, J., at p. 551: “It is an act
immediately connected with the commission of the offence, and in truth
the prisoner could have no other object than to commit the offence.”
Per Jervis, C. J., at p. 550: “The prisoner was in possession of
machinery necessarily connected with the offence, for the express
purpose of committing it, and which was obtained and could be used for
no other purpose.”
Footnote 354:
_Reg._ v. _Collins_, L. & C. 471.
Footnote 355:
_Reg._ v. _Ring_, 61 L. J. M. C. 116; _Reg._ v. _Brown_, 24 Q. B. D.
357.
Footnote 356:
Leviathan, ch. 27. Eng. Works III. 288.
Footnote 357:
_Reg._ v. _Dudley_ 14 Q. B. D. 273. The law as to compulsion and
necessity is discussed in Stephen’s History of the Criminal Law, vol.
ii. ch. 18, and in an Article on Homicide by Necessity, in L. Q. R. I.
51. See also the German Criminal Code, sect. 54, in which the _jus
necessitatis_ receives express recognition.
Footnote 358:
In Roman law negligence is signified by the terms _culpa_ and
_negligentia_, as contrasted with _dolus_ or wrongful intention. Care,
or the absence of _negligentia_, is _diligentia_. The use of the word
diligence in this sense is obsolete in modern English, though it is
still retained as an archaism of legal diction. In ordinary usage,
diligence is opposed to idleness, not to carelessness.
Footnote 359:
_Grill_ v. _General Iron Screw Colliery Co._, L. R. 1 C. P. at p. 612.
Footnote 360:
_Kettlewell_ v. _Watson_, 21 Ch. D. at p. 706: “Fraud imports design
and purpose; negligence imports that you are acting carelessly and
without that design.”
Footnote 361:
An excellent analysis of the conception of negligence is to be found
in Merkel’s Lehrbuch des deutschen Strafrechts, sects. 32 and 33. See
especially sect. 32 (1): “negligent wrongdoing is that which is not
intentional, but results from culpable inadvertence (Unaufmerksamkeit)
or indifference (Gleichgultigkeit). The mental attitude of the
wrongdoer consists not in any desire to do harm, but in the absence of
a sufficient desire to avoid it. The law is not satisfied with the
mere absence of any intention to inflict injury, but demands a
positive direction of the will towards the avoidance of it.”
Footnote 362:
The distinction between these two forms of negligence is well
explained by Merkel, Strafrecht, sect. 33 (3).
Footnote 363:
Inst. Just. 4. 3. 7.
Footnote 364:
_Derry_ v. _Peek_, 14 A. C. 337; _Le Lievre_ v. _Gould_, (1893) 1 Q.
B. 491.
Footnote 365:
_Macarthy_ v. _Young_, 6 H. & N. 329; _Coughlin_ v. _Gillison_, (1899)
1 Q. B. 145. For the same reason the occupier of dangerous premises
owes a duty of care to him who comes there on business, but none
towards a bare licensee. _Gautret_ v. _Egerton_, L. R. 2 C. P. 371.
Similarly an arbitrator is liable for fraud, but not for negligence or
want of skill. _Tharsis Sulphur and Copper Co._ v. _Loftus_, L. R. 8
C. P. 1.
Footnote 366:
_Tillett_ v. _Ward_, 10 Q. B. D. 17.
Footnote 367:
_Hammack_ v. _White_, 11 C. B. N. S. 588.
Footnote 368:
_Metropolitan R. Co._ v. _Jackson_, 3 A. C. 193.
Footnote 369:
These negative rules as to negligence commonly assume the form of
rules of evidence to the effect that there is no evidence of
negligence to go to the jury. But to withdraw a case from the jury on
this ground is clearly equivalent to the establishment of a rule of
substantive law that the facts proved do not amount to negligence.
Footnote 370:
_Pluckwell_ v. _Wilson_, 5 C. & P. 375.
Footnote 371:
As to negligence in law, see Holmes, Common Law, p. 111 _sqq._
Footnote 372:
See. for example, Smith’s Leading Cases I. 228, 10th ed. (Notes to
_Coggs_ v. _Bernard_.)
Footnote 373:
See _Hinton_ v. _Dibbin_, 2 Q. B. at p. 661, per Denman, C. J.: “It
may well be doubted whether between gross negligence and negligence
merely any intelligible distinction exists.” _Wilson_ v. _Brett_, 11
M. & W. at p. 113, per Rolfe, B.: “I said I could see no difference
between negligence and gross negligence, that it was the same thing
with the addition of a vituperative epithet.” _Grill_ v. _General Iron
Screw Colliery Co._, L. R. 1 C. P. at p. 612, per Willes, J.: “No
information has been given us as to the meaning to be attached to
gross negligence in this case, and I quite agree with the dictum of
Lord Cranworth in _Wilson_ v. _Brett_ that gross negligence is
ordinary negligence with a vituperative epithet, a view held by the
Exchequer Chamber in _Beal_ v. _South Devon Ry. Co._” _Doorman_ v.
_Jenkins_, 2 Ad. and El. at p. 265, per Denman, C. J.: “I thought and
I still think it impossible for a judge to take upon himself to say
whether negligence is gross or not.” Pollock’s Torts, p. 441, 8th ed.
Street’s Foundation of Legal Liability, I. p. 28. See, however, for a
full discussion of the matter, and an expression of the contrary
opinion, Beven on Negligence, Book I. ch. II.
Footnote 374:
D. 50. 16. 226. See also D. 17. 1. 29. pr. D. 47. 4. 1. 2. D. 11. 6.
1. 1.; Lata culpa plane dolo comparabitur.
Footnote 375:
_R._ v. _Harvey_, 2 B. & C. at p. 264, 26 R. R. at p. 343: “A party
must be considered in point of law to intend that which is the
necessary or natural consequence of that which he does.” _Cf._
_Freeman_ v. _Pope_, 5 Ch. Ap. at p. 540; _Ex parte Mercer_, 17 Q. B.
D. at p. 298.
Footnote 376:
In _Le Lievre_ v. _Gould_, (1893) 1 Q. B. at p. 500, it is said by
Lord Justice Bowen: “If the case had been tried with a jury, the judge
would have pointed out to them that gross negligence might amount to
evidence of fraud, if it were so gross as to be incompatible with the
idea of honesty, but that even gross negligence, in the absence of
dishonesty, did not of itself amount to fraud.” Literally read, this
implies that, though gross negligence cannot _be_ fraud, it may be
_evidence_ of it, but this of course is impossible. If two things are
inconsistent with each other, one of them cannot be evidence of the
other. The true meaning is that alleged or admitted negligence may be
so gross as to be a ground for the inference that it is in reality
fraud and not negligence at all; see also _Kettlewell_ v. _Watson_, 21
Ch. D. at p. 706 per Fry, J.
Footnote 377:
Stephen, Digest of the Criminal Law, Art. 244, 5th ed.
Footnote 378:
Austin, Lecture XX.; Birkmeyer, Strafrecht, sect. 17; Clark, Analysis
of Criminal Liability, ch. 9.
Footnote 379:
Clerk and Lindsell, Torts, p. 457, 4th ed.: “Negligence is the
omission to take such care as under the circumstances it is the legal
duty of a person to take. It is in no sense a positive idea, and has
nothing to do with a state of mind.” _Cf._ Pollock, Torts, pp.
437–439, 8th ed.
Footnote 380:
The question is discussed in Holmes’s Common Law, pp. 81–96 and in
Pollock’s Law of Torts, pp. 136–148, 8th ed.
Footnote 381:
As to _mens rea_ in criminal responsibility see _Reg._ v. _Tolson_, 23
Q. B. D. 168; _Reg._ v. _Prince_, L. R. 2 C. C. 154; _Chisholm_ v.
_Doulton_, 22 Q. B. D. 736.
Footnote 382:
The rule is not limited to civil and criminal liability, but extends
to all other departments of the law. It prevents, for example, the
recovery of money paid under a mistake of law, though that which is
paid under a mistake of fact may be reclaimed.
Footnote 383:
Regula est juris quidem ignorantiam cuique nocere, facti vero
ignorantiam non nocere. D. 22. 6. 9. pr.
Footnote 384:
_Hollins_ v. _Fowler_, L. R. 7 H. L. 757; _Consolidated Coy._ v.
_Curtis_, (1892) 1 Q. B. 495.
Footnote 385:
_Reg._ v. _Prince_, L. R. 2 C. C. 154.
Footnote 386:
Y. B. 17 Edw. IV. 2.
Footnote 387:
_Filburn_ v. _Aquarium Co._, 25 Q. B. D. 258.
Footnote 388:
_Black_ v. _Christchurch Finance Co._, (1894) A. C. 48.
Footnote 389:
_Rylands_ v. _Fletcher_, L. R. 3 H. L. 330.
Footnote 390:
_Pickard_ v. _Smith_, 10 C. B. N. S. 470.
Footnote 391:
_Ellis_ v. _Loftus Iron Co._, L. R. 10 C. P. 10.
Footnote 392:
Exodus xxi. 28.
Footnote 393:
Laws, 873.
Footnote 394:
Thorpe, Ancient Laws and Institutes of England, I. p. 71, sect. 13.
Footnote 395:
9 & 10 Vict. c. 62; Blackstone, I. 300.
Footnote 396:
Inst. Just. 4. 8. and 4. 9.
Footnote 397:
_Chisholm_ v. _Doulton_, 22 Q. B. D. 736. _Parker_ v. _Alder_, (1899)
1 Q. B. 20.
Footnote 398:
Deut. xxiv. 16.
Footnote 399:
Laws, 856. On the vicarious responsibility of the kindred in early
law, see Lea, Superstition and Force, pp. 13–20, 4th ed., and Tarde,
La Philosophie Pénale, pp. 136–140.
Footnote 400:
Salmond, Essays in Jurisprudence and Legal History, pp. 161–163;
Wigmore, Responsibility for Tortious Acts, Select Essays in
Anglo-American Legal History, III. pp. 520–537; Street, Foundations of
Legal Liability, II. ch. 41–43.
Footnote 401:
Substantive law, as opposed to the law of procedure; civil law, as
opposed to criminal.
Footnote 402:
Blackstone III. 143. “The child hath no property in his father or
guardian as they have in him.” Ibid.
Footnote 403:
Leviathan, ch. xxx.; Eng. Wks. III. 329.
Footnote 404:
Treatise on Civil Government, II. ch. v. sect. 27.
Footnote 405:
Ibid. ch. vii. sect. 87.
Footnote 406:
D. 9. 2. 13. pr.
Footnote 407:
Droit Naturel, II. sect. 55.
Footnote 408:
Principles, p. 231; Works, I. 108. So Puchta, sect. 231: Nur an ...
körperlichen Gegenständen ist Eigenthum möglich.
Footnote 409:
Supra, § 87.
Footnote 410:
The full power of alienation and disposition is an almost invariable
element in the right of ownership, but cannot be regarded as
essential, or included in the definition of it. A married woman
subject to a restraint on anticipation is none the less the owner of
her property, though she cannot alienate or encumber it.
Austin (II. p. 790) defines the right of ownership as a “right
indefinite in point of user, unrestricted in point of disposition, and
unlimited in point of duration, over a determinate thing.”
Footnote 411:
Co. Litt. 4 a.
Footnote 412:
On this question see Pollock’s Torts, p. 347, 8th ed.; Clerk &
Lindsell’s Torts, pp. 337–339, 4th ed.; Salmond’s Torts, § 53 (9);
Hazeltine’s Law of the Air; _Pickering_ v. _Rudd_, 4 Camp. 219; 16 R.
R. 777; _Fay_ v. _Prentice_, 1 C. B. 828; _Wandsworth Board of Works_
v. _United Telegraph Coy._, 13 Q. B. D. 904; _Ellis_ v. _Loftus Iron
Coy._, L. R. 10 C. P. 10.
Footnote 413:
Art. 905.
Footnote 414:
Inst. Just. 2. 1. 29. See also Gaius 2. 73: Superficies solo cedit.
Footnote 415:
_Monti_ v. _Barnes_, (1901) 1 K. B. 205.
Footnote 416:
It is only by slow degrees and with imperfect consistency that our law
has worked out an intelligible principle on this matter. The older law
seems to have recognised mere physical attachment as necessary and
sufficient, subject to exceptions so numerous and important, as to
deprive the principle itself of any rational basis. See, for the
modern law on the point, _Holland_ v. _Hodgson_, L. R. 7 C. P. 328;
_Monti_ v. _Barnes_, (1901) 1 K. B. 205; _In re De Falbe_, (1901) 1
Ch. 523; (1902) A. C. 157; _Elwes_ v. _Brigg Gas Coy._, 33 Ch. D. 502.
Similar law is contained in Article 95 of the German Civil Code:
“Things are not part of the land which are attached to it simply for a
temporary purpose.” The case of _Reynolds_ v. _Ashby & Son_, (1904) A.
C. 466, shows, however, that English law has not yet succeeded in
adopting with consistency any single and intelligible rule.
Footnote 417:
Unlike a chattel, a piece of land has no natural boundaries. Its
separation from the adjoining land is purely arbitrary and artificial,
and it is capable of subdivision and separate ownership to any extent
that may be desired. The lines of subdivision are usually vertical,
but may be horizontal. The surface of land, for example, may belong to
one man and the substrata to another. Each story of a house may have a
different owner. In _The Midland Railway Coy._ v. _Wright_, (1901) 1
Ch. 738, it was held that a right had been acquired by prescription to
the surface of land belonging to a railway company, although a tunnel
beneath the surface remained the property of the company as having
been continuously in its occupation.
Footnote 418:
Baudry-Lacantinerie, Des Biens, sect. 123: “We know that rights,
regarded as incorporeal things, are properly speaking neither movables
nor immovables. But by a fiction the law classes them as one or the
other according to the nature of their subject-matter.” See also
Dernburg’s Pandekten, I. sect. 74.
Footnote 419:
For example, the jurisdiction of English courts in the administration
of deceased persons’ estates depends on the deceased having left
property in England. Portions of revenue law and of private
international law are also based on the assumption that all
proprietary rights possess a local situation.
Footnote 420:
_Inland Revenue Commissioners_ v. _Muller & Co.’s Margarine, Limited_,
(1901) A. C. at p. 230.
Footnote 421:
Ibid.
Footnote 422:
Dicey, Conflict of Laws, p. 310, 2nd ed.
Footnote 423:
There are certain cases, however, which have been decided on the
assumption that incorporeal property possesses no local situation at
all. For this reason it was held in _The Smelting Company of
Australia_ v. _Commissioners of Inland Revenue_, (1897) 1 Q. B. 172,
that a share of a New South Wales patent, together with the exclusive
right of using it within a certain district of that colony, was not
property “locally situated out of the United Kingdom” within the
meaning of sect. 59, sub-sect. 1, of the Stamp Act, 1891. “I do not
see,” says Lopes, L.J., at p. 181, “how a share in a patent, or a
licence to use a patent, which is not a visible or tangible thing, can
be said to be locally situate anywhere.” See, however, as to this
case, the observations of Vaughan Williams, L.J., in _Muller & Co.’s
Margarine, Limited_, v. _Inland Revenue Commissioners_, (1900) 1 Q. B.
at p. 322, and of Lord Lindley on appeal in the House of Lords, (1901)
A. C. at p. 237. See further, as to the local situation of incorporeal
property. _Danubian Sugar Factories_ v. _Commissioners of Inland
Revenue_, (1901) 1 K.B. 545; _Commissioner of Stamps_ v. _Hope_,
(1891) A. C. 476; _Att.-Gen._ v. _Dimond_, 1 C. & J. 356; 35 R. R.
732; _In re Clark_, (1904) 1 Ch. 294; Dicey, Conflict of Laws, pp.
309–314, 2nd ed.
Footnote 424:
The matter has been well discussed by Mr. T. C. Williams in L. Q. R.
IV. 394.
Footnote 425:
Under the head of material things we must class the _qualities_ of
matter, so far as they are capable in law of being in themselves the
objects of rights. The qualities which thus admit of separate legal
appropriation are two in number, namely force and space. Electricity
is in law a chattel, which can be owned, sold, stolen, and otherwise
rightfully and wrongfully dealt with. 45 & 46 Vict. c. 56, s. 23.
Definite portions of empty space are capable of appropriation and
ownership, no less than the material objects with which other portions
of space are filled. The interior of my house is as much mine as are
the walls and the roof. It is commonly said that the owner of land
owns also the space above the surface _usque ad coelum_. Whether this
is truly so is a doubtful point as the law stands, but there is no
theoretical difficulty in allowing the validity of such a claim to the
ownership of empty space.
Footnote 426:
The distinction formerly noticed by us (§ 88) between _corporeal_ and
_incorporeal_ things must not be confounded with the present
distinction between _material_ and _immaterial_ things. The latter is
a logical distinction, but the former is a mere artifice of speech. An
incorporeal thing is a kind of right, namely any right which is not
identified with some material thing which is its subject-matter. An
immaterial thing is not a right but the subject-matter of one. It is
any subject-matter of a right except a material object.
Footnote 427:
Supra § 83.
Footnote 428:
Supra § 90.
Footnote 429:
Encumbrances are not confined to the law of property, but pertain to
the law of obligations also. Choses in action may be mortgaged,
settled in trust, or otherwise made the subject-matter of _jura in re
aliena_, no less than land and chattels. Much, therefore, of what is
to be said here touching the nature of the different forms of
encumbrance is equally applicable to the law of rights _in personam_.
Footnote 430:
Possession by way of _security_ only, _e.g._, a pledge, is
differentiated by its purpose, however, and falls within the class of
securities, not within that of leases.
Footnote 431:
_Beardman_ v. _Wilson_, L. R. 4 C. P. 57.
Footnote 432:
An example of a lease in perpetuity is the emphyteusis of Roman law.
In consequence of its perpetuity the Roman lawyers were divided in
opinion as to the true position of the tenant or _emphyteuta_, some
regarding him as an owner and others as an encumbrancer. The law was
finally settled in the latter sense. Just. Inst. III. 24. 3.
Footnote 433:
The term servitude (_servitus_) is derived from Roman law, and has
scarcely succeeded in obtaining recognition as a technical term of
English law. It is better, however, than the English _easement_,
inasmuch as easements are in the strict sense only one class of
servitudes as above defined.
Footnote 434:
It is only over land that servitudes can exist. Land is of such a
nature as to admit readily of non-possessory uses, whereas the use of
a chattel usually involves the possession of it for the time being,
however brief that time may be. The non-possessory use of chattels,
even when it exists, is not recognised by the law as an encumbrance of
the ownership, so as to run with it into the hands of assignees.
Footnote 435:
An easement, in the strictest sense, means a particular kind of
servitude, namely a private and appurtenant servitude which is not a
right to take any _profit_ from the servient land. A right of way or
of light or of support is an easement; but a right to pasture cattle
or to dig for minerals is in English law a distinct form of servitude
known as a profit. This distinction is unknown in other systems, and
it has no significance in juridical theory. Its practical importance
lies in the rule that an easement must (it seems) be appurtenant,
while a profit may be either appurtenant or in gross.
Footnote 436:
The term security is also used in a wider sense to include not only
securities over property, but also the contract of suretyship or
guarantee—a mode of ensuring the payment of a debt by the addition of
a second and accessory debtor, from whom payment may be obtained on
default of the principal debtor. With this form of security we are not
here concerned, since it pertains not to the law of property, but to
that of obligations.
Footnote 437:
The word lien has not succeeded in attaining any fixed application as
a technical term of English law. Its use is capricious and uncertain,
and we are at liberty, therefore, to appropriate it for the purpose
mentioned in the text, _i.e._, to include all forms of security except
mortgages.
Footnote 438:
As we shall see, a mortgage by way of transfer is none the less an
encumbrance also—an encumbrance, that is to say, of the beneficial
ownership which remains vested in the mortgagor.
Footnote 439:
It is not essential to a mortgage that the right vested in the
mortgagee should in actual fact survive the right secured by it, so as
to remain outstanding and redeemable. It is sufficient that in its
nature it should be capable of doing so, and therefore requires to be
artificially restricted by an obligation or condition of re-assignment
or surrender. This re-assignment or surrender may be effected by act
of the law, no less than by the act of the mortgagee. The conveyance
of the fee simple of land by way of security is necessarily a mortgage
and not a lien, whether it revests in the mortgagor _ipso jure_ on the
payment of the debt, or does not revest until the mortgagee has
executed a deed of reconveyance.
Footnote 440:
This is one of the reforms effected by the Torrens system of real
property law in force in the Australasian colonies. The so-called
mortgages of land under that system are in reality merely liens.
Footnote 441:
Applications of the rule of possessory ownership may be seen in the
cases of _Armory_ v. _Delamirie_, 1 Str. 504; 1 Smith, L. C. 343;
_Asher_ v. _Whitlock_, L. R. 1 Q. B. 1; and _Perry_ v. _Clissold_,
(1907) A. C. 73.
Footnote 442:
The term prescription (_praescriptio_) has its origin in Roman law. It
meant originally a particular part of the _formula_ or written
pleadings in a law suit—that portion, namely, which was written first
(_praescriptum_) by way of a preliminary objection on the part of the
defendant. _Praescriptio fori_, for example, meant a preliminary plea
to the jurisdiction of the court. So _praescriptio longi temporis_ was
a plea that the claim of the plaintiff was barred by lapse of time.
Hence, by way of abbreviation and metonymy (other forms of
prescription being forgotten) prescription in the modern sense.
Footnote 443:
It is clear, however, that until a debt or other obligation is
actually due and enforceable, no presumption against its validity can
arise through the lapse of time. Therefore prescription runs, not from
the day on which the obligation first arises, but from that on which
it first becomes enforceable. _Agere non valenti non currit
praescriptio._
Footnote 444:
C. 2. 3. 20.
Footnote 445:
Stat. 8 & 9 Vict. c. 106, s. 2.
Footnote 446:
_Cochrane_ v. _Moore_, 25 Q. B. D. 57.
Footnote 447:
D. 50. 17. 54.
Footnote 448:
The Factors Act, 1889.
Footnote 449:
Continental systems carry much further than our own the doctrine that
the possessor of a chattel may confer a good title to it. Article 2279
of the French Civil Code lays down the general principle that _En fait
de meubles la possession vaut titre_. In other words the ownership of
a chattel involves no _droit de suite_ or _jus sequelae_, no right of
following the thing into the hands of third persons who have obtained
it in good faith. The rule, however, is subject to important
exceptions, for it does not apply either to chattels stolen or to
chattels lost. Speaking generally, therefore, it is applicable only
where an owner has voluntarily entrusted the possession of the thing
to some one else, as a pledgee, borrower, depositee, or agent, who has
wrongfully disposed of it to some third person. Baudry-Lacantinerie,
De la Prescription, ch. 20. See also, for very similar law, the German
Civil Code, sects. 932–935, and the Italian Civil Code, sects.
707–708.
Footnote 450:
Hereditas ... personam ... defuncti sustinet. D. 41. 1. 34. See
Holmes, Common Law, pp. 341–353. Maine, Ancient Law, pp. 181–182.
Footnote 451:
_Brown_ v. _Burdett_, 21 Ch. D. 667.
Footnote 452:
Obligatio est juris vinculum, quo necessitate adstringimur alicuius
solvendae rei, secundum nostrae civitatis jura. Inst. 3. 13. pr.
Footnote 453:
Jacob’s Law Dictionary, cited by Mr. Sweet in L.Q.R. X. at p. 308 n.
Footnote 454:
As to the nature of choses in action, see Blackstone, II. 396;
_Colonial Bank_ v. _Whinney_, 30 Ch. D. 261 and 11 A. C. 426; and a
series of articles by different writers in the L.Q.R.: IX. 311, by Sir
Howard Elphinstone; X. 143. by T. C. Williams; X. 303. by C. Sweet;
XI. 64. by S. Brodhurst; XI. 223, by T. C. Williams; XI. 238. by C.
Sweet.
Footnote 455:
As we shall see, the creditor is not always entitled to _sue_ one
alone of the debtors; but when he has obtained judgment against all,
he can always, by way of execution, obtain payment of the whole from
any one.
Footnote 456:
_Ward_ v. _The National Bank_, 8 A. C. 755.
Footnote 457:
(1899) 1 Q. B. 840.
Footnote 458:
At p. 845.
Footnote 459:
For another illustration, see _Sadler_ v. _Great Western Ry. Coy._,
(1896) A. C. 450.
Footnote 460:
_Morris_ v. _Robinson_, 3 B. & C. 196; 27 R. R. 322.
Footnote 461:
Supra, § 123.
Footnote 462:
It is advisable to point out that the obligation to pay damages for a
breach of contract is itself to be classed as contractual, no less
than the original obligation to perform the contract.
Footnote 463:
A similar relation exists between breaches of contract and crimes.
Breach of contract is not in itself a crime, any more than it is in
itself a tort; yet by undertaking a contractual duty, a man may often
put himself in such a position, that he cannot break the duty without
causing such damage to third persons, as will create criminal
liability. For example, a signalman’s breach of his contractual duty
to attend to the signals may amount to the crime of manslaughter if a
fatal accident results from it.
Footnote 464:
Salmond’s _Law of Torts_, p. 5.
Footnote 465:
_Grant_ v. _Easton_, 13 Q. B. D. 302.
Footnote 466:
Commentaries II. 443.
Footnote 467:
Ibid. III. 159.
Footnote 468:
Ibid. III. 162.
Footnote 469:
Commentaries III. 160. “A cause of action of contract arises not
merely where one party has broken a legally binding agreement with the
other, but where two parties stand in such a mutual relation that a
sum of money is legally due from the one to the other, in which case
the law is said to imply a contract to pay the money.” Clerk and
Lindsell, Law of Torts, p. 1.
Footnote 470:
_Grant_ v. _Easton_, 13 Q.B.D. at p. 303.
Footnote 471:
_Moses_ v. _Macferlan_, 2 Burr. 1005 at p. 1009.
Footnote 472:
_Exall_ v. _Partridge_, 8 T. R. 308; 4 R. R. 656.
Footnote 473:
_Smith_ v. _Baker_, L.R. 8 C. P. 350. See further as to the waiver of
torts, _Lightly_ v. _Clouston_, 9 R.R. 713; 1 Taunt. 112; _Phillips_
v. _Homfray_, 24 Ch. D. at p. 461; Salmond, Law of Torts, § 44.
Footnote 474:
County Courts Act, 1888, s. 116. This classification of actions is
discussed by Maitland in an appendix to Sir F. Pollock’s Law of Torts.
Footnote 475:
Contracts which have no specific name are called by the civilians
_contractus innomnati_.
Footnote 476:
A conclusive presumption is sometimes called a _presumptio juris et de
jure_, while a rebuttable presumption is distinguished as a
_presumptio juris_. I am not aware of the origin or ground of this
nomenclature. The so-called _presumptio facti_ is not a legal
presumption at all, but a mere provisional inference drawn by the
court in the exercise of its unfettered judgment from the evidence
before it.
Footnote 477:
See Bentham, Works, VII. pp. 445–463, and Dumont, Treatise on Judicial
Evidence, Book VII. ch. 11: “If all the criminals of every class had
assembled, and framed a system after their own wishes, is not this
rule the very first which they would have established for their
security?... One could be tempted to believe that those notions had
been taken from the laws of honour which regulate private combats.”
Footnote 478:
Leviathan, ch. 14. Eng. Works III. p. 129.
Footnote 479:
On the history of oaths, see Lea, Superstition and Force, Part I. ch.
2–8; Encyclopædia Britannica, _sub voc._ Oath; Hirzel, Der Eid (1902).
As to their utility, see Bentham’s Works, VI. 308–325.
Footnote 480:
Vide supra, § 10.
Footnote 481:
Supra, § 5.
Footnote 482:
Thorpe, Ancient Laws and Institutes of England, i. 159; Laws of King
Edward, pr.
Footnote 483:
Ibid. i. 171; Laws of Edward and Guthrum, 6.
Footnote 484:
Ibid. i. 181; Oaths, 3.
Footnote 485:
See _e.g._ Mirror of Justices (Selden Society’s Publications, vol.
vii.), _passim_.
Footnote 486:
D. 1. 1. 11.
Footnote 487:
_Jus_ is also used in various other derivative senses of less
importance: _e.g._, a law court (_in jus vocare_), legal or rightful
power or authority (_sui juris esse_: _jus et imperium_), legal
decision, judgment (_jura dicere_). See Nettleship, Contributions to
Latin Lexicography, _sub voc. Jus_.
Footnote 488:
See Clark, Practical Jurisprudence, p. 18. We owe to Professor Clark a
very careful and scholarly investigation of the whole subject-matter
of this inquiry. See also Skeat’s Etymological English Dictionary, sub
voc. _just_; Manuel des Antiquités Romaines, vol. 6, part i. p. 352,
note 4: Miller’s Data of Jurisprudence, p. 33.
Footnote 489:
Nettleship, Contributions to Latin Lexicography, sub voc. _Mos._
Footnote 490:
Practical Jurisprudence, p. 51.
Footnote 491:
_Dike_ is said to be derived from DIK, to show, point out, make known,
this being itself a form of DA, to know; hence, practical knowledge,
skill, the _way a thing is done, custom_. This suggestion might be
considered ingenious, rather than convincing, were it not for the
singular fact that the Teutonic languages exhibit a precisely similar
process of thought. The English substantive _wise_ means way or
manner, and is yet the same word as _wise_, the adjective, and is
derived from the root WID, to know. See also with the German _Weise_
(way), _weisen_(to point out, direct), _weise_ (wise). See Curtius,
Grundzüge der Griechischen Etymologie, sub voc. _dike_. Skeat, sub
voc. Wise, and list of Aryan Roots, 145 and 372.
Footnote 492:
Skeat, Aryan Roots, 162.
Footnote 493:
On the whole matter see Maine, Ancient Law, ch. 1; Clark, Practical
Jurisprudence, p. 42; Liddell and Scott, sub voc. _themis_; Hirzel,
Themis Dike und Verwandtes (1907).
Footnote 494:
Manuel des Antiquités Romaines, vol. 6, part i. p. 351; Nettleship,
sub voc. _Lex._
Footnote 495:
Cited by Nettleship, sub voc. _Lex._
Footnote 496:
Just. Inst. i. 2. 4.
Footnote 497:
See Ducange, sub voc. _Lex._
Footnote 498:
See Ducange, sub voc. _Lex._
Footnote 499:
Ibid.
Footnote 500:
Ibid.
Footnote 501:
See Murray’s New English Dictionary, sub voc. _Doom_.
Footnote 502:
Thorpe, Ancient Laws and Institutes of England, vol. i. p. 55; Laws of
King Alfred, sect. 49.
Footnote 503:
Ibid. sect. 43.
Footnote 504:
Ibid. vol. i. p. 273; Laws of King Edgar, Supplement, sect. 2. In
Scottish legal procedure the word doom is still used in the sense of
judgment; the death sentence is “pronounced for doom”: Miller’s Data
of Jurisprudence, p. 292.
Footnote 505:
Manuel des Antiquités Romaines, vol. 6, pt. i., p. 351, n.
Footnote 506:
See Smith’s Latin Dictionary, sub voc. _lego_.
Footnote 507:
Nettleship, sub voc. _Lex._
Footnote 508:
Clark, p. 31.
Footnote 509:
Muirhead, Historical Introduction to the Private Law of Rome, p. 19.
Footnote 510:
Skeat, sub voc. Law; Clark, p. 68.
Footnote 511:
Much information as to the etymology and early meanings of legal terms
is to be found in Miller’s Data of Jurisprudence, _passim_. See also
Walker’s Science of International Law, pp. 21–25.
Footnote 512:
Supra, § 41.
Footnote 513:
As to the severance of legislative and executive sovereignty in the
British constitution, see Anson, Law and Custom of the Constitution,
Part I. pp. 39–41, 3rd ed.
Footnote 514:
As to the divisibility of sovereign power, see Bryce’s Studies in
History and Jurisprudence, II., p. 70: “Legal sovereignty is
divisible, _i.e._, different branches of it may be concurrently vested
in different persons or bodies, co-ordinate altogether, or co-ordinate
partially only, though acting in different spheres.” For a statement
of the contrary opinion see Brown, Austinian Theory of Law, p. 174.
Footnote 515:
Leviathan, ch. 20. Eng. Works, III. 194.
Footnote 516:
I. 263.
Footnote 517:
The distinction between _de jure_ or legal and _de facto_ or practical
sovereignty—sovereign power in law and sovereign power in fact—is
admirably expressed and analysed in Bryce’s Studies in History and
Jurisprudence II., pp. 49–73.
Footnote 518:
Fragment on Government, ch. 4. sects. 35, 36.
Footnote 519:
We have already seen that the state may and does owe legal duties to
its subjects, but that these duties are necessarily imperfect and
unenforceable. Supra, § 79.
Footnote 520:
For authorities, see § 57.
Footnote 521:
As to the possibility of legal limitations of sovereign power, see
Jellinek, Das Recht des modernen Staates, I. pp. 432–441; Pollock,
Jurisprudence, pp. 270–273; Sidgwick, Elements of Politics, pp. 23–29;
623–638; Bryce, Studies in History and Jurisprudence, II. 71. “Legal
sovereignty,” says Dr. Bryce, “may be limited, i.e. the law of any
given state may not have allotted to any one person or body, or to all
the persons or bodies taken together, who enjoys or enjoy supreme
legislative or executive power, the right to legislate or to issue
special orders on every subject whatever.” Brown, Austinian Theory of
Law, pp. 158–164. “The Austinian position,” says Professor Brown,
“that a supreme legislature is incapable of legal limitation, is a
position which does not rest, as Austin supposes, upon logical
necessities, but upon the humbler ground of expediency.”
Footnote 522:
No small part of this branch of the law of status, however, may be
conveniently dealt with in connexion with various departments of the
law of property and obligations. It may be best, for example, to
discuss the contractual capacity of different classes of persons in
the law of contracts, instead of in the law of the personal status of
these persons.
Footnote 523:
Blackstone, however, is sufficiently scrupulous in respect of logical
arrangement to include them in this department of the law.
------------------------------------------------------------------------
TRANSCRIBER’S NOTES
1. P. 468, changed “In all cases, therefore, sovereign power is
necessarily present somewhere, but it is not in a cases to be
found in its entirety within the borders of the state itself” to
“In all cases, therefore, sovereign power is necessarily present
somewhere, but it is not in all cases to be found in its entirety
within the borders of the state itself”.
2. P. 471, changed “In this view, law and legal obligation are
co-extensive, and the legal limitation of supreme power appears to
involve the subjection of the possessor of it to legal obligations
in respect to the exercise of .” to “In this view, law and legal
obligation are co-extensive, and the legal limitation of supreme
power appears to involve the subjection of the possessor of it to
legal obligations in respect to the exercise of it.”
3. Silently corrected obvious typographical errors and variations in
spelling.
4. Retained archaic, non-standard, and uncertain spellings as printed.
5. Enclosed italics font in _underscores_.
6. Enclosed bold font in =equals=.
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