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JURIS PRUDENCE
T. E. H. O I, I, ANZ)
3.0mb on
H E N R Y F. R O W D E
OXFORD UNIVERSITY PRESS WAREHOUSE
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THE
ELEMENTS
OF
J U R IS P R U D E N C E
BY
THOMAS ERSKINE HOLLAND, D.C.L.
*~
OF LINCOLN'S INN BARRISTER-AT-LAW
CEIICHELE PROFESSOR OF INTERNATIONAL LAW AND DIPLOMACY
AND FELLOW OF ALL SopDS COLLEGE, OXFORD
QB a fortſ
AT THE CLAREND ON PRESS
M IDCCC LXXX
[All rights reserted )

Amplissimum Iuris Oceanum ad paucos revocare fontes limpidos
rectae rationis.-LEIBNITZ Ep. ad Magl. xxvii.
P. R. E. F. A. C. E.
The legal systems of the continent owe to their
common derivation from the law of Rome, not only
a uniform legal nomenclature, but also a generally
accepted method which at Once assigns any newly de-
veloped principle to its proper place, and has greatly
facilitated the orderly exposition of those systems in
the form of codes.
In England, on the other hand, legal nomenclature
is a mosaic of many languages, and the law itself, as
expounded by Coke and Blackstone, except so far as
it has been deduced with much logical punctiliousness
from the theory of feudal tenure, is little more than
a collection of isolated rules, strung together, if at
all, only by some slender thread of analogy. The
practitioner has been content to find his way through
it, as best he might, by the help of the indices of text-
books, or of ‘Abridgments, or so-called ‘Digests,
arranged under alphabetical titles.
It was a step in advance when it occurred to Mr.
J. W. Smith to publish a series of ‘Leading Cases,’
a 2.
vi PREFACE.
selected almost at random, and to group round each
a collection of subordinate decisions, in which the
rule recognised in the principal case is deviously
tracked in its various applications. Of a somewhat
similar nature is Dr. Broom’s ‘Selection of Legal
Maxims, which explains the workings in different de-
partments of law of a string of principles, such as
those which are collected in the title of the Digest
‘ de Regulis Iuris.’ It may be remarked that the
principles to which reference is made, alike in the
“Leading Cases’ and in the ‘Maxims,’ are but what
Bacon would call ‘media axiomata, which neither work
attempts to exhibit in their mutual relations, or to de-
duce from the higher principles of which they are
corollaries; also that the search for these principles is
an enquiry into the ethical reasons by which English
law ought to be moulded, not an analysis and classifica-
tion of legal categories.
There have been of late years signs of a change
in the mental habit of English lawyers. Distaste for
comprehensive views, and indifference to foreign modes
of thought, can no longer be said to be national
characteristics. The change is due partly to a revival
of the study of Roman law, partly to a growing famili-
arity with continental life and literature, partly to such
investigations as those of Sir H. Maine into the origin of
legal ideas, but chiefly to the writings of Bentham and
Austin. To the latter especially most Englishmen are
indebted for such ideas as they possess of legal method.
The ‘Province of Jurisprudence Determined,’ is indeed
a book which no one can read without improvement.
It presents the spectacle of a powerful and conscien-
PREFACE. vii
tious mind struggling with an intractable and rarely
handled material, while those distinctions upon which
Austin after his somewhat superfluously careful manner
bestows most labour are put in so clear a light that
they can hardly again be lost sight of.
The defects of the work are even more widely
recognised than its merits. It is avowedly frag-
mentary. The writer is apt to recur with painful
iteration to certain topics; and he leaves large tracts
of his subject wholly unexplored, while devoting much
space to digressions upon questions, such as the psy-
chology of the will, codification, and utilitarianism,
which have no necessary connection with his main
argument. It may be asserted, without injustice either
to Bentham or Austin, that works upon legal system
by English writers have hitherto been singularly
unsystematic. -
It is long since the author formed the hope of
attempting to write a treatise upon legal ideas which
should at least be free from this particular fault, and
the objects which he proposed to himself differed so con-
siderably from those aimed at in Mr. Justice Markby's
‘Elements of Law’ that the appearance of that very
valuable work did not dissuade him from the prosecu-
tion of his design. In carrying it out he has not gained
so much assistance as he expected from the legal litera-
ture of the continent. He soon discovered not only that
the name of Austin was unknown in Germany, but that
very little had been written in that country with a
direct bearing upon analytical jurisprudence. The latter
fact is not so surprising as it may appear, if it be
remembered that the continental jurists find in Roman
viii PREFACE.
law a ready-made terminology and a typical method,
upon which they are little inclined to innovate. From
treatises upon “Naturrecht,’ which may be described as
‘Jurisprudence in the air,’ he has derived next to
nothing; and works upon ‘Encyclopädie’ and ‘Metho-
dologie,” are generally too brief, and too much infected
with a priori conceptions, to have been consulted with
much profit. More help has been found, where it might
not at first be looked for, in the numerous works,
usually entitled ‘Pandekten, in which the Germans
have set forth the Roman law as it has been modified
with a view to modern convenience. Foremost among
these must be mentioned von Savigny’s ‘System des
heutigen Römischen Rechts.”
Still less has been derived from the other modern
literatures; and after a general survey of the subject
the author set to work to think it out for himself,
resolving to traverse the whole of it, and to hold a
straight course through it, turning neither to the right
hand nor to the left into any digression however tempt-
ing. He now offers the result of his labours, which has
been much delayed by other and more pressing engage-
ments, to the indulgence of those who best know the
extent and difficulty of the topic of which he has
attempted to give a complete and consistent view.
T. E. H.
OxFORD,
March 20, 188o.
CON TENTS,
PART I.
T. A.W. A.INID RIG. H.T. S.
CHAPTER I. PAGE
JURISPRUDENCE . ë * & & {º e º I
CHAPTER II.
LAW . ſº ſº s & © & e ſº & I 2
CHAPTER III,
LAws As RULES OF HUMAN ACTION . & § ſº 2 I
CHAPTER IV.
PoSITIVE LAw . ſe e * . . & 6 35
CHAPTER W.
THE Sources of LAw & © tº * * * 43
- a 3
X CONTENTS.
CHAPTER VI.
THE OBJECT OF LAW
CHAPTER WII.
RIGHTS.
CHAPTER VIII.
ANALYSIS OF A RIGHT .
CHAPTER IX.
THE LEADING CLASSIFICATIONS OF RIGHTS
CHAPTER X.
RIGHTS AT REST AND IN MOTION
PART II.
IPIR IV A TIE T. A. W.
CHAPTER XI.
ANTECEDENT RIGHTS ‘IN REM
CHAPTER XII.
ANTEGEDENT RIGHTS ‘IN PERSONAM'
CHAPTER XIII.
REMEDIAL RIGHTS -
- CHAPTER XIV.
ABNoRMAL RIGHTS
CEIAPTER XV.
ADJECTIVE LAW
PAGE
52
55
62
76
95
Io?
I6 I
2 I 2
224
.238
CONTENTS.
PART III.
PTU BT, IC L.A.W.
CHAPTER XVI.
THE NATURE OF THE TOPIC .
CoNSTITUTIONAL LAW
ADMINISTRATIVE Law
CRIMINAL LAw
THE LAW OF THE STATE As A PERSON
PART IV.
INTERNATIONAL LAW.
CHAPTER XVII.
THE NATURE OF THE TOPIC
TNTERNATIONAL PERSONs
SUBSTANTIVE LAw
ADJECTIVE LAW, BELLIGERENCY
35 32 NEUTRALITY
PART W.
xi
PAGE
244
248
25 I
254
26o
263
266
268
272
274
TIHIE AIPIPI,IC A.TION OF I. A.W.
CHAPTER XVIII.
THE NATURE OF THE TOPIC .
THE APPLICATION OF PRIVATE LAW
5 y 25 PUBLIC TIAW
3 * 92 INTERNATIONAL LAW
277
278
289
295
ELEMENTS OF JURISPRUDENCE,
C. H. A. P.T. E. R. T.
JURISE’RUDENCE.
THE present treatise is an attempt to set forth and explain The need
those comparatively few and simple ideas which underlie the º
infinite variety of legal rules.
The search for these ideas is not merely a matter of
scientific curiosity. The ever-renewed complexity of human
relations calls for an increasing complexity of legal detail,
till a merely empirical knowledge of law becomes impossible.
The evil has been partially remedied by the formation of
Codes. Legislators, more or less imbued with legal prin-
ciples, have by their means grouped the legal chaos under
genera and species. An uncodified system of law can, how-
ever, be mastered only by the student whose scientific equip-
ment enables him to cut his own path through the tangled
growth of enactment and precedent, and so to codify for his
own purposes. In this, as in other departments of knowledge,
the difficulty of the subject is due less to the multiplicity
of its details than to the absence of general principles under
which those details may be grouped. In other words, while
legal science is capable of being intelligently learnt, isolated
legal facts are capable only of being committed to memory.
B
2 JURISPRUDENCE.
CHAP. I. For the beginnings of the science which reduces legal
** phenomena to order and coherence the world is indebted to
the Romans. It is also from their language that the science
derives its name.
‘Iurisprudentia,’ in its original use, was merely one among
several phrases signifying a knowledge of the law, just as
‘rei militaris prudentia” signified a knowledge of the conduct
of warfare". The sort of knowledge which the term denoted
may be gathered from Cicero's description of a jurisconsult
as one who must be ‘skilled in the laws, and in the usages
current among private citizens, and in giving opinions and
bringing actions and taking security ".”
From this thoroughly practical conception of legal know-
ledge the Roman jurists subsequently rose to a far higher
one. The rudiments of this may already be traced in the
writings of Cicero, who enumerates the civil law, along
with astronomy, geometry, and dialectic, among the arts
which have to do with the pursuit of truth *. He tells us
that the study of law must be derived from the depths of
philosophy, and that, by an examination of the human mind
and of human society, principles may be discovered in com-
parison with which the rules of positive law are of but trivial
importance *. -
Thus the way was prepared for Ulpian’s well-known
definition of Jurisprudence as ‘the knowledge of things
* “Babebat enim magnam prudentiam, tum iuris civilis tum rei militaris.’
Nep. Cim. 2. The following terms are used synonymously with ‘iuris pru-
dentia’: ‘legum prudentia, Cic. Rep. ii. 36; ‘legum scientia, Inst. Prooem. 3;
* legitima scientia,’ ib. 2 ; ‘iuris notitia, Tac. Orat. 31 ; “cognitio iuris, Cic. de
Orat. i. 44; ‘iuris scientia, ib. 55, Pompon. Dig. i. 2. 2.40; ‘civilis scientia.’
Cic. de Orat. i. 43 ; ‘iuris peritia,” Ulp. Dig. i. I. I. Knowledge of a particular
department of law is described by such phrases as ‘iuris civilis” (Cic, de Orat.
i. 44), “iuris publici' (ib. 60), ‘prudentia.”
* Cic. de Orat. i. 48. The same persons who were called ‘iurisconsulti’ or
‘iure periti” were also described as ‘prudentes in iure civili, Cic. Amic. 2;
more briefly as ‘prudentes,” Gai. i. 7. The phrase ‘iuris prudens’ is employed
by Pomponius (Dig. xxxviii. 15. 2). “Legum prudens’ occurs in Ennius (Gell.
xii. 4), and “imprudens iuris’ in Iust. Inst. iv. 2.
3 Cic. de Off. i. 6. * Id, de Leg. i. 5.
MEANING OF THE TERM. 3
*
human and divine, the science of the just and unjust *.” CHAP, I,
Jurisprudence was conceived of as a branch of philosophy;
and such an elevation of the idea of legal study was natur-
ally accompanied by a corresponding elevation of its profes-
sors. Ulpian claims for himself and his learned brethren
that they are ‘the priests of Justice, engaged in the pursuit
of a philosophy that is truly such and no counterfeit *.”
The Romans had, in fact, attained by this time to the
idea of a science of those legal principles which exist inde-
pendently of the institutions of any particular country. No
technical term could be borrowed from the Greek language
to denote what was of purely indigenous growth *, and thus
it happened that a phrase which at first had been but one
among several signifying, in a homely and quite unscientific
sense, a ‘knowledge of law,’ came at length by an accident
of Latin philology to express the new idea of a legal science.
The nations of modern Europe are fortunately in the
habit of calling the various branches of knowledge by non-
vernacular names, adopted by common consent from the
classical languages; so that a science is generally known by
the same Greek or Latin term wherever Western civilisa-
tion extends. It is therefore natural and convenient that
most of the European nations should express the idea of a
science of law by a word which they have borrowed from
the language of the people by whom the idea was first
conceived 4.
* Dig. i. I. Io. This is a mere translation of the Stoic definition of oroqta
as being 6etov re kal &vépartvav čtvo Tápam (Plut. Plac. Phil. i. pr. ; cf. Cic.
de Off. i. 43), modified by the addition of a clause specifying the particular
kind of wisdom intended. The first clause of Ulpian's definition has been,
with little reason, thought by some to have reference to the distinction be-
tween ius sacrum and the other branches of law; see Glück, Pandekten, i. p.
I98.
* Dig. i. I. I. I. --
* Iurisprudentia is represented in the Basilika, ii. I. I, and in Harmen-
opulus, Prompt. i. 1. 18, by goſpía vópov. --
* Even the Germans, who have vernacular names for so many of the sciences,
recognise “Jurisprudenz’ as well as ‘Rechtswissenschaft.”
IB 2.
4 JURISPRUDENCE.
But the term is unfortunately also borrowed by the
modern languages to express other ideas, which might be
much better expressed in the vernacular. Thus, upon the
analogy of certain loose expressions of the Roman writers,
who sometimes use ‘iurisprudentia” to denote a current view
of the law", there has sprung up in French the use of
such phrases as ‘jurisprudence constante,’ ‘jurisprudence des
arrêts de la Cour de Cassation’; in the sense of the view
which the courts are in the habit of taking of certain
questions”.
Still less justifiable is the use, so frequent both in French
and in English, of “Jurisprudence' as the equivalent of
‘Law.” The imposing quadrisyllable is constantly introduced
into a phrase, solely on grounds of euphony. Thus we have
books upon ‘Equity Jurisprudence,” which are nothing more
nor less than treatises upon the law administered by Courts
of Equity; and we hear of the Jurisprudence of France or
Russia, when nothing else is meant than the law which is in
force in those countries respectively. This sacrifice of sense
to sound might more readily be pardoned, had it not misled
serious and accurate thinkers. -
Bentham, for instance, divides Jurisprudence into ‘exposi-
tory,’ which ascertains what the law is, and ‘censorial,’
which ascertains what it ought to be *. Now an exposition
of existing law is obviously quite another thing from a
science of law, and criticisms upon the law with a view to
its amendment are the subject, not of Jurisprudence, but, as
Bentham himself states in the next paragraph, of the art of
Legislation. Bentham carries the confusion further by pro-
ceeding to sub-divide expository Jurisprudence into ‘authori-
tative’ and unauthoritative *.’ By ‘authoritative expository
jurisprudence’ he means nothing more nor less than law
emanating from the legislative power; under unauthori-
* “Media iurisprudentia, Iust. Inst. iii. 2. 3.
* “La manière dont un Tribunal juge habituellement telle ou telle ques-
CHAP. I.
Improper
uses of the
term.
tion.” Dict. de l'Académie.
* Works, i. p. 148. 4 Ibid.
A SCIENCE. 5
tative he would apparently include both text-books upon CHAP. I.
the laws of any one country, or, as he would say, upon
‘local jurisprudence,’ and works upon law without special
reference to any one country, or, to use his own phrase, upon
“universal jurisprudence.” If we are right in considering It is the
that “censorial jurisprudence' should be called ‘the art of tº.
legislation,” that ‘authoritative jurisprudence’ is nothing
more nor less than a body of law, and that “unauthoritative
local jurisprudence is mere commentary; it is obvious that
what Bentham makes the sub-department of “unauthori-
tative universal jurisprudence' is alone entitled to bear the
name of the science; and should bear the name simply,
without the addition of epithets intended to distinguish it
from departments of the subject which are non-existent.
‘Jurisprudence ought therefore to be used, and used with-
out any qualifying epithet, as the name of a science.
We have next to enquire what kind of a science it is; and This .
we shall find that it is a formal, as opposed to a material j sº
one; that is to say, that it deals rather with the various
relations which are regulated by legal rules than with
the rules themselves which regulate those relations.
This was not indeed the whole scope of the science as
conceived of by its founders". There floated also always
before the eyes of the later Roman jurists a vision of a ‘ius
naturale;’ a universal code, from which all particular systems
are derived, or to which they all tend, at least, to approxi-
mate: a set of rules, the matter, or contents, of which is of
universal application.
But in point of fact, and in the very pursuit of this
material unity, they were led to elaborate a system of
formal unity; to catalogue the topics with which every
system of law has to deal, however each may differ from the
rest in its mode of dealing with them. They performed for
* Although we find in Cicero the clearest possible description of an analytical
Science of law; De Orat. i. 42.
6 - - JURISPRUDENCE.
oHAP. I. Law a service similar to that which was rendered to Language
by the Greeks of Alexandria, when by observing and tabu-
lating the parts of speech, the inflections, moods and syntax,
they invented a grammar, under the formulae of which all
the phenomena of any language find appropriate places".
Whether the possessive case of a noun substantive is expressed
by a specific modification of its termination, or by prefixing
to it a specific preposition, is a question of the matter of
language; but that the possessive idea, however variously
expressed, yet finds some expression or other in every family
of human speech, is a proposition which relates to linguistic
form. i
The assertion that Jurisprudence is a formal science may
perhaps be made clearer by an example. If any indi-
vidual should accumulate a knowledge of every European
system of law, holding each apart from the rest in the
chambers of his mind, his achievement would be best de-
scribed as an accurate acquaintance with the legal systems
of Europe. If each of these systems were entirely unlike
the rest, except when laws had been, in the course of
history, transferred from one to the other, such a dis-
tinguished jurist could do no more than endeavour to hold
fast, and to avoid confusing, the heterogeneous information
of which he had become possessed. Suppose however, as is
the case, that the laws of every country contain a common
element; that they have been constructed in order to effect
similar objects, and involve the assumption of similar moral
phenomena as everywhere existing; then such a person might
proceed to frame out of his accumulated materials a scheme
of the purposes, methods, and ideas common to every system
of law. Such a scheme would be a formal science of law,
presenting many analogies to Grammar; the science of those
ideas of relation which, in greater or less perfection, and often
in the most dissimilar ways, are expressed in all the languages
of mankind.
* Cf. Max Müller, Science of Language, edit. 3, p. 9o.
A FORMAL SCIENCE. 7
To each of these formal sciences there ministers a CHAP. I.
Science which supplies it with materials. Just as simi-
larities and differences in the growth of different languages
are collected and arranged by Comparative Philology, and
the facts thus collected are the foundation of abstract
Grammar; so Comparative Law collects and tabulates the
legal institutions of various countries, and from the re-
sults thus prepared, the abstract science of Jurisprudence is
enabled to set forth an orderly view of the ideas and methods
which have been variously realised in actual systems. It is,
for instance, the office of Comparative Law to ascertain what
have been at different times and places the periods of pre-
scription, or the requisites of a good marriage. It is for
Jurisprudence to elucidate the meaning of prescription, in
its relation to ownership and to actions; or to explain the
legal aspect of marriage, and its connection with property
and the family. We are not indeed to suppose that Juris-
prudence is impossible unless it is preceded by Compara-
tive Law. A system of Jurisprudence might conceivably
be constructed from the observation of one system of law
only, at one epoch of its growth. Such, however, has not
been in point of fact the mode of its evolution, which must
have been extremely tardy but for the possibility of sepa-
rating the essential elements of the science from its historical
accidents, by comparing together laws enforced in the same
country at different epochs, and indigenous laws with the
differing, though resembling, laws of foreigners.
Jurisprudence is therefore not the material science of those
portions of the law which various nations have in common ",
but the formal science of those relations of mankind which
are generally recognised as having legal consequences.
In the next place, it must be sufficient at present merely It is a f
to state, without further explanation, that Jurisprudence is ...”
law,
* A subject which, under, the description of the ‘ius gentium, largely occu-
pied the attention of the Roman jurists.
8 JURISPRUDENCE.
CHAP. I.
and is
therefore
progres-
sive.
Is it divis-
ible into
“general’
and ‘par-
ticular " :
not a science of legal relations & priori, as they might have
been, or should have been, but is abstracted & posteriori
from such relations as have been clothed with a legal
character in actual systems, that is to say from law which
has actually been imposed, or positive law. It follows that
Jurisprudence is a progressive science. Its generalisations
must keep pace with the movement of systems of actual
law. Its broader distinctions, corresponding to deep-seated
human characteristics, will no doubt be permanent, but, as
time goes on, new distinctions must be constantly developed,
with a view to the co-ordination of the ever-increasing variety
of legal phenomena.
We have lastly to consider whether the science is rightly
divided into several species, and especially to enquire into the
justness of the distinction drawn between ‘general’ and
‘particular Jurisprudence. ‘Particular Jurisprudence,’ says
Austin, ‘is the science of any actual system of law or of
any portion of it. The only practical Jurisprudence is par-
ticular. . . The proper subject of general, or universal,
Jurisprudence is a description of such subjects and ends of
law as are common to all systems, and of those resemblances
between different systems which are bottomed in the common
nature of man, or correspond to the resembling points in these
several portions".’
Now ‘particular' Jurisprudence may mean either of two
things.
It may mean: a science derived from an observation of
the laws of one country only. If so, the particularity
attaches, not to the science itself, which is the same science
whencesoever derived, but to the source whence the materials
for it are gained. A science of Law might undoubtedly be con-
structed from a knowledge of the law of England alone, as
a science of Geology might be, and in great part was, con-
structed from an observation of the strata in England only:
* Lect. On Jurisprudence, iii. p. 356. Cf. Bentham, works, i. p. 149.
NOT DIVISIBLE. , 9
yet as there is no particular science of Geology, so neither CHAP. I.
is there a particular science of Law. For a science is a
system of generalisations which, though they may be derived
from observations extending over a limited area, will never-
theless hold good everywhere; assuming the object-matter of
the science to possess everywhere the same characteristics.
Principles of Geology elaborated from the observation of
England alone hold good all over the globe, in so far as
the same substances and forces are everywhere present; and
the principles of Jurisprudence, if arrived at entirely from
English data, would be true if applied to the particular laws
of any other community of human beings; assuming them
to resemble in essentials the human beings who inhabit
England. The wider the field of observation, the greater,
of course, will be the chance of the principles of a science
being rightly and completely enunciated; but, so far as they
are scientific truths at all, they are always general and of
universal application. The phrase may however, and pro-
bably does, mean: an acquaintance with the laws of a
particular people; and the impropriety of describing such
merely empirical and practical knowledge by a term which
should be used only as the name of a science has been already
pointed out. In either sense therefore the term is a mis-
nomer; and it follows that, the existence of a ‘particular
Jurisprudence not being admitted, the employment of the
opposed term “general Jurisprudence’ becomes unnecessary.
Both expressions should be discarded, and the science should
be treated as incapable of being divided into these two
branches.
A distinction has also been suggested between ‘historical' or into .
and ‘philosophical’ Jurisprudence. It is said that the unity º:
which makes Jurisprudence a science exists only in idea; that * *
while it has a side upon which it is closely allied to Ethics
and to Metaphysics, it is, on the other hand, no less in-
timately connected with Archaeology and History; that its
phenomena grow from many independent roots, and are
10 JURISPRUDENCE.
Char. I. formed and coloured according to the character of the various
soils from which they have sprung. But to say this is only
to say that the facts from which Jurisprudence generalises
are furnished by History, the record of human actions.
Identical human needs have been satisfied by various means,
and all the means of satisfying each of these needs have not
been in simultaneous use in every part of the world and in
every age. In the satisfaction of their needs mankind have
rarely seen clearly the ends at which they were aiming, and
have therefore in reaching after those ends invented a vast
variety of perverse complications. The unity, in short, which
/it is the business of Jurisprudence to exhibit as underlying all
the phenomena which it investigates, is the late discovery of .
an advanced civilisation, and was unperceived during much of
\the time while those phenomena were accumulating. The
facts can only be presented by History, and History may be
studied with the sole view of discovering this class of facts.
But this is not the task of Jurisprudence, which only begins
when these facts begin to fall into an order other than the
historical, and arrange themselves in groups which have no
relation to the varieties of the human race. The province
of Jurisprudence is to observe the wants for the supply of
which laws have been invented, and the manner in which
those wants have been satisfied. It then digests those actual
wants and the modes in which they have actually been satis-
fied, irrespectively of their historical or geographical distri-
bution, according to logical principles of division derived
from other sciences of human action. One work on Juris-
prudence may contain more of historical disquisition, while in
another philosophical argument may predominate; but such
differences are incidental to the mode of treatment, and
afford no ground for a division of the science itself.
But though the science is one, it has as many heads or
departments as there are departments of law. It is therefore
correct to talk of ‘criminal’ and ‘civil,' ‘public’ and ‘private’
Jurisprudence.
IDEFINITION OF THE TERM. 11
To sum up. The term Jurisprudence is wrongly applied to CHAP. I.
actual systems of law, or to current views of law, or to *
suggestions for its amendment, but is the name of a defined.
science. This science is a formal rather than a material One.
It is the science of actual, or positive, law. It is wrongly
divided into ‘general’ and ‘particular,’ or into ‘philosophical”
and ‘historical.’ It may therefore be defined provisionally as
‘the formal science of positive law.” The full import of this
definition will not be apparent till the completion of an
analysis of the all-important term ‘Law.”
Meaning of
the term
Law.
CHAPTER II.
T.A.W.
‘LAw, or the Law,’ says Bentham, “taken indefinitely, is an
abstract or collective term, which, when it means anything,
can mean neither more nor less than the sum total of a
number of individual laws taken together".' .
This simple statement is in striking contrast with a multi-
tude of assertions upon the subject; which however are less
frequently made with reference to the English term Law than
Ambiguity to its equivalents in other languages. The terms Tus, Recht,
of Ius,
Recht,
Droit.
Droit, cannot, in fact, be said to express nothing more than
‘the sum total of a number of individual laws taken together.’
It so happens that all these terms denote not only the sum
total of Laws, but also the sum total of Rights (Tura,
Rechte, Droits), and the sum total of all that is just
(iustum, recht, droit). When therefore we say that Juris-
prudence is the science of Ius, Recht or Droit, we may mean
in each case that it is the science of any one of three things,
VIZ.
(1) of Law,
(2) of Rights,
(3) of Justice;
and, unless this ambiguity is borne in mind, many expressions
* Works, i. p. 148. Cf., among the meanings of ‘Ius’ enumerated by Puffen-
dorf, i. i. § 20, ‘complexus Seu systema legum homogenearum.”
A LAW. 13
having apparent reference to law will be quite unintelligible. CHAP. II.
A coherent science cannot however be constructed upon an
idea which has complex or shifting meanings. One or
other meaning must be chosen, and when chosen must be made
the sole foundation of the edifice. It is therefore a piece
of good fortune that when we say in English that Jurispru-
dence is the science of law, we are spared the ambiguities
which beset the expression of that proposition in Latin,
German, and French, and have greatly obscured its expo-
sition in those languages.
But if the English abstract term ‘Law is free from any Meaning of
suggestion of the aggregate of Rights, or of the aggregate *
of just things, it is of course suggestive of all the meanings
in which the concrete term ‘a law' is employed in our
language; and these have unfortunately been so numerous
as to involve the abstract idea in considerable obscurity.
Hence it is that so many of the definitions which have
been given of that mysterious non-entity strike us as being
vague or merely eulogistic. Many of them have reference
to that divine order which pervades the inanimate universe
even more than the actions of rational beings; and those
of them which have reference to human action deal quite
as often with the voluntarily observed maxims of society
as with rules which are supported by the authority of the
State.
Heterogeneous however as the senses of the term ‘a law'
may at first sight appear, the connection between them is
not hard to trace; nor is the earliest use widely different
from the latest and most accurate.
The shepherd who guides his flock, or, on a larger scale, Its earliest
the head of a family who regulates its encampments and “
employments, seems to have been the earliest ‘lawgiver,’
and his directions, as orders given by one who has power
to enforce their observance, are the earliest ‘laws".’ The
1 So Homer says of the Cyclopes, Oepuoteſel 6° àicaotos traſbov jö' àAóxov,
Odyss. ix. 114; and Plato, Otrol āpa Tův taxatów Śplato vopofféral yeyóvagi,
14 LAW.
original, and still the popular, conception of ‘a law,” ---
a command prescribing a course of action, disobedience to
Which will be punished. In this conception there is of
course implied that of a lawgiver, who has power to enforce
his commands. From this vague original use of the term
has arisen that large development of uses, some proper, some
merely metaphorical, out of which the jurist has to select
that which he admits into his science.
The strongest intellectual tendency of mankind is the
anthropomorphic. If man is a mystery to himself, external
nature is a still greater mystery to him, and he explains
the more by the less obscure. As he governs his flock
and his family, so he supposes that unseen beings govern
the waters and the winds. The greater the regularity
which he observes in nature, the fewer such beings does
he suppose to be at work in her; till at last he rises to
the conception of one great being whose laws are obeyed
by the whole universe; or it may be, that, having thus
arrived at the notion of a universe moving according to
fixed laws, he holds fast to it, even while he loses his hold
on the idea of the existence of a supreme lawgiver.
Men have also almost always believed themselves to be
acquainted with certain rules intended for the guidance of
their actions, and either directly revealed to them by a
superhuman power, or gathered by themselves from such
indications of the will of that power as are accessible. They
have supposed that they have discovered by self-analysis
a master part of themselves, to the dictates of which they
owe allegiance. They have observed that, in order that

CHAP. II.
Derivative
liSCS.
vopleſs re kai troupéves àvöpóv, Minos, p. 320 B. It may be worth while to
notice that vöpios does not occur in Homer. Hesiod uses it twice, both times
in the singular number; Op. et Dies, 276, 388. The Homeric word most
nearly expressive of laws is 6épuares, which however really signifies rather
decrees made for special cases. Grote, Hist. ii. p. III ; Maine, Ancient
Law, ch. i. It is surely reversing the order of ideas to suppose that the use
of vöpios in the sense of “a chant’ is the original one, as does, e.g., Fustel de
Coulanges, La Cité Antique, p. 227.
DIVISION OF THE SCIENCES. 15
their senses may receive certain impressions from external CHAP. II.
objects, those objects must be arranged in certain ways, and
no other.
It is easy enough, upon consideration of these facts, to
account for the existence of such phrases as laws of Nature,
laws of God, laws of Morality, laws of Beauty, and others
which will at once suggest themselves.
The employment of the same name to denote things so The .
different may appear to us to imply an extraordinary con-º.tion
fusion of the topics appropriate to Theology, to Physics, to *
Ethics, to Æsthetics, and to Jurisprudence; but the wonder
will be less if we remember that the separation of the sciences
to which we are accustomed, and which we take for granted,
was unknown to remote antiquity. The world with all its
varied phenomena was originally studied as a whole. The
facts of nature and the doings of man were alike conceived
of as ordained by the gods. The constitutions of states and
the customs and laws of all the peoples of the earth were
as much of divine contrivance as the paths of the planets.
The great problem thus presented for the study of man-
kind was gradually broken up into a number of minor
problems. There occurred a division of the sciences. A
line was drawn between those which deal with external
nature, including. Theology and Metaphysics, and those
which deal with the actions of men. These latter, the
practical, were thus severed from the theoretical sciences”;
and the term law, which had been used ambiguously in the
discussion of both sets of topics before their severance, has
henceforth two distinct histories. In the theoretical sciences,
it is used as the abstract idea of the observed relations of
phenomena, be those relations instances of causation or of mere
succession and co-existence. In the practical sciences the term
is used to express the abstract idea of the rules which regulate
human action.
* They are thenceforth connected only by means of religion, and by specula-
tions concerning the faculties of the human mind.
16 LAW,
CHAP. II.
TJse of the
term in the
physical
Sciences;
in the
practical
sciences.
In the theoretical, or as we should rather say in modern
phrase, in the physical sciences, Law is used to denote the
method of the phenomena of the universe; a use which
would imply, in accordance with the primitive meaning of
the term, that this method is imposed upon the phenomena
either by the will of God, or by an abstraction called
Nature.
This use of the term may certainly lead to misconceptions.
It has long ago been agreed that all we can know of natural
phenomena is that they co-exist with, or succeed, one another,
in a certain order, but whether this order be imposed im-
mediately by a divine will, or mediately through an abstraction
called Nature, or through minor abstractions called Gravitation,
Electricity, and the like, the phenomena themselves are unable
to inform us. It is therefore necessary to realise that when
we talk of the laws of Gravity or of Refraction, we mean
merely that objects do gravitate and that rays are refracted.
We are using the term law merely to convey to our minds the
idea of order and method, and we must beware of importing
into this idea any of the associations called up by the term
when it is employed in the practical sciences.
Its use in these sciences is, speaking very generally, to
express a rule of human action; and the sciences of human
action being those in which the term is most used, and indeed
is most needed, it is reasonable to say that this is its proper
meaning, and that its use in the theoretical sciences is
improper, or metaphorical merely.
But just as its metaphorical use, as meaning ‘order,’ is
sometimes obscured by associations derived from its proper
use as signifying ‘a rule,” so is its proper use as ‘a rule'
occasionally confused by an imagined parity between a rule
and the invariable order of nature.
The first step therefore towards clearing the term Law of
ambiguity for the purposes of Jurisprudence, is to discard the
meaning in which it is employed in the physical sciences,
where it is used, by a mere metaphor, to express the method
ITS TWO MEANINGS. 17
or order of phenomena; and to adopt as its proper meaning chAP, II.
that which it bears in the practical sciences, where it is
employed as the abstract of rules of human action.
The opposition between these two meanings will be best seen The two
by grouping together, under the heads of Order and Rule meanings.
respectively, a few characteristic specimens of the vague em-
ployment of the term Law.
I. Law as the order of the Universe.
Nóuos, 6 Távrov 6agu)\ets
G)watów Te kai &0avátov.–Pindar". -
‘O vöpſos Ó kolvös, Öo Tep &otiv Ó Öp60s A&yos 6ta Távrov Order.
épxówevos, 6 airós &v Tó Ati kaðnyepºv. Totſtºp tis Tów ŚAov
ôtoukſjøeos évrt.-Chrysippus *.
Lex vera atque princeps, apta ad iubendum et ad vetandum
ratio est recta summi Iovis.-Cicero *.
Lex aeterna nihil aliud est quam summa ratio divinae
sapientiae, secundum quod est directiva omnium actuum et
motionum.—S. Thomas *.
Of Law there can be no lesse acknowledged, than that her
seate is the bosome of God, her voyce the harmony of the
world, all things in Heaven and Earth doe her homage, the
very least as feeling her care, and the greatest as not exempted
from her power; both angels and men and creatures of what
condition soever, though each in different sort and manner,
yet all with uniforme consent, admiring her as the mother of
their peace and joy.—Hooker*.
II. Law as a rule of Acţion.
Lex est recta ratio imperandi atque prohibendi.-Cicero". Rule,
Lex nihil aliud nisi recta et a numine deorum tracta ratio,
iubens honesta prohibens contraria.-Cicero".
Ius estars boni et aequi.-Celsus *.
* Apud Plat. Gorg, 484 B. * Apud D. Laert. vii. 88.
* De Leg. ii. 4. * I. 2. qu. 93. art, 1. * Eccl. Pol. i. c. 18.
* De Leg, i. 15. 7 Phil. xi. I 2. - * Dig. i. I. I.
C
18 LAW.
CHAP. II.
Diversity
of rules
called
laws.
That which reason in such sort defines to be good that it
must be done.—Hooker*.
Der Inbegriff der Bedingungen unter denen die Willkühr
des Einen mit der Willkühr des Anderen nach einem allge-
meinen Gesetze der Freiheit vereinigt werden kann.—Kant”.
Der abstracte Ausdruck des allgemeinen, an und für sich
seienden Willens.—Hegel 8.
Das organische Ganze der aiiseren Bedingungen des ver-
nunſtgemässen Lebens.—Krause *.
Die Regel wodurch die unsichtbare Grenze bestimmt wird
innerhalb welcher das Daseyn und die Wirksamkeit jedes
Einzelnen einen sichern freien Raum gewinnt.—Savigny ".
The term Law is employed in Jurisprudence not in the
sense of the abstract idea of order, but in that of the abstract
idea of rules of conduct. But of these rules only a particular
class are ‘laws’ in the strict sense of the term ; so that
although the jurist is in no danger of getting entangled in
questions of physical science, he is obliged to busy himself in
marking the boundary which separates his own department of
study from the wider field of morality. His task is so to
narrow and deepen the popular conception of ‘a law, in the
sense of a rule of action, as to fit it for his own purposes. This
task will be undertaken in the next chapter; before entering
upon which it may perhaps be as well to point out how various
in character are those precepts for the guidance of the life and
conduct of men to which the term law is with more or less
propriety applied.
While some of these precepts are received wherever human
beings are gathered together, others are limited to the
followers of a particular religion, or to the inhabitants of a
* Eccl. Pol. i. c. 8.
* Rechtslehre, Werke, ix. p. 33.
* Propädeutik, Cursus i. § 26.
* Abriss des Systems der Philosophie des Rechtes, p. 209.
* System, i. p. 332. -
AS A RULE OF ACTION. 19
definite portion of the earth’s surface. While some of them chap. II.
deal with the fundamental institutions of society, others are
occupied with the pettiest details of ceremonial or deportment.
Some are enforced by the whole power of great empires,
whilst others may be violated by any one who is not afraid to
encounter the banter of his acquaintance. They possess,
however, certain characteristics in common, which must be
briefly enumerated.
They all either are, or may be, expressed as distinct Character-
propositions. They are, further, propositions addressed to the .
will of a rational being. of them.
Of the two kinds of propositions which may be so addressed,
they are commands; that is to say, precepts in which the
cause of obedience depends on the will of him who commands;
not counsels, which are precepts in which the reason of
obedience is taken from the thing itself which is advised".
Being commands, they are accompanied by a sanction; that
is to say, they imply, if they do not express, an intimation
that their author will see to their being obeyed”.
Lastly, they are general commands. They relate to courses
of conduct, as opposed to special commands, which enjoin only
a particular action”.
Laws, therefore, in the vague sense of rules of human
action, are propositions commanding the doing, or abstaining
from, certain classes of actions; disobedience to which is
followed, or is likely to be followed, by some sort of penalty
or inconvenience.
* Hobbes, Works, ii. p. 183. On ‘Imperium' and “Consilium, cf. Thoma-
sius, Fundamenta I. Naturae et G. I.705, p. 133.
* Not necessarily by a threat of punishment, as such, but also by a promise
of interference to prevent disobedience, or to reinstate things in the position in
which they were before the act of disobedience.
* Austin, i. p. 11. On the other hand, Blackstone, i. p. 44, makes the gene-
rality of a law depend on its being addressed to a class of persons. So Cicero,
de Leg. iii. Ig, “legis haec vis est Scitum et iussum in omnes; ' and A. Gellius,
x. 20, takes Capito’s definition of lex as ‘generale iussum' to imply that it
must be ‘de universis civibus. Cf. Dig. i. 3. I and 8, and Bentham, Nomo-
graphy, c. I, Works, iii. p. 233.
C 2.
20 LAW.
oHAP. II. There are many propositions of this kind which no one is
likely seriously to mistake for laws. It is generally under-
stood that such phrases as the laws of honour, or of etiquette,
are employed, by way of analogy merely, to indicate rules
which, either by their trifling importance, or from the
limited circle in which they are recognised, differ widely from
precepts which are of such vital moment, either on account of
the penalties attached to their violation, or of the general
acceptance which they find, as to be more ordinarily talked of
as ‘laws.’
Uses most The rules of human action which are most often confused
...” with laws proper, are those which are called laws of God,
*. laws of nature, and laws of morality. So closely indeed are
these topics connected with those proper to Jurisprudence,
that many of the older works on the subject are occupied as
much with the law of God, or of nature, as with laws proper.
Sir Walter Raleigh, for instance, begins a dissertation upon
Law, by stating that laws are of three kinds—the eternal or
uncreated; the natural or internal; and those which are im-
posed, or of addition. These last, which are explicatory and
perfecting to the law of nature, are either divine or human ;
both of which kinds are again variously subdivided".
It will therefore be necessary to touch briefly on those
classes of so-called laws which are occasionally confused with
laws properly so called.
* Works, iii. p. IoI. Cf. Hooker, Eccl. Pol. i. c. 15; Locke, Hum. Underst. ii.
§ 6; Hobbes, Works, ii. p. 186.
CHAPTER III.
LAWS AS RULES OF HUMAN ACTION.
THE use of the term Law in any but the sciences called . of #:
practical or moral, that is to say which have to do with the pººl €
human will, is thus merely metaphorical, and irrelevant to sciences.
our enquiry". Our only real difficulty is to draw a sharp
line between the meaning in which the term is used in Juris-
prudence and that in which it is used in the other practical
sciences. The task is the more difficult that the line has not
at all times been so sharply drawn as it is now possible and
desirable to draw it *.
The common characteristics of the moral sciences, covering
as they do collectively the phenomena of human action,
using that term in the widest sense, as including all volitions,
whether accompanied or not by external movement, may be
summed up as follows: They postulate a will; free at any
rate so far as to be influenced by motives presented to it.
* The reader need hardly be reminded that by a ‘practical science’ is not
meant a body of rules for the government of practice (which would be an art),
but the study of the principles upon which, as a matter of fact, human action
is governed. r
* The expression in Greek writers coming nearest to what we mean by
Jurisprudence is probably ‘Politics.” g
22 LAWS AS RULES OF HUMAN ACTION.
CHAP. III, They postulate the determination of that will by other causes
than the mere sensations of the moment, and, more specifi-
cally, by respect for rules of life and conduct. They have
many fundamental ideas in common, such as freedom, act,
obligation, sanction, command; ideas which they are not
bound to analyse exhaustively, but employ in accordance with
the usage of ordinary language, and in senses which might
be accepted by widely opposed schools of speculation. Each
science must define and classify such ideas so far as is
necessary for its own purposes, leaving their full and final
investigation to Psychology or Metaphysics. Unless the
sciences so far respect each other's boundaries, a treatise
upon any one of them must be preceded by a sketch of all
the rest; and thus it has ha º ed that systems of Juris-
prudence have been encumbered with digressions and pole-
mics upon questions lying wholly outside of its appropriate
province. &
Division The resemblances and differences in the employment of
of the º º º
practical the term ‘a law' in the several practical sciences must be
* explained by the resemblances and differences between the
sciences themselves. The grand division of these sciences is
between that which deals with states of will, irrespectively
of their outward manifestation in act, and those which deal
with states of the will only so far as they are manifested in
action". The former regards, while the latter disregard, those
internal acts of the will which do not result in outward acts
of the body.
The former kind of science is “Ethic.” The latter kinds
possess no received collective name, and can therefore be only
provisionally designated ‘Nomology.’
The essential difference between them is that Ethic deals
not only with the outward results of the determination of that
faculty of respect for a rule which is the basis of all the moral
sciences, but also, and rather, with the balance of inward
forces by which those results are produced. It looks not
* Including therein willed inaction.
ETHIC AND NOMOLOGY. 23
only to the sort of acts which men do, but also to the sort of CHAP. III.
men who do them". Nomology, on the other hand, deals
entirely with the conformity or non-conformity of outward acts
to rules of conduct.
Ethic is the science of the conformity of human character
to a type. Nomology, of the conformity of actions to rules.
Ethic is the science mainly of duties; while Nomology
looks rather to the definition and preservation of rights.
The terms right and duty are of course correlatives, and are
common to both Ethic and Nomology; but the former science,
in accordance with its more inward nature, looks rather to
the duties which are binding on the conscience; the latter
looks to the rights which are the elements of social life.
Ethic has been well described by Kant as concerned with the Ethic.
laws for which external legislation is impossible”. It is the
science of those rules which when known are themselves
adopted by the will as its objects or aims. This rightness
of will can never be enforced by external legislation, but
must be the free choice of the individual. All that external
legislation can do is to affect the external expression of the
will in act; and this, not by a rectification of the aim itself
of the will, but by causing the will to follow out another aim
in act.
The science of this office of external regulation is what Nomology.
we have called ‘Nomology.” It may be defined as ‘the
science of the totality of the laws for which an external
legislation is possible”.’
* So Arist. Eth. Nic. ii. 4. Law commands not divöpetav, but rà roß
Övöpetov. Ib. iii. 8. I; v. I. I.4.
* Tugendlehre, Werke, ix. p. 222.
* This definition is applied by Kant, Rechtslehre, ib. p. 31, to the science of
Law. He opposes ‘Rechtslehre’ to ‘Tugendlehre, making these two species
exhaust the genus ‘Sittenlehre.” Now we have endeavoured to explain that this
genus contains the two species “Ethic,’ and what we have called ‘Nomology,’
which latter, besides Jurisprudence, contains other sub-species. We submit that
Rant's definition as he applies it is too wide. There are rules of action which
can be imposed by external authority, and yet are not laws. His definition
should apply, as we have applied it, to a class of sciences, of which Juris-
prudence is only one.
24 LAWS AS RULES OF HUMAN ACTION.
CHAP. III. The moral sciences having thus been grouped under the
head of Ethic, when the object of investigation is the con-
formity of the will to a rule; and of Nomology, when the
object of investigation is the conformity of acts to a rule, we
pass by the former, as foreign to our subject, and confine our
attention to the latter.
Rules of Nomology, the science of external action, must be divided,
º according to the authority by which the rules of which it
treats are enforced, into—
I. A science of rules enforced by indeterminate authority.
II. A science of rules enforced by determinate authority.
enforced by I. What may be vaguely called ‘moral laws’ are of very
indetermi- * tº º ſº * sº tº a $º
nate various origin and obligation. Their common characteristic
* is that, although no definite authority can be appealed to in
case of their infraction, yet those who obey them are regarded
with favour, and those who disobey them with disfavour,
either by society in general or by a section of it. Under this
large category may be classed the laws of usage in the pro-
nunciation of words, of fashion in the choice of dress, of social
demeanour, of professional etiquette, or of honour between
gentlemen, as well as the gravest precepts of morality,
specifically so called. All of them possess the common
characteristic of being generally received in certain circles
of society, while anything done in contravention of them
exposes the transgressor to various shades of ridicule, hatred,
or coercion.
#: º: The weakest sort of these rules are undoubtedly those of
fashion and etiquette; deviation from which is called eccen-
tricity or vulgarity, and is visited by penalties varying from
a smile to ostracism from society. -
of honour, A somewhat stronger force may be attributed to the so-
called law of honour, deviations from which are in this
country stigmatised as ‘conduct unbecoming a gentleman.”
This however, so far as it exceeds in delicacy the dictates
of ordinary morality, is recognised by a comparatively small
MORAL LAWS, 25
class, and, as has been well observed, regulates only the
duties betwixt equals". Far more important are those pre-
cepts which are more usually called principles of morality,
and the infraction of which is called vice.
As to the origin and authority of the laws of fashion, and of
the code of honour, there is no mystery. Every one admits
that these are, though in different degrees, conventional, and
have grown up in particular circles and states of society to
which they were found beneficial. With reference to those
wider formulas called moral principles, there is by no means
CHAP. III.
of morality.
the same consent. This great body of maxims, regulating
the relations of man to man in all the intercourse of life,
would seem to have grown up partly under the influence of
religion, partly out of speculative theories, partly out of the
necessities of existence. Which of these ingredients is the
essential, or the most essential, element of morality, may well
be questioned. It is at any rate certain that morality is not
due to the direct interposition of political authority.
Into the battles which are perpetually raging as to the
essential quality of virtue in itself, and as to the faculty by
which the virtuous quality of actions is discerned 4, it is not
the business of the jurist to enter. He is not obliged to
decide whether the criterion of virtue be conduciveness to
utility, or accordance with nature; nor need he profess his
belief, or disbelief, either in an innate moral sense, or in
a categorical imperative of the practical reason. These are
the hard questions of Metaphysics. *The business of the jurist
is, in the first place, to accept as an undoubted fact the
existence of moral principles in the world, differing in many
particulars in different nations and at different epochs, but
having certain broad resemblances; and, in the second
place, to observe the sort of sanction by which these prin-
ciples are made effective. He will then be in a position
1 Paley, Mor. Phil. book i. ch. 2. Cf. Thering, Der Kampf ums Recht,
P. 25.
* See Dugald Stewart, Philosophy of the Active and Moral Powers.
26 LAWS AS RULES OF HUMAN ACTION.
CHAP. III.
to draw unswervingly the line which divides such moral
laws from the laws which are the subjects of his proper
science *.
While the broad resemblance of the moral principles of
mankind is universally admitted, the occasional divergencies
between them are frequently lost sight of. The truth upon
this point is admirably expressed by Paley. “Moral approba-
tion,’ he writes, ‘follows the fashions and institutions of the
country we live in ; which fashions also and institutions them-
selves have grown out of the exigencies, the climate, situation,
or local circumstances of the country, or have been set up by
the authority of an arbitrary chieftain or the unaccountable
caprice of the multitude”.”
As to the sanction of moral rules, in the wide sense of the
term, it was well said by Locke that “no man escapes the
punishment of their censure and dislike who offends against
the fashion and opinion of the company he keeps, and would
recommend himself to it *.” Such rules are thus by no means
without their appropriate sanction. We cannot therefore,
with Thomasius, see in the presence or absence of com-
pulsion the dividing characteristic between morality and
Law 4.
Enough has perhaps been said with reference to moral
rules generally. One class of these rules has however exer-
cised so wide an influence, and is so intimately connected
with our more immediate subject, as to demand a more
extended notice.
That portion of morality which supplies the more important
and universal rules for the governance of the outward acts of
mankind is called the ‘Law of Nature.”
The law of
Nature.
* Cf. Kant, Tugendlehre, Werke, ix. p. 217. -
* Mor. Phil. book i. ch. 5. Cf. Herodotus, iii. 38; Arist. Eth. Nic. v. 7;
Pascal, Pensées, vi. 9; Montaigne, Essais, i. ch. 22.
* Human Understanding, book ii. §§ 1–12, where he scarcely does justice to
the effects produced by sympathy with the sentiment of our fellow-creatures.
* Fund. I. Nat. ii. c. 6. § 3.
THE LAW OF NATURE. - 27
This is a plain and, it is submitted, true account of a subject
upon which a vast amount of mystical writing has been ex-
pended. Such of the received precepts of morality relating
to overt acts, and therefore capable of being enforced by a
political authority, as either are enforced by such authority
or are supposed to be fit so to be enforced, are called ‘laws of
Nature.’ They are precepts obedience to which, whether it
be or be not commanded by the State, is insisted upon by
a deep-rooted public sentiment. Resting essentially upon
public sentiment, they are rules of morality; but having
reference only to such outward actions as are thought fit for
political enforcement, they form only one class of such rules.
After what has been said as to the origin and authority of
moral rules in general, it will be unnecessary to discuss at
length the origin and authority of such moral rules as are
called natural laws. Whatever may be the objective charac-
ter of those laws", whether they should be identified with the
will of God, or should be supposed to be in some sort the
guides even of that will, it is enough for the jurist that they
certainly rest, like other moral rules, upon the support of
public sentiment.
While there has been much difference of opinion as to the
contents of the Law of Nature, the existence of such a law has
been very generally admitted.
At the time when the social were first separated from the
physical sciences, speculation recognised in the former
nothing but what is variable and arbitrary. Thus Demo-
critus taught that legal institutions were of human devising,
while atoms and vacuum exist by Nature”. It was the
stock sophistical doctrine that moral distinctions, especially
Justice, are the creatures of law; which is itself a mere
compromise, securing each man against injury on condition
1 Whether for instance it be more true to say with Cicero, De Leg. ii. 4, ‘Lex
vera, ratio est recta summi Tovis,” or with Horace, Sat. i. 2, 98, ‘Utilitas iusti
prope mater et aequi.’
* IIointá Šč véulpa elval, pögel 68 drópous kai keväv. Diog. Laert. ix. 45.
&
CHAP. III.
<!-- ***\
28 LAWS AS RULES OF HUMAN ACTION.
CHAP. III.
that he surrenders the luxury of ill-treating his neighbours".
The purely conventional character of morality is also the
conclusion drawn by Herodotus from the contradictory views
and customs which he found to prevail among different
nations *. -
But a contrary view found early expression in literature.
Sophocles makes Antigone appeal from the orders of King
Kreon to the
âypatra k’ &orqºaXà 6eów
N6pupa “.
Aristotle fully recognises the existence of a natural as well
as of a legal Justice 4. He mentions as an ordinary device
of rhetoric the distinction which may be drawn between the
written law, and ‘the common law which is in accordance
with Nature and immutable *.
The Stoics were in the habit of identifying Nature with
Law in the higher sense, and of opposing both of these terms
to Law which is such by mere human appointment. “Justice,’
they say, ‘is by Nature and not by imposition".” “It proceeds
from Zeus and the common Nature". In a passage already
quoted, Chrysippus speaks of ‘the common law, which is the
right reason, which pervades all things, identical with Zeus,
the ruler of the government of the Universe *.’
The same view finds expression in the Roman lawyers.
* To Stratov is &AAórpuov &ya6áv. Plato, Repub. ii. ad init. ; cf. Arist. Eth.
Nic. v. I. 17.
* Herodot. iii. 38.
* ver. 454; cf. Oedip. R. ver, 1865; Xen. Memor. iv. 4. 19 ; Plato, Legg.
pp. 563, 793.
* Tot 3& Toxttikot, 8tratov to prev puoucóv éori, to 8& vopuicóv, pvaucov pièy rô
travtaxoi, thu abrºv exov bövauw, kat ot tº Sokév uh, vouköv 8& 8 ěš &px?s
pºv oã0év 8tapépel oito's # &AAos, Štav če 66vrat Suaq,épet. He goes on to
explain this statement, and to refute the idea that everything which is
qío’et is wholly dicuntdv. He uses ovv6%km as synonymous with vopulcóv. Eth.
Nic. v. 7.
* Rhet. i. I6. He also opposes the tâtos vópos to that which is icolvás or karð
púaiv, ib. I4; cf. Demosth. Aristocrat. p. 639.
° Stob. Eccl. ii. p. 184.
7 Chrys. apud Plut. de Stoic. Rep. 9.
* Chrys. apud Diog. Laert. vii. 88.
THE LAW OF NATURE. 29
‘Law,’ says Cicero, “is the highest reason, implanted in CHAP. III.
Nature, which commands those things which ought to be
done and prohibits the reverse.’ ‘The highest law was born
in all the ages before any law was written or State was
formed ".’ ‘Law did not then begin to be when it was put
into writing, but when it arose, that is to say at the same
moment with the mind of God”.”
It may be worth while to add a few instances from later
writers of the terms in which the law of Nature has been
spoken of.
S. Thomas Aquinas says: “Participatio legis aeternae in
rationali creatura lex naturalis diciturº.’
Grotius: ‘Ius naturale est dictitatum rectae rationis, indi-
cans actui alicui, ex eius convenientia aut disconvenientia cum
ipsa Natura rationali ac sociali, inesse moralem turpitudinem
aut necessitatem moralem, ae consequenter ab auctore Naturae
Deo talem actum aut vetari aut praecipiº.”
Jeremy Taylor: ‘The law of nature is the universal law of
the world, or the law of mankind, concerning common neces-
sities to which we are inclined by nature, invited by consent,
prompted by reason, but is bound upon us only by the com-
mand of God 9.’
Cumberland: ‘Lex Naturae est propositio naturaliter cog-
nita, actiones indicans effectrices communis boni".’
The term ‘Law of Nature,’ besides the sense in which we Special
© wº e e te f
have just explained it, has been employed in a wider and also º the
in a more restricted sense.
The wider is that of the well-known ‘ius naturale of The wider
Ulpian, which he says prevails among animals as well as men, SenSe.
regulating the nurture of the young and the union of the
* De Legib. i. 6; cf. De Inv. ii. 52.
* De Legib. c. 4; cf. the distinction between ‘summa lex’ and “lex scripta,’
ib. cc. 6, 15; between ‘lex Naturae' and ‘civilis, De Off. iii. I7; and between
‘summum ius’ and ‘ius civile, Rep. v. 3 (Mai).
* I. 2. q. 91, art. 2. * De T. Bell, et P, i. I. Io.
* Duct. Dub. ii., c. I. r. 1. * De Lege Nat. v. 1.
30 LAWS AS RULES OF HUMAN ACTION.
CHAP. III.
The
Iları’OWeſ’
Se][1862.
sexes". It is obvious that the courses of action mentioned
by Ulpian are followed in pursuance, not of a precept addressed
to a rational will, which alone is properly called a ‘law,’ but
rather of a blind instinct, resembling the forces which sway
the inanimate world”. Such an employment of the term is,
in fact, fully as metaphorical as its use to express the order of
the universe. A law for the nurture of offspring is no more
intelligible than a law of gravitation.
It is in pursuance of this ‘law,’ which is supposed to
govern the relations of men, before they have originated
any of those institutions which mark their superiority to the
merely animal creation, that all men are asserted to be equal.
‘Iure enim naturali ab initio omnes homines liberi nas-
cuntur; which is equivalent to saying that before any laws
were in existence, no differences between man and man were
recognised by law. Ulpian’s ‘ius naturale’ is therefore a
merely metaphorical phrase, leading to consequences which,
however magniloquently they may be expressed, turn out
upon analysis to be dangerous truisms. All legal right
and wrong had its origin after human society was put in
motion and began to reflect and act. To talk of law and
right as applied to mankind at a supposed period anterior
to society beginning to think and act is a contradiction in
terms. :-
An employment of the term ‘natural law in a sense as
much narrower than that which we have given it as Ulpian’s
is wider, is its identification with the ‘ius gentium.” The
‘ius gentium,’ as originally conceived of by the Romans,
consisted of those precepts which are found in the laws of all
nations, and which therefore point to a similarity in the needs
and ideas of all peoples. ‘Tus autem gentium omni humano
generi commune est; nam usu exigente et humanis neces-
sitatibus gentes humanae quaedam sibi constituerunt. Bella
etenim Orta sunt et captivitates secutae, et servitutes, quae
* Tust. Inst, i. 2. * Hesiod, Op. et Dies, 276.
‘DEDUCTIONS FROM THE DOCTRINE. 31
sunt naturali iuri contrariae".’ By the introduction of these CHAP. III.
precepts the narrow and strict law of Rome was gradually
enriched and expanded. It was an afterthought to give
them a higher authority and a philosophical significance by
identifying them with the ‘ius naturale;’ as is done, for
instance, by Gaius when he says: ‘Quod vero naturalis ratio
inter omnes homines constituit, id apud omnes populos perae-
que custoditur, vocaturque ius gentium, quasi quo iure omnes
gentes utuntur”.’
Ulpian’s extravagantly wide application of the term never
seems to have gained currency. It was, on the other hand,
long and generally used in the restricted sense of an equivalent
for what the Romans meant by the ‘ius gentium.’
Its suitable and convenient use in the sense in which it
was employed by Aristotle was restored by such writers as
Oldendorp, Gentili, and Grotius.
A brief notice must suffice of the various practical con- Deductions
clusions which have been drawn from the doctrine of ‘ius .
naturale.”
I. Acts prohibited by positive law, but not by the so-called
natural law, are said to be ‘mala prohibita,” not ‘mala in se.’
Thus a government may find it expedient to forbid certain
acts, such as the planting of tobacco, which are not regarded
as odious by the public sentiment.
2. Positive laws have been said to be invalid when they
contradict the law of nature. So Hooker, paraphrasing S.
Thomas: “ Human laws are measures in respect of men whose
motions they must direct. Howbeit such measures they are as
have also their higher rules to be measured by: which rules
are two, the law of God, and the law of nature. So that laws
must be made according to the general law of nature, and
* Inst. I. ii. § 2. ‘Gentium ius ab eo nominatum est et omnes gentes
similiter eo sumt usae, quod enim honestum et iustum est omnium utilitati
convenit.’ Frag. Vet. I. Cti.
* Inst. I, i.
32 LAWS AS RULES OF HUMAN ACTION.
CHAP. III.
without contradiction to any positive law of scripture; other-
wise they are ill made '.' And Blackstone: ‘This law of
nature, being co-eval with mankind and dictated by God
himself, is of course superior in obligation to any other. It
is binding all over the globe in all countries and at all times:
no human laws are of any validity, if contrary to this ; and
such of them as are valid derive all their force, and all their
authority, mediately or immediately from their original”.”
3. Natural law, or natural equity, has been often called in
to justify a departure from the strict rules of positive law.
With the changing ideas of society cases of course often
occurred when the law of the State was found to be in
opposition to the views of equity entertained by the people
or by leading minds among them. The opposition would be
said in modern language to be between law and morality.
But law and morality in early times were not conceived of
as distinct. The contrast was therefore treated as existing
between a higher and a lower kind of law, the written law
which may easily be superseded, and the unwritten but
immutable law which is in accordance with Nature.
And this way of talking continues to be practised to the
present day. Long after the boundary between law and
morality had been clearly perceived, functionaries who were
in the habit of altering the law without having authority to
legislate found it convenient to disguise the fact that they
were appealing from law to morality, by asserting that they
were merely administering the law of Nature instead of law
positive.
4. The law of . Nature is the foundation, or rather the
scaffolding, upon which the modern science of International
Law was built up by Gentili and Grotius.
II. In contrast with the several species of rules which we
* Eccl. Pol. iii. c. 9.
* Comm. Introd. p. 43; cf. Cic. de Legib. ii. 4; Coke, I. Inst. II, 183, 197;
Raleigh, Works, iii.; Suarez, de Lege et Deo, ii. 14; Locke, Civ. Gov. II.
BY A DETERMINATE AUTHORITY. 33
have just been considering, are rules set by a determinate CHAP. III.
ſº Rules
authority. - te enforced by
Among such rules would no doubt be included rules º
In IIläte
imposed, or thought to be imposed, upon mankind by a authority.
God or Gods. Direct revelations of the will of a supernatural Divine
power, or such indirect intimations of that will as each man laws.
may find in his own conscience, have alike been described as
‘laws of God!’. It has been believed that infractions of
either class of God's laws, generally known as sins, are
sooner or later to be redressed; whether, as among the Jews,
the redress is to take the shape of temporal reward and
punishment, or, as under the Christian dispensation, the
readjustment of religious good and evil is postponed to a
future state of existence. The laws of God thus resemble in
almost every point, other than the essential points of source
and sanction, those laws which we shall presently admit to
be properly so called. It is however just this difference of
source and sanction which withdraws them from the
cognisance of Jurisprudence. Laws the author and upholder
of which is superhuman are within the province of quite a
different science, and the Jurist may be warned, in the
quaint words of Thomasius, ‘not to put his sickle into the
field of dread Theology”.’
Leaving therefore on one side those rules which are set by Human
God, we come to those which are set by a definite human laws.
authority, and here we draw the final distinction between
the case when such authority is, and the case when it is
not, a sovereign political authority. Rules set by such an
authority are alone properly called ‘laws.’ -
* Austin introduces a new ambiguity into the term ‘law of God,” by
applying it complimentarily to the conclusions arrived at by the utilitarian
philosophy as to the mode of producing the greatest happiness of the greatest
number.
* “Ne falcem hic immittamus in campum venerandae Theologiae ;’ Inst.
Iur. Div., lib. i. c. I. § 163. Elsewhere the same author doubts the truth of
the conception of God as a law-giver. The wise man, he says, sees in God
rather the teacher of a law of Nature, or a father; Fund. I. Nat. et Gent, c. 5.
I)
34 LAWS AS RULES OF HUMAN ACTION.
CHAP. III,
T]efinition ,
of a law. --
By a successive narrowing of the rules for human action,
we have at length arrived at such of those rules as are laws.
A law, in the proper sense of the term, is therefore a general
rule of human action, taking cognisance only of external
acts, enforced by a determinate authority, which authority
is human, and, among human authorities, is that which is
paramount in a political Society.
More briefly, a general rule of external human action
enforced by a sovereign political authority. -
All other rules for the guidance of human action are called
laws merely by analogy; and any propositions which are not
rules for human action are called laws by metaphor only.
CHAPTER IV.
POSITIVE LAW.
A LAW, in the sense in which that term is employed in Positive
Jurisprudence, is enforced by a sovereign political authority. laws.
It is thus distinguished not only from all rules which, like
the principles of morality and the so-called laws of honour
and of fashion, are enforced by an indeterminate authority,
but also from all rules enforced by a determinate authority
which is either, on the one hand, superhuman, or, on the
other hand, politically subordinate.
In order to emphasise the fact that laws, in the strict
sense of the term, are thus authoritatively imposed, they are
described as ‘positive laws.
It is to such laws that the following definitions will be Defini-
found to have reference:— - tions.
"Oora y áv Tó Kparoëv tís TóAeos BovXevorápévov & Xpi) Troteſv
ypálm, vépos KaNeſrat ". --
‘O vöuos éat, Aéyos épiquévos, kað’ Öpoxoyuáv Kotuńv TóNeos,
pumvišov Tós àeſ Tpatteſv čkaoTa *.
Lex est generale iussum populi aut plebis, rogante magi-
stratu. Atteius Capito”.
* Xen, Mem. i. c. 2, 43. * Arist, Rhet. ad Alex, i. 4.
* Apud A. Gell. x. c. 20. -
D 2
36 POSITIVE LAW.
CHAP. IV.
People.
State.
The speech of him who by right commands somewhat to
be done or omitted. Hobbes'.
A portion of discourse by which expression is given to an
extensively applying and permanently enduring act or state
of the will, of a person or persons in relation to others, in
relation to whom he is, or they are, in a state of superiority.
Bentham”.
Das positive Recht durch die Sprache verkörpert, und mit
absoluter Macht versehen, heisst das Gesetz. Savigny ".
Die von der höchsten Staatsgewalt aufgestellten objectiven
Rechts-sätze. Dr. Bruns 4.
Most of the terms employed in our definition of positive
law have already been sufficiently discussed It remains
however to explain what is meant by “a sovereign political
authority.’
A ‘People’ is a large number of human beings, united
together by a common language, and by similar customs
and opinions, resulting usually from common ancestry,
religion and historical circumstances.
A ‘State’ is a numerous assemblage of human beings,
generally occupying a certain territory, amongst whom the
will of the majority, or of an ascertainable class of persons,
is by the strength of such a majority, or class, made to
prevail against any of their number who oppose it.
A State may be coextensive with one People, as is now
the case in France, or may embrace several, as is the case
with Austria. One People may enter into the composition of
several States, as do the Poles and the Jews.
A People, it is truly said, is a natural unit, as contrasted
with a State which is an artificial unit *. There must
doubtless have been Peoples before there were States; that
is to say there must have been groups of human beings
united by similarity of language, customs, ańd opinions,
* Works, ii. p. 49; cf. iii. p. 251. *Works, iii. p. 233. * System, i. p. 39.
* Apud Holzendorff, Encyclopädie, i. p. 258. " Savigny, System, i. p. 22.
A STATE, 37
before there arose amongst them an organisation for en- chap. iv.
forcing the opinions of the majority, or those of a government
acquiesced in by a majority, upon an unwilling minority.
Although scarcely any traces remain in history of the
transformation of a People into a State, it is impossible to
affirm, with Savigny, that a People, which he calls ‘an
invisible natural whole, never exists as such ; never, that is
to say, without “its bodily form' the State 1. Aristotle
speaks of the Arcadians as remaining an éðvos till, by the
founding of Megalopolis, they became a tróAus”. Nor can
we follow Savigny in regarding the creation of the State as
the highest function of Law 8. Morality may precede, but
Law must follow, the organisation of a political society.
Of such a society the following definitions have been º
given at various periods:– *
"H 3’ &K TAetóvov kopów Kouvovía TéNews T6As, # 67 Táons
éxovga Trépas Tās airapkeſas, Ös étros siteſv, yuuopévm uèv obv
Toë (fiv čvekev, oùo a de Toi ei (fiv. Aristotle *.
Respublica est coetus multitudinis, iuris consensu et
utilitatis communione sociatus. Cicero".
Civitas nihil aliud est quam hominum multitudo, aliquo
societatis vinculo colligata. S. Augustine".
Civitas est coetus perfectus liberorum hominum, iuris
fruendi et communis utilitatis causa sociatus. Grotius 7.
It would be rather within the scope of a professed work
upon International Law than of a treatise upon Jurisprudence
to explain more fully the characteristics of a true State, and
to show how it differs from other societies which in some
respects resemble it ; as, for instance, the Catholic Church,
a great trading corporation, such as the East India Company,
a great and permanent league, such as that of the Hanse
Towns, nomad races, rebels and pirates.
* Ib. p. 22. * Pol. ii. 2. 3.
* Savigny, System, i. p. 22 ; cf. Liv. Hist. i. c. 8.
* Pol. i. 2. 8. * De Rep. i. 25. ° De Civ. Dei, xv. c. 8.
* I. B. et P. i. c. i. 14.
38 POSITIVE LAW.
The origin of States has been a favourite subject of
speculation. To the Greeks the organised city government
in which they delighted seemed the result of superhuman
wisdom. It was a common-place with their earlier poets
and philosophers to ascribe a divine origin to States and to
legislation. ‘Laws,’ says Demosthenes, “are the gift of the
gods, and the discovery of sages'.”
Later speculators, not content to veil their ignorance
under a pious allegory, have explained the rise of political
society by the hypothesis of an ‘original contract, the
covenants of which they have set out with vast, if misplaced,
ingenuity. The hypothesis is clearly, though by no means
for the first time, stated by Grotius in the following
passage : * Qui se coetui alicui aggregaverant, aut homini
hominibusque subiecerant, hi aut expresse promiserant, aut ex
negotii natura tacite promisisse debebant intelligi, secuturos
se id quod aut coetus pars maior, aut hi quibus delata
potestas erat, constituissent *.’
Even were the theory of an original contract within the
scope of the present treatise, it would be unnecessary to
repeat here the arguments by which its untenableness has
been almost superfluously demonstrated. Jurisprudence is
more concerned with the distinction which we are about to
explain. *
Every state is divisible into two parts, one of which is
sovereign, the other subject.
The sovereign part, ‘summa potestas,” is defined by Grotius
as being “illa cuius actus alterius iuri non subsunt, ita ut
alterius voluntatis humanae arbitrio irriti possint reddi";’
and so Hobbes defines what he is pleased to call a ‘City’
as ‘one person, whose will, by the compact of many men, is
CHAP. IV.
The origin
of States.
Sove-
reignty.
* Adv. Aristogeit. i. (p. 774).
* I. B. et P. Proleg. 15 ; so Hooker, Eccl. Pol. i. c. Io; Locke, Civ. Gov. i.
c. viii. 99 ; Rousseau, Contrat Social. On the other hand, Paley, Mor. Phil. i.
p. I46; Bentham, i. pp. 242, 261 ; Austin, i. pp. 271-316; Maine, Anc. Law,
c. ix.
* I. B. et P. i. c. 3. 7.
SOWEREIGNTY. 39
to be received for the will of them all; so as he may use all
the power and faculties of each partieular person to the main-
tenance of peace and for common defence".
The sovereignty of the ruling part has two aspects. It is
‘external,” as independent of all control from without ; ‘in-
ternal,” as paramount over all action within. Austin expresses
this its double character by saying that a sovereign power is
not in a habit of obedience to any determinate human superior,
while it is itself the determinate and common superior to
which the bulk of a subject society is in the habit of
obedience *. -
With reference to each kind of sovereignty, questions arise
CHAP, IV.
the nature of which must be briefly indicated. External External.
sovereignty, by possession of which a State is qualified for
membership of the family of Nations, is enjoyed in the fullest
degree only by what is technically known as a ‘Simple State,’
i.e. by one which is ‘not bound in a permanent manner to
any foreign political body.”
States which are not ‘simple” are members of a ‘System of
States,’ and collectively subject to a “federal government.’
States are combined in a “system upon equal or upon
unequal terms. In the former case they compose an ‘In-
corporate Union, an ‘Etat fédératif' or ‘Bundesstaat, such
as are the United Kingdom of Great Britain and Ireland, the
United States of America, or the Swiss Confederation. In
the latter case the States occupying the inferior position
are known as ‘mi-souverain * or ‘protected;’ such are the Prin-
cipality of Monaco, the Republic of San-Marino, and, till
recently, the Principality of Servia. -
When the component states are equally united, their ex-
ternal sovereignty resides in no one of them, but in the federal
government which results from their combination. The ex-
ternal sovereignty of a system of unequally united states is
to be looked for exclusively in the State which is suzerain
Or protector of the others.
* Works, ii. p. 69. * Jurisprudence, i. p. 171.
40 POSITIVE LAW.
CHAP. IV.
Internal.
T)ifficulties
of the
theory
of sove-
reignty.
The questions which arise with reference to internal sove-
reignty relate to the proportion borne by the sovereign
part of the State to the subject part; in other words, to
forms of government. These were analysed by the Greek
philosophers in a way which left little to be desired.
The power may be confided to all members of the State who
are not under some disability on account of age, sex, or
otherwise; or it may be restricted to one or more of the
members. In the former case, the form of polity is a de-
mocracy. In the latter, it is an aristocracy or a monarchy,
as the case may be. Whether the ruling power be as
widely diffused as possible, or be concentrated in the hands
of a despot, makes but little difference for the purposes
of our present enquiry. It is by the sovereign, be that
sovereign one individual or the aggregate of many indi-
viduals, that all law is enforced.
Considerable doubt has of late been thrown upon the
doctrine that apart from the existence of a State, and of a
sovereign power within it, there can be no Law, because all
laws are rules enforced by such a power. Real difficulties
in applying the doctrine to the facts of history have been
pointed out by Sir Henry Maine, with that fertility of
illustration and that cogency of argument for which his
writings are so conspicuous. He asks in what sense it is
true that the village customs of the Punjaub were enforced
by Runjeet Singh, or the laws of the Jews, during their
vassalage to Persia, by the Great King at Susa. He denies
that Oriental empires, whose main function is the levying
of armies and the collection of taxes, busy themselves
with making or enforcing legal rules; nor will he concede
that it is a serious answer to his objections to say that
‘what a government does not forbid it allows.’ He would
almost restrict to the Roman Empire, and the States which
arose out of its ruins, the full applicability of the Austinian
conception of positive law. As applied to other political
Societies, he looks upon it as an ideal or abstraction, related
SOWEREIGNTY. 41
to actual phenomena as are the axioms of mathematics to CHAP. Iv.
the actual conditions of matter, or the postulates of political
economy to the dealings of ordinary life".
These remarks are no less valuable than they are interesting.
When legal phenomena are explained by the action of an
absolute political sovereign, the student of Jurisprudence
should always remember, and may no doubt be in danger
of forgetting, that the explanation, though true as a general
statement, necessarily leaves out of account many other
characteristics of such phenomena.
Sir Henry Maine has done good service by pointing out Justifica:
the mistake of supposing that the obligation of law rests tºº
everywhere, and at all times, as immediately upon a sovereign
political authority as it does in England at the present day.
In guarding against a crude application of the doctrine of
sovereignty, this great jurist has however perhaps hardly done
justice to its essential truth. The reply which we would
venture to make to his remarks upon this point would be to
the following effect.
With reference to the Western nations, we would submit
that the dependence of law upon sovereignty was as obvious
in Attica and Lacedaemon as it ever was under the Roman
Empire. A law as carried by Pericles, or as imagined by
Plato, would conform to Austin's definition as completely
as would a constitution of Marcus Aurelius.
With reference to the relation of a great Oriental tax-
gathering empire to the village customs of its subjects,
or to the more distinctly formulated laws of a conquered
province, it is necessary to draw a distinction. Disobedience
to the village custom or the provincial law may either be
forcibly repressed, or it may be acquiesced in, by the local
authority. If it be habitually repressed by such local force
as may be necessary, it follows that the local force must,
if only for the preservation of the peace, be supported, in
the last resort, by the whole strength of the empire. In
* Early History of Institutions, Lect. xiii.
42 POSITIVE LAW.
CHAP. IV.
this case the humblest village custom is a law which com-
plies with the requirement of being enforced by the sovereign.
If, on the other hand, disobedience be habitually acquiesced
in, the rules which may thus be broken with impunity are
no laws; and, so far as such rules are concerned, the
tax-gathering empire is lawless, its organisation consisting
merely of an arbitrary force, acting upon a subject mass
which is but imperfectly bound together by a network of
religious and moral scruples.
It is convenient to recognise as laws only such rules as are
enforced by a sovereign political authority, although there are
states of society in which it is difficult to ascertain as a fact
what rules answer to this description. -
CHAPTER W.
THE SOURCES OF LAW.
THE obscurity which has involved the whole subject of the Ambiguity
origin of law, and the mutual relations of customary, judge- º
made, and statute law, is largely due to the ambiguous uses
of the term ‘Source.’ These uses are threefold.
Sometimes the word is employed to denote the quarter Its three
whence we obtain our knowledge of the law, e.g. whether *
from the Statute-book, the Reports, or esteemed Treatises.
Sometimes to denote the mode in which, or the persons
through whom, those rules have been formulated which have
acquired the force of law.
Sometimes to denote the authority which gives them that
force.
The last two uses are those which are most frequently
confused together. Until the State is formed there can be
no law, in the strict sense of the term. There may be, and
doubtless always have been, morality and customary rules of
conduct. After the formation of the State, such rules as
receive its sanction and support, whether promulgated for the
first time by the governing body, or already in operation among
the people, become, in the proper sense of the term, ‘laws.’
44 THE SOURCES OF LAW.
CHAP. V.
But one
source of
legal
character.
Several
sources of
existence
as rules.
Custom.
Its growth.
The sole source of laws, in the sense of that which impresses
upon them their legal character, is their recognition by the
State, which may be given either expressly, through the
legislature or the courts, or tacitly, by allowance, followed,
in the last resort, by enforcement, as we have seen in the
preceding chapter.
The sources of laws, in the sense of the causes to which
they owe their existence as rules, are, however, several. These
may be distinguished as usage; adjudication; scientific dis-
cussion ; promulgation by delegated authority; legislation.
Some confusion has arisen from not observing that laws
occasionally owe their existence as rules and their validity as
laws to one and the same authority.
I. Usage, or rather the spontaneous evolution by the
popular mind of rules the existence and general acceptance of
which is proved by their customary observance, is no doubt
the oldest form of law-making. It marks the transition
between morality and law. Morality plus a State-organisation
enforcing the observance of certain parts of it is customary
law.
Two questions are much debated with reference to usage.
First, as to the mode of its growth as usage. Secondly, as
to its transformation into law. -
Its characteristic is that it is a long and generally observed
course of conduct. No one was ever consciously present at
the commencement of such a course of conduct, but we can
hardly doubt that it originated generally in the conscious
choice of the more convenient of two acts, though some-
times doubtless in the accidental adoption of one of two
indifferent alternatives; the choice in either case having been
either deliberately or accidentally repeated till it ripened into
habit.
The best illustration of the formation of such habitual
courses of action is the mode in which a path is formed
across a common. One man crosses the common, in the
direction which is suggested either by the purpose he has in
CUSTOM. 45
view, or by mere accident. If others follow in the same CHAP. v.
track, which they are likely to do after it has once been
trodden, a path is made.
Before a custom is formed there is no juristic reason for its
taking one direction rather than another, though doubtless
there was some ground of expediency or of accidental sug-
gestion. A habitual course of action once formed gathers
strength and sanctity every year. It is a course of action
which every one is accustomed to see followed, it is generally
believed to be salutary, and any deviation from it is felt to
be abnormal, immoral. It has never been enjoined by the
organised authority of the State, but it has been unquestion-
ingly obeyed by the individuals of which the State is com-
posed. There can in fact be no doubt that customary rules
existed among peoples long before nations or states had come
into being. At first no distinction was made between such
of these rules as relate to individual character and such as
concern society. Morality and customary law were the same
thing, but the distinction between the two was more and more
sharply drawn as time went on.
After the organisation of States, many of the customary Its legal
rules of society still continued to be recognised, and acquired authority.
a further sanction. They had previously been enforced only
by popular opinion, or by the licensed revenge of injured
parties. They were now enforced by the political authority.
They became law; and were doubtless for a time the only
laws known. They were the unwritten, but well known,
opinions of the community as to social right and wrong.
‘Consuetudine ius est,’ says Cicero, ‘quod aut leviter a
natura tractum aluit et magis fecit usus, ut religionem, aut si
quid eorum quae ante diximus ab natura profectum, maius
factum propter consuetudinem widemus, aut quod in morem
vetustas vulgi approbatione perduxit ; quod genus pactum,
par, iudicatum *.’
* De Inv. ii. c. 54. Cf. “consuetudinis autem ius esse putatur id quod
voluntate Omnium sine lege vetustas comprobavit,” ib. c. 22.
46 THE SOURCES OF LAW.
The laws of Draco were repealed, says Gellius, ‘non decreto
iussoque, sed tacito illiteratoque consensu".' '
* Quid interest,’ says Julianus, “suffragio populus volun-
tatem suam declaret an rebus ipsis et factis”?’
Justinian lays down in his Institutes that ‘diuturni mores
consensu utentium comprobati legem imitantur *.’ It would
be more correct to say that written law was an imitation of
custom.
And our own Bracton: ‘consuetudo quandoque pro lege
observatur in partibus ubi fuerit more utentium approbata,
et vicem legis obtinet; longaevi enim temporis usus et
consuetudinis non est vilis auctoritas *.’
Custom exists as law in every country, though it every-
where tends to lose its importance relatively to other kinds
of law. It was known at Rome as the ‘ius moribus constitu-
tum.” It is known in England as ‘the common law,” the exist-
ence of which is now usually proved by showing that it has
been affirmed by the Courts, or at least has been appealed to in
the writings of great judicial sages. In an earlier age it was
doubtless known to all whom it concerned, much as are now
the ordinary rules of morality ". The increasing complexity of
affairs, and the numerous other subjects opened up to human
thought, have rendered the general consciousness of law-rules
impossible, and have rendered necessary the more circuitous
proof of their existence by means of Treatises and Reports.
It is certain that customs are not laws when they arise, but
that they are largely adopted into the law by State recogni-
tion. How far does this recognition extend? Is it the case
that all customary rules on proof of their existence as customs
obtain State recognition as laws? In other words, does the
determinate and organised will of the nation invariably adopt
and confirm, for all matters within its cognisance, the rules
CHAP. V.
* Noct. Att. xi. c. 18.
* Dig. i. 3. 32. * I. ii. § 9.
* Bracton, lib. i. Gap. 3; cf. R. v. Essex, 4 T. R. p. 594.
* Cf. Savigny, System, i. p. 181.
CUSTOM. 47
which have been adopted for such matters by the indeter-
minate and unorganised will of the nation, or of portions
of it; ? . .
This is certainly not the case. English Courts require not
only that a custom shall be proved to exist, but also that it
is ‘reasonable.’ And the legislature often abrogates customs,
partially or wholesale. -
CHAP. V.
The State, through its delegates the judges, undoubtedly At what
moment
grants recognition as law to such customs as come up to does a
a certain standard of general reception and usefulness. To
custom
become
these the Courts give operation, not merely prospectively lºw?
from the date of such recognition, but also retrospectively;
so far implying that the custom was law before it received
the stamp of judicial authentication. The contrary view sup-
ported by Austin is at variance with fact. The element of
truth in his view, which he has done good service by bringing
into prominence, is that usage, though it may make rules,
cannot, without obtaining for them the recognition of the
State, make laws. The element of mistake in his view is to
date the State recognition from the moment that the usage
has been called in question and allowed to be good in a court
of justice.
If this is not the moment at which the State imprimatur
is given to custom, what is that moment? We can only
say that the rule that a Court should give binding force to
certain kinds of custom is as well established as hundreds
of other rules of law, and has been established in the same
manner. The judges, acting as delegates of the State, have
long ago legislated upon this point as upon many others.
Not having a code ready to their hand with rules for every
emergency, they have invoked, as the ratio of their deci-
sions, not only Equity, or the generally acknowledged view
of what is fair; and previous decisions of the courts, upon
the faith of which it is to be presumed that people have
been acting ; but also customs, established among, and by,
the people at large, as presumably embodying the rules which
48 THE SOURCES OF LAW.
CHAP. v.
the people have found suitable to the circumstances of their
lives. The Courts have therefore long ago established as
fundamental principles of law, subject of course in each case
to many restrictions and qualifications, that in the absence
of a specific rule of written law, regard is to be had in looking
for the rule which governs a given set of circumstances, not
only to equity and to previous decision, but also to custom.
Binding authority has thus been conceded to custom, pro-
vided it fulfils certain requirements, the nature of which has
also long since been settled, and provided it is not superseded
by law of a higher authority.
When, therefore, a given set of circumstances is brought
into Court, and the Court decides upon them by bringing them
within the operation of a custom, the Court appeals to that
custom as it might to any other pre-existent law. It does
not proprio motu then for the first time make that custom a
law; it merely decides as a fact, that there exists a legal
custom, about which there might up to that moment have been
some question, as there might about the interpretation of an
Act of Parliament. It then applies the custom to the circum-
stances just as it might have applied an Act of Parliament to
them. A good custom or an intelligible Act of Parliament
either exist or do not exist objectively, before the case comes
into Court; although it is from the decision of the Court in
the particular case that a subjective knowledge is first possible
for the people of the existence or non-existence of the alleged
custom, or that this or that is the meaning of the Act of
Parliament.
The legal character of reasonable ancient customs is to
be ascribed, not to the mere fact of their being reasonable
ancient customs, but to the existence of an express or tacit
law of the State giving to such customs the effect of laws.
We have described the mode in which the State usually
acts in giving to custom the force of law. It also may
occasionally do so in express terms. It sometimes in express
terms denies them any such force, and sometimes limits
CUSTOM. 49
the force which has hitherto been ascribed to them. In GEAP. v.
Some States greater force has been allowed than in others to
custom as compared with express legislation. The theory
of English law is that no statute can become obsolete by
desuetude. The contrary view is maintained in Germany.
Such an account of the growth of custom and its trans- Theories
formation into law will not content a certain school of º
theorists, of whom Savigny and Puchta are the most illus- “”
trious. They tell us that the growth of Law (Recht) has
no dependence upon individual arbitrary will or accident".
It is begotten in the People (Volk) by the Popular intelligence
(Volksgeist)*. The People, however, has no actual existence
apart from its bodily form, the State *. Law has its exist-
ence (Daseyn) in the general-will (Gesammtwille); customary
observance is not the cause of Law, but the evidence of its
existence *. It does not make its first appearance in the
form of logical rules". Or, going still further afield, we are
told by Hegel to see in the rise of Law the evolution of the
Deity.
We are in fact told that the principle is anterior to its
applications. The true reply to which, we conceive to be,
that the principle is nothing else than a generalisation from
the applications. The only unity antecedent to the circum-
stances is the common constitution of mankind. The element
of truth in the view of the so-called ‘ historical school’ of
Germany is that the adoption of customary rules of conduct
is unconscious. It takes place in accordance with no de-
liberate plan, but comes into being piece-meal, as it is
called for by the natural wants of mankind. We may
remark as results of its mode of formation, first, that it
is hence better adapted to national feeling than law which
is otherwise manufactured. Secondly, that its importance
declines with the growth in a nation of conscious critical
power.
* Savigny, i. p. 15. * Ib. i. pp. I 75, I 77. * Ib. i. p. 22.
* Ib. i. pp. 35, 168. * Ib. p. 16.
E
50 THE SOURCES OF LAW.
GHAP. W.
Adjudica-
tion.
Science.
II. Adjudication : ‘Gerichts-gebrauch,’ ‘Jurisprudence des
Tribunaux,’ ‘Usus fori.” The Courts in all countries have
necessarily been entrusted with a certain power of making
rules for cases not provided for previously; and even of
modifying the existing laws from time to time in order to
carry out the current ideas of what is equitable, or to adapt
them to the changing needs of society.
This power they have, however, rarely exercised avowedly,
but rather under cover of exercising one or other of the
functions with which they are more distinctly entrusted, viz.
first, of deciding upon the existence or non-existence of such
customs as they are authorised to recognise as binding ; and,
in the second place, of expounding, and applying to particular
instances, laws which are necessarily expressed, or conceived
of, in general terms.
III. Scientific discussion, ‘Wissenschaft,’ ‘Jurisprudence,”
has from time to time played a useful part in the develop-
ment of rules which have often been adopted as laws. The
“responsa prudentium, before they were clothed with an offi-
cial character, received at Rome a deference similar to that
which has been enjoyed in England by the ‘practice of con-
veyancers", and by the writings of such sages of the legal
profession as Lord Coke and Sir Matthew Hale.
IV. Equity. As old rules became too narrow, or were felt
to be out of harmony with advancing civilisation, a quasi-
divine authority was needed for their gradual enlargement
and adaptation to new views of society. This authority was
found by English judges, more especially by the Chancellor,
in a supposed more perfect body of rules discoverable in the
judicial conscience. This body of rules is called Equity.
It consists in reality of such of the principles of received
morality as are applicable to legal questions and commend
themselves to the judges”.
Bquity.
* See Willoughby v. Willoughby, I T. R. 771. -
* Since the generality of a law is not the only hardship in its application
which is redressed by Equity, Aristotle's definition of to éirtelicts as étravóp-
6apa vépov fi èAAetmet Ötö. Tö ka96Aov, Eth. v. c. Io, is hardly adequate.
LEGISLATION. 31
V. Legislation, whether by the supreme power, or chap. v.
subordinate authorities permitted to exercise the funct; º
The Praetor at Rome legislated in his edict as truly as . &
the Comitia; and the making of general orders by our judg
or of bye-laws by a railway company under its Act, is
true legislation as is carried on by the Crown and th
estates of the realm in Parliament. With advancing civ.
sation legislation tends to become the nearly exclusive souri: ;
of new law 1. £-
In legislation, both the contents of the rule are devised, Wºº'
and legal force is given to it, by simultaneous acts of º
the sovereign power which produce ‘written law. All the **
other law sources produce what is called “unwritten law,’ to
which the sovereign authority gives its whole legal force,
but not its contents, which are derived from popular
tendency, professional discussion, or judicial ingenuity, or
otherwise, as the case may be. Rules thus developed obtain
the force of law by complying with the standards which the
State exacts from such rules before it gives them binding
force. Having so complied, these rules are laws, even before
the fact that they are so has been attested by a Tribunal.
The State has in general two, and only two, articulate organs
for law-making purposes—the Legislature and the Tribunals.
The first organ makes new law, the second attests and con-
firms old law, though under cover of so doing it introduces
many new principles.
* On the relation of Legislation to Nature, Custom, and Utility, see Cicero,
T)e Inv. ii. c. 22. r
CHAPTER VI.
THE OBJECT OF LA W.
V # * THE most obvious characteristic of Law is that it is coercive.
‘It was added because of transgressions”:
‘Iura inventa metu iniusti fateare necesse est”.'
Even when it operates in favour of the legitimate action of
individuals, it does so by restraining any interference with
such action. It is accordingly defined by Kant as ‘the
totality of the conditions under which the free-will of one man
can be united with the free-will of another, in accordance
with a general law of freedom *; and by Savigny, as ‘the
rule which determines the invisible limit within which the
existence and activity of each individual may obtain secure
and free play *.” Both of these high authorities make the
main of Law to be the preservation from interference of
the freedom of the will. This conception is purely negative,
and a wider and positive conception is needed to embrace
the operation of Public as well as of Private Law.
The Kantian definition is wide enough to cover all rules
which regulate the relations of individuals one to another, but
* Hor. Sat. i. 3. III. * Rechtslehre, Werke, ix. p. 33. * System, i. p. II.4.
SOCIAL WELL-BEING. 53
it is too narrow to cover enactments providing, for instance, CHAP. vi.
for the organisation of a ministry of education, or giving to
certain great libraries a claim to a copy of every new book
that is published.
A school of writers, among whom Krause 1 and Ahrens”. Law as
are representative men, demands that law shall be conceived Organising.
of as harmonising the conditions under which the human
race accomplishes its destiny by realising the highest good of
which it is capable. The pursuit of this highest good of
the individual and of society needs a controlling power,
which is Law, and an organisation for the application of its
control, which is the State.
The truth which is contained in these somewhat obscure
speculations is capable of much simpler expression; and to find
a definition of the function of law which would leave these
writers nothing to desire, we have only to turn to Lord
Bacon, who says: ‘Tinis et scopus quem leges intueri, atque
ad quem iussiones et sanctiones suas dirigere debent, non alius
est quam ut cives feliciter degant *. The same idea is ex-
pressed by Locke, who asserts that ‘Law, in its true notion,
is not so much the limitation as the direction of a free and
intelligent agent to his proper interest, and prescribes no
further than is for the general good of those under the law . .
so that, however it may be mistaken, the end of the law is,
not to abolish or restrain, but to preserve or enlarge freedom *.”
Still better perhaps is the statement of Leibnitz: ‘ humanae
societatis custodiam non esse principium Iustitiae, sed tamen
putem, iustum esse quod societatem ratione utentium per-
ficit, 5.”
Law is something more than police. Its ultimate object
is no doubt nothing less than the highest well-being of
* Abriss des Systemes der Philosophie des Rechtes, 1828.
* Cours de droit Naturel, 1840.
* De Aug. lib. viii. aph. 5.
* Of Civil Government, i. § 57. -
* Obs. de princ. iuris, $ ii, Opera, ed. Deutens, t, iv. p. 272, Cf. Portalis,
Tiscours préliminaire sur le Code Civil.
*
54 THE OBJECT OF LAW.
CHAP. VI,
*
society: and the State, from which Law derives all its force,
is something more than an ‘Institution for the protection of
rights,” Rechtsversicherungsanstalt, as it has sometimes been
described. It is however no part of our undertaking to dis-
cuss the question how far Law may properly go in its en-
deavours to promote the well-being of those within its sphere.
The merits of a paternal government, of centralisation, of
factory acts, of State churches, are topics for the politician
rather than the jurist. .*
Jurisprudence is concerned not so much with the purposes
which Law subserves, as with the means by which it subserves
them. The purposes of Law are its remote objects. The
means by which it effects those purposes are its immediate
objects. The immediate objects of Law are the creation and
protection of legal rights *.
* The creation and enforcement of legal duties is of course the same thing
Rights.
from another point of view ; and a point of view from which some writers
prefer to regard the operation of Law. Cf. Bentham, Works, iii. p. 181.
CHAPTER WIT.
RIGHTS.
WHAT then is a ‘legal right’? But first, what is a right A right
generally P generally.
It is one man's capacity of influencing the acts of another,
by means, not of his own strength, but of the opinion or the
force of society.
When a man is said to have a right to do anything, or over
anything, or to be treated in a particular manner, what is
meant is that public opinion would see him do the act, or
make use of the thing, or be treated in that particular way,
with approbation, or at least with acquiescence; but would
reprobate the conduct of any one who should prevent him
from doing the act, or making use of the thing, or should
fail to treat him in that particular way.
‘A right' is thus the name given to the advantage a man
has when he "is so circumstanced that a general feeling of
approval, or at least of acquiescence, results when he does or
abstains from doing certain acts, and when other people act
or forbear to act in accordance with his wishes; while a
general feeling of disapproval results when any one prevents
56 RIGHTS.
him from so doing or abstaining at his pleasure, or refuses to
act in accordance with his wishes. Further than this we need
not go. It is for Psychology to enquire by what, if any,
special faculty the mind is capable of affirming or denying
the existence of rights. History may also to some extent
unravel for us the growth of such conceptions as to rights
as are now prevalent; and these are among the most vexed
questions of Psychology and of the History of Civilisation
respectively. Jurisprudence is absolved from such researches.
The only conception of a Right which is essential to her
arguments is that which we have already propounded, and
about the truth of which, as far as it goes, there can be no
question. §
Jurisprudence is specifically concerned only with such rights
as are recognised by law and enforced by the power of a State.
We may therefore define a ‘legal right' as a capacity residing
in one man of controlling, with the assent and assistance of
the State, the actions of others.
That which gives validity to a legal right is, in every case,
the force which is lent to it by the State. Anything else
may be the occasion, but is not the cause, of its obligatory
character".
Sometimes it has reference to a tangible object. Some-
times it has no such reference. Thus, on the one hand, the
ownership of land is a power residing in the landowner, as
its subject, exercised over the land, as its object, and avail-
able against all other men. So a father has a certain power,
residing in himself as its subject and exercised over his child
as its object, available against all the world besides. On the
other hand, a servant has a power residing in himself as its
subject, available against his master to compel the payment
of the wages which are due to him.
This simple meaning of the term “a right’ is for the pur-
poses of the jurist entirely adequate. It has however been
CHAP. VII.
A legal
right.
Ambiguous
uses of the
term.
* As Thomasius says of “Pactum,’ ‘non est causa Sed tantum occasio
obligationis.”
j.
AMBIGUOIJS USES. 57
covered with endless confusion owing to its similarity to
“Right;" an abstract term formed from the adjective ‘right,’
in the same way that “Justice” is formed from the adjective
‘just.’ Hence it is that Blackstone actually opposes ‘rights,”
in the sense of capacities, to ‘wrongs' in the sense of
‘unrighteous acts".”
We in England are happily spared another ambiguity
which in many languages besets the phrase expressing
“a right.” The Latin ‘Ius, the German ‘Recht,’ the Italian
‘Diritto, and the French ‘Droit’ express not only ‘a right’
but also ‘Law in the abstract. To express the distinction
between ‘Law’ and “a right' the Germans are therefore
obliged to resort to such phrases as “objectives’ and ‘subjec-
tives Recht,” meaning by the former ‘Law' in the abstract,
and by the latter a concrete right. And Blackstone, para-
phrasing the distinction drawn by Roman law between the
‘ius quod ad res’ and the ‘ius quod ad personas attinet,”
devotes the two first volumes of his Commentaries to the
“Rights of Persons’ and the ‘Rights of Things.”
CHAP. VII.
If the expression of widely different ideas by one and the Resulting
same term resulted only in the necessity for these clumsy
periphrases, or obviously inaccurate paraphrases, no great
harm would be done; but unfortunately the identity of terms
seems irresistibly to suggest an identity between the ideas
which are expressed by them. German writers have evi-
dently the greatest difficulty in keeping apart Law and the
rights which it is the business of Law to regulate. Juris-
prudence is with them indifferently the ‘science of rights’
and the ‘science of Law.” To this source of confusion they
add that which has already been indicated as being a hind-
rance to ourselves. They have a vague impression of a more
than merely etymological connection between ‘a right’ and
the eulogistic adjective ‘right.”
* The absurdity is carried a step further by people who write to the
newspapers about ‘copy-rights and copy-wrongs.’
confusion.
58 RIGHTS.
Definitions.
Explana-
tion of a
right.
The following are definitions of “a right” by various
authors:—
Qualitas illa moralis qua recte vel personis imperamus vel
res tenemus, aut cuius vi aliquid nobis debetur. Puffendorf".
Quaedam potentia moralis. Leibnitz”.
Qualitas moralis activa ex concessione superioris personae
competens ad aliquid ab altero homine cum quo in societate
vivit iuste habendum vel agendum. Thomasius *.
Die Befugniss zu zwingen. Kant *.
Eine physische Macht, welche durch die Gebote der Auto-
rität, nicht allein sittlich verstärkt ist, sondern welche auch
diese ihre Macht durch Anwendung von Zwang oder Uebel
gegen den Verletzer schützen kann. Kirchmann".
Eine Macht iber einen Gegenstand, der vermöge dieses
Rechts dem Willen des Berechtigten unterworfen ist.
Puchta 6.
Ein rechtlich geschütztes Interesse. Thering".
It may be as well to re-state in a few words precisely what
we mean by “a right.”
If a man by his own force or persuasion can carry out his
wishes, either by his own acts, or by influencing the acts
of others, he has the ‘might' so to carry out his wishes.
If, irrespectively of having or not having this might, public
opinion would view with approval, or at least with acqui-
escence, his so carrying out his wishes, and with disapproval
any resistance made to his so doing ; then he has a ‘moral
right’ so to carry out his wishes.
If, irrespectively of his having, or not having, either the
might, or moral right on his side, the power of the State
will protect him in so carrying out his wishes, and will
compel such acts or forbearances on the part of other people
* De I. Nat. et Gent. i. c. I. 20. * Opera, i. p. 118.
* Iurispr. Div. lib. iii. c. i. 1.82. * Rechtslehre, Werke, ix. p. 35.
* Die Grundbegriffe des Rechts und der Moral, p. III.
* Instit. ii. p. 393. * Geist des rómischen Rechtes, iii. § 60.
RIGHT AND DUTY. 59
as may be necessary in order that his wishes may be so
carried out, then he has a ‘legal right’ so to carry out his
wishes.
If it is a question of might, all depends upon a man’s own
powers of force or persuasion. If it is a question of moral
right, all depends on the readiness of public opinion to express
itself upon his side. If it is a question of legal right, all
depends upon the readiness of the State to exert its force
on his behalf. It is hence obvious that a moral and a legal
right are so far from being identical that they may easily be
opposed to one another. Moral rights have, in general, but
a subjective support, legal rights have the objective support
of the physical force of the State. The whole purpose of
laws is to announce in what cases that objective support will
be granted, and the manner in which it may be obtained.
CHAP. VII.
In other words, Law exists, as was stated previously, for the
definition and protection of rights. X
Every right, whether moral or legal, implies the active Of a duty.
or passive furtherance by others of the wishes of the party
having the right. Wherever any one is entitled to such
furtherance on the part of others, such furtherance on their
part is said to be their “duty.’
Where such furtherance is merely expected by the public
opinion of the society in which they live, it is their “moral
duty.’
Where it will be enforced by the power of the State to
which they are amenable, it is their ‘legal duty.’
The correlative of might is necessity, or susceptibility to
force; of moral right is moral duty; of legal right is legal
duty. These pairs of correlative terms express, it will be
observed, in each case the same state of facts viewed from
opposite sides.
A state of facts in which a man has within himself the
physical force to compel another to obey him, may be de-
scribed either by saying that A has the might to control B,
or that B is under a necessity of submitting to A. So when
60 RIGHTS.
CHAP. VII,
public opinion would approve of A commanding and of B
obeying, the position may be described either by saying that
A has a moral right to command, or that B is under a moral
duty to obey. Similarly, when the State will compel B to
carry out, either by act or forbearance, the wishes of A, we
may indifferently say that A has a legal right, or that B is
under a legal duty.
It is unimportant in theory whether a system of law starts
with a consideration of rights or of duties. It is important
only that whichever point of view be adopted should be con-
sistently adhered to. We shall take Rights rather than
Duties as the starting-point of our classification, although
some authority may be adduced in favour of the opposite
method".
Law has been for centuries described as a ‘command.’
This is essentially the true description of it, although the
form in which the law is promulgated is not always impera-
tive. Every law is a proposition, announcing what course will
be taken by the State in certain cases; that is to say, what
advantages will be protected by the power of the State as
being legal rights, and the burden of what disadvantages will
be enforced by the State as being legal duties. This an-
nouncement may however be made in many different ways.
A law may be imperative, as, “Honour thy father and thy
mother,’ but it may also be in the indicative mood, as “No
contract for the sale of goods shall be allowed to be good,
unless some note in writing be made and signed.’ ‘The real
meaning of all Law is that, unless things proceed in the
manner prescribed by it, the State will, either of its own
accord or if called upon, intervene. This intervention of
the State is what is called the “sanction' of a law*,x It is
true that the State intervenes not only with a view to punish-
ment, but also to effect restitution, and this is perhaps its
The rela-
tion of law
to rights.
* See Am. Law Review, vii. p. 46.
* * Legum eas partes quibus paenas constituimus adversus eos quicontra leges
fecerint, Sanctiones vocamus.’ Iust. Inst. ii. 1. Io.
LAW AND RIGHTS. 61
principal function; but before the commission of the wrong
the announcement of State intervention in case of its com-
mission operates upon the general mind by way of threat of
punishment. It is a punishment to a wrongdoer if his wrong
be merely undone, and he has, as the saying goes, ‘his trouble
for his pains.' Law is, in fact, formulated and armed public
opinion, or the opinion of the ruling body. It announces not
only that certain states of things and courses of action are
viewed by it with favour, but also that, in case of the inva-
sion of these states of things, or in case of contrary courses
of action being pursued, it will not only look on with dis-
favour, but will also actively intervene to restore the disturbed
balance. -
Ž It defines the rights which it will aid, and specifies the
CHAP. VII.
“Sub-
stantive ’
way in which it will aid them. So far as it defines, thereby . Ad-
creating, it is ‘Substantive Law.’ So far as it provides a łº
method of aiding and protecting, it is ‘Adjective Law,’ or
Procedure.
CHAPTER VIII.
ANALysis of A RIGHT.
WE have seen that a ‘moral right' implies the existence
of certain circumstances, with reference to which a certain
course of action is viewed with general approbation, and
the contrary course, with disapprobation; that a ‘legal right'
exists where the one course of action is enforced, and the other
prohibited, by that organised society which is called ‘the
State.’ {\
The We have next to consider more particularly what is the
º#. character of those elements from which a Right results.
They are—
(1) A person “in whom the right resides’ or who is
* clothed with the right,” or who is benefited by
its existence.
(2) In many cases, an object over which the right is
exercised.
(3) Acts or forbearances which the person in whom the
right resides is entitled to exact.
(4) A person from whom these acts or forbearances can
be exacted; in other words, against whom the
ITS FOUR ELEMENTS. 63
right is available; in other words, whose duty it chAP. VIII.
is to act or forbear for the benefit of the subject
of the right. -
The series of elements into which a Right may be resolved
is therefore:
The Person | The Object. The Act The Person
entitled. or Forbearance. obliged.
It will be observed that the first and the last terms of the A series
series are a person. The second term is the physical object .
of the right, if any (for there exist large classes of rights
which have reference to no object either physical or assimi-
lated to such); and the third term is made up of the acts
or forbearances to which the person in the fourth term is
bound.
It will be convenient to call the person entitled ‘the per-
son of inherence;’ and the person obliged, ‘the person of
incidence.” The intermediate terms may be shortly referred
to as ‘the object’ and ‘the act’ respectively.
That this series is no technical abstraction but a simple
formula for the representation of the indisputable ele-
ments of a right, may be more apparent from an example.
A testator leaves to his daughter a silver teapot. Here
the daughter is the ‘person of inherence,’ i.e. in whom
the right resides; the teapot is the “object’ of the right;
the delivery to her of the teapot is the ‘act’ to which
her right entitles her; and the executor is the ‘person
of incidence,’ i. e. the person against whom her right is
available. Or take an example of a right where, as we
stated to be often the case, the second term of the series
is wanting. A is B’s servant. Here B is the ‘person of
inherence, reasonable service is the ‘act to which he is
entitled, and A is the ‘person of incidence,’ against whom
the right is available. The nature of the right varies with
a variation in any one of the four terms which are implied
64 ANALYSIS OF A RIGHT.
CHAP. VIII.
Facts.
in it, and the variations in the nature of the right give
rise to the main heads or departments of law.
The preceding analysis of the nature of a right implies
the ideas of ‘Person,’ ‘Thing, and ‘Act.” These are the per-
manent phenomena of a right; its statical elements. A
right, conceived of as at rest, postulates; a Person of in-
herence and a Person of incidence; Acts to which the former
is entitled, and which the latter is obliged to perform ;
and often, though not always, an Object or Thing.
But if the right is put in motion, phenomena of a new
kind intervene. They are shifting, dynamical, and may
be expressed by the general term ‘Facts;’ under which are
included, not only the ‘Acts’ of persons, but also the ‘Events’
which occur independently of the volition of the persons con-
cerned with the right.
It is, as we have seen, by ‘Acts” that rights are enjoyed.
And we shall see that it is through the agency of ‘Acts’
or of ‘Events’ that rights are created, transferred, trans-
muted, and extinguished. In order therefore to understand,
not only the nature of a right and the mode of its en-
joyment, but also the manner of its creation, transfer, and
extinction, it is necessary to acquire clear ideas of the full
meaning of the following terms:—
I. Person.
II. Thing.
III. Fact, under which term are included—
Event,
Act, of omission as well as of commission.
With reference to the important term ‘Act” it is necessary
to consider the relations of the will to its exertion and its
expression. It will also be necessary to classify acts.
I. A ‘Person’ is often defined as being the ‘Subject, or
Bearer, of a right'; ' but this is to narrow the significance of
the term. Rights not only reside in, but also are available
Person,
* E. g. Savigny, System, ii. p. I ; Puchta, Inst. ii. p. 29.I.
PERSONS. 65
against persons. In other words, there are persons of inci-cHAP. VIII.
dence as well as of inherence. Persons are the subjects of
Duties as well as of Rights. In persons rights inhere, and
against them rights are available. For the benefit of
persons duties are created, and it is on persons that duties
are imposed.
Persons, i.e. subjects of Rights or of Duties, are in general
human beings; but, in imitation of the personality of human
beings, the law recognises certain groups of men or of pro-
perty, which it is convenient to treat as subjects of rights
and duties; as Persons in an artificial sense.
I. A ‘natural,’ as opposed to an ‘artificial,' person is such Natural
a human being as is regarded by the law as capable of rights”
or duties: in the language of Roman law as having a
‘ status. As having any such capacity recognised by the
law, he is said to be a person, or, to approach more nearly
to the phraseology of the Roman lawyers, to be clothed
with, or to wear the mask (persona) of legal capacity".
Besides possessing this general legal capacity, or status,
a man may also possess various special capacities, e.g. he may
be an alien, a bankrupt, or a minor. Thus it is true to say
that ‘unus homo plures sustinet personas, i.e. one indivi-
dual may be clothed with different kinds of legal capacities”.
A natural person is therefore, if we include under ‘status’
capacity for liability as well as for the enjoyment of rights,
well defined as ‘homo cum statu suo consideratus *.’ It is in
this sense that a slave who, though he had no rights was yet
* Cf. Cic. De Off. i. cc. 30, 32. The equivalent of ‘persona in the Institutes
of Theophilus is tipógorov.
* ‘Tres personas unus sustineo.” Cic. De Orat. i. 4o ; ii. c. 24.
* “Status’ is “qualitas cuius ratione homines diverso iure istuntur, Heinecc.
Recit. i. tit. 3. ‘Personam (quae quidem a personando dicitur)-potestatem
iuris vocamus, sive facultatem et iurium exercendorum et officiorum subeun-
dorum, hominibus iure accommodatam et quasi impositam.' Mühlenbruch,
T}oct. Pand. ii. p. 1. Cf. Austin, Lect. 40, 41.
F
66 ANALYSIS OF A RIGHT.
CHAP. VIII.
Character-
istics of.
Artificial
persons.
subject to liabilities, is repeatedly classed by Roman lawyers
among ‘personae".’
A natural person must combine the following character-
istics:—
(1) He must be a living human being, i.e. (a) he must
be no monster”; (b) he must be born alive”;
while, (e) on the other hand, he must not have
ceased to live. He need not be rational.
(2) He must be recognised by the State as a person ;
so must not be civilly dead, a ‘caput lupinum,’
or a slave in the absolute control of his master *.
Any individual combining these two characteristics is a
‘person,’ i.e. is capable of rights and liable to duties. He
may otherwise be said to sustain a personality; and the same
man may sustain different personalities, as an actor may play
in several masks.
The various degrees in which individuals who are per-
sons at all are capable of rights or liable to duties, depend
upon circumstances to which different consequences have
been attached by different systems of law. There are
different grades of personality, and these depend upon the
freedom, the maturity, the sex, the sanity, the citizenship,
and so forth, of the individual. As to freedom, for instance,
a slave, who is not absolutely at the disposal of his master,
may be said to have a personality, though a limited one.
As to maturity, distinctions have been drawn depending
partly on physical developement, partly on the fulness of
the reasoning powers.
2. “Artificial,’ ‘conventional,” or “juristic’ persons, are such
* Austin has well pointed out that this is not inconsistent with the state-
ment also repeatedly made, that a slave has no ‘caput,’ which is only one
species of status; ii. p. 418: but it is said of a slave, when freed, “hodie incipit
statum habere;’ Dig. iv. 5. 4.
* Dig. i. 5. I4, 1. I6. 38; Cod. vi. 29. 3.
* Dig. xxv. 4, 1, 1, 16. 129; though mere conception may give rights, Dig.
i. 5. 7.
* Dig. iv. 5. 3.
ARTIFICIAL PERSONS. 67
groups of human beings or masses of property as are in the chap. viii.
eye of the law capable of rights and liabilities, in other words
to which the law gives a status.
Such groups are treated as being persons, or as sustaining
the mask of personality.
They are of two kinds— Species of
(I) Universitates personarum ; ” such as-
The State itself.
Departments or parishes.
Collegia.
Churches.
(2) “ Universitates bonorum;’ such as–
Funds left to pious uses’ without a trustee. •º.
A hereditas before ‘aditio,” which “personae vice
fungitur, sicut mancipium et decuria et societas.”
So the estate of an intestate before administra-
tion.
The estate of a Bankrupt.
Such juristic, or artificial, persons come into being when— Requisites
(1) There exists a group of persons, or mass of property, of.
as the case may be, and
(2) A law gives to the group or mass in question the
character of persons. This may be either—
(a) A general rule, applicable wherever its con-
ditions are satisfied, e.g. “the Companies
Act, 1862.’
(b) A special act of sovereign power, e.g. an in-
corporating statute, or charter.
A juristic person comes to an end— 1)issolution
(1) By failure of its component parts. ‘Sed si univer- of.
sitas ad unum redit, magis admittitur posse eum
convenire et conveniri; cum ius omnium in unum
reciderit, et stet nomen universitatis”.”
(2) By an interference with its existence on the part of
the sovereign power.
5
* Dig. iii. 4. 7.
F 2
68 ANALYSIS OF A RIGHT.
CHAP. VIII.
Thing.
Physical
and Intel-
lectual.
T)erivation
of the
distinction.
II. ‘A Thing’ is the Object of a Right; i.e. whatever is
treated by the law as the object over which one person exer-
cises a right, and with reference to which another person lies
under a duty. -
Of ‘Things,’ in this sense, there are two kinds:–
(1) Material objects, i.e. physical things, res corporales,
such as a house, or a slave.
(2) Intellectual objects, artificial things, res incorporales,
such as a patent, a trademark, a copyright, an
easement, a hereditas, a bankrupt's estate, a uni-
versitas; i.e. groups of advantages with reference
to material objects, which for shortness are treated
by the law as if they were material objects.
So that, just as we have seen that what the law means by
a “Person’ is—the Subject of a Right or Duty, irrespectively
of the subject being, or not being, as is more frequently the
case, a human individual; so a ‘Thing' is—what the law
regards as the Object of Rights and Duties, irrespectively of
that object being, as it usually is, a material object.
This artificial use of the term. Thing (Sache) in Jurispru-
dence is at least as old as Gaius. ‘Quaedam praeterea res,’
he says”, “corporales sunt, quaedam incorporales—quae tangi
possunt—quae in iure consistunt ; ” and is carried by him,
and by the Roman writers generally, to excessive lengths.
The double use of the term ‘Res’ is not peculiar to legal
science, but was in fact borrowed by it from speculative
philosophy. Cicero, talking of ‘res’ in the sense of objects
of thought, says that they are divisible into ‘eae quae sunt
and ‘eae quae intelliguntur;' and he happens to mention, as in-
stances of the latter, “usueapio, gens, tutela.”.” The use of the
term in anything like so vague a sense as this is however to
be deprecated in Jurisprudence. It is no doubt convenient
for the purposes of that science to distinguish between
physical objects, and certain groups of rights over such
I Inst. ii. 2. * Top. c. 5.
THINGS. 69
objects, which rights, for purposes of transfer and otherwise, CHAP. viii.
are occasionally treated as if they were physical objects.
The fiction by which patents, bankrupts’ estates, or ease-
ments are regarded as ‘Things,’ is indeed not only harmless
but almost indispensable.
It is another question whether the Roman institutional
writers should be followed in extending this fictitious class so
far as to embrace even “obligations,’ i.e. mere rights that one
man has against another irrespectively of any physical object
whatever.
A moment's reference to our analysis of a Right will show Abuse of it.
how illogical is this use of the term. We have explained
that a right implies two Persons; the Act which one of
those is bound to perform for the other; and, in some
cases, an Object or Thing with reference to which the
Act is to be performed. If we allow that this Thing may
sometimes be an obligation, i.e. a species of right, and
at the same time accept the correctness of our analysis
of a right, we shall have committed the absurdity of
analysing a right into four factors, one of which is itself;
in other words, into four parts one of which is the whole.
The true view we conceive to be the following :—‘Thing'
(Res, Ding, Chose) is a term which, besides its proper
meaning, has also an analogical application. In Juris-
prudence this analogical use is kept within due bounds.
Legal science recognises ‘Things” (Dinge) only so far as
they are capable of standing in relation to the human Will
(Sachen). Such things are either material objects, or certain
groups of rights over material objects which it is convenientſ
to treat as if they were material objects.
It remains to consider: the definition of a material
thing ; the classification of things in accordance with the
different ways in which they are subservient to persons; the
divisibility and componibility of things.
(1) A ‘Thing’ may be defined ‘a permanent external Definition
o tº * * * f a
cause of sensations.” The full meaning of any such definition Hºrial
- Thing.
70 ANALYSIS OF A RIGHT.
is of course a question not of Jurisprudence but of Meta-
physics. The jurist need not go further than to lay down
that a physical thing is something which is perceptible
|by the external organs of sense, and is capable of being
so perceived again and again. By the latter characteristic
it is distinguished from ‘Events,” which are transient causes
of sensation. As Austin says: ‘The import of the expres-
sion “permanent sensible object’ is, I think, this: it denotes
an object which is perceptible repeatedly, and which is con-
sidered, by those who repeatedly perceive it, as being (on
those several occasions) one and the same object. Thus the
horse or the house of to-day is the horse or house of yes-
terday; in spite of the intervening changes which its appear-
ance may have undergone".”
This rough definition of a Thing, which indeed is little
more than a somewhat precise statement of what is popularly
meant by the term, is, as we have stated, generally sufficient
for the purposes of Jurisprudence. It may however be re-
marked that even lawyers are occasionally called upon to
consider more minutely in what the identity of a thing
consists *.
(2) Things are classified in various ways, in accordance with
the manner in which they are subservient to persons. The
more important distinctions are between—
Res mobiles, immobiles.
Res in commercio, extra commercium.
Things principal, accessory.
Res fungibiles, non fungibiles.
Res quae usu consumuntur, non consumuntur.
Things divisible, indivisible.
(3) The unity of a Thing is either physical, as in the case
of a house *, or merely ideal, as in the case of a flock of
sheep *.
CHAP. VIII.
Classifica-
tion of
Things.
Divisibility
of Things.
* Jurisprudence, ii. p. 21. * See e.g. Buckley v. Gross, 3 B. and S. p. 566.
* “Corpus ex cohaerentibus corporibus.”
* * Unum corpus ex distantibus capitibus.” Such a whole is, according to
FACTS. 71
In the former case it is described as a physical, in the CHAP. viii.
latter as an ideal, whole.
A whole of either kind may be either physically or ideally
divided.
When a physical whole is divided into its physical parts,
the parts are treated pro diviso, each becoming a new whole;
e.g. the stones of a house.
A physical whole may however be divided into merely
ideal parts, which are then held pro indiviso, as in the case
of several owners of a slave; or several joint tenants of an
estate, each of whom is seised in it per my et per tout.
An ideal whole" may have physical parts, as in the case
of a flock of sheep; and such a whole may continue to sub-
sist, though all its parts are changed 4. It has been de-
scribed as ‘universitas rerum distantium.’
An ideal whole may also be composed of ideal parts, e.g.
the estate of a deceased person. Such a whole is known as
a ‘universitas iuris, the parts of which are rights, not ob-
jects of rights *.
Some wholes, though physically capable of division, are
juristically indivisible; because by division the character of
their parts is entirely changed, e.g. a picture, an animal,
a house.
III. ‘Facts” (Thatsachen, Faits), which may be roughly Facts.
defined as ‘transient causes of sensation,’ are either ‘Events’
or ‘Acts.” -
1. ‘Events’ (Ereignisse, Zufallige Umstände, Zufall, Casus, Events.
Evénements) may be either movements of external nature, or
Böcking, a mere “universitas iuris’ or collection of rights, not a collective
object of rights.
* “Juristic thing.” Puchta, Inst. ii. p. 519 n.
* Dig. vi. I. I. § 3.
* The terms employed in the text have not always been employed with
uniformity. Thus Puchta gives as the old division : (1) universitas facti (or
hominis), i.e. univ. rerum distantium ; and (2) universitas iuris, e.g. peculium,
dos. Cf. Savigny, System, i. pp. 376, 378; Id. Obligationenrecht, i. p. 305.
72 ANALYSIS OF A RIGHT.
CHAP. VIII, may be acts of a human being other than the human being
whose rights are under consideration.
Tlapse of time and change of place are among the events
which are most productive of legal consequences".
Acts. 2. ‘Acts” (Handlungen, Actes) are movements of the will.
Mere determinations of the will are ‘inward acts.” Deter-
minations of the will which produce an effect upon the
world of sense are ‘outward acts.' Jurisprudence is con-
cerned only with the latter”. An ‘Act” may therefore be
defined, for the purposes of the science, as ‘a determination
of will, producing an effect in the sensible world”.'
Essentials It follows that the essential elements of an Act are three,
of an act, viz, a capacity of willing, a direction of the will to some
end, and an expression of will 4.
(1) Capacity for willing. Hence—
(a) A merely juristic person cannot act, unless
by a representative, or by a majority of its
members. 6.
(6) Nor a lunatie. ‘Furiosi nulla voluntas est".’
(c) Nor an infant under years of discretion.
“Sensus nullus infantis accipiendi posses-
sionem".’
(2) Exertion of will. This needs understanding, which,
in various degrees, is wanting to—
(a) “Impubéres, although ‘infantia maiores.’
(b) Women, according to older systems of law.
* Savigny, System, iii. p. 297.
* “Nec consilium habuisse noceat, nisi et factum secutum fuerit.” Dig. 1.
I6. 53.
* The ‘Entschluss des Willens' plus the “Aiiserung des Willens’ is ‘That,’
which may be of omission or of commission. “Die That ist tiberhaupt die her-
vorgebrachte Veränderung und Bestimmung des Daseyns. Zur Handlung aber
gehört nur dasjenige was von der That im entschlusse liegt, oderim Bewusstsein
war, was somit der Wille als das seinige anerkennt.” Hegel, Propädeutik,
Einl. § 9.
* Cf. Savigny, System, iii. p. 98; Puchta, Inst., ii. p. 343.
* Dig. xliv. 7. 1; l. I 7. 5 et 4o.
* Dig. xli. 2. 32.
ACTS, 73
(e) Decreed ‘prodigi.’ CHAP. VIII.
(d) Minors.
In some of these cases the defect of an understanding will
is supplied by a provision of law, e.g. ‘tutela.”
(3) Expression of will.
In some cases the will may be expressed by some one other
than the party willing, i.e. by an Agent.
Acts are divided by Jurisprudence into those which are Classifica-
“lawful” and those which are “unlawful.” The juristic result tion of acts.
of the unlawful acts is never that aimed at by the doer.
In the case of some lawful acts, their operation is independent
of the will of the doer, in the case of others his intention is
directed to the juristic result.
In the last-mentioned case the act is technically described Juristic
as “negotium civile,’ ‘Willenserklärung,” “Acte juridique,” act.
* Rechtsgeschäft; the nearest English equivalent for which
terms is probably I uristic Act.”
A Rechtsgeschäft is defined as ‘Handlung deren Absicht
auf eine rechtliche Wirkung gerichtet ist’.” “Erlaubte
Willensatiserung durch welche ein Rechtsverhältniss (i.e. eine
gewisse Zufolge der Rechtsbestimmung geltende Beziehung
der Willen der Rechtsubjecte) begründet, geåndert, oder
beendet wird”.’ ‘Erlaubte Willenshandlung die dazu bestimmt
ist eine Veränderung in den Rechtsverhältnissen herbei-zu-
fuhren.’
Juristic Acts (Rechtsgeschäfte) must of course exhibit, in Requisites
common with all Acts (Handlungen), the characteristics of of.
a Will exerted and expressed ; and any circumstances, such
as Duress or Mistake, which prevent the free exertion of
the will nullify or modify the resulting juristic Act.
The mode in which the will ought to be expressed for the Its form.
production of any given act is its ‘form.’ In some cases a
special form is required by law, as in Roman law for the
* Puchta, Inst. ii. p. 342. * Böcking, Inst, p. 45.
74. ANALYSIS OF A RIGHT.
‘stipulatio, and in English law for a contract not to be per-
formed within the year, or for the probate of a will. The
form may be such as to preclude certain classes of persons
from doing the act, as “peregrini’ were incapable of pro-
nouncing the solemn formula of the stipulation. In other
cases the form of the act is immaterial, and the determination
of will may be sometimes implied rather than expressed.
In order to the production of a juristic result the will
and the expression of the will must be in correspondence.
The outward expression may differ from the inward deter-
mination either purposely or by inadvertence. It differs
purposely when legal phrases are used merely in jest, or when
it is well understood that acts are merely symbolic, as were,
for instance, those of the ‘familiae emptor’ in a ‘Manci-
patio,” or of the ‘vouchee' in a ‘common recovery.”
Where several persons combine to throw a meaning over
a transaction which is not the real one, the rule of Roman
law was ‘plus valere quod agitur quam quod simulate con-
cipitur".”
The expression may also differ inadvertently, or by mistake.
The rule of Roman law in such a case is expressed in the
passage: ‘qui aliud dicit quam vult neque id dicit quod vox
significat, quia non vult, neque id quod vult, quia id non
loquitur”.”
Juristic Acts are distinguished into ‘one-sided,” where the
will of only one party is active, and “two-sided, where there
is a concurrence of two or more wills to produce the effect
of the act. f f
The characteristics of a juristic act of any given species
are divided into those which are ‘essentialia,’ ‘naturalia, and
“accidentalia negotii.”
The ‘essentialia’ of the Act are the facts without which
it cannot exist, e.g. according to Roman law there could
be no transfer of the property in goods sold without deli-
very of them.
CHAP. VIII.
Corre-
spondence
between
the will
and its ex-
pression.
* One-sided’
and “two-
sided ?
juristic
acts.
Character-
istics of.
* Cod. iv. 22. * Dig. xxxiv, 5. 3.
CONDITIONS. 75
The ‘naturalia’ are those facts which are always presumed CHAP. VIII.
to be part of the transaction in question, though the pre-
sumption may be contradicted, e.g. the presumption in Roman
law that the property in goods sold did not pass till the
price had been paid. *
The ‘accidentalia’ are those facts which in the given
case are not presumed and must therefore be proved.
The two latter kinds of characteristics can alone be varied Conditions.
by the will of the parties to the act. The variations which
may thus be superadded to necessary portions of the act are
its conditions.’ Some of them, such as ‘dies’ and ‘modus,’
affect only its operation ; others, which are conditions in the
most accurate sense of the term, affect also its very exist-
ence. Such a ‘condition * may be defined as ‘the pre-
supposition of a future uncertain circumstance, upon which
the Will of the party makes the existence of his juristic
act, or of its contents, wholly or partially to depend”.”
A condition is ‘suspensive when the commencement, and
‘resolutory’ when the termination, of the operation of the act
is made to depend upon its occurrence.
* Puchta, Inst. ii. p. 365.
CHAPTER, TX.
THE LEADING CLASSIFICATIONS OF RIGHTS.
THE possible modes of classifying Rights are almost infinite,
but four only are of first-rate importance. These depend
respectively—
I. Upon the public or private character of the persons
concerned.
II. Upon the normal or abnormal status of the persons
concerned.
III. Upon the limited or unlimited extent of the person
of incidence.
IV. Upon the act being due for its own sake, or being
due merely in default of another act.
These various modes of dividing Rights have, be it observed,
nothing to do with one another. They are what are called
cross divisions, such as would be divisions of liquids into
viscous and non-viscous, hot and cold, fermented and non-
fermented; and consequently, though any given right can
only exhibit one of the alternative characteristics of each
mode of division, yet it may combine this with either of the
characteristics of each of the other modes. Just as a liquid
PUBLIC AND PRIVATE, 77
may be viscous, fermented, and cold, or viscous, fermented, CHAP. IX,
and hot, or non-viscous, non-fermented, and hot, and so
forth, through all the possible combinations of viscosity,
fermentation, heat, and their opposites.
Since therefore every Right exhibits either the positive or Choice of a
the negative characteristic of each of the above-mentioned *
modes of division, i.e. since every Right may be classified
in accordance with its relations to each and all of the
above-mentioned distinctions, it becomes a question which of
these is to be adopted by the Jurist as being the radical
distinction, and in what order the others are to be sub-
ordinated to it; just as a writer on fluids might have to
determine whether he would set out by classifying them
into viscous and non-viscous, or into fermented and non-
fermented. The question is to be decided upon grounds of
convenience. Whichever division is most fertile in results
should obviously be selected as the radical one, to which
the rest should be subordinated in the order of their relative
importance.
The relative importance of the four modes of division will
perhaps be self-evident when the nature of each has been
fully explained.
I. A very radical division of Rights is based upon a broad Public and
distinction between the public or private character of the #.
persons with whom the right is connected. By a ‘Public
person’ we mean either the State, or the sovereign part
of it, or a body or individual holding delegated authority
under it ".
By a ‘Private person’ we mean an individual, or collection
of individuals however large, who, or each one of whom, is
of course a unit of the State, but in no sense represents it,
even for a special purpose.
* All authority is of course exercised by permission of the State, e.g. of a
father over his family, but it is better to see here only a relation of private
life, Sanctioned by the sovereign, not a delegation of the sovereign power.
78 THE LEADING CLASSIFICATIONS OF RIGHTS.
CHAP. IX.
Resulting
division of
Rights,
and of Law.
The
radical
division.
Persons being thus distinguished into ‘Public, or Political,
and “Private,” or Civil, Rights may be next distinguished
according as one, or both, of the persons with whom the
Right is connected is, or are, a Public person, or not.
(1) The two persons connected with the right may both
be subjects (civis and civis).
(2) One of them may be the State, the other a subject
(civitas and civis).
(3) Both may be States (civitas and civitas).
From this threefold division of Rights there results a
threefold division of Law as the definer and protector of
Rights, which when they subsist:-
(1) Between subject and subject are regulated by
* Private ’ law.
(2) When between State and subject, by ‘Public’ law.
(3) When between State and State, by ‘International’
law.
‘Private’ law is the body of rules which defines and
regulates rights where both of the persons concerned are
private individuals.
‘Public' (municipal) law is the body of rules defining and
regulating rights where one of the persons concerned is a
Public or Political person, i.e. is the State or a person to
whom the authority of the State is delegated.
‘International” law is the body of rules defining and
regulating rights where both of the persons concerned are
Political, i.e. are independent States.
This threefold distribution of the whole field of law is of
such capital importance that we have no hesitation in
adopting the division of rights out of which it springs as
the radical division of them.
The differences between the three kinds of law above
enumerated depend upon the presence or absence of an
arbiter of the rights of the parties.
In Private law, which in many respects is the only
typically perfect law, it will be observed that both the ~
PUBLIC AND PRIVATE LAW. 79
parties concerned are private individuals, above and between CHAP. IX.
whom stands the State as an impartial arbiter. In Public
law also the State is present as arbiter, but it is at the same
time one of the parties interested. And in International law
then is no arbiter at all, but both parties are equally judges
in their own cause. The law where a political arbiter is
present, be he or be he not identical also with one of the
parties, is often called “ Municipal,” to which under the name
of ‘International’ that law is opposed which has no arbiter at
all to which it can appeal.
Now it is plain that if Law be defined as we have defined Nature of
it', a political arbiter by which it can be enforced is of its ººw.
essence, and law without an arbiter is a contradiction in
terms. Convenient therefore as is on many accounts the
phrase ‘International law' to express those rules of conduct in
accordance with which, either in consequence of their express
consent or in pursuance of the usage of the civilised world,
nations are expected to act, it is impossible to regard those
rules as ‘law in the fullest sense, or as being in reality
anything more than the moral code of nations.
Setting aside therefore ‘international” law as law only Municipal
by analogy, we accept what is not very happily called law.
‘municipal law as alone in strictness entitled to the name.
And here it is that the differences in the species of law,
which we have traced from their root in the differences of
rights, caused by the political or non-political character
of the persons concerned with them, has again to be con-
sidered.
We have seen that the political or non-political character Divided
of the persons with whom Rights are concerned leads to a ºi. and
distribution of law into International and Municipal, the *
latter kind of law which alone is properly so called, being
again divided into ‘Public' and ‘Private : * and we have
now to explain the application of the distinction, and to
justify our assertion that this is the radical distinction
* Supra, p. 34.
80 THE LEADING CLASSIFICATIONS OF RIGHTS.
CHAP. IX.
Vahue
of this
division.
between Rights, and consequently between the departments
of Law. -
By adopting this subdivision of municipal law, its whole
field falls at once into two natural sections. On the one hand
is the law which regulates rights where one of the persons
concerned is ‘public;’ where the State is, directly or indirectly,
one of the parties. Here the very power which defines and
protects the right is itself a party interested in or affected by
the right. That is to say, it is at the option of one of the
persons who are concerned with the right to uphold or to
extinguish it. If the State is the ‘person of inherence’ it
will naturally, though of course not of compulsion, protect
its own right. If the State is the ‘person of incidence, it may
conceivably refuse to uphold the quasi-right of the person
of inherence against itself. If the State executes laws which
protect rights against itself, it is acting upon the maxim
applied to their own conduct by the Roman Emperors—
“Legibus soluti lege vivimus.” Opposed to this is the law
which regulates rights where both of the persons concerned
are ‘private persons.” Here the parties interested in or
affected by the right have nothing to do with protecting
it. This is done by the State, whénever the person of
inherence invokes its aid.
The punishment, for instance, of a traitor is a matter of
public law. The right violated by him is a public right,
because the person in whom it resides is the State. The
State has a right not to be conspired against, the traitor
violates this right, and the same State whose right has been
violated intervenes to protect itself and to punish the
offender. If, on the other hand, a carrier damages my goods,
the question raised is one of private law. My right to have
my goods safely carried is a private right, because both the
carrier and myself are private individuals; though I am
entitled to call in the intervention of the State to obtain
compensation from him for the injury I have sustained. It
is necessary, in order to obviate a frequent confusion upon
PUBLIC AND PRIVATE LAW . 81
the point, to mention that the same act may often infringe
both a public and a private right. Thus an assault or a libel
upon an individual is a violation of two distinct rights, i. e.
of the private right of the individual to be unmolested, and
of the public right of the State not to be disturbed by acts
constituting, or tending towards, breaches of the public
peace.
The distribution of Law which has been thus shown to
be logically consistent possesses other advantages also. A
moment’s consideration will show the convenience of an
arrangement in accordance with which constitutional, eccle-
siastical, criminal, and administrative law, on the one hand,
and the law of contracts, of real and personal property, of
wills and successions and of torts, on the other hand, form
two groups to one or other of which every legal topic
may be referred.
In recognising as the primary principle of the division
of our science the distinction between public and private
persons, resulting, through the severance of public and
private rights, in the opposition of public and private law,
we have the irrecusable authority of the Roman jurists.
‘Publicum ius,” said Ulpian, and his words adopted by
Justinian have influenced the legal speculation of the world,
‘est quod ad statum rei Romanae spectat ; privatum quod ad
singulorum utilitatem pertinet’.” Or as Paulus says: “Alterum
utilitas privatorum, alterum vigor publicae disciplinae pos-
tulat”.”
But indeed the distinction is much older. It is beautifully
worked out by Aristotle, who classifies offences according to
those against whom they are committed. They are com-
mitted, he says, either against the State (tò kowov) or an
individual (Éva Töv kolvøvoúvtov). An assault is an injury
to an individual, while avoiding military service is an injury
to the State *.
* Tig. i. I. I ; Inst. i. I. 4. * Dig. xxxix. iv. 9. 5; cf. c. i. 2, 23.
* Rhet. i. e. I 3.
G
CHAP. IX:
82 - THE LEADING CLASSIFICATIONS OF RIGHTS.
CHAP, IX,
Although clearly grasped and stated by the Romans, and
borrowed from them by most of the continental nations as
the fundamental basis of legal division, the distinction has
been relegated by writers of repute to a subordinate position,
if not altogether rejected.
Thus Austin divides primarily the whole field of law into
the law of Persons’ and that ‘ of Things,’ subordinating to
the law of Persons the mighty cleavage between Public and
Private law. ‘Public law,’ he says, ‘is the law of Political
status".” Our reasons for disapproving of this arrangement
will probably be sufficiently apparent when we have explained
the distinction which Austin thus treats as the primary one ;
we may however at once observe that when so secondary a
function is assigned to the division of law into Public and
Private, it is impossible to find a satisfactory position in the
Corpus Iuris for the law of Crime *.
Connected with the distinction which we have been dis-
cussing is the doctrine of ‘absolute’ and ‘relative’ duties”,
which Austin explains as follows: ‘A relative duty is
incumbent upon one party, and correlates with a right
residing in another party. In other words, a relative duty
answers to a right or implies and is implied by a right. . . .
Where a duty is absolute, there is no right with which it
correlates. There is no right to which it answers. It
neither implies, nor is implied by, a right “. . . A relative
duty corresponds to a right, i.e. it is a duty to be fulfilled
towards a determinate person, or determinate persons, other
than the obliged, and other than the sovereign imposing the
duty. . . . All absolute obligations are sanctioned criminally.
They do not correspond with rights in the sovereign ".’
Absolute
and rela-
tive duties.
* Austin, ii. p. 71. He fortifies himself by the authority of Hale and Black-
stone.
* See Austin, ii. p. 72. On the difference between civil and criminal law,
See Ed. Rev. Vol. 54 (1831), pp. 220, 22 I.
* See Bentham, Traités de Législation, i. pp. 154, 247, 305; Princ. Morals
arid Leg. pp. 222, 289, 308.
* Austin, ii. p. 67. * Ib, ii. p. 73.
LAW OF PERSONS AND OF THINGS, 83
He classifies absolute duties as being (1) towards self,
(2) towards persons indefinitely, or towards the sovereign;
(3) duties not regarding persons, but regarding God or the
lower animals'. We are quite willing to concede not only that
a man can have no relative duty towards himself, towards
God, or towards the animals, but also that he can have no
legal duty at all towards these beings, whatever moral or
religious obligations he may be under. But we deny that
there can be no relative duties towards persons indefinitely,
or towards the sovereign”. In other words, we assert that
an indefinite number of persons, or the sovereign, may be
clothed with a right. That this is so may be seen from the
form of indictment, which in England runs ‘The Queen on
the prosecution of A. B. against C. D.;’ in America ‘The
people against E. F.’ The State is surely as capable of
possessing a right as is the Corporation of London. The
State has rights, and duties owed to it are as relative as
any others. -
Indeed it is not improper to talk of the State as having
duties, namely such as it prescribes to itself. Such duties we
often see enforced, e.g. in England by a Petition of Right, or
by a judgment adverse to the Crown in the Exchequer Divi-
sion of the High Court. The State has duties, though it has
the physical power to disregard them, and the constitutional
power to repudiate them.
CHAP. IX.
II. The status of the persons concerned is, as we before Law of
observed, another basis of the division of rights.
Persons
and of
That is to say, there are some rights in which the status *
of the persons concerned has to be specially taken into con-
sideration, while in others this is not the case.
This distinction has led to a division of Law into the ‘law
of persons’ and the ‘law of things,’ but in order to trace the
steps by which this result was attained, we must go back
* Austin, ii. pp. 74–75. * As laid down, ib. p. 59.
84 THE LEADING CLASSIFICATIONS OF RIGHTS.
CHAP. IX.
\
to our analysis of a Right into its elements, and to the
differences which exist between the first and last elements
of a Right on the one hand, and its two intermediate ele-
ments on the other ". f
We see at once that while the intermediate elements
consist of an object and an act, each of the two extreme
elements is a person, and it becomes apparent that an im-
portant step will have been taken towards understanding
the variations in Rights if we reduce the four terms upon
which those variations depend to two only, by consolidating
the two extreme elements into what has been called, distinc-
tively enough, the ‘law of persons,’ and the two interme-
diate elements into what has been much more ambiguously
called the ‘law of things.”
Personſ Object L. Act \Person
\ y /
This distinction was drawn at least as early as the time
of Gaius *.
Each of these terms is however open to objection on the
ground of ambiguity.
The ‘Ius quod ad personas attinet' aptly enough expresses
the law as to those variations in rights which arise from
Ius quod
ad per-
SOIla,S.
* Supra, p. 63.
* “Omne autem ius quo utimur vel ad personas pertinet, vel ad res.’
Inst. i. 8. He adds ‘vel ad actiones,’ i.e. to Procedure, which does not
interfere with his division of the field of substantive law. The distinction
was probably drawn in the edictum perpetuum. See the frag. of Hermoge-
nianus, ‘Primo de personarum statu, et post de ceteris, ordinem edicti perpetui
secuti.” Dig. i. 5. 2.

TAW OF PERSONS AND OF THINGS. 85
varieties in the Persons who are connected with them. But CHAP. Ix.
it is unfortunately also used by the Roman jurists to express
what the Germans call ‘Familienrecht;’ i.e. to express, not
only the variation in rights which is caused by certain spe-
cial variations in personality, but also the special rights
which belong to certain personal relationships". Not merely,
for instance, the legal exemptions and disabilities of infants
and femes covert, but also the rights of a father over
his son, a husband over his wife, and a guardian over his
ward.
Such questions, however, as how far a woman’s capacity
for contracting is affected by coverture, and what are the
mutual rights of husband and wife, are radically different in
character.
The ‘Tus quod ad res attinet’ very ambiguously indicates Quod adres
the department of law which treats of such modifications of attinet.
rights as result from varieties in the objects or in the
acts with which they are concerned. That the Roman
jurists meant to cover these modifications by this phrase
is quite clear from their own explanation of what they in-
clude under the term ‘Things.’ ‘Res, they tell us, are
either ‘corporeal, things which can be touched, such as
a farm, a slave; or “incorporeal,” which cannot be touched,
consisting in right only, such as a right of servitude, a
right of action, a right arising out of contraet”. Now ‘cor-
poreal’ things are obviously what we have ealled the
“objects’ of the right; “incorporeal’ things are the ad-
Vantages which the person entitled ean insist upon ; in
other words, “the acts or forbearances’ to which he is
entitled.
We may identify, therefore, roughly the two extreme mem-
bers of our series with what the Romans called the ‘law of
* The opinions as to what Gaius meant by ‘Ius quod ad personas attinet’
are summed up by Savigny, System, i. p. 398, who asserts that the term is
equivalent to ‘Familienrecht.”
* Inst. ii. 2. pr. ; cf. the phrases chose in possession and chose in action.
86 THE LEADING CLASSIFICATIONS OF RIGHTS.
Persons’ and the two intermediate members with what they
ealled ‘the law relating to Things.’ The division turning
upon the distinction between, on the one hand, the persons
in whom a right resides or against whom it is available;
and, on the other hand, the objects over which it is exercised
and the acts by means of which it is enjoyed.
It will be observed that though the Roman writers shorten
‘ius quod ad personas attinet’ into ‘ius personarum", they
never abbreviate the ‘ius quod ad res attinet’ into ‘ius
rerum.” Yet their later followers have talked of ‘ius rerum ”
as well as of ‘ius personarum,” thereby causing not a little
confusion ; and Sir Matthew Hale, adopting these phrases,
mistranslates them “Rights of Persons and of Things,’ and
is followed by Blackstone *.
The distinction which, appearing as we have seen first in
Gaius, was adopted by Justinian, and is recognised more or
less by almost all modern jurists”, has also been expressed
in other ways.
Bentham's distribution of the law into “particular' and
‘general’ amounts to much the same thing *.
M. Blondeau means to indicate the same distinction when
he divides the law into that of ‘capables’ and of ‘incap-
ables 5.”
Mr. Westlake defines ‘status’ as ‘that peculiar condition
of a person whereby what is law for the average citizen is
not law for him ".” - &
Mr. Poste, guided perhaps by reminiscences of Aristotle,
opposes the law of ‘equals’ to that of “unequals".’
It is not easy to find apt terms to express the true nature
CHAP. IX.
Equivalent
phrases.
* Inst. ii. I. pr.
* Comm. i. p. 122.
* See Thibaut, Versuche ii. iiber ius rer. et pers. ; Savigny, System, i. p. 393;
Austin, ii. pp. 383, 398.
* Traités, i. pp. I5o, 259, 294, 299 ; Austin, ii. p. 418 ; iii. p. 225.
* Cited by Austin, ii. pp. 4II, 417.
* Private International Law, § 89.
" Gaius, $ 8.
PROPOSED NEW TERMINOLOGY. 87
of the distinction. None of those already enumerated are chap. ix.
satisfactory, and we would venture to suggest the adoption Nºrmal
in their place of ‘normal’ and ‘abnormal.’ Why we prefer abnormal
these terms to any others will appear from the closer rights.
examination of the subject upon which we are about to
enter. --
A Right varies with a variation in any one of the series The .
of its constituent elements. The possible variations in the º
two extreme terms of the series are, however, far fewer than
in the two intermediate terms. This is the case, first, because *
both of the extreme terms are Persons, so that they are sub-
ject to the same sets of variations; and, secondly, because
as a matter of fact the possible varieties in juristic person-
ality are far fewer than those in the juristic character of
objects or acts.
The Law of Persons, as a source of variety in rights, is The order
therefore distinct from and much smaller than the residue **
of the Law, which is generally called the Law of Things.
The jurist may make either one or the other species of
characteristics his starting-point in considering the aggre-
gate of rights which make up the whole field of Law. He
may consider seriatim the possible varieties in the persons
with whom rights may be connected; treating under each
personality of the various objects and acts with which it may
be combined : or, he may start from the variations in objects
and acts; considering supplementarily the modifications
which the rights connected with these undergo in each
case from varieties in personality. Thus the aggregate of
rights may be likened to a figure of two dimensions: the
shorter of these dimensions representing the Law of Persons;
the longer the Law of Things. And the figure may be sup-
posed to be marked off into squares, like a chessboard, by the
intersection of a few horizontal lines expressing the possible
varieties of personality, and of a multitude of vertical lines
expressing the possible varieties of object or act.
88 THE LEADING CLASSIFICATIONS OF RIGHTS.
CHAP. IX.
Law of Things.
Ship * Bank- Torts. Family. Suc Ces- &c.
plng. Ing. SIOIl.
Normal.
§
&#–t Tunatic.
C
* | Alien.
H
- Covert.
Infant.
&c.
It is a mere choice of the more convenient course, whether
the jurist makes the ‘personal’ dimension of the right or
its ‘real’ dimension the basis of his classification. Now as
a matter of fact the personal dimension is one which in the
majority of cases needs no consideration at all. When the
Persons both of inherence and of incidence are human beings
who are citizens of full age and sound mind, not under
coverture, or convicted of crime, in other words when their
personality is ‘normal,” the personal dimension of the right
in question is wholly disregarded. It is only when one or
both of the Persons concerned are ‘abnormal,’ i.e. are ‘arti-
ficial’ persons, or infants, or under coverture, or convict, or
lunatic, and so forth, that the special effect upon the right in
question of this abnormal personality has to be considered.
Since therefore in most cases Personality is not considered
at all ; and since when it is considered, because abnormal, its
aberrations are confined within very narrow limits of possibility;
it would form a most inconvenient basis for the classification
of rights, compared with those characteristics which depend
upon the object or act with which the right is concerned.
The variations of these characteristics are incalculably nu-
merous, and to an account of the right in question founded
NORMAL AND ABNORMAL RIGHTS. 89
upon these, it is easy to add by way of supplement any
modification which it may receive on account of abnormal
personality.
What has been said may be made clearer by an instance.
The right of an infant to build on his land so as to obstruct
the windows of the house of his neighbour who is a person
of unsound mind, is capable of being considered from at
least four points of view, viz. as a branch of the law (1) of
Infancy, (2) of Ownership, (3) of Servitudes, (4) of Lunacy.
But it is clear that the first and the last points of view,
(I) and (4), belong to one and the same department of
law, viz. the way in which rights are varied by varia-
tions in the conditions of Persons; and a little reflection
will show that these variations are not very numerous: in-
fancy, lunacy, coverture, alienage and a few more, nearly
exhaust the list of varieties in personality; while, on the
contrary, the intermediate points of view, (2) and (3), raise
classes of questions which are of almost unlimited extent,
because they are bounded only by the varieties of physical
objects and the modes in which they may be treated.
By abstracting the law of Persons from the rest of the
law the description of a right is thus much simplified. Two
terms only, instead of four, have primarily to be considered,
viz. the physical object, and the act. Only when there is
any peculiarity in the condition of the person of inherence
or of incidence need the first or fourth terms of the series,
now consolidated into the ‘Law of Persons,’ be considered at
all.
The enquiry into the law of Persons is thus supplemen-
tary and secondary to that into the residue of the law, com-
monly called the law of Things. The order of exposition,
either of the science of Jurisprudence, or of a body of law,
should, therefore, be: first, the law generally, without re-
gard to peculiarities of personality; secondly, the law of
Persons. Austin is doubtless right in pointing out that
Blackstone made a mistake in discussing what he calls
CHAP. IX.
90 THE LEADING CLASSIFICATIONS OF RIGHTS.
CHAP. IX.
Where
should the
line be
drawn .
Classes of
Person-
ality.
‘the Rights of Persons’ before the ‘Rights of Things;’ herein
following the Roman institutional writers, but departing from
the better arrangement of his great forerunner Sir Matthew
Hale.
Assuming it to be convenient to draw a line between the
law of Things and that of Persons, where is the line to be
drawn 2 The tests which have been proposed of the character-
istics of the law that ought to be treated of under the latter
head are various and unsatisfactory.
The true test is surely this. Does the peculiarity of the
Personality arise from anything unconnected with the nature
of the act itself which the person of inherence can enforce
against the person of incidence 2
In order to determine, for instance, whether the rights of
landlords should be considered under the law of persons, we must
ask whether landlords as a class have any juristic peculiarities
unconnected with the acts which they are entitled to demand
from their tenants; such as the payment of rent, the observance
of covenants, &c. They clearly have not. A landlord merely
means a person who is entitled to these acts. On the other
hand, suppose the landlord to be an infant; here at once a
whole set of characteristics are present, modifying the right
to rent, &c., and quite unconnected with it. Nor is it only
because the same person sustains the two characters of infant
and landlord that this is the case; a man may be a pawn-
broker and landlord, but his rights as landlord will not be
affected by his occupation as pawnbroker. The personality
recognised in the law of persons is such as modifies indefinitely
the legal relations into which the individual clothed with the
personality may enter.
Of such affections of Personality there are two classes:—
(1) The person may be artificial i.e. may be not a human
being.
(2) The person may be under disability or may enjoy ex-
emption on account of age, sex, mental incapacity,
crime, bankruptcy, alienage, or public station.
WHERE TO DRAW THE LINE. 91.
All of these are abnormal deviations from the ordinary case CHAP. IX.
of both parties concerned in a right being human beings,
under no special and far-reaching disability or exemption.
We have already pointed out what we conceive to be
Austin’s mistake in subordinating to the distinction now
under discussion, what is in our opinion the still more radical
one between ‘Public,’ ‘International’ and ‘ Private Law; a
mistake to which we attribute much of the imperfection which
mars the result of the labours of the great jurist.
The contrast between the law of persons and of things,
or between ‘normal’ and abnormal’ law, i.e. the law of The .
normal’ and ‘of abnormal persons,’ is sharply defined only iºn
in one of the departments into which the whole subject *
may be divided in accordance with this threefold distinction,
though something analogous to it may be detected in the
others. -
In Private law, where all the characteristics of law are in Private
fully present, the law of Persons is, as we have already de- law,
scribed it, a statement of the ways in which the general law
is modified by varieties of status; while the law of Things
is a description of the various kinds of rights enjoyed in pri-
vate capacities by persons as being within the jurisdiction of
a State, but not as being in any way representative of the
sovereign power in the State.
In Public law, which as we have seen possesses the iºnºis
characteristics of law in a lower degree of development, the ""
distinction is but faintly traceable. What is analogous to
the law of Persons here consists in a description of the State
as a whole, of its ruling body, of bodies or persons enjoy-
ing delegated ruling power, and of its constituent members as
such ; in short, in what is usually known as ‘Constitutional'
law. On the other hand, the residue of Public law has
its analogies to the law of Things. It consists in—
(1) A description of the way in which the different dele-
gacies of the governing body are set in motion.
This may be called ‘Administrative law.
92 THE LEADING CLASSIFICATIONS OF RIGHTS.
CHAP. Ix.
In 1nter-
national
law.
Rights in
rem and in
personanz.
(2) A description of those rights of the community at
large which are violated by injuries done to it as
a whole, or to any member of it, and of the punish-
ments with which infractions of such rights are
visited. This is commonly called ‘Criminal’ or
“Penal' law; because the usual mode of stating
and circumscribing such rights is by defining vio-
lations of them, and by prescribing the punishment
due to such violations. “.
The nearest approach to a law of Persons in International
law is contained in that portion of the science which de-
scribes the characteristics of a Sovereign State, and the
modes in which the rights of a State are affected by the
absence of such characteristics.
III. Another grand division of rights turns upon the
limited or unlimited extent of the person of incidenee, by which
phrase, as may be remembered, we mean the person against
whom the right is available. A right is available either
against a definite person or persons, or against all persons
indefinitely. A servant, for instance, has a right to his wages
for the work he has done available against a definite indi-
vidual, his master; while the owner of a garden has a right
to its exclusive enjoyment available against no one indi-
vidual more than another, but against everybody.
This distinction between rights has been expressed by call-
ing a right of the definite kind a right in personam, of the
indefinite kind a right in rem. And these terms, though
not perfectly satisfactory, have obtained a currency which is
of itself a recommendation, and moreover are perhaps as
good as any substitutes which could be suggested for them.
The former term indicates with tolerable perspicuity a right
available “in personam (certam) against a definite indivi-
dual, while the latter implies that the right is capable of
exercise over its object, “in rem,’ without reference to any
one person more than another.
RIGHTS ANTECEIDENT AND REMEDIAL. 93
From these terms, which are a mediaeval application of CHAP. IX.
terms which had a different and technical sense in the Ro-º."
man system of pleading under the formulary procedure",
have been derived by later jurists the equivalent, and some-
what dangerously ambiguous, phrases ‘personal’ and ‘real’
rights.
The same opposition has also been denoted, by the terms
“relative’ and ‘absolute,’ which however, by employment with
many other meanings, are too devoid of precision for the
purpose.
Longer, but more complete, expressions are ‘rights against
individuals,’ and ‘rights against the world,’ and these, ori-
ginally suggested by Hugo’, are perfectly unobjectionable.
IV. The last of the great divisions of rights distinguishes Rights
those where the act is due for its own sake, from those where iºd
it is made due merely on default of another act. The *
former kind have been by various writers styled rights ‘pri-
mary,’ ‘inviolate,’ ‘sanctioned,’ ‘of enjoyment ; the latter
kind have been described as rights ‘sanctioning,’ ‘secondary,’
“restitutory,’ ‘ of redress.” We prefer to distinguish them as
rights ‘antecedent’ and rights “remedial.”
The nature of the distinction is sufficiently simple. The
rights of the owner of a garden not to have it trespassed
upon, of a servant to have his wages paid, of a purchaser
to have his goods delivered to him, are all of the former
kind, viz. rights ‘antecedent,” which exist before any wrongful
act or omission. They are rights which are given for their
own sake. The right of the owner of a garden to get
damages from a party of men who have broken into his
grounds, of a servant to sue his master for unpaid wages,
of a purchaser to get damages from a vendor who refuses to
deliver the goods sold, are, on the other hand, of the latter
kind, or rights “remedial; they are given merely in substi-
tution or compensation for rights antecedent, the exercise of
* Gai. Inst. iv. §§ 1–4. * Lehrbuch eines civilistischen Cursus, v. p. 72.
94 THE LEADING CLASSIFICATIONS OF RIGHTS.
CHAP. IX.
which has been impeded, or which have turned out not to
be available.
If all went smoothly, antecedent, or primary, rights
would alone exist. Remedial, or sanctioning, rights are
merely part of the machinery provided by the State for the
redress of injury done to antecedent rights. This whole de-
partment of law is, in an especial sense, ‘added because of
transgressions.”
Out of each of the four grand divisions of rights there
arises also a grand division of law. Including therefore the
distinction between ‘substantive’ and “adjective law, ex-
plained in a former chapter”, we have five main principles
upon which the field of law may be divided, viz. into—
Substantive, and Adjective law;
Public, and Private law;
Normal and Abnormal law;
The law of rights in rem, and of rights in personam.
The law of rights antecedent, and of rights remedial.
One or other of these principles must be selected as de-
termining the fundamental division. Each limb of the subject
may be then subdivided in accordance with the other prin-
ciples one after another.
Adopting as the primary division of rights that which
turns upon the distinction between the political or non-
political quality of the persons with whom they are
connected, we shall divide law, in the first instance, into—
Private,
Public, and
International; and shall deal with each of these great
topics in the order in which we have enumerated them.
But before doing so, we propose to call attention to certain
characteristics of rights generally, which may be now most
conveniently explained, once for all.
1 p. 61.
CHAPTER X.
TIGHTS AT REST AND IN MOTION.
RIGHTS may be regarded under two aspects, either as at The nature
ſº ig e tº and causes
rest or as in motion. In other words, the jurist has to con- i.
sider not only the nature, or scope, of any given right, but
also the causes which originate or terminate its connection
with the person in whom it resides. He must include, for
instance, in a survey of the law of real property, not only
an account of the various rights of the owner of land, but
also a description of the various kinds of ‘titles.’ He has Method of
therefore to determine whether to divide his work into two “”
halves, one of which shall deal with rights, and the other
with the causes by which rights are connected or discon-
nected with persons; or whether to make rights his sole
topic, bringing in under each kind of right all needful
information as to the causes by which it is set in motion.
We propose to adopt the latter alternative, as presenting,
upon the whole, the fewer difficulties. We shall, at any rate,
be spared the awkwardness of discussing possessory rights
apart from the acts of possession out of which they arise, or
contractual rights apart from the agreements to which they
96 RIGHTS AT REST AND IN MOTION.
owe their existence. Some repetition is no doubt inseparable
from the proposed method, but it is hoped that the amount of
this may be considerably lessened by the general statements
respecting both the nature and the movement of rights which
will be comprised in the present chapter.
I. A right which is at rest requires to be studied with
reference to its ‘orbit’ and its ‘infringement.’ By its ‘orbit,”
we mean the sum, or extent, of the advantages which are
conferred by its enjoyment. By its ‘infringement,’ we mean
an act, in the strict sense of the term ", which interferes with
the enjoyment of those advantages. A knowledge of the
former necessarily implies a knowledge of the latter, and
vice versa, since the one is always precisely correlative with
the other. It is obvious that to know the whole extent of
the advantage conferred by the enjoyment of a right is the
same thing as to know what acts are infringements of it.
Thus the right may be such as to exact from the world an
abstention only from any deliberate interference with it, or it
may be such as to exact an abstention even from such an
infraction of it as may result from want of care. Again,
the person of inherence may be entitled absolutely to absten-
tion on the part of others from certain acts, or only to
abstention from those acts when they occasion him actual
loss, not only injuria but also damnum. If it be established
that a street passenger has a right not to be run over by
negligent driving, and that a solicitor has an absolute
right that no one shall falsely impute to him professional
misconduct, irrespectively of any pecuniary loss resulting or
not resulting from the charge, it follows that injury by
negligent driving, and slander of a solicitor, though unaccom-
panied by loss, are wrongful acts.
On the other hand the orbit of a right may be, and is very
generally, ascertained by an enumeration of the acts which
are violations of it, as a right of property is consecrated by
the commandment “Thou shalt not steal.”
CHAP. X,
Prelimin-
ary state-
ments.
Rights at
rest.
Orbit.
Infringe-
ment.
* Supra, p. 72.
INFRINGEMENT. 97
It is necessary to observe that what might appear to be an chap. x.
infringement of a right often turns out upon investigation ãº
not to be one. This may be the case, because the apparent ment.
act is no act at all, or because it is not the true cause of
the damage complained of, or because the right which seems
to have been infringed has been waived, or because the right
has been forfeited.
I. When the apparent act is really the result of circum-Act.
stances over which the apparent agent had no control; as, for
instance, if the horse which he is driving is frightened by the
sudden noise of a cart driven furiously along the street, and
becoming unmanageable does injury to persons and property,
he is not responsible. The result here is a mere accident,
since a true act must be accompanied either by intention, or
at least by negligence.
2. No one circumstance in this world can be called with Cause.
perfect accuracy the cause of any other. Even if I fire
a pistol at a man and kill him, many other causes are at
work besides the agency of my will upon my finger, and so
upon the trigger of the pistol. There must be, for instance,
the explosive power of the powder, the law of gravitation
permitting the passage of the bullet, the manufacture and
sale of the pistol, and so forth. In many cases the share of
the person whom we wish to make answerable is mixed up in
a far more complex manner with the other events and acts
which have led up to the result. In a case in which a squib was
thrown by A at B, and B, to get rid of it, threw it at C,
and it was thus passed on, till it ultimately hit and injured Z,
it was held that A was liable. ‘He who does the first wrong,”
said the Court, ‘is answerable for all the consequential dam-
ages. All that was done subsequently to the original throwing
was a continuation of the first force and first act, which will
continue till the squib was spent by bursting, and I think
that any innocent person removing the danger from himself
to another is justifiable".’ It is conceivable that the decision
* Scott v. Shepherd, I Sm. L. C. 399.
H
98 RIGHTS AT REST ANT) IN MOTION.
CHAP, X.
Temote-
1162.SS,
Contribu-
tory negli-
gence.
in this case might have been otherwise, and it must be re-
membered that the law will refuse to consider an act to be
the cause of a result which is either, in the language of Eng-
lish law, “too remote,” or to which the injured party has
‘contributed by his own negligence.
As to remoteness, it was said by Lord Bacon : ‘It were
infinite for the law to consider the causes of causes, and their
impulsions one of another; therefore it contenteth itself with
the immediate cause, and judgeth the acts by that, without
looking at any further degree". The wrong and the damage
must be, it has been said, ‘concatenated as cause and effect”.’
The difficulty is, of course, to decide when this can fairly be
said to be the case, A having been wrongfully dismissed
from his situation, in consequence of some slanders which had
been circulated respecting him by B, but which were not
actionable without special damage, it was held that A had
no action against B. Lord Ellenborough said: ‘The special
damage must be the legal and natural consequence of the
words spoken. Here it is an illegal consequence, a mere
wrongful act of the master, for which the defendant was no
more answerable than if, in consequence of the words, other
persons had afterwards assembled and thrown the plaintiff
into a horsepond *.’
A person is said to contribute to his own injury, when
he so acts as to become a ‘co-operative cause of it. For
instance, the owner of cattle which have been injured by
a railway train cannot recover from the Company if they have
strayed on to the line through his own negligence in not
shutting gates *. But the negligence of the sufferer is not
held to be contributory, when the result complained of might
have been avoided by the exercise of ordinary care on the part
*
of the wrong-doer.
* Maxims, Reg. I. * Gerhard v. Bates, 2 Ell, and B. 490.
* Vicars v. Wilcox, 8 East. 3; cf. Ward v. Weeks, 7 Bing, 2II; but see
Rnight v. Gibbs, I Ad. and E. 46.
* Ellis v. London and G.W. Ry., 2 H. and N. 429.
RESPONSIBILITY FOR OTHERS. 99
3. “Volenti non fit iniuria.' If a right is waived, an act CHAP. x.
which would otherwise be an infringement of it becomes Waiver.
permissible. Thus consent on the part of the husband was a
good plea in bar of the old action for criminal conversation.
So leave and licence’ is an answer to an action for trespass,
and a similar defence may be pleaded for what might appear
to be a breach of covenant. The waiver must of course be
given freely and with knowledge of the circumstances.
4. If a right is forfeited, or suspended, by misconduct, an Forfeiture.
act which would previously have been a violation of it
ceases to be unlawful. An assault may be justified on the
ground that it was committed upon a person who had
forced his way into one's house and refused to leave it,
or an arrest by the production of the warrant of a competent
authority.
The responsibility for an infringement does not always Responsi.
attach exclusively to the visible wrong-doer. In accordance bility.
with the maxims “respondeat superior' and ‘qui facit per
alium facit per se,’ a person is liable for those acts of his
agents or servants which either were expressly authorised by
him, or which were done by them in the course of their
employment.
II. The origination, transfer, and extinction of rights, or, as Rights in
the Germans would say, the connection of Rechtsverhältnisse’”
with their subjects', are due to Facts, but may be the result of
either of the two species of Facts, i. e. either of an Event or
an Act “. A fact giving rise to a right has long been de-
scribed as a ‘title;’ but no such well-worn equivalent can be
found for a fact through which a right is transferred, or for
one by which a right is extinguished. A new nomenclature
was accordingly invented by Bentham, which is convenient for
scientific use, although it has not found its way into ordinary
language. He describes this whole class of facts as
1 Cf. Savigny, System, ii. p. 374; iii. p. I. * Supra, p. 71.
H 2.
&x &
e.
100 RIGHTS AT REST AND IN MOTION.
CHAP. x. ‘Dispositive,” distinguishing as ‘Investitive’ those by means
Dispositive of which a right comes into existence, as “Divestitive’ those
Facts.
through which it terminates, and as ‘Translative’ those
through which it passes from one person to another".
I. An ‘investitive fact’ finds its nearest equivalents in
classical Latin in the terms ‘iusta causa,’ ‘iustum initium,'
and ‘titulus.” In some, but not in all, cases, it is possible to
detect two stages in the acquisition of a right, a more remote
and a nearer, and it has been proposed to distinguish them
by describing the ‘ causa remota as ‘titulus,’ the ‘causa
proxima” as ‘modus acquirendi.” ‘’Cavendum est ante omnia,”
says Heineccius, ‘ne confundamus titulum et modum adgui-
rendi, quippe qui toto coelo differunt ; ? and he goes on to
assert that ‘ dominium can never be gained without the com-
bination of a ‘titulus,” giving a ‘ius in personam ' and a
‘modus adquirendi,” which superadds the ‘ius in rem.” These
two stages are undoubtedly traceable in such a transaction as
a Roman contract of sale followed by delivery, but they are by
no means universally present in the acquisition even of real
rights, and it is now admitted that the importance of the
distinction has been much overrated *.
A right may be conferred either by a direct act of the
sovereign power, or by some fact which brings a particular
instance within the operation of a general law. In the former
case the investitive fact would be properly described as a
‘ privilegium,’ in the latter case as a title.’ The grant of a
monopoly would be a fact of the former kind, the death of an
ancestor, bringing into operation the law of inheritance, would
be a fact of the latter kind, and would be an instance of what
is described by some writers as ‘Qualification,’ i.e. the
Investi-
tive.
* His further distinction of ‘Investitive” facts into ‘collative' as conferring
rights, and ‘impositive' as imposing duties, and of “Divestitive ’ facts into
‘ destitutive’ or ‘ablative’ as extinguishing rights, and ‘exonerative’ as ex-
tinguishing duties, seems to be of less value. Cf. Works, iii. p. 189.
* Hein. Recit. ii. tit. 2. 339. ‘I)er vergebliche Versuch, jede Rechtserwerbung
auf einen iustus titulus und s.g. modus adquirendi zurückzuführen, ist nun
allgemein aufgegeben.” Böcking, Inst, p. 44.
DISPOSITIVE FACTS. 101
substitution by the course of events of a definite individual chap. x.
instead of an ‘incerta persona’ as the person entitled to a
right |.
2. A ‘divestitive fact' puts an end to a right altogether; so Divesti-
the right of a tenant terminates with the expiration of his tive.
lease, and the right of a creditor is at an end when his debt
has been paid.
3. Rights are more commonly transferred than alto-Transla-
gether extinguished, so that a divestitive fact is very often tive.
capable of being regarded, from another point of view, as
investitive also. A conveyance of land not only terminates
the rights of the vendor, but also originates those of the
purchaser. A fact which fulfils this double function is called
by Bentham “translative,’ and the right which results from
such a fact is said to be acquired derivatively *.’
Translative facts may be regarded from several points of
view, and may be classified with reference to their voluntary
or involuntary character, to the persons between whom the
right passes, and to the extent of the right passed.
The fact may be involuntary, i. e. as far as the parties to Voluntary
the right are concerned, it may be a mere external event, such ity.
as a bankruptcy, the death of an intestate, accession, adjudica-
tion, escheat; or it may be a voluntary act on the part of the
person from whom the right passes, such as a contract of sale,
or a testament, in which latter case it is called ‘Alienation;’
which again may be gratuitous, when the resulting acqui-
sition is said to be ‘ex lucrativa causa,’ or for an equivalent.
The distinction between voluntary and involuntary investitive
facts is expressed by the English law-terms ‘act of law' and
“act of party.' .
A translative fact may operate wholly “inter vivos, or it. The per-
may pass a right from a deceased to a living person, or from *
* Austin, iii. pp. 93–98.
* Puchta, Inst. ii p. 325, points out that in all derivative acquisitions there
is a legal relation between the auctor and the person acquiring; not merely a
loss by one and gain to another, as in usucapio.
102 RIGHTS AT REST AND IN MOTION.
a natural to an artificial person, or from one artificial person
to another. The artificial person may in some cases be the
State itself.
The right passed by the translative fact cannot of course
be of greater extent than the right whence it is derived.
*Non debeo melioris conditionis esse quam auctor meus a quo
ius in me transit'.’ It may however either be of less extent,
as when a leasehold interest, or an easement, is granted by
an owner of land; or it may be the very right itself, in which
latter case the translative fact is called a ‘Succession.’
When, as is usually the case, the succession passes one or
more separate rights, as the ownership of an estate, or a
leasehold interest in a house, it is called “singular,’ and was
described in Roman law by the phrases ‘succedere in rem,”
“in rei dominium.’
But there is a more complex kind of succession, known as
“universal,’ which the Romans described by the phrases
‘succedere per universitatem,’ ‘in universum ius,’ ‘in universa
bona”, “adquirere per universitatem”.’ What here passes is
what German jurists call the ‘Gesammtheit des Vermö-
gens,’ the whole mass of a man’s property, whether consisting
of rights in rem or of rights in personam, or of both combined;
and with the property, or assets, “bona activa, the liabilities,
‘bona passiva, pass also. Such a ‘universal succession takes
place when an executor, or administrator, or trustee in
bankruptcy succeeds to a whole group of the rights and
liabilities of a testator, or an intestate, or a bankrupt re-
spectively.
Many forms of universal succession have now only an
antiquarian interest. This is the case, for instance, with the
“addictio bonorum libertatium conservandarum causa 4, with
the Senatusconsultum Claudianum *, with the ‘bonorum
CHAP. X.
The extent.
Succession.
Singular.
Universal.
* Dig. l. 17. I75. I.
* Dig. xii. 2, 8; xxi. 3. 3. I ; xxxix. 2. 24. I ; xliii. 3. I, 13.
* Gai. ii. 97. * Inst. iii. I I. * Inst. iii. I 2.
INTESTATE SUCCESSION. 103
venditio. Other forms, such as confiscation to the State, chap. x.
bankruptcy and heirship, can never be out of date.
The passage of the rights of a deceased person to his heirs,
the ‘successio in universum ius quod defunctus habuit *,’
which is the most important of all universal successions, is
brought about either by an involuntary fact, the man's death
intestate, or by a voluntary act, the making of his will.
Intestate is chronologically anterior to testamentary succes- Intestate
sion. Recent investigators, and especially Sir Henry Maine,”
have abundantly shown that there is in early times but little
trace of individual ownership. Even grown-up children had
only the most precarious interest during their lives in the
property which they were allowed to handle, and on their
deaths their father took possession of it as a matter of course.
When the father himself died, his property passed of right
to his surviving children, or if he left no children, then to
certain precisely designated collateral members of his family,
or in default, to that wider family which is known as a ‘gens’
or clan. The idea that property really belongs to a family
group, and that the right of an individual is merely to admin-
ister his share of it during his lifetime, may be said still to
survive in those provisions against the total disinheriting of
relations which modern systems have borrowed from Roman
law”, and less obviously in the rights given to next of kin
under statutes of distribution. The feudal doctrine as to the
succession of the heir-at-law to real property, and of escheat,
in default of an heir, to the lord of the fee, is widely different
in character. It is as a consequence of this latter doctrine,
that no one individual is recognised by English law as suc-
ceeding to all the rights of an intestate who dies leaving
both real and personal property, and that the heir and the
administrator divide between them what under the Roman
system devolved wholly on the “heres.’
* Gaius, Dig. 1. 16, 24.
* e.g. Code Civil, liv. iii, tit, chap. 3, ‘de la Portion de Biens disponible, et de
la Réduction.
104 RIGHTS AT REST AND IN MOTION.
..CHAP. X.
Testamen-
tary suc-
cession.
The principle that a man may voluntarily select the person
on whom his property is to devolve after his death" is of later
origin than the principle of intestate succession. Such a
selection had at first to be ratified by legislative authority, in
order to oust the rights of the relatives. The gradual growth
of the power of making a will, from the days when it could
only be made in the ‘comitia calata,’ or in the face of the
people drawn up in battle array, through the twelve tables,
and the praetorian relaxations, down to the wide liberty enjoyed
under the later Empire, is one of the most interesting topics
of the history of Roman law. The points to which attention
must be directed in studying the subject of testamentary
disposition in its fully developed form, and with reference to
each of which very various provisions are contained in actual
systems of law, are the following —
(1) The capacity of the testator, as to age, freedom from
‘patria potestas,” “coverture,” or the like.
(2) The formalities necessary for the execution of a will,
such as signing, sealing, attestation, or enrolment in a public
office; and the special cases in which fewer or more formalities
than ordinary are insisted upon *.
(3) The contents of the will. Whether any relatives must
be expressly, or may be only tacitly, disinherited ; whether
the heir must be instituted before other matters are mentioned;
and so forth.
(4) The capacity of the heir, or other person who is to take
beneficially under the will. The incapacities under various
systems of ‘incertae personae, corporations, priests, witnesses,
charities and churches.
* * Le testament est un acte par lequel le testateur dispose pour le temps oil
il n'existera plus, de tout ou partie de ses biens.’ Code Civil, art. 895. A
curious a priori justification of Wills is given by Leibnitz: ‘Testamenta mero
iure nullius essent momenti, nisi anima esset immortalis. Sed quia mortui
revera adhuc vivunt, ideo manent domini rerum, quod vero heredes reli-
querant, concipiendi sunt procuratores in rem suam.' Nova Methodus Iuris-
prudentiae, P. II. § 20.
* The formalities will, for instance, be more elaborate in the case of a blind
man, less so in the case of a soldier on active service.
TESTAMENTARY SUCCESSION. 105
(5) The modes in which a will, when once well made, may
subsequently become invalid; as in Roman law by the agna-
tion of a new ‘suus heres,’ and in English law by marriage;
or in which it may be set aside, e. g. by the ‘querela in-
officiosi.”
(6) Whether the inheritance devolves immediately through
the operation of the will, or whether any act is necessary on
the part of the heir or executor, such as the ‘cretio’ or ‘aditio’
of heirs other than the ‘necessarii’ in Roman law", or the
procuring of probate from a judicial authority, which is de-
manded from an English executor *.
(7) Whether the heir can refuse to accept, and how far he
can claim to be relieved from liabilities in excess of assets.
It may be well to observe that although an English executor
does not take the whole property of a person who dies leaving
real as well as personal property, yet he may well be regarded
as a universal successor, so far as relates to the personal pro-
perty and the claims upon it.
CHAP. X.
One form of singular succession is so closely connected with Legacies.
universal succession under a testament as to be unintelligible
apart from it”. A Legacy, donatio quaedam a defuncto
relicta 4,’ is a deduction from an inheritance for the benefit of
some one. It is the creation of a claim upon the universal
successor, and a distinction is drawn between the ‘vesting' of
the legacy, ‘dies cedit,” and its becoming payable, ‘dies venit.’
It may be revoked by the testator, or it may ‘lapse.' It will
be void if inconsistent with any rule of law as to the amount
of legacies, or as to the proportion which they may bear
* Before which the hereditas was described as ‘iacens,’ and was treated as a
juristic person.
* He may also render himself liable by intermeddling with the estate, when
he is said to become “executor de son tort.’
* ‘Quae pars iuris extra propositam quidem materiam videtur: nam loguinur
de his iuris figuris quibus per universitatem res nobis adquiruntur : sed cum
omnimodo de testamentis . . . locuti sumus, non sine causa sequenti loco
poterat haec iuris materia tractari. Gai. ii. 191.
* Inst. ii. 20. I.
106 RIGHTS AT REST AND IN MOTION.
CHAP. x. to the property which is to remain with the heir, or as to
ºne. the persons who may receive them. A Legacy must be
CàUISãº, distinguished from a ‘donatio mortis causa’ ” which, though
it takes effect on the death of the donor, does not do so by
way of deduction from the inheritance.
Having now considered the general characteristics of law
and of rights, we are in a position to enter upon a more
detailed examination of our subject, under the three great
heads of ‘private,’ ‘public,’ and ‘international” law.”
* “Cum magis se quis velit habere quam eum cui donatur, magisque eum
cui donat quam heredem suum.’ Inst. ii. 20. I.
CHAPTER XI.
PRIVATE LAW : RIGHTS ‘IN REM.’
THE great department of law, upon a detailed examination
of which we are about to enter, may be most conveniently
studied if we distinguish at the outset the main topics which
are contained in it. These are to be ascertained by a suc-
cessive application of the principles of division which were
explained in a preceding chapter, in the order which seems
best suited to the subject.
Private law, as thus treated, is either ‘substantive’ or substan-
“adjective,’ that is to say, it either defines the rights of º
individuals, or indicates the procedure by which they are to law.
be enforced.
The rights dealt with by substantive law may be either Normal,
‘normal’ or ‘abnormal,” as the persons with whom they are *
connected are of the ordinary type, or deviate from it.
Both classes of rights are either ‘antecedent’ or “remedial.” Antece-
A right of the former kind, it will be remembered, is one * -
which exists irrespectively of any wrong having been com-rights.
mitted. It is an exceptional advantage granted to the person
who is clothed with it. The devisee of a house in Middlesex,
108 PRIVATE LAW : RIGHTS ‘IN REM.’
CHAP. XI.
Rights
$n rem, in
personam.
Order of
study. ,
or the merchant who has bought a cargo of rice, is, by virtue
of being thus devisee or purchaser, in enjoyment of powers
which are not possessed by the rest of the population. A right
of the latter kind is one which is given by way of compen-
sation when an ‘antecedent’ right has been violated. Ante-
cedent rights are either in rem or in personam : that is to say,
they are available either against the whole world or only
against a definite individual. Thus the proprietary right of
the owner of a house is good against all the world, while the
right of a landlord to his rent is good only against his tenant.
Remedial rights are almost all available only in personam.
The distribution of the subject may be more shortly expressed
as follows:
Substantive, ſNormal £n rem.
ſi. 2 ſ ſ Antecedentſ in personam.
Private rights, 3 g º
law is which are URemedial—in persona/2.
gº l
either | UAbnormal.
|
UAdjective, providing for the protection of rights.
We shall begin with the consideration of the substantive
law of the various species of normal rights. We shall then
treat of the law of abnormal rights, and conclude with the
topic of adjective law or Procedure. 4
Normal rights may be, as has been already explained,
either Antecedent or Remedial, and rights of the former kind
may be either in rem or in personam. The study of Private
law will naturally commence with an examination of normal
antecedent rights in rem, i.e. of rights which, irrespectively
of any wrong having been committed, are available for the
benefit of the person of inherence against a person of inci-
dence so unlimited as to comprise the whole world. Rights
of this kind are both numerous and important, and must be
examined in due order.
A distinction is very generally drawn by German writers
CLASSIFICATION. 109
between what they call “Urrechte’ and ‘erworbene Rechte".” CHAP. XI.
Rights of the former kind, which are also said to be ‘inborn,’
“fundamental,’ ‘inalienable,” “natural,’ ‘immediate,’ ‘uni-
versal,’ ‘essential,” “unconditional,” or ‘absolute,’ are such as
every human being possesses independently of any act of
his own; while rights of the latter kind, described also as
* derivative,’ ‘mediate,’ ‘alienable,’ ‘accidental’ or ‘hypo-
thetical,’ are the result of some free act of the person entitled
to them. The line between the two classes of rights is
bowever so variously drawn, and must always be drawn
subject to so many qualifications and reservations, that the
distinction is of little value. We have called attention to
it only as illustrating that graduated intimacy of relation
between the right and its subject which we shall take as
our guide in determining the order of the investigation
upon which we are about to enter.
We shall begin with the right which is most closely con-
nected with the personality of the individual entitled to it,
and shall proceed to consider, one after another, those rights
which are progressively less connected with his proper per-
sonality, and are more connected with the control which he is
allowed to exercise over the actions of others, and with the
advantages which he is allowed to derive from the world in
which he lives.
Taken in this order, the rights of the class now under Classifica-
consideration may be ranked as follows: º
I. To personal safety and freedom. º $n
II. To the society and control of one’s family and depen-
dents.
III. To reputation.
IV. To advantages open to the community generally ;
such as the free exercise of one’s calling.
W. To possession and property.
VI. To immunity from damage by fraud.
* Röder, Naturrecht, i. p. 174; but see Savigny, System, i. p. 377.
1 10 PRIVATE LAW : RIGHTS ‘IN REM.’
Personal
safety.
In each case we shall have to consider not only the nature
of the right in question, but also the character of the act by
which it is violated, and the modes of its origination, transfer
and extinction. Our illustrations will here, as elsewhere, be
drawn chiefly from the law of England.
I. Rights to personal safety and freedom are the most
widely enjoyed of any. They are possessed by every one
who has not waived or forfeited them. They are acquired
at the moment of birth, and are therefore said to be
‘innate, though they are limited, during the earlier years
of life, by the right of parents and guardians to chastise
and keep in their custody persons of tender age. Similar
rights of custody, and even of chastisement, have been at
various periods recognised also with reference to women.
These rights are of course, from their nature, incapable of
transfer. They may be partially waived. A person who
engages in a boxing-match waives, by so doing, as against
his antagonist, his right not to be assaulted and battered,
and any complaint made by him in such a case would be
well answered by the defence of ‘leave and licence.’ So a
sailor who enters on board ship waives for the voyage his
right to direct his own movements. An unlimited waiver
of rights of this kind, such as a self-sale into slavery, or a
self-dedication to monkish seclusion, though recognised in
early systems of law, is discountenanced by modern civilisa-
tion. They may be temporarily forfeited. In other words
complaints founded upon a violation of them may be met
by a plea of ‘justification ;’ as in English law a complaint
of assault is well answered by a plea of son assault demesne,
provided always that the violence complained of is not out
of all proportion to the violence first used by the com-
plainant. They terminate with death. They are, in many
cases, violated by acts exhibiting only that degree of will
which is called negligence. t
In enumerating the rights of this kind which are recog-
PERSONAL SAFETY. 111
nised in advanced states of society, it will be convenient to CHAP. x1.
begin with those which have the widest extent, i.e. where
the injury is an act of the slightest kind, and to proceed in
order to rights more and more restricted in scope, i. e. where
there is no injury unless the act is of a distinctly violent
character, or is accompanied by actual damage.
I. A man has a right not to be even menaced by gestures, Menace.
as by the shaking of a fist, the brandishing of a stick, or the
presenting of a pistol. Such acts may however be deprived
of any wrongful character, if the parties be so distant that
no contact is possible", or if words are used showing that no
harm is intended, as where a man laid his hand on his sword
in a threatening manner, but said, ‘If it were not Assize
time I would not take such language from you ".’
2. A man has a right not to be touched, pushed, or struck Assault.
in a rude or hostile manner. This right is not interfered
with by one who is pushing his way gently in a crowd, or
who touches his neighbour to attract his attention, or gives
him a jocular and friendly blow, or is duly executing legal
process *.
3. A man has a right not to be wounded or disabled, Negli-
whether by deliberate assault, or by negligence, such as that *
of a reckless cab-driver, or of a railway company which
sends a train over a level crossing at an improper speed.
4. A man has a right to go where he pleases, so long as he Imprison-
does not interfere with the rights of others, and any one who ment.
prevents him from so doing, whether by constraint actually
applied, or by such show of authority or force as has an
effect on the will equivalent to actual constraint, is said in
English law to be guilty of ‘false imprisonment.” An act
which appears to infringe a right of one of the three last
mentioned kinds often does not really do so. It may be
justified on the ground of self-defence, of defence of a friend
* Cobbett v. Grey, 4 Ex. 744.
* Tuberville v. Savage, I Mod. 3.
* Williams v. Jones, Hard. 301.
j 12 PRIVATE LAW : RIGHTS ‘IN REM.’
CHAP. XI.
Dangerous
things.
Dangerous
places.
Not to be
killed ?
or of property, of preservation of the peace, or of the
execution of legal process. The right is in fact to be
taken subject to qualification on various grounds.
The heads of right hitherto mentioned may be violated
without causing actual damage. This is not the case with
those which we are about to describe.
5. A man has a right not to receive injury from any
dangerous substance or animal kept by another. Any one
who stores up a great bulk of water in a reservoir, or keeps a
caravan of wild beasts, is said to do so “at his own peril,’
and will be liable, should damage be done by the bursting
of the reservoir or the escape of a tiger, although he may
have taken the greatest possible care to prevent the mischief.
The same liability would attach to the keeping of animals
'mansuetae naturae, if known to be vicious.
6. A man has a right that his personal safety shall not be
infringed by the negligent exercise on the part of others of
their own rights, or rather of what might appear to be their
own rights; as when a person allows his house to be in such
bad repair that it falls on a passer-by, or allows the existence
of latent dangerous places in his house or land whereby danger
is sustained by persons having lawful business there.
It might perhaps be supposed that since a man has a right
not to sustain personal injury, he has a ſortiori a right not to
be killed. This is however hardly the case, since no ‘ante-
cedent’ right can be said to exist, unless its infringement
gives rise to a “remedial’ right; but the right, if any, to
redress for the infringement of the right in question dies
with the injured man at the very moment when it vests in
him ".
II. Rights to the society and control of one's family.
These family-rights in rem must be carefully distinguished
Family
rights.
* In this, as in other cases, actio personalis moritur cum persona. Lord
Campbell's Act, 9 & 1 o Vict, c. 93, does not keep alive the right for the
benefit of executors, but creates a new right in the relatives to compensation
for the shortened life and labours of the deceased.
FAMILY. 113
from those rights in personam which a member of a family CHAP. XI.
may have against its other members, and with which we
have at present no concern. They all result, directly or
indirectly, from the institution of marriage, which, as
Bentham well said, “ has drawn woman from the severest
and most humiliating servitude, has distributed the mass of
the community into distinct families, has created a domestic
magistracy, has formed citizens, has extended the views of
men to the future through affection for the rising genera-
tion, has multiplied social sympathies".” They may be distin-
guished as ‘marital,” “parental,’ ‘tutelary,’ and ‘dominical.’
I. The marital right of a husband, as against the world, is Marital.
that no other man shall, by force or persuasion, deprive him
of his wife's society, still less be criminally intimate with
her. An analogous right might of course be conceivably
recognised as vested in the wife, but has probably never
been recognised by any system of positive law.
The right is acquired by Marriage, the nature of which has Marriage.
varied with varying civilisation. In primitive races it seems
to have consisted in the forcible capture of the woman by the
man. Later the capture becomes a symbolical ceremony,
following on a voluntary sale or gift of the woman by
her relatives to the man. The still more modern form of
marriage, possible only when the individuality of the woman
has received recognition, is that of a mutual and voluntary
conveyance, or dedication, of the one to the other. This
mutual conveyance has been very generally associated with
some religious observance, and in modern times is, as a rule,
valid only when performed in the manner prescribed, and in the
presence of officials recognised, by the State. It is generally
only permissible between persons who have attained a certain
age, and who are outside of certain degrees of relationship.
* Bentham, Principes du Code Civil, par Dumont, iii. c. 5. Some writers
make the patria potestas, rather than marriage, the root of the family, apparently
forgetting that the agnatic relationship upon which the patria potestas depends
presupposes marriage.
114 PRIVATE LAW : RIGHTS ‘IN REM.’
CHAP. XI.
The consent of parents or other guardians is often also
necessary.
Marriage is defined by Modestinus as ‘Coniunctio maris
et feminae et consortium omnis vitae, divini et humani iuris
communicatio";’ by Kant as ‘die Verbindung Zweier Per-
sonen verschiedenen Geschlechts zum lebenswierigen wech-
selseitigen Besitz ihrer Geschlechtseigenschaften 4.’ Poly-
gamy, i. e. polygynaiky or polyandry, has been and is
recognised as marriage in many parts of the world, but the
tendency of the higher races of mankind is doubtless towards
a recognition of monogamy as alone legitimate”. Of marriage
for a definite period but slight traces occur in legal systems”.
The marital right is of course inalienable, and incapable of
waiver". It terminates on the death of one of the parties,
or their divorce. As to the permissibility of divorce, and
the grounds on which it ought to be granted, the widest
difference has prevailed in different systems. At Rome
either party might repudiate the relationship at pleasure,
while according to the canon law it is a sacrament,
indissoluble under any circumstances.
The right is infringed by abduction or harbouring of, or
by criminal intimacy with, another man’s wife ; also by so
injuring the wife as to deprive the husband of her services.
The adulterer, or as he is now called in English law, the
‘corespondent,” is generally liable for his act although he
was unaware that the woman was married, and although it
has caused no appreciable loss to her husband *.
* Dig. xxiii. 2. I. * Werke, ix. p. 90.
* See Hyde v. Hyde, L. R. I. P. and M. 130.
* Such marriages are however regulated with the utmost precision by the
Shiah system of Mohamedan law, Tagore Lectures, 1874, p. 372, but it is ex-
pressly enacted by art. I 3 of the Egyptian ‘Statut personel du droit Musulman,
that ‘le mariage temporaire, celui dont la durée est limitée à un temps
determiné, ne se contracte pas valablement.’
* No damages will however be granted if collusion is shown. -
* This infringement of the right, besides giving rise to a right of redress,
may, according to English law, also affect indirectly the matrimonial status
itself; as will appear hereafter.
PARENTAL, 115
2. The parental right extends to the custody and control chAP. XI,
of children, and to the produce of their labour, till they “”
arrive at years of discretion. In case of disagreement
between the parents it becomes necessary to determine to
which of them the right shall belong, or to apportion it
between them.
It is acquired on the birth, and also, under some systems,
on the adoption of a child. It is, under some systems, alien-
able by emancipation of the child to another person who
adopts him, or by the father giving himself, together with
his children, in adoption to another. It may be delegated;
for instance, to a schoolmaster, or to the master of an appren-
tice. It terminates with the death of the parent or child,
with the emancipation of the child, or by his attaining full
age, by marriage, also by judicial sentence.
It is infringed by any act which interferes with the control
of a parent over his children, or with the advantage which
he derives from their services. The much-abused English
action for seduction is quite in harmony with legal principles.
The person wronged is not the girl herself, who ea hypothes;
has consented to the act, but her parent, or other person
entitled to her services, who is damnified by its results. It
is true that English law has, on grounds of policy, allowed
damages to be recovered in this action far in excess of the
value of the lost service".
3. The right of a ‘tutor,” or guardian, defined by Servius Tutelary.
as ‘ius ac potestas in capite libero ad tuendum eum qui
propter aetatem se defendere nequit”, is of course given to
him not for his own benefit, but for that of his ‘pupillus,” or
ward”, whose want of understanding he supplements, and
whose affairs he manages. It is an artificial extension of the
parental power, and may be conferred by the last will of the
* See Dicey on the Parties to an Action, p. 329, n.
* Dig. xxvi. I. I.
* The lord’s wardship in chivalry, without account of profits, was, on the
contrary, for his own benefit.
I 2.
116 PRIVATE LAW : RIGHTS ‘IN REM.’
parent, or by a deed executed by him", or by a judicial act, or by
devolution on certain defined classes of relatives, or may vest
in a tribunal, such as the Court of Chancery. According to
some systems, the guardian cannot refuse to accept the office,
which is regarded as being of a public character. In French
law a ‘subrogé tuteur’ is appointed by the family council as
a check on the ‘tuteur”.’ The right terminates on the death
of tutor or ward, on the resignation or removal of the former,
and on the marriage of the latter or his attainment of a
certain age. By the older Roman law, a woman was under
perpetual guardianship. Under those systems which release
the ward at an early age, generally at fourteen in the case
of a boy and twelve in the case of a girl, from the superin-
tendence of his guardian, he may be placed for a further period
under the lighter control of a ‘curator,’ whose duties cease
when the ward attains the age of full majority. Such
curators, and the curators, or committees, of lunatics or
persons interdicted as prodigals, are generally appointed by
a court of justice.
The right is infringed by any interference with the control
of the tutor or curator over the person or property of the
ward, lunatic, or prodigal”.
4. The right of a master over his slave was, in early law, of
precisely the same extent and character as that which he had
over his cattle. It was also acquired, lost and transferred in
the same way, except that the slave was capable of being
manumitted; and the peculiarities of the subject all had
reference to the modes of manumission, and the legal position
of those who had ceased to be slaves. The disabilities of
* libertini,’ and their duty towards their patroni, fill a large
CHAP. XI.
Dominica".
* See Stat. 12 Car. II. c. 24. s. 8.
* Code Civil, art. 420.
* On the writ of ‘ravishment of gard, see 2 Inst. 440. When the tutelary
right has been vested in a Court, any infringement of it becomes a matter of
public law. Thus interference with a ward of Chancery is treated as ‘contempt
of Court.” -
3DOMINICAL. 117
chapter in Roman law. The right is infringed by killing the CHAP. XI.
slave, by injuring him so that he becomes less valuable", or
by enticing him away”. -
Certain rights arising out of contract strikingly resemble Contrac.
the two classes of family rights last considered. They must tual.
be mentioned in this place in so far as they are available
against all the world, and are therefore capable of being
violated by third parties; although the mode in which such
rights are acquired and lost, and their effect as between the
contractors themselves, can be explained only at a later stage
of our enquiry.
A master has a right, as against the world, to the services
of his servant, and can sue any one who entices him away
from the performance of his duties, or so injures him as to
render him less capable of performing them *: and this
principle has been declared to apply not only to domestic
service, but also to any kind of employment. In a modern
English case, when a celebrated singer had agreed with the
manager of an opera to sing for him during a definite period,
and for no one else, but had been persuaded by the manager
of another opera to break her contract, it was held that the
first manager had a right of action against the second. The
claim was resisted on the ground that the employment was
not of such a nature as to constitute the relation of master
and servant, so as to warrant the application of the general
rule giving a remedy in the case of enticing away servants,
indeed that this remedy was itself an anomalous relic of the
times of serfdom. But Mr. Justice Crompton said:—‘The
nature of the injury and of the damage being the same, and
the supposed right of action being in strict analogy to the
ordinary case of master and servant, I see no reason for
* Acts for which remedies were provided by chapters I and 3 of the Lex
Aquilia.
* Tn which case the owner had in Roman law an action ‘servi corrupti.”
* The seduction of a maid-servant may give a right of action to her master.
Eores v. Wilson, Peake, 55.
118 PRIVATE LAW : RIGHTS ‘IN REM.’
CHAP. XI.
Reputa-
tion.
confining the case to services or engagements under contracts
for services of any particular description".’
III. A man has a right, as against all the world, to his
good name; that is to say, he has a right that the respect, so
far as it is well-founded, which others feel for him shall not be
diminished 4. The right is however subject to two limitations.
First, there are certain trivial imputations which do not
infringe it. Secondly, there are certain circumstances under
which an imputation which would otherwise be wrongful is
held to be justifiable. Since the right is only to respect so
far as it is well-founded, it is obviously not infringed by a
truthful imputation *. It is innate, or common to all men,
and lasts till death.
The infringement may consist not only in words, spoken or
written, but also in gestures or pictures. It may be direct
or indirect, i. e. it may disparage the man himself, or his family
and belongings. So, according to Roman law, the heirs of a
deceased person would have an action for any insult to his
dead body, or to his funeral procession; and a son could sue
for damage done to a statue of his father set up upon his
tomb 4. ‘Publication' is essential to an infringement of this
right, which is therefore not violated by abuse of a man in a
letter addressed to himself, or uttered by word of mouth when
no one is near. There is no infringement without a wrong
intention, though it need not necessarily have been directed
against the complainant. ‘Iniuriam potest facere nemo, nisi
and
3.
qui scit se iniuriam facere, etiam si nesciat cui faciat";
no more than this is meant by the English doctrine of ‘malice
5
* Lumley v. Gye, 2 E. and B. 216.
* Even the Twelve Tables recognised it to be a grave offence: “si quis occen-
tavisset, sive carmen condidisset quod infamiam faceret flagitiumve alteri.’
Cic. de Rep. iv. Io.
* “Niemand ein Recht auf einen Scheinwerth und auf Dügen haben kann.’
Dresch, Naturrecht, p. 158. -
* Dig. xlvii. I. 4; ib. 27.
* Ib. 5. 2.
REPUTATION. 119
being essential to defamation, since malice will be ‘presumed CHAP. XI.
where there exists no legal justification. ‘If I traduce a man,’
said Mr. Justice Bayley, whether I know him or not, and
whether I intend to do him an injury or not, the law considers
it as done of malice, because it is wrongful and intentional'.”
Roman law classified acts of insult according to the rank of
the person insulted, the place where, and the mode in which,
the insult was given 4, but did not clearly distinguish defa-
mation from insult given by blows. The grades of defamatory Degrees of
Defama-
statement recognised by English law may be probably summed .
up as follows:—
I. Some statements are wrongful irrespectively either of
the mode in which they are published, or of their con-
sequences, e.g. the imputation of an indictable offence or of
ignorance of one’s profession. There is an absolute right
that such statements shall not be made.
2. Others, short of these in importance and tending rather
to make a man ridiculous than odious, are wrongful only if
put into a permanent form, i.e. only if they are written,
printed, or suggested by pictures.
3. Others, still less important, are wrongful only if special
and temporal” loss can be shown to have resulted from their
being made. It has been for instance laid down that, with-
out proof of special damage, it is not actionable to say of
a man that “he is a scoundrel, a blackguard, a swindler,’
‘ he is a disgrace to the town and unfit for decent society,’
* he has cheated his brother-in-law of £2OOO ".”
The most important of the modes in which a defamatory Justifica-
statement may be justified is by showing that it is ‘privi- tion.
leged ; ' when this can be done the presumption of malice is
rebutted, and the onus of proving actual malice is thrown upon
the plaintiff. If, however, this can be proved, the plea of
* Bromage v. Prosser, 4 B. and C. 255.
* Compare in English law the statutes against ‘scandalum magnatum.”
* See Saville v. Jardine, 2 H. Bl. 532 ; Lumley v. Allday, I Cr. and Jer,
3ol ; Hopwood v. Thorn, 8 C. B. 316.
120 PRIVATE LAW : RIGHTS ‘IN REM.
CHAP. XI. ‘privilege’ is unavailing". Statements made in the course
of judicial proceedings, or to a person having an interest in
their being made, fair reports of trials or legislative debates,
fair comments on public men, and fair criticisms of literary
or artistic productions are held to be privileged.
Exercise of IV. The next class of rights is of a vaguer character and
º of a wider range than those which have already been con-
sidered. Every one is entitled without molestation to perform
all lawful acts and to enjoy all the privileges which attach to
him as an inhabitant of the country in which he lives.
Livelihood. I. The most specific right of this kind is to the unmolested
pursuit of the occupation by which a man gains his livelihood.
The English law upon this subject is thus explained by Lord
Holt —‘There are two sorts of acts for doing damage to a
man’s employment, for which an action lies; the one is in
respect of a man's privilege, the other in respect of his
property. In that of a man’s franchise or privilege, whereby
he hath a fair, market or ferry; if another should use the like
liberty, though out of his limits, he shall be liable to an
action though by grant from the king. But therein is the
difference to be taken between a liberty in which the public
hath a benefit, and that wherein the public is not concerned.
The other is where a violent or malicious act is done to a
man’s occupation, or profession, or way of getting a live-
lihood. There an action lies in all cases. But when one man
doth damage to another by using the same employment, no
action will lie, because one man has as much liberty to use an
employment as another”.’
Highways. 2. Every one has a right to the free and unobstructed use
of the public highways and of navigable rivers. Not only is
any interference with the use of them a public wrong, which
may be redressed criminally, but each one of the community
has also a private-law right not to be inconvenienced by such
* See Taylor v. Hawkins, 16 Q. B. 321.
* Keeble v. Hickersgill, I I East, 576, n.
ORIDINARY RIGHTS. 121
interference. This right has been held to be violated where CHAP. XI.
a traveller found his accustomed road blocked up, and was
forced to go by a longer way to his destination; where an
omnibus was wilfully so driven as to hinder the progress of
another omnibus; where damage was caused by a house which
was so built as to intrude upon the highway, and where
a vessel was injured by piles which had been driven into the
bed of a river during the doing of some work and had been
left there after its completion.
3. Every one has a right that the machinery of the law, Abuse of
which is established for his protection, shall not be maliciously º pro-
set in motion to his detriment. This right is infringed by the
act known in English law as “malicious prosecution, the
essence of which is that it is done both maliciously, i. e. from
some motive other than that of bringing an offender to
justice, and without reasonable and probable cause. A
prosecution though it originated bona ſide, may subsequently
become malicious, ‘if the prosecutor, having acquired positive
knowledge of the innocence of the accused, perseveres maſo
animo in the prosecution, with the intention of procuring
per meſas a conviction ".’ A malicious arrest, malicious pro-
ceedings to cause a bankruptcy, and abuse of a writ of execution,
are acts of the same character. The vexatious institution
of a civil action was redressed in the earlier Roman law by the
“calumniae iudicium,’ which the successful defendant might
in his turn bring against the dishonest plaintiff. But by
the time of Justinian almost the only restraint upon malicious
or frivolous suits was the infliction of costs upon the losing
party, and this is also the policy of the law of England *.
Sometimes the plaintiff is compelled to give security for the
costs for which he may become liable in case he should lose
his action.
* Fitz-John v. Mackinder, 9 C. B. N.S. 531.
* It seems that there may be cases in which a combination offmalice
groundlessness, and special damage will entitle a defendant to an action ; see
Williams, J., in Cotterell v. Jones, II C. B. 730. According to the older law
the plaintiff found pledges, who were amerced if his claim was not sustained.
122 PRIVATE LAW : RIGHTS ‘IN REM.’
GHAP. XI.
Proprie-
tary.
V. Many of the rights which have hitherto engaged our
attention, although of the highest importance, relate to no
tangible external object. One's good name, for instance,
though invaluable, may be regarded from this point of view
as an “airy nothing.” The same remark will not apply to
the group of rights which we are now about to consider.
Proprietary rights are extensions of the power of a person
over portions of the physical world. These rights, like all
others, are made available by means of the acts or forbear-
ances of the person of incidence; but such acts or for-
bearances are, in this case, due with especial reference to an
object, or thing, from which the person of inherence derives
Some advantage ".
It is not every portion of the material world which is
capable of being thus appropriated. The air, the sea, and
the water of rivers are for the common use of all men, but
belong to none. Most things, on the other hand, are capable
of subjection to the human will, and in them proprietary
rights may be acquired which vary in extent from absolute
Ownership to a narrowly limited power of user. The essence
of all such rights lies not so much in the enjoyment of
the thing, as in the legal power of excluding others from
interfering with such enjoyment. ‘If a man were alone in
the world,” says Kant, “he would call nothing “mine.”
There is no relation between him and a thing. The relation
is between him and other people whom he excludes from the
thing *.’ The whole class of rights may be said to be an
extension of the advantage which a man has when a physical
object is actually within his grasp. As was well observed by
IBentham :—‘The savage who has hidden the game that he
has killed may hope to keep it for himself, so long as his
cave is undiscovered; so long as he watches to defend it, or
* Supra, p. 63.
* Rechtslehre Werke, ix. p. 71. “Mein–Das jenige womit ich so verbunden
bin dass der Gebrauch den ein Anderer ohne mine Einwilligung von ihm
machen mächte mich lädiren wirde.’ Ib. p. 51.
PROPRIETARY. 123
is stronger than his rivals; but that is all. How wretched CHAP. XI.
and precarious is such a possession " ' " In an advanced state
of society a man is secured in the exclusive enjoyment of
an object to an extent far beyond what he can assert for
himself by his own force, His personality, as some writers
would say, is extended over a wide circle of matter. -
What had up to this time been a mere fact now begins, Degrees of
by the aid of the law, to assume the character of a right. the right.
In its lowest form it is a right of Possession, in its highest
form a right of Ownership. The former is indeed included in
the latter, but may also exist apart from it; in which case its
nature is so peculiar that some deny it to be a right at all.
The owner of an object has, as we shall see presently, the
right, unless he has expressly parted with it, to the possession
of that object. But a person who is in possession, merely
as a matter of fact, has also a right to continue in possession,
and to be restored to possession, should he have been deprived
of it; and this sometimes even as against the owner.
The right of the owner to possess is technically called the Possession.
“ius possidendi. The right of the possessor to continue to
possess is called the ‘ius possessionis.’ In order to ascertain
what the right is, if any, which results from possession, it is
necessary to enquire what that possession is which is recog-
nised as having legal consequences. This, as Bentham says,
“is no vain speculation of metaphysics. Everything which is
most precious to a man may depend upon this question : his
property, his liberty, his honour, and even his life. Indeed
in defence of my possession I may lawfully strike, wound and
even kill, if necessary *.’ The ascertainment of the nature
of legal possession is, in fact, indispensable in every depart-
ment of law. It is as essential to the determination of
international controversies arising out of the settlement of
new countries, or to the conviction of a prisoner for larceny,
* Bentham, Principes du Code Civil, par Dumont, c. ix.
* Bentham, Works, v. p. 188. -
124 PRIVATE LAW : RIGHTS ‘IN REM.’
as it is to the selection of the plaintiff in an action of trover
or trespass. It is therefore not surprising that the literature
of the topic is a very large one, and its intricacies not a few.
We shall endeavour to present it in as simple a form as
possible.
A moment's reflection must show that ‘ possession,’ in any
sense of the term, must imply, first, some actual power over
the object possessed, and, secondly, some amount of will to
avail oneself of that power. Neither the mere wish to catch a
bird which is out of my reach, nor the mere power which I have,
without the least notion of exercising it, to seize a horse
which I find standing at a shop door, will suffice to put me
in possession of the bird or the horse. The Romans, by whom
this topic was treated with great fulness and subtlety, describe
these essential elements of possession by the terms ‘corpus
and ‘animus’ respectively.
I. The corporeal element presents the fewer difficulties.
To be the possessor of an object a man must have it so far
under his control as to be able to exclude others from it, but
for this purpose there is no need of actual contact". A soldier
lying on the ground, with his rifle within easy reach of him,
is in possession of the rifle. The purchaser of a quantity of
wheat is put into possession of it by being given the keys of
the warehouse in which it is stored”, and the donee of an
estate may take possession of the whole by entering upon
any one portion of it, or even by having the land shown to
him from some neighbouring point of view ". A long succes-
sion of writers has maintained that the possession in these
cases is symbolical, or fictitious, because acquired without
contact; that the ‘claves horrei” are, for instance, a mere
symbol of the warehouse and its contents. The error of
attributing this view to the Roman jurists was conclusively
CHAP. XI.
Its ele-
ments.
Corpus.
* “Non enim corpore et actu [tactu'ſ] necesse est apprehendere possessionem,
sed etiam oculis et affectu.’ Paulus, Dig. xli. 2. I. § 2 I.
2 Ib.
* Dig. vi. I. 77, and 18. § 2; xli. 2. 3. I.
ROSSESSION. 125
shown by Savigny"; and it obviously need never be resorted
to if we accept, as the corporeal element in possession, the
power to exclude others from the use of a thing, rather than
any actual contact with it.
On the same principle a man who has purchased goods ac-
quires possession of them by their delivery at the house where
he is residing, though no one has touched them on his behalf”.
He does not acquire possession of a treasure or other object
which is buried in his land, since this is not within his exclu-
sive control in the same way that a house is, unless he actually
digs it up *; nor of a wild animal which he has wounded,
till he actually catches it *. The distinction between the
cases turns upon the greater or less probability of the power
to exclude others from the object being interfered with.
* Every one will acknowledge that a wounded hare may easily
get away from him, or that he may search in vain for hidden
treasure so long that some one else may forstal him ; but that
the sanctity of his house should be interfered with by force,
or that in the short space of time necessary to enter an
adjoining field, a new possessor should spring up, who was
not previously to be seen, are circumstances so improbable that
no one would take their probability into consideration *.’
The distinction must obviously be a fine one. On the one
CHAP. XI.
hand, it has been held that when fish were nearly surrounded
by a Seine with an opening of seven fathoms between the two
ends, at which point boats were stationed to frighten them
from escaping, they were not reduced to possession as
against a stranger who rowed in and helped himself. On
the other hand, it has been decided that the custom of the
American whalemen in the Arctic ocean is a good one, which
gives a whale to the vessel whose iron first remains in it, pro-
vided claim be made before cutting in *. If an object be
* Recht des Besitzes, § 16.
* Dig. xli. 2. IS; xxiii. 3.9, 3. * Dig. xli. 2. 3. 3.
* Dig. xli. I. 5. * Savigny, § 19.
* Young v. Hichens, 6 Q. B. 606; Swift v. Gifford, 2 Lowell, 1 Io; cited in
126 PRIVATE LAW : RIGHTS ‘IN REM.’
under the control of a servant, exercised on behalf of his
master, it is under the control of the master.
2. When the mental element in possession is manifested
in its lowest degree, the holder of the object goes merely to
the length of meaning to protect it against violence, without
any assertion of a right over it on his own behalf. The in-
tention of a servant who is entrusted with the property of his
master is admittedly of this nature, and is fitly described as
‘representative *.’
A higher degree of intention is exhibited by those persons,
other than servants, to whom objects are delivered for various
purposes. A borrower, the lessee of land, a usufructuary,
a carrier, all intend to dispose of the object over which they
are given a control otherwise than as they may be from
time to time directed, although none of them deny the title
of the person who has delivered the objects to them to be
still outstanding. The amount of possession which has passed
to each of them—and some amount has certainly passed—
may be called ‘derivative.” 4
The highest degree of intention is a denial of the right
of any other than the possessor himself; inasmuch as the
possessor means to pay no regard to any other right than
his own. This is the intention manifested, on the one hand,
by a person who thinks himself, rightly or wrongly, to be
the owner of the object in question, and on the other hand
by a thief who well knows that he has stolen it.
As to possession accompanied by the lowest and highest
degrees of intention there is no difference of opinion and little
difficulty. It is conceded on all sides that in the first case
CHAP. XI.
3)
£-
|
|
Ammus.
a very valuable article upon Possession contributed by Mr. O. W. Holmes,
junior, to the American Law Review, vol. xii. -
* So if goods are stolen from a servant, they are alleged in an English
indictment to be “the property,’ i.e. in the possession, of his master. The new
offence of embezzlement was created to meet the case of misappropriation by
a servant of goods delivered to him for his master, but of which the latter had
not yet taken possession. See 29 G. III. c. 35.
ANIMUS. 127
possession is wholly absent", while in the last case, whether CHAP. XI.
the holder believes himself to be the rightful owner of the
object, or having merely found it means to keep it, subject
to the possibility of the owner making his appearance *, or
having stolen it means to keep it against all comers”, posses-
sion is fully present, and was in Roman law protected by the
Interdicts against any one from whom it had not been
acquired ‘vi clam aut precario.” The doubt arises with refer- Derivative
ence to the intermediate case of what is distinguished as possession.
* derivative possession ; when the intent to dispose of the
object is limited by the distinct recognition of the outstanding
right of another. Assuming that only one person can, in the
fullest sense, possess the same object at the same time, ‘non
magis enim eaden possessio apud duos esse potest, quam
ut tu stare videaris in eo loco in quo ego sto, vel in quo
loco ego sedeo tu sedere videaris “,’ it becomes necessary to
enquire whether the bailor or the bailee, the landlord or the
tenant, the proprietor or the fructuary, are to be regarded
as possessors. The theory of Roman law was that bailees, Roman
tenants, fructuaries, and other persons whose intent was of theory.
the same kind, were not possessors, though they might be
said ‘in possessione esse,’ ‘maturaliter possidere,’ ‘corpo-
raliter tenere,’ ‘alieno nomine possidere *.’ Their position
approximated to that of a servant. Lacking the ‘animus
domini,” which, it is necessary to remember, meant the
intention, not of being owner, but of acting as such, they
* R. v. Hey, C. and K. 983; but see also Moore vérèobinson 2 B. and Ad.
* Dig. xliii. 17. 2; Armory v. Delamirie, I Sm. L. C. 301 ; Dicey, on Parties,
p. 355.
* “Pro possessore vero possidet praedo, qui interrogatus cur possideat re-
sponsurus sit, quia possideo, . . . nec ullam causam possessionis possit dicere.”
3Dig. v. 3. II—I 3. ‘Tusta enim an iniusta adversus ceteros in hoc edicto
[sc. uti possidetis] nihil refert, qualiscumque enim possessor, hoc ipso, quod
possessor est, plus iuris habet quam ille qui non possidet.” Ib. xliii. 17. 2.
Dicey, on Parties, p. 356, quotes Crompton, J., in Buckley v. Grose, 32, L. J.
Q. B. I 31, as probably supporting this view as to thieves.
* Dig. xli. 2. 3. 5. Cf. Reynolds v. Clarke, 2 Ld. Raymond, 1399.
* “Nec idem est possidere et alieno nomine possidere.’ Tig. xli. 2, 18,
128 PRIVATE LAW : RIGHTS ‘IN REM.’
could not claim to have their possession protected by the
Interdicts *.
A different view seems to have guided the jurists of the
Teutonic races. The intention of the derivative possessor
to exclude every one other than the owner from the control
of the object, though falling short of the ‘animus domini,’
was thought sufficient to entitle him, and him alone, to real
remedies analogous to the Interdicts. Under the Salie Law
the person from whose custody cattle were stolen, irrespec-
tively of his having any further interest in them, seems to
have been the only person entitled to have them restored to
him; and Braeton says that, in suing for stolen goods, it
makes no difference whether the goods belonged to the
plaintiff or not, provided only they had been in his custody”.
Whether or no the ‘derivative possessor is to be regarded
as ‘possessor’ in the fullest sense, there is no doubt that he
has at any rate, in most cases, a possessory interest which the
law will recognise, and for any interference with which he
is entitled to redress by way of damages. The test of
his having such an interest was said by the Roman law-
yers to be whether or no the safety of the object pos-
sessed was of importance to him. This may occur in two
ways; either because the object is directly useful to him, as
is a pledge to a creditor *, or a slave to a person who has a
usufruct in him *; or because the loss of it renders him
liable to an action for not having kept it safely, as would be
the case with a hirer, a borrower, or a tradesman who has
goods given him to repair. A depositary, since he does not
CHAP. XI.
Teutonic
theory.
* Except in the case of the “emphyteuta,’ the holder of a pledge, the
“precario tenens,’ and the ‘sequester.’ Savigny, $ 9.
* “IDum tamen de custodia sua.” Bract. fol. 151. Cited by Mr. Holmes, in
the American Law Review, u. s.
* “Quia expedit ei pignori potius incumbere quam in personam agere.”
Inst. iv. I. I.4.
* “Fructuarius aget de fructibus, vel quanti interfuit eius furtum non esse
proprietarius vero aget quod interfuit eius proprietatem non esse subtractam.'
Dig. xlvii. 2, 46.
THE NATURE OF POSSESSION. 129
guarantee safe-keeping, ‘custodiam non praestat,’ has no right CHAP. XI.
of action against any one who steals the deposit".
The view taken by English law of the rights of ‘derivative’ Egil
possessors is not dissimilar. ‘In all these instances,’ says
Blackstone, ‘there is a special qualified property transferred
from the bailor to the bailee, together with the possession.
And on account of this qualified property of the bailee, he
may, as well as the bailor, maintain an action against such as
injure or take away these chattels. The tailor, the carrier,
the innkeeper, the agisting farmer, the pawnbroker, the dis-
freinor, and the general bailee, may all of them vindicate in
their own right this their possessory interest. For being
responsible to the bailor, or if the goods are lost or damaged
by his wilful default or gross negligence, or if he do not deliver
up the chattels on lawful demand, it is therefore reasonable
that he should have a right of action against all other persons
who may have purloined or injured them ; that he may
always be ready to answer the call of the bailor”.” In what
are called ‘simple bailments,’ i.e. those in which the bailor
is at liberty to resume possession at any moment, either the
bailor or the bailee may sue for any interference with the
object bailed, but when during the bailment the right of the
bailee is good even against the bailor, the former can alone
sue for any interference with his possession.
The motives which have induced the law to give protec- Reasons
tion to the fact of possession, whether of the fullest or of ;:
the ‘derivative kind, are not far to seek. Some writers *
have however thought it necessary to discover a somewhat
mysterious explanation of what might otherwise have ap-
peared simple enough. ‘The ground of this protection,”
says Savigny, ‘and of this condition similar to a right, has
to be ascertained. Now this ground lies in the connection
* Inst. iv. I. 17. But he may sometimes recover damages for ‘vibona rapta.”
Dig. xlvii. 8. 24.
* 2 Comm, 453.
| 36 PRIVATE LAW : RIGHTS ‘IN REM.’
£H.A.P. Xi.
between the above condition of fact and the party pose
sessing, the inviolability of whose person extends to those
sorts of disturbance by which the person might at the same
time be interfered with. . . The case occurs where the violence
offered to the person disturbs or puts an end to possession.
An independent right is not, in this case, violated, but some
ehange is effected in the condition of the person to his pre-
judice; and if the injury, which consists in the violence
against the person, is to be wholly effaced in all its conse-
quences, this can only be effected by the restoration or pro-
tection of the status quo, to which the violence extended
itself".’ The same view is also to be found, where anything
so abstract would scarcely be expected, in a volume of Meeson
and Welsby’s Reports. ‘These rights of action,’ said the
Court of Exchequer, are given in respect of the immediate
and present violation of possession, independently of rights
of property. They are an extension of that protection which
the law throws around the person *.”
As to the place which the doctrine of possession should
occupy in a body of law, Savigny is of opinion that since
it only comes in question as a condition to the granting of
Interdicts, it belongs to the department of obligationes ex
maleficio.” By what has preceded, it will have sufficiently
appeared that we agree rather with those who, like Alciatus,
Halm and Gans, class possession among the ‘iura in re.”
The orbit of the right may be inferred from a list of the
acts which are recognised as infringing it. Among the acts
so recognised in English law are those long known as ‘tres-
pass’ and ‘conversion.” A “trespass to goods would consist
in their removal or injury, but might be justified, as done in
the exercise of a rightful ‘distress,” or in self-defence; while
goods would be said to be ‘converted by any one who
wrongfully assumed to act as their owner.
The ‘ius possessionis’ comes into existence whenever the
|Place of
Possession
in the cor-
pus iuris.
Orbit.
Commence-
ment,
* Savigny, § 6. * Rogers v. Spence, I 3 M. and W. 581.
TERMINATION OF POSSESSION. 131
corporeal fact of capacity to exclude others from an object
is coupled with the mental fact of intention, either to act
with reference to it as owner as against every one but the
owner himself, or to so act as against all the world.
When the intention is of the lower type the possession,
which we have called derivative, was protected at Rome only
by personal actions. When intention of the higher type
is present there is possession properly so called, which the
Romans protected by real remedies. It is obvious that in
either case the ‘ius possessionis, although it may not be
, rightful, is a ‘legal right’ in the sense in which we have
defined the term in an earlier chapter'.
The corporeal and mental elements of the act of acquisition
may be separated, as where the former is exercised by an
agent and the latter by his principal; or both may be
exercised by an agent, who has general authority from, or
whose acts are subsequently ratified by, his principal *.
CHAP. XI,
The right of possession may be of course extinguished Termina-
by an express abandonment of the object, but it is necessary
to examine how far any tacit relaxation either of the cor-
poreal control or of the mental intention, upon which its
original acquisition depended, may have the same effect.
Loss of control is of itself fatal to possession. The control
need not however be in constant exercise, provided that no
adverse control has been successfully set up in opposition
to it. It is only necessary that it should be capable of
being reproduced. A man may leave in the winter a pasture
which he only uses in summer, or may leave his farm in
the care of a bailiff while he goes on a voyage. In neither
case is an end put to his control of the pasture or the
farm, till some one seizes the unoccupied pasture, or till
the farm is held adversely to him by the bailiff or by an
intruder 8.
* Supra, p. 56. * Savigny, § 26.
* An exception to this rule was introduced into Roman law on grounds of
policy. It was a legal fiction that the possessor in such cases as those
tion.
R. 2.
132 PRIVATE LAW : RIGHTs ‘IN REM.’
GHAP. XI.3
Quasi-pos-
session.
Ownership.
In like manner possession may be preserved although an
intention to possess is not in constant activity. It continues
till the intention is negatived by a new act of will opposed to
that by which the possession was acquired. The mere non-
consciousness of the intention, even in the case of a person
who has become lunatic, does not interfere with the con-
tinuance of possession.
The doctrine of possession has been extended, under the name
of “quasi-possession,’ to the control which may be exercised
over advantages, short of ownership, which may be derived
from objects. A right of way, an advowson or perpetual
right of appointment to a benefice, and similar rights, the
nature of which will shortly have to be explained, are
susceptible of a quasi-possession, the rules for which are
analogous to those which govern possession properly so called.
It is a great advance in civilisation when law throws around
the mere fact of possession that protection which the possessor
could previously have won for it only by his own right hand.
It is a still further advance when law gives to a man that far
ampler measure of right over an object, quite irrespectively
of his having any actual control over it, which is known as
“Ownership.’ -
The higher is no doubt a development of the lower right.
‘Dominium rerum ex naturali possessione coepisse Nerva
filius ait '.' It is usually defined as a plenary control over an
object. “Das Eigenthum ist eine totale Herrschaft über eine
Sache”.’ “La propriété est le pouvoir juridique plein et entier
d’une personne sur une chose corporelle;’ ‘Le pouvoir de
droit d’une personne sur une chose d'après tous les buts
rationels d'utilité possible, inhérents à sa nature *.’
mentioned, though dispossessed in point of fact, was not to be regarded as dis-
possessed till he had received notice of what had occurred. Dig. xli. 2, 46;
ib. 3. 7 and 8; Savigny Besitz, $ 33.
3Defini-
tions.
* Dig. 4I. 2. I. I. * Puchta, Inst. ii. p. 581.
* Ahrens, Droit Naturel, ii. p. 143; cf. “Dominus incipit plenam habere in
re potestatem.’ Inst. ii., 4. 4. “
OWNERSHIP. 133
The right of ownership is, however, unlimited only in com- chap. xi.
parison with other rights over objects. In accordance with #. d.
the maxim ‘sic utere tuo ut alienum non laedas,’ it must
always be enjoyed in such a way as not to interfere with the
rights of others, and is therefore defined in the French Code
as ‘le droit de jouir et disposer des choses de la manière la
plus absolue, pourvu qu'on n'en fasse pas un usage prohibé
parles lois ou parles réglements".’ It may also, as we shall
see hereafter, continue to subsist although stripped of almost
every attribute which makes it valuable, in which condition
it is described in Roman law as ‘nuda proprietas.” A really
satisfactory definition of a right thus wide, yet necessarily
limited in several respects and conceivably limited in many
more, has perhaps never been suggested. It is difficult to
do more than to describe it, with Austin, as a right over
a determinate thing, indefinite in point of user, unre-
stricted in point of disposition, and unlimited in point of
duration *.”
Various attempts have been made to enumerate the at- Component
tributes or powers of an owner. He is said to have rights, rights.
‘utendi,’ ‘fruendi,” “abutendi,’ ‘fructus percipiendi,” “possidendi,”
‘alienandi,’ and ‘vindicandi.' But what has to be said with
reference to the orbit, or contents, of the right of ownership
may be conveniently arranged under the three heads of
possession, enjoyment, and disposition.
I. Of the right to possess, little more need be said than Possession.
that it includes the ‘ius vindicandi, and that it is inherent in
ownership unless expressly severed from it, as is the case
when the owner has let, lent, or mortgaged his property.
2. The right of enjoyment implies rights of user, and of Enjoy-
acquiring the fruits or increase of the thing, as timber, the ment.
young of cattle, or soil added to an estate by alluvion. The
right is limited only by the rights of the State or of other
individuals.
The State may of course, as is sometimes said by virtue
t
* Art. 544. * Jurisprudence, ii. p. 477; cf. iii. p. 2.
134 PRIVATE LAW : RIGHTS ‘IN REM.’
CHAP. XI.
Disposi-
tion.
of its ‘dominium eminens,’ take such portions of the produce
of property, or even of property itself, as it may think fit ;
or it can prohibit any particular use of the property, e.g.
the growth of tobacco upon land in England", or the
carrying on of noxious trades in towns. The rights of the
owner may also be limited by those of his co-owners, if the
property is held jointly, or by those of strangers. The owner
of land, for instance, may be restrained in the interest of
neighbouring owners from dealing with it entirely at his
pleasure; and this either in consequence of some exceptional
advantage, such as a right of way, which may have been
conferred upon another; or in consequence of the ordinary,
, as it is sometimes called, natural’ right of his neigh-
bours not to have their land deprived of its accustomed
O]”
support from the land adjacent, to receive the water of a
stream, or the like. .*
3. The right of disposition carries with it the right of
alteration or destruction, and also the right of alienation.
Some objects are of course practically indestructible. The
alienation may either be total, when the right itself, or
partial, when a fraction of it only, is transferred.
Ownership is exercised, in its primary and fullest sense,
over physical objects only. It is also exercised, in a
secondary and conventional sense, over certain collections
of rights which it is convenient to treat upon the analogy
of physical objects. In the primary sense of the term,
a man may be owner of a house, in the secondary sense
he may be owner of a patent for an invention. The object
owned is in either case described as ‘property,’ which is de-
fined by Mirabeau as signifying ‘un bien acquis en vertu de
la loi”.’ The terms ‘ownership ’ and ‘property are some-
times also used in a third, and still looser sense. The sum-
total of a man’s fortune, including not only the objects of
Objects of
ownership.
* By 12 Car. TI. c. 34, and subsequent Acts.
* Hist. Parlementaire, liv. xxvi. ch. 15.
OBJECTS OF OWNERSHIP. 135
which he is owner but also the value of any claims which he
may have against other persons, after deducting the amount
of any claims which might be made good against himself, is
described as his ‘property,’ and he is said to ‘own it ".
It will be desirable to discuss each of these kinds of ‘pro-
perty separately.
I. It is not every physical object that will answer the
description of property, as being ‘un bien matériel sujet au
pouvoir immédiat d’une personne *.’ Some things are in
their nature incapable of appropriation. Air and water are
obviously for the free use of all mankind. Objects which
are capable of becoming property are divisible upon various
principles. First, in accordance with their physical character-
istics, they are—
(1) Moveable, as furniture or cattle, and immoveable, as
land or houses. No distinction is more generally accepted,
or more far-reaching in its consequences. It is perhaps
hardly necessary to remark that this distinction does not
exactly correspond to that between ‘real’ and ‘personal’
property, which is a result of feudal ideas, surviving only in
the law of England.
(2) Principal, accessory. -
(3) Quae usu consumuntur, non consumuntur.
(4) Simple, complex. ~
(5) Fungibiles, non fungibiles.
These five pairs of terms probably explain themselves, with
the exception of the last. ‘Fungible' things, quae mutua
vice funguntur,’ are those one specimen of which is as good
as another, as is the case with half-crowns, or pounds of rice
of the same quality. Horses, slaves, and so forth, are ‘non-
fungible’ things, because they differ individually in value and
cannot be exchanged indifferently one for another.
CHAP. XI.
* The Roman use of the term “res’ was equally ambiguous. Sometimes it
is the right over a thing, or even to the performance of an act (res incorporalis),
sometimes the thing itself (res corporalis). -
* Ahrens, Cours, ii. p. 117.
Tangible
objects.
Classifica-
tion, from
physical
differences;
136 PRIVATE LAW : RIGHTS ‘IN REM.’
:CHAP. XI. '
from con-
ventional
differences.
Intangible
property.
Patents.
Copy-right.
Things may also be divided, upon merely arbitrary or
conventional grounds, into—
(6) “Res in commercio,” “in patrimonio nostro,” “in bonis,'
as opposed to “res extra commercium,’ ‘extra patrimonium,’
“nullius in bonis;’ i.e. things which are, and which are not,
capable of private ownership. Of the latter some are both
owned, and exclusively used, by the State and its function-
aries, and are then said to be ‘in patrimonio populi; as are,
for instance, palaces and ships of war. Others, though owned
by the State, are at the disposal of the community, as are parks
and roads. Others, again, are set apart for religious purposes.
(7) Still more arbitrary is the long obsolete distinction
between ‘res mancipi' and ‘nec mancipi; " as is the still
subsisting distinction between ‘real’ and ‘personal’ property.
The right of the owner of a physical object is of course
modified by the character of the object. His right is in
general that the object shall neither be taken away from
him, nor impaired in value, nor shall his title to it be
weakened. Among the acts by which his right is infringed
are those known to English law as conversion, detinue, tres-
pass, and nuisance.
II. We have already mentioned that the idea of ownership
has been so far extended as to make it applicable to certain
closely coherent masses of rights; which are thus, by a
legal fiction, treated, for certain purposes, as if they were
tangible objects.
In modern times the inventor of a new process obtains
from the State, by way of recompense for the benefit he has
conferred upon society, and in order to encourage others to
follow his example, not only an exclusive privilege of using
the new process for a fixed term of years, but also the right of
letting or selling his privilege to another. Such an indul-
gence is called a patent-right, and a very similar favour,
known as copy-right, is granted to the authors of books, and
to painters, engravers, and sculptors, in the productions of
INTANGIBLE PROPERTY. 137
their genius. It is a somewhat vexed question whether CHAP. XI.
a ‘trade-mark’ is to be added to the list of intangible objects Trade-
of ownership. It was at any rate so treated in a series of marks.
judgments by Lord Westbury, which, it seems, are still good
law. He says, for instance, ‘Imposition on the public is
indeed necessary for the plaintiff’s title, but in this way only,
that it is the test of the invasion by the defendant of the
plaintiff's right of property". It is also so described in the
‘Trade Marks Registration Act,’ 1875*, as it was in the
French law of 1857 relating to ‘Marques de fabrique et de
commerce ".” The extension of the idea of ownership to these
three rights is of comparatively recent date. Patent-right in
Bngland is older than the Statute of Monopolies, 21 Tac. I. c.
3, but copy-right originates with the Act of 8 Anne, c. 19,
and trade-marks were first protected in the present century.
Violations of this sort of property are described in English
law as ‘infringements.’
With such intangible property should probably also be Franchises.
classified those royal privileges subsisting in the hands of
a subject which are known in English law as ‘franchises,’
such as the right to have a fair or market, a forest, free-
warren or free-fishery.
The once well-known privileges described in German law as
‘Bannrechte, e.g. of having all the corn of the neighbour-
hood brought to one’s mill to be ground, “Mühlenzwang, all
the bread brought to one's oven to be baked, ‘Backofen-
zwang, and the like, belong to the same category.
III. A still bolder fiction than those just considered was Bonorum
familiar to the Romans. All that a given individual can be *
said to be worth, reckoning together not only all his rights
of ownership but also the value of any claims which he may
* Hall v. Barrows, 33 T. J. Ch. 204.
* Ss. 3, 4, 5.
* This view is further countenanced by § 2 of the Trade Marks Registration
Act, 1875, which provides that a Mark can be assigned only together with the
goodwill of the business concerned.
138 PRIVATE LAW : RIGHTS ‘IN REM.'
CHAP. XI.
Commence-
ment of
the right,
have against others, but deducting the amount of any claims
which others may have against him, is sometimes said to be
his ‘property,’ and he is said to be the ‘owner’ of the whole
complex mass of rights, in rem and in personam, less deduc-
tions".
Such a totality of property has been described by the
phrases “bona,” “patrimonie,’ ‘avoir,’ ‘estate,’ ‘assets,’ ‘Ver-
mögen.” The last-mentioned term has been defined as ‘alles
was uns zusteht oder gehört 4.3 ° also as ‘der Inbegriff der
Rechte einer Person die einen Sachwerth haben, oder deren
Werth sich in Geld auschlagen làst *.” Such a mass of pro-
perty, should its subject die, becomes a “hereditas.”
Although some few modes of acquisition, or ‘titles, are
applicable to all three classes of property, each class has also a
set of modes of acquisition appropriate to itself. It may be
convenient to mention the special modes first, those, namely,
which are respectively applicable to the acquisition of physical
objects, of groups of rights treated as if they were physical
objects, and of complex masses of rights and duties.
Physical objects, ‘res corporales,’ ‘res quae tangi possunt,’
are capable of being acquired in a variety of ways, which are
either original’ or ‘derivative.’
I. Original acquisition takes place either with or without
an act of possession.
I. With such an act, the right is gained by—
(a) “Occupatio;' the taking of what previously belonged
OVer
physical
objects.
Original
acquisition.
* “La notion de la propriété est alors identifiée avec celle de l’avoir, quoique
il ſaille toujours distinguer les biens matériels qui sont immédiatement dans
notre pouvoir de ceux par rapport auxquels nous avons des droits a faire valoir.’
Ahrens, ii. 121. “Bona intelliguntur cuiusque quae deducto aere alieno
supersunt.” Dig. 1. 39. I. “Bonorum appellatio, sicut hereditatis, universitatem
quandam ac ius successionis et non singulas res demonstrat.” Dig. l. I6. 208,
“Bona autem hic, ut plerumque solemus dicere, ita accipienda sunt, universi-
tatis cuiusque successionem, qua succeditur in ius demortui, suscipiturque eius
rei commodum et incommodum : nam sive solvendo Sunt bona, sive non sunt,
sive damnum habent, sive lucrum, sive in corporibus sunt sive in actionibus, in
hoc loco proprie bona appellabuntur.” Dig. xxxvii. I. 3 pr. ; cf. l. 16. 49.
* Röder, ii. p. 239. * Puchta, ii. p. 302; cf. 578.
ORIGINAL ACQUISITION. 139
to no one: ‘quod enim nullius est, id ratione naturali occu- CHAP. XI.
With
panti conceditur". Among “res nullius’ are wild animals; &
possession.
derelicts, which on abandonment cease to belong to their
former owners; the property of enemies; and a ‘thesaurus,’
i.e. ‘ vetus quaedam depositio pecuniae, cuius non exstat
memoria, utiam dominum non habeat 3.’ It must be remem-
bered that the right of the finder of such objects is by no
means recognised as unqualified. Most systems of law hold
that property taken from an enemy vests primarily in the
nation, ‘bello parta cedunt reipublicae, a rule which is the
foundation of the law of booty and prize; and the right to
capture animals ‘ferae naturae,” or to appropriate a treasure-
trove, is usually qualified by the rights of landowners and of
the State itself.
(8) ‘Specificatio; i. e. the working up of materials belong-
ing to another into a new product. There is room for much
difference of opinion as to the cases in which ownership may
thus be acquired by manufacture, and a long controversy
was carried on between the jurists of the Proculian and
Sabinian schools upon the subject.
(y) “Fructuum perceptio, i.e. the rightful taking of the
produce of property by a person who is not owner of the
property.
(6) Lawful possession, continued for such periods as may
be recognised by law as sufficient for the purpose. So, in
the older Roman law, the possession of an object which had
been acquired bona fide and ‘ex iusta causa gave in one or
two years, according as the object was a moveable or an
immoveable, full ownership of it, by the title called ‘ usucapio.”
And so in English law, which does not favour this title, by
the Statute 3 and 4 W. IV. c. 27. s. 34, it is enacted that,
at the determination of the period limited by the Act, ‘to
any person for making an entry or distress, or bringing any
writ of quare impedit or other action or suit, the right
and title of such person to the land, rent or advowson, for
* Dig. li. I. 3. pr. * Ib. 31. 1.
140 PRIVATE LAW : RIGHTS ‘IN REM.’
CHAP. XI.
Without
possession.
T}erivative ,
acquisition.
the recovery whereof such entry, distress, action or suit re-
spectively might have been made or brought within such
period, shall be extinguished.”
This mode of acquisition, sometimes called “acquisitive
Prescription,” must be carefully distinguished from ‘extinctive
Prescription,’ or the “Limitation of actions,’ which, as will
presently appear, causes not a transfer of a right, but merely
the loss of a remedy.
2. The right is obtained without an act of possession by—
(a) “Accessio, when the owner of the principal object be-
comes also owner of its accessory.
Immoveables may accede, or adhere, to immoveables, as
is the case when soil is carried from one bank of a river to
’ or an island is formed, “insula
another, ‘ alluvio,” “avulsio ;
nata,’ and is divided between the riparian proprietors, or
assigned to him to whose land it is nearest; or a river
leaves its bed, ‘alveus derelictus,’ which is then shared by the
owners of the banks.
Moveables may accede to immoveables. So beams and
other objects fastened into a house become part of it by
‘inaedificatio, except so far as they come within the indul-
gence granted by the law of ‘fixtures;” and trees and crops
become inseparable from the soil in which they are planted
by ‘satio’ or ‘plantatio ; in pursuance of the maxim quid-
quid plantatur solo cedit.’
Moveables may accede to moveables, as an embroidery
to a garment. The rule and the exceptions to it were dis-
cussed by the Romans under the heads of ‘scriptura,’
‘pictura,” “partus ancillae,’ ‘adiunctio.’
. (3) “Confusio’ and commixtio, which usually produce joint-
ownership.
II. Derivative acquisition may take place inter vivos or
upon death. In the former case, it is often described as
“alienation,’ or ‘conveyance,” and implies the concurrence in
the act both of the alienor and the alienee. Such concur-
rence is a ‘contract, in the wider sense of that term, in
DERIVATIVE ACQUISITION. 141
which it has been defined as ‘the union of several persons
in a coincident expression of will by which their legal re-
lations are determined .’ Derivative acquisition upon death
takes place by legacy or by “donatio mortis causa”.’
Alienation inter vivos required, according to Roman law,
not only the agreement of the parties, but also a delivery
of possession, ‘traditio.’ ‘Traditionibus et usucapionibus do-
minia rerum, non nudis pactis transferuntur *.” On the other
hand, a mere delivery, without a valid accompanying agree-
ment, was not enough. ‘Nunquam nuda traditio transfert
dominium, sedita si venditio, aut aliqua iusta causa praeces-
serit, propter quam traditio sequeretur *.’ So in English
law, the gift of a chattel, unless it be by deed, must be
accompanied by delivery of possession, and ‘livery of seisin'
was essential to pass a freehold estate in land; and in the
older French law, ‘pour qu'une obligation transmit la pro-
priété, elle devait étre suivie de la tradition. Celui qui
achetait une maison, par exemple, n'en devenait propriétaire
que du moment oil la maison lui était livrée ; si elle était
livrée à une autre personne c'était cette personne qui l'acqué-
rait. L'obligation n'était alors qu'un titre pour se faire donner
la propriété; le moyen d'acquérir cette propriété Était la
tradition *.”
As a general rule, however, in English, and, it seems,
also in modern French law, the alienation is effected as soon
as the alienatory contract is complete. A purchaser who
chooses an article in a shop becomes the owner of it from the
moment that he has agreed with the shopkeeper upon the
price. Special formalities are however superadded to the
consent of the parties in particular cases. Thus, according to
the law of England, a grant of land must be under seal, and
the assignment of a ship must be by bill of sale. On the
continent the presence of a notary public is often needed to
* Savigny, Obligationenrecht, ii. p. 7. * Supra, p. IoS.
* Cod. 2. 3. 30. * Dig. 4I. I. 3I.
* Code Civil, expliqué par Rogrom, art. 711.
CHAP. XI.
142 PRIVATE LAW : RIGHTS ‘IN REM.’
CHAP. XI.
Intangible
property.
give validity to the act, or it has to be registered in a public
office. -
The modes of acquiring physical objects, of which a list
is given by Ulpian, are almost all peculiar to Roman law.
‘Singularum rerum dominia, he says, “nobis adquiruntur
mancipatione, traditione, usucapione, in iure cessione, adiudi-
catione, lege".’ -
Such property as may be had in inventions and in works
of art is recognised by law only after compliance with
certain formalities, which are intended both to bring to a test
the merit of the inventor or artist, and at the same time to
define the right for which protection is claimed. The in-
ventor has in England to present a petition to the Crown
and lodge a description of the alleged invention at a public
office. After a certain time has elapsed and opportunity has
been given for objections to be made, letters patent are
issued, granting to the petitioner the exclusive right of using
his invention for fourteen years, a term which is sometimes
extended. The patentee may by a registered deed assign his
right, or may grant licences for the manufacture of the
article to which it relates.
What is described as ‘literary and artistic property’ is in
general acquired by producing and making public a work of
literature or art, although till a copy of the work has been
deposited or registered in a public office, the law gives it no
protection. A copy-right is allowed not only in books, paint-
ings, and sculpture, but also for casts, engravings, drawings,
photographs, and designs for articles, whether of ornament or
utility. The law of many countries will recognise a property
in works published abroad, and treaties are made to arrange
the conditions under which this favour will be granted.
A copy-right, like a patent, may be assigned.
A trade-mark is acquired by use followed by registration,
and is capable of assignment. A franchise can be acquired
* Reg. xix. 2.; cf. Varro de R. R. ii. Io.
|FACTS OF GENERAL APPLICATION. 143
only by royal grant, actual or presumed, and may be assigned CHAP. xi.
by deed. --.
Those complex masses of rights and duties which are Complex
sometimes treated as property, grow up gradually round a intº
man as a result of the various circumstances of his life. *
They are transferred from him, so far as they are capable of
transfer, by some form of universal succession ".
Besides the ‘dispositive facts’ which are thus proper to each Dispositive
species of property, there are others of quite general applica- ...; ap-
tion. These are either ‘voluntary, or ‘involuntary, i.e. they P*
are the result of the act of at least one of the parties con-
cerned, such as purchase, or gift, or testament, or are the
result of causes external to the parties, such as the decision
of a Court, or the operation of a rule of law upon a given set
of circumstances, such as bankruptcy, marriage, or proximity
of relationship. It is hardly necessary to observe how large
a space is occupied in every system of law by the definition
of the right to succeed to property enjoyed by the various
classes of heirs and next of kin, and how comparatively
modern is the right to defeat the expectations of such per-
sons by leaving the property away from them by will.
As something has been said in a former chapter of pºsitive
‘ divestitive” facts generally *, it may be sufficient to add "
here that property of all kinds is lost not only by-death,
but also by ceasing to enjoy legal recognition as a person,
a consequence which, under some systems, follows from
‘ entering into religion,’ from conviction of serious crime, from
outlawry, and generally from causes which produce forfeiture.
It may also be lost not only by the various forms of aliena-
tion, but also by abandonment. It is of course lost by the
destruction of the objects owned.
The modes of acquiring and losing ownership vary, it
need hardly be said, with the progress of civilisation, the
tendency of which is generally towards their simplification.
* Supra, p. Io2. * Cf. Supra, pp. Ioo, IoI.
144 PRIVATE LAW : RIGHTS ‘IN REM.’
CHAP. XI.
Modes of
ownership.
Tura in re
aliena.
The attention of the student of Jurisprudence should be
mainly directed to those modes which he finds to be more
‘constant’ than the rest, most of which were recognised by
the Romans as being institutes of the ‘ius gentium".’
Ownership may be exclusive, or enjoyed in common with
others—‘ condominium.” In the latter case, either each of
the co-owners may have a quantitative share in the property,
as is the case with English tenants-in-common, or no quanti-
tative shares may be recognised, as in the Indian village
communities. -
In some systems a distinction is drawn between the
strictly legal, and the beneficial, ownership of one and the
same object, a distinction expressed in English law by the
terms ‘legal’ and ‘equitable,” and in Roman law by ‘Quiri-
tarian’ and ‘Bonitarian' property.
One or more of the subordinate elements of ownership,
such as a right of possession, or user, may be granted out
while the residuary right of ownership, called by the Romans
‘nuda proprietas,” remains unimpaired. The elements of the
right which may thus be disposed of without interference
with the right itself, in other words, which may be granted
to one person over an object of which another continues to
be the owner, are known as ‘iura in re aliena.”
The permanently important species of such rights are
“Servitude’ and ‘Pledge.” Two others, ‘Emphyteusis’ and
* Superficies,’ were peculiar to Roman law, and may there-
fore be dismissed in a few words.
Classifica-"
tion.
* It may perhaps be worth while to compare with what has been said in the text
the classification of the titles to property (things) which was proposed by Bent-
ham. He reduces them to the following heads:—I. Actual possession; 2. Ancient
possession in good faith; 3. Possession of the contents and produce of land;
4. Possession of what land supports and of what it receives; 5. Possession of
adjacent lands; 6. Ameliorations of one's own property; 7. Possession in good
faith with amelioration of another's property; 8. Exploration of mines in the
land of another; 9. Liberty of fishing in great waters; Io. Liberty of hunting
upon unappropriated grounds; II. Consent; I2. Succession; I.3. Testament.
Traités, par Dumont, t. i. p. 276.
* IURA IN RE ALIENA. 145
* Emphyteusis’ was the right of a person who was not the CHAP. XI.
Emphy-
owner of a piece of land to use it as his own in perpetuity, .
subject to forfeiture on non-payment of a fixed rent and on
certain other contingencies. The position of the “emphy-
teuta' presents obvious analogies to that of a feudal tenant or
an Indian ryot. “Superficies’ was the right which one person Superficies.
might have over a building which, having been erected on
the land of another person, became, upon the principle
‘quidquid inaedificatur solo cedit,” the property of the owner
of the land. ~ . -
We have seen that the rights of the owner of a given Servitudes.
piece of property sometimes involve a restriction on the
rights of others to do what they will with their own. Thus
the owner of land is said to have a ‘natural right that no
excavation shall be carried on so near to it as to cause it
to fall away. He has also a ‘natural right' that a stream
which reaches his land shall not be intercepted in its course
through the land of his neighbour".
The earliest ‘servitudes seem to have been artificial ex-
tensions of such natural rights. They derive their name from
imposing a sort of subjection upon the landowner whose
rights they restrict in favour of his neighbour; or rather -
upon the plot of land itself in favour of the neighbouring
plot, for it is said, ‘non personae sed praedia debent *.’
The land which benefits by a servitude is called the ‘prae-
dium dominans,’ ‘dominant tenement : * the land which is
burdened with it is the ‘praedium serviens,’ ‘servient tene-
ment.’ These Servitudes, since they exist not for the benefit
of any individual as such, but as giving increased value to a
given piece of land, are called ‘real,’ ‘praedial,” or ‘appur-
tenant.’ A later recognition seems to have been given to the
class of servitudes which are described, by way of contrast, as
* The French Code, art. 639, includes these under “Servitudes,” or ‘Services
fonciers; ’ enumerating, among the ways in which servitudes may arise, ‘ de la
situation naturelle des lieux.’ * Dig. viii. 3. 34; cf. ib. I. 15.
L
146 PRIVATE LAW : RIGHTS ‘IN REM.’
CHAP. XI.
Classifica-
tion.
Real Servi-
tudes.
Tºrofits.
being ‘personal, or ‘in gross,’ and which may be enjoyed by
an individual, as such, irrespectively of the ownership of land.
A right analogous to servitude, though not reducible to
either of these classes, is that which, in English law, the
inhabitants of a given place may have, by custom, to go
upon a neighbouring piece of land at certain times for a
given purpose, e.g. to hold horse-races or to dance on the
green.
Certain characteristics common to all servitudes, for the
most part easily deducible from what precedes, are clearly
summed up in the following passages from the Roman law:—
* Servitutium non ea natura est, ut aliquid faciat quis, sed
ut aliquid patiatur aut non faciat".’
‘Nulli res sua servit *.”
* Servitus servitutis esse non potest *.’
Servitudes may be classified in various ways. They may
be ‘positive,” consisting “in patiendo,” or “negative, con-
sisting “in non faciendo ;’ ‘ continuous’ or ‘discontinuous; ”
‘rural' or ‘urban ; ' ' apparent' or ‘non-apparent.” Their
most important division is however into ‘real’ and “per-
sonal *.’
A real servitude is defined in the French Code as ‘une
charge imposée sur un héritage pour l'usage et l'utilité d'un
héritage appartenant à une autre personne *.” Such servitudes
may be divided, although the distinction is unknown to
Roman law or French, into what are technically described,
in the language of English law, as ‘profits à prendre’ and
“easements.’
A right of the former kind implies that the owner of the
dominant tenement is entitled to remove certain tangible
objects from the servient tenement. Of this kind are the
* Dig. viii. I. I5. As to the one exception to this rule, see Dig. viii. 5, 6
and 8; viii. 2. 33. * * Dig. viii. 2. 26. * Dig. viii. 3. 33. I.
* “Servitutes aut personarum sunt, ut usus et ususfructus; aut rerum, ut
servitutes rusticorum praediorum et urbanorum.” Dig. viii. I. I.
* Code Civil, Liv., ii, tit, 4, ‘Des Servitudes et Services Fonciers.”
REAL SERVITUDES. - 147
English rights of ‘common of pasture,” “ of piscary,’ ‘ of CHAP. XI.
turbary,” i.e. of digging turves, ‘of estovers,’ i.e. of cutting
wood". These, like the Roman ‘iura pascendi,’ ‘ calcis co-
quendae,’ ‘harenae fodiendae 4,’ are all for the benefit of
agriculture. Of a somewhat different character are rights
of ‘common in the soil, e.g. of quarrying, or digging for
coal or minerals.
That species of real servitude for which Roman law has Easements.
no distinguishing name, but which English law calls an
Easement, is defined in an ancient work of authority as
‘a privilege that one neighbour hath of another, by writing
or prescription, without profit, as a way or sink through
his land, or the like *.’ -
The more important easements are rights of way, to the
use of water, to the free reception of light and air, to the
support of buildings. The Roman distinction between
‘rural’ and ‘urban’ servitudes, as to the precise meaning
of which more has perhaps been written than was necessary,
turned upon the general suitability of the right for the en-
joyment of land or of buildings respectively.
English law will not allow of the creation of an easement
of a kind hitherto unknown. The list of analogous servi-
tudes in Roman law was more elastic, and the French Code
lays down that ‘il est permis aux propriétaires d'établir
sur leurs propriétés, ou en faveur de leurs propriétés, telles
servitudes que bon leur semble, pourvu néanmoins que les
services établis ne soient imposés ni à la personne, ni en
faveur de la personne, mais seulement à un fonds et pour
un fonds, et pourvu que ces services n'aient d'ailleurs rien
de contraire à l'ordre public *.’
Some things are too trivial to be the object of a servitude.
So in English law there can be no easement of a fine view.
‘For prospect, it is decided, ‘which is a matter of delight
* A right to go on another's land to draw water is not a profit.
* Inst. ii. 3. 2.; Dig. viii. 3. I-6, 24.
* Termes de la ley, p. 284. * Code Civil, art. 686.
L 2
148 PRIVATE LAW : RIGHTS ‘IN REM.’
CHAIP. XI,
Personal
and not of necessity, no action lies for stopping thereof".’
Roman law was more indulgent to the pleasures of the eye”;
although it refused to reckon among servitudes a right to
gather apples, or to take a stroll, or to pic-nic, in the grounds
of one's neighbour *.
Real servitudes are usually acquired by grant, testament,
or prescription. They may terminate in consequence of
express release, of abandonment, or of a union of the
ownership of the dominant and servient tenements.
Rights of enjoyment exercisable by a given individual, as
Servitudes.
such, over the property of another, are ‘personal servitudes *.’
They may be imposed upon moveable as well as immoveable
property; not only upon lands but also upon cattle, furniture,
and slaves. • 2.
‘ Profits-à-prendre’ may similarly, according to English
law, be enjoyed by an individual, apart from his ownership
of land; but an easement, according to the modern definition
of the right which identifies it with a real servitude, can never
be thus ‘in gross ".’
The Romans distinguished two grades of such rights. The
lower, “usus,’ implied in strictness a user of the object itself,
without any advantage from the products of the object. They
defined the higher, “ususfructus,’ as ‘ius alienis rebus utendi
fruendi salva rerum substantia; and allowed to the ‘fructu-
arius’ rights of enjoyment of the object and its products which,
as long as they lasted, excluded those of that of the owner.
In several modern systems of law, the grant of a usufruct
answers the purpose which is attained in English law by the
Usufruct.
* Aldred's case, 9 Rep. 576. * Dig. viii. 3. I5, 16. * Dig. viii. I. 8.
* “Servitutes aut personarum sunt . . . aut rerum.” Dig. viii. I. I. Such
servitudes, as being imposed upon a thing in favour of a person, were called
by the mediaeval jurists “mixed,’ to distinguish them alike from ‘real servi-
tudes,” which are imposed upon a thing in favour of another thing, and from
‘personal servitudes,' which, according to this terminology, are imposed upon
a person, a slave, for the benefit of another person, his master.
* See per Lord Cairns, C , in Rangeley v. Midland Railway Co., L. R. 3 Ch.
Ap. 306. *.
PERSONAL SERVITUDES. 149
creation of a life interest. When an English testator gives
to A a life estate with remainder to B, a Frenchman would
leave the property to B subject to a ‘usufruit' to A for
life 1.
The servitudes recognised by Roman law under the names
“Habitatio’ and “Operae servorum et animalium ” were some-
what abnormal species of ‘usus.’ -
CHAP. XI.
A personal servitude, as originally conceived of, could be Quasi-
enjoyed only over things which ‘usu non consumuntur, and
which would therefore be capable, on the termination of the
right, of being handed over to their proprietor in as good con-
dition as they were received. A flock was, for this purpose,
regarded as an ideal whole, capable of being restored as such,
although the usufructuary had replaced some of the individual
sheep by new ones; but wine, corn, dresses, and even money,
since no use could be made of such objects without destroying
them, were not allowed to be susceptible of usufruct. A
“quasi-usufruct” of such things was however authorised by
a Senatus-consultum under the early Empire; ‘not that this
enactment created a usufruct, properly so called,’ says Gaius,
“for the Senate is powerless to vary natural reason, but a
Quasi-usufruct was introduced when an action was given for
its protection”.’
The usufructuary of perishable things has to give security
that the proper quantity, or amount, of them shall be forth-
coming at the proper time; and with this safeguard the
principle of the later Roman law is adopted in the French
Code. By art. 581, ‘l’usufruit peut étre établi sur toute
espèce de biens, meubles ou immeubles.’
The rights of a usufructuary, or other person enjoying
analogous advantages over property, which after his lifetime,
1 The French Code is so careful to prevent any revival of praerevolutionary
ideas, that it avoids recognising usufruct or any other rights as ‘personal servi.
tudes.' The same feeling dictated art. 638, ‘La servitude n'établit aucune pré-
éminence d'un héritage sur l'autre;’ and art. 686, against the imposition of
servitudes “ni à la personne ni en faveur de la personne,’
* Dig. vii. 5. 2 ; cf. Inst. ii. 4. 2. -
-
usufruct.
150 PRIVATE LAW : RIGHTS ‘IN REM.’
CHAP. XI.
&
Fruits.
or at some otherwise determined epoch, will pass to another
person, whether such other person be called the ‘proprié-
taire,” or the ‘remainder-man,’ follow from the nature of the
case. They may vary in detail under different systems of
law, but the object of all systems is to give to the person who
has the immediate interest in the property such advantages
from it as are not inconsistent with the interests of the person
who will be entitled to it ultimately. Acts which are in-
jurious to such expectant interests are sometimes described
in English law as “waste.”
A usufruct in Roman law was a life-interest. In modern
law it may be granted for a less period. Roman law did not
allow it to be granted to a corporation for more than a
hundred years, a period which is reduced in the French
Code to thirty ".
The usufructuary is entitled to the ‘fruits’ of the property;
whether “natural, as brushwood and the young of animals,
‘industrial,’ as crops and vintages, or ‘civil,” as rent of land
and interest of money. He has, in general, to exercise the
right ‘en bon père de famille.” The right may be left by
will or granted inter vivos. It is sometimes implied by law.
So in France parents have the usufruct of the property of
their children till they attain the age of eighteen *. It may
be let or alienated. It comes to an end with the death of the
usufructuary, or other termination of the period for which it
was granted, with the destruction of the property over which
it is enjoyable, with a ‘consolidatio’ of the title of the pro-
prietor with that of the usufructuary. It may also be for-
feited by wrongful user, or by non-user.
Certain rights known to German law as ‘Reallasten’
resemble servitudes, because they impose a duty upon a given
piece of land. They are not servitudes because the duty con-
sists ‘in faciendo.’ A * Reallast' is defined as ‘a duty attached
to a piece of land of periodically performing positive acts.”
Reallasten.
* Code Civil, art. 619. * Tb, art. 384.
LICENCES. 151
The owner of the land for the time being is bound to perform CHAP. XI.
these acts, ‘homo dat, sed fundus debet.” Of such a nature
are the payment of ground-rent, the maintenance of dykes
and sluices, ‘Deich-und-Sielrecht,’ and many feudal inci-
dents.
Another class of rights which somewhat resemble servi- Licences.
tudes are those which are enjoyed by licencees. But a ‘licence,’
as has been authoritatively stated, ‘passeth no interest, nor
alters, or transfers property in anything, but only makes
an action lawful which without it had been unlawful'.”
A canal company granted to one Hill the exclusive right
of putting pleasure-boats on their canal. Another person
having put boats there was sued by Hill, on the ground
that, as the owner of an estate may grant a right to cut
turves, or to fish or hunt, there was no reason why he should
not grant such a right as that in question. The Court
however held that no such right could be given. “A new
species of incorporeal hereditament cannot,’ it was laid down,
‘be created at the will and pleasure of the owner of pro-
perty, but he must be content to accept the estate and
the right to dispose of it subject to the law. A grantor
may bind himself by covenant to allow any right he pleases
over his property, but he cannot annex to it a new incident
so as to enable the grantee to sue in his own name for an
infringement of such a limited right as that now claimed”.”
The ‘iura in re aliena' which have hitherto been con- Pledge.
sidered are given with a single purpose. Their object is
to extend the advantages enjoyed by a person beyond the
bounds of his own property. But there is also a right of the
same class which is given, not with this object, but for the
merely subsidiary purpose of enabling the person to whom
it is granted to make sure of receiving a certain value to
which he is entitled, if not otherwise, then at all events by
means of the right in question. The other rights ‘in re
* Thomas v. Sorrell, Vaughan, 351. * Hill v. Tupper, 2 H. and C. 121.
152 PRIVATE LAW : RIGHTS ‘IN REM.’
CHAP. XI.
aliena” enable the person entitled to them to enjoy the phy-
sical qualities of a thing. This right, which is known as
Pledge, merely enables a person who is entitled to receive
a definite value from another, in default of so receiving it,
to realise it by eventual sale of the thing which is given to
him in pledge.
The right of sale is one of the component rights of owner-
ship, and may be parted with separately in order thus to add
security to a personal obligation. When so parted with it is
a right of pledge, which may be defined as “a right in rem,
realisable by sale, given to a creditor by way of accessory
security to a right in personam.” It follows from this defini-
tion that the pledge-right subsists only as long as the right
Žn personam to which it is accessory"; that the right extends
no further than is necessary for the sale of the thing pledged,
not to its use or possession; and that the realisation of the
value of the thing by sale puts an end to the title of the
original owner. The thing pledged need not be the property
of the person who is liable personally. Although it is usually
a physical object, it may also be a ‘ius in re aliena, including
even a right of pledge, or a right in personam, in which last
case the realisation of its value may take place rather by
receipt of payment than by sale *.
The objects aimed at by a law of pledge are obviously, on
the one hand, to give the creditor a security on the value
of which he can rely, which he can readily turn into money,
and which he can follow even in the hands of third parties;
on the other hand, to leave the enjoyment of the thing in
the mean time to its owner, and to give him every facility
for disencumbering it when the debt for which it is security
shall have been paid.
IPurpose of
Pledge.
* This right need not arise out of contract, and it may consist in what is
called a ‘natural” obligation, a term which will be explained hereafter.
* In order to cover these possible varieties of objects, Pledge has been de-
fined as ‘das Recht an fremden Rechtsobjecten sich ihren Werth in Geld
(durch Verkauf oder auf anderer Weise) zur Befriedigung einer Forderung
zu verschaffen.” Holzendorff, Encyclopädie, ii. p. 111.
PLEDGE. 153
The methods by which these objects can best be attained, CHAP. x1.
and the degree in which they are attainable, must vary to yºne
some extent with the nature of the thing pledged. Probably
the rudest method is that which involves an actual transfer
of ownership in the thing from the debtor to the creditor,
accompanied by a condition for its re-transfer upon due pay-
ment of the debt. Such was the ‘fiducia of the older Mortgage.
Roman law, such is the Scotch wadset, and such is the English
mortgage, of lands of goods, at the present day, except in so
far as its theory has been modified by the determination of
the Court of Chancery and of the Legislature to continue, as
long as possible, to regard the mortgagor as the owner of
the property". Lord Mansfield was unsuccessful in attempt-
ing to induce the Courts of Common Law to take the same
view 3.
Another method, which must always have been practised, Pawn.
is that in which the ownership of the object remains with the
debtor, but its possession is transferred to the creditor 8. This
was called by the Romans “pignus *.” As a rule the creditor
cannot make use of the thing which is thus in his custody.
If he is to take its profits by way of interest, the arrangement
is called ‘antichresis.’ He had originally no power of sale
without express agreement, but this became customary, and
was at last presumed.
A “pignus’ may result from the execution of a judicial
sentence, ob causam iudicati . . . . pignoris iure teneri ac
distrahi posse saepe reseriptum est";' but more frequently
arises from a contract, which under some systems must be in
* In vivum vadium, or Welsh mortgage, the creditor repays himself out of
the profits of the property, which then reverts to the debtor. Bl. 2 Comm. I57,
but see Fisher, Mortg. § 13. In mortuum wadium if the debt be not paid by
the time fixed, the property becomes absolute in the mortgagee, except that, by
the intervention of the Court of Chancery, the mortgagor is still allowed during
a further period an ‘equity of redemption.’
* See Eaton v. Jaques, Doug. 455.
* Though he may sometimes receive it back again to hold ‘precario.'
* Ital. ‘pegno,” Fr. ‘gage,’ Germ. “Faustpfand,’ Engl. ‘pawn.'
* Cod. viii. 23. 2. *
154 PRIVATE LAW : RIGHTS ‘IN REM.’
writing". The trade of lending money upon pledge is fre-
quently placed under legislative restrictions, such as the Pawn-
brokers Acts in England, and the laws regulating ‘Monts
de Piété in some countries of the Continent.
Another right which, like pawn, depends upon the possession
of an object, is not dissimilar to it. Vendors of property,
persons who have expended work and labour on goods, and
others, are said to have a ‘lien on the property so long as
they are still in possession of it; that is to say, they have a
right of retaining it in their possession till their claims in
respect of it have been satisfied.
Tien must be allowed to be a real right, in so far as redress
may be had against any one interfering with it *; but, as has
been said by Lord Chief Justice Cockburn, ‘a lien is a mere
right to retain possession of a chattel, and which right is
immediately lost on the possession being parted with. In
the contract of pledge the pawnor invests the pawnee with
much more than this. He is invested with a right to deal
with the thing pledged as his own if the debt be not paid
and the thing redeemed at the appointed time *.’
Yet another mode of creating a security is possible, by
which not merely the ownership of the thing but its possession
also remain with the debtor. This is called by the Roman
lawyers and their modern followers ‘hypotheca.’ Hypothecs
may arise by the direct application of a rule of law, by judi-
cial decision, or by agreement. Those implied by law, gene-
rally described as ‘tacit hypothecs,’ are probably the earliest.
They are first heard of in Roman law in connection with that
right of a landlord over the goods of his tenant, which is still
well known on the Continent and in Scotland under its old
name, and which in England takes the form of a right of
Distress *. Similar rights were subsequently granted to
CHAP. XI.
Lien.
Hypothec.
Tacit.
* Code Civil, art. 2074; Codice Civile, art. 1878.
* The person enjoying it can maintain Trover.
* Donald v. Suckling, L. R. I. Q. B. 612.
* Which however implied no power of sale till 2 W. and M. sess. i. c. 5.
HYPOTHEC. 155
wives', pupils, minors”, and legatees”, over the property of CHAP. XI.
husbands, tutors, curators, and heirs, respectively *.
The action by which the praetor Servius first enabled a Conven-
landlord to claim the goods of his defaulting tenant in order tional.
to realise his rent, even if they had passed into the hands of
third parties, was soon extended so as to give similar rights
to any creditor over property which its owner had agreed
should be held liable for a debt. A real right was thus
created by the mere consent of the parties, without any
transfer of possession, which although opposed to the theory
of Roman law, became firmly established as applicable both to
immoveable and moveable property ". Of the modern States
which have adopted the law of hypothec, Spain perhaps
stands alone in adopting it to the fullest extent. The rest
have, as a rule, recognised it only in relation to immoveables.
Thus the Dutch law holds to the maxim “mobilia. non habent
sequelam,’ and the French Code, following the coufumes of
Paris and Normandy, lays down that ‘les meubles n'ont pas
de suite par hypothèque ".’ But by the ‘Code de Commerce,’
ships, though moveables, are capable of hypothecation"; and
in England what is called a mortgage, but is essentially a
hypothec, of ships is recognised and regulated by the ‘Mer-
chant Shipping Acts,” under which the mortgage must be
recorded by the registrar of the port at which the ship itself
is registered”. So also in the old contract of ‘bottomry,’
the ship is made security for money lent to enable it to
proceed upon its voyage.
Property may sometimes become subject to a hypothec by a Judicial.
judicial sentence. So under the older French law 9; but under
the Code, the judgment must be entered upon the register of
* Cod. v. 14. II. * Tig. xxvii. 9. 3. * Cod. vi. 43. I.
* As to similar rights for recovery of funeral expenses, wages of the servants
of a deceased, &c., see Code Civil, arts. 21 or, 2 Io?.
* On the difference between “pignus’ and ‘hypotheca,’ see Dig. xiii. 7, 9.
§ 2 ; l. I6. 238.
* Code Civil, art. 21 19; cf. Codice Civile, art. I967. * Art. Igo.
* 17 and 18 Vict. c. 104. * Pothier, Hypoth. c. I, art. 2.
156 PRIVATE LAW : RIGHTS ‘IN REM.’
CHAP. XI. ‘hypothèques".’ An English judgment has analogous effects,
but must be registered. According to Roman law, no real
right was gained over the property till judgment had been
followed by execution, i.e. till possession of it had been gained
by the creditor”.
A hypothec presents this great convenience, that it effects
no change of ownership and leaves the debtor in possession.
It labours under the disadvantage of easily lending itself to
a fraudulent preference of one creditor over another, since
it may be effected by an agreement of the parties concerned
without the knowledge of any one else. It is also difficult
for the creditor to whom the property is offered as security
to make certain that it has not been already encumbered.
Registra- The system of ‘Registration,’ ‘Inscriptions,” or ‘Hypothe-
tion. kenbücher, now general upon the Continent, has obviated
these evils". Every hypothec in order to have any effect
must be entered by the proper officer, and remains valid till
it is removed from the register. Should a sale become neces-
sary, this can no longer be effected by the creditor, but must
be authorised by the Court.
Mortgages share with hypothec the disadvantages which
result from secrecy; and, so far as relates to land, it is noto-
rious that all attempts to establish in this country a ‘register
of encumbrances’ have hitherto failed *. Mortgages of chat-
tels, effected by an instrument which is called a Bill of Sale
and is in effect an assignment subject to a conditional right
to call for a re-assignment, although not accompanied by
a delivery of possession, were, till recently, good as against
other creditors, unless fraudulent". A hotel-keeper might,
for instance, mortgage the furniture of the hotel, arranging
that it should remain in the house, so that he might continue
* Art. 2134. * Cod. viii. 23. I.
* They were ineffectually attacked by a constitution of the Emperor Leo,
Cod. viii. 18. II. -
* E.g. 25 and 26 Vict. c. 53.
* In which case they are void by I 3 Eliz. c. 5, and under the Bankruptcy
laws. - -
PRIWILEGES. 157
to carry on the business. Since the year 1854 it is however CHAP. XI.
necessary that the Bill of Sale be duly registered 1.
Since one object may be successively pledged to several Privileges.
creditors, it becomes necessary to fix the order in which they
may resort to the security.
The obvious rule would be expressed by the maxim ‘qui
prior est tempore potior est iure;’ and it seems to have been
adopted in Roman law, to the extent of disregarding all con-
siderations other than chronological order, even as between a
creditor who had actual possession of a “pignus’ and one who
enjoyed merely a ‘hypotheca.”.” To this rule a number of
exceptions were made, called in later law ‘privileges,” which
took precedence irrespectively of date *. According to modern
systems a pledge-holder with possession has a ‘privilege *;’
but the distinction between ‘privileges’ and other securities
has almost disappeared with the introduction of the system
of registration, according to which each charge takes rank
only in accordance with the order in which it is entered.
The English doctrine of ‘tacking’ introduces other exceptions
to the chronological ranking of securities.
A security is usually transferable only together with the Transfer
claim to which it is accessory. The right terminates by º
discharge of the claim to which it is accessory; by being
released; by destruction of the thing pledged; by the creditor
becoming owner of the thing; or, if the right was limited in
duration, by efflux of time *.
* By 17 and 18 Vict. c. 36, which recites that ‘frauds are frequently com.
mitted upon creditors by secret bills of sale of personal chattels, the holders of
which have the power of taking possession of the property to the exclusion of
the rest of their creditors;’ and defines ‘Bill of Sale” so as to include “assign-
ments, transfers, declarations of trust without transfer, or other assurances of
personal chattels, and also powers of attorney, authorities or licences to take
possession of personal chattels as security for any debt.”
* Dig. xx. I. Io.
* See Code Civil, liv. iii. tit. 18, ‘Des Privileges et Hypothèques.’ A Pri.
vilege is defined in art. 2095.
* Ib, art. 2073; Codice Civile, art, 1958.4. * Cf. Code Civil, art. 21.80.
158 PRIVATE LAW : RIGHTS ‘IN REM.’
CHAP. XI,
Immunity
from
Fraud.
Under a system of registration, it is further necessary that
the charge be removed from the books.
VI. But one more antecedent right in rem remains for
consideration. It differs essentially from those already de-
scribed, in that while they are infringed only by acts done
against the will of the person of inherence, this is infringed
while the person of inherence is a consenting party to his own
loss. It is the right not to be induced by fraud to assent to
a transaction which causes one damage. Its nature will be
best understood from an examination of the nature of the
act by which it is violated. Fraud may be said to be the in-
tentional determination of the will of another to a decision
harmful to his interests by means of a representation which is
neither true nor believed to be true by the person making it".
The essentials of a fraudulent representation, according to
English law, are that it is (1) untrue in fact, (2) not believed
to be true by the person making it, (3) made for the pur-
pose of inducing another to act upon it. It seems not to
be material that the maker of the statement should know
it to be untrue, or should have an interest in its being
acted on, or have any wicked wish to injure. Nor need the
statement be made immediately to the person who suffers in
consequence. So the directors of a company who, for the
purpose of selling shares, publish false statements, may be
sued by any one who, having been induced thereby to take
shares, has lost money.
On the question of knowledge, it has been laid down that
“if a man, having no knowledge whatever upon the subject,
takes upon himself to represent a certain state of facts to
exist, he does so at his peril, and if it be done either with
a view to secure some benefit to himself, or to deceive a third
* “I)olus malus’ is defined by Servius, “machinatio quaedam alterius deci-
piendi causa, cum aliud simulatur et aliud agitur ; by Labeo, “omnis calliditas,
fallacia, machinatio ad circumveniendum, fallendum, decipiendum, alterum
adhibita.” Dig. iv. 3. I.
IMMUNITY FROM FRAUD. - 159
person, he is in law guilty of a fraud: for he takes upon CHAP. XI.
himself to warrant his own belief of the truth of that which ..."
he asserts. Although the person making the representation tions.
may have no knowledge of its falsehood, the representation
may, nevertheless, have been fraudulently made".’ It will
be worth while to indicate some of the more usual forms
of fraudulent representations.
I. When a man fraudulently represents that he is the
agent of another, whereby a third party suffers loss. For
instance, a person pretends that he has authority to order
goods for another, and the goods having been supplied ac-
cordingly, and the alleged principal having repudiated the
transaction, the tradesman has an action against the pre-
tended agent”. And this is so even if the allegation of
agency be bona fide, for it is equitable that the loss, which
must fall on some one, should fall on him who has brought it
about by an untrue statement, believed and acted on as he
intended it should be, as to which he gave the other party
no opportunity of judging for himself.
2. When false statements are made as to the credit or
honesty of third persons, such as customers or servants,
whereby loss is occasioned to tradesmen or employers*.
3. When a man who has a wife living, pretending that
he is single, induces another woman to marry him *.
4. When a master, by show of authority, gets his servant
to do an illegal act".
5. When dangerous articles are knowingly bailed, without
due notice to the bailee of their quality".
6. The most important of all these heads of fraud is
* Evans v. Edmonds, 13 C. B. 786.
* Randall v. Trimmer, 18 C. B. 786. The more usual remedy in such a case
is now upon the implied warranty of authority, Collen v. Wright, 7 E. and B.
301, 8 E. and B 647. Cf. Dig. iv. 3.8.
* The right of action for the fraud, apart from contract, was first established
in the case of Pasley v. Freeman, 3 T. R. 51.
* Anon. Skin. II9. * Adamson v. Jarvis, 4 Bing. 72.
* Williams v. E. I. Co., 3 East, 192; cf. Longmead v. Holliday, 6 Ex, 766.
160 PRIVATE LAW : RIGHTS ‘IN REM.’
CHAP. XI.
Warranty.
connected with the contract of sale, and that apart from the
important consequences of fraud upon the contract itself, with
which we are not here concerned". An untrue warranty is a
fraud, whether or no the vendor is aware of its untruth. It
has been held that “if one man lull another into security as to
the goodness of a commodity he offers for sale by giving a
warranty of it, it is the same thing whether or not the seller
knew it at the time to be unfit for sale. The warranty is
the thing which deceives the buyer who relies on it, and is
thereby put off his guard, and it is sufficient to prove the
warranty to establish the deceit *.”
A warranty is often implied. Thus on a sale by Sample,
the seller implies that the sample has been fairly selected
from the bulk; on a sale of personal property, he impliedly
warrants that it is his. The seller of goods distinguished by
a trade-mark implies that it has been rightfully affixed to
them, and a purchaser who is induced to give a higher price
for the goods than they would be worth without the trade-
mark has an action for deceit *. The action given to the
proprietor of the trade-mark is also sometimes said to be
founded on the deceit, but it will probably be sufficient to
refer to what we have already said upon this subject in
order to show that this right is not a right to immunity
from a perversion of one’s will by means of a fraudulent
representation *.
When
implied.
Trade-
marks.
* Cf. Dig, iv. 3. 37. * Williamson v. Allison, 2 East, 450.
* This is so even independently of the Trade-marks Acts. Cro. Jac. 471.
* Supra, p. 137. It is submitted that not only are trade-mark cases, so far as
the proprietor of the mark is concerned, mistakenly said to turn upon fraud, but
that a similar error has been made in such cases as Collins v. Evans, 5 Q. B. 830,
and Butterly v. Vyse, 2 H. and C. 42. In the former of these, a person who
misinformed a sheriff's officer as to the ownership of goods, whereby they were
wrongfully taken in distress, was held liable ‘ for the deceit ' to their owner.
in the latter, a builder was allowed to get damages ‘for the deceit' against
a person who had fraudulently prevented an architect from granting a certificate,
which was necessary to enable the plaintiff to be paid for his work.
CHAPTER XII.
PRIVATE LAW : RIGHTS ‘IN PERSONAM."
WE have now arrived at a point when our method parts The
company with that of the Roman jurists and their followers. ...
Adopting as the radical distinction of rights that which
depends upon the restricted or unrestricted character of the
person of incidence, they oppose to rights “in rem’ the
topic of ‘ Obligations, under which one term are included all
rights ‘in personam, whether prior to wrong-doing or arising
out of it.
We have ventured to pursue a different course. Our
radical distinction of rights turns upon their existing or not
existing antecedently to wrong-doing. Reserving all rights of
the latter kind for separate treatment, we are now engaged in
the examination of antecedent rights only, and having dealt
with such of those rights as avail in rem, against the whole
world, have next to describe such of them as avail in personam,
against ascertained individuals".
It will be readily understood that our ‘antecedent rights in
personam will correspond to the “obligationes ex contractu’
* Supra, p. IoS.
M
162 PRIVATE LAW : RIGHTS ‘ IN PERSONAM."
and “quasi ex contractu’ of Roman law, while the Roman
law of obligationes ex delicto’ and “quasi ex delicto,” and of
obligations arising from breach of contract, for which last
there exists no technical Latin name, will correspond to the
rights which we call “remedial.”
Although we propose to distinguish thus broadly between
topics which are more usually grouped together under the
head of ‘Obligations, we are none the less able to make full
use of the admirable analysis of the ideas conveyed by that
term, which has been so potent a factor in the history of legal
speculation. ‘ Obligationum substantia,’ says Paulus in a
well-known passage, ‘non in eo consistitut aliquod corpus
nostrum faciat, sed ut alium nobis obstringat ad dandum
aliquid vel faciendum vel praestandum ".’ Still more familiar
is the definition of obligatio as ‘iuris vinculum, quo necessi-
tate adstringimur alicuius solvendae rei, secundum nostrae
civitatis iura.”.” In the fuller language of Savigny, an
obligation is ‘the control over another person, yet not over
this person in all respects (in which case his personality
would be destroyed), but over single acts of his, which
must be conceived of as subtracted from his free-will, and
subjected to our will”;’ or, according to Kant, ‘the possession
of the will of another, as a means of determining it, through
my own, in accordance with the law of freedom, to a definite.
act 4.’ An obligation, as its etymology denotes, is a tie ;
whereby one person is bound to perform some act for the benefit
of another. In some cases the two parties agree thus to be
bound together, in other cases they are bound without their
consent. In every case it is the Law which ties the knot,
and its untying, “solutio,' is competent only to the same
authority. There are cases in which a merely moral duty,
giving rise to what is called a ‘natural,” as opposed to a
CHAP. XII.
The con-
ception of
Obligation.
A natural
Obligation.
* Dig. xliv. 7. 3. pr. * Inst. iii. 13.
* Obligationenrecht, i. p. 4. Obligations are considered by Bentham under
the title ‘Rights to Services.’
* Rechtslehre, Werke, ix. p. 82.
EX II.EGE. 163
‘civil,' obligation will incidentally receive legal recognition. CHAP. XII.
So if a person who owes a debt pays it in ignorance that it
is barred by the statutes of limitation, he will not be allowed
to recover it back.
The right which, looked at from the point of view of the Tura in per-
Law which imposes it, is described as an obligation, is de- SOIlā, Il.
scribed, from the point of view of the person of inherence, as a
ăus in personam. The difference between a right of this kind
and of the kind discussed in the preceding chapter is obvious
enough.
When a man owns an estate, a general duty is laid upon all
the world to refrain from trespassing on his land. If he con-
tracts with a landscape gardener to keep his grounds in order
for so much a year, then the gardener owes to the landowner a
special duty, over and above the duty owed to him by all the
world besides. If a surgeon is practising in a town, while
there is a duty incumbent on all not to intimidate patients
from resorting to him, or otherwise molest him in the exercise
of his profession, there is no general duty not to compete for
his practice. Any one may legally establish a rival surgery.
next door. Suppose, however, that the surgeon has bought
his business from a predecessor, who, in consideration of
being well paid, has covenanted not to practise within
twenty miles of the town in question. Here the predecessor,
beyond and above the duties owed by others to his successor,
owes him the special duty of not competing with him by the
exercise of his profession in the neighbourhood. In the cases
supposed, the landowner and the practising surgeon have
respectively rights in personam, against the gardener and
the retired surgeon, over and above the rights in rem which
they enjoy as against every one else.
Most frequently antecedent rights in personam arise, as in Arise in
the above cases, out of the agreement of the parties. They wº
are however often due to some cause with which the parties
have nothing to do. In these cases, although the person of
incidence has not undertaken a special duty to the person of
M 2.
164 PRIVATE LAW : RIGHTs ‘IN PERSONAM."
CHAP. XII.
May be
grouped
under two
heads.
inherence, yet the Law casts that duty upon him, as if he
had so undertaken it. There is a ligeance between two indi-
viduals, although the chain that binds them was not linked
by their own hands. Every one has, for instance, a right that
public ministerial officers, such as sheriffs, registrars, or post-
men, shall exercise their functions for his benefit when occa-
sions arise entitling him to their services. Similar rights in
personam are enjoyed against persons filling certain private
fiduciary positions, such as trustees, executors, adminis-
trators, and trustees of bankrupts. So also against persons
who happen to enter into certain transitory relations with
others, such as persons to whom money has been paid by
mistake, or persons whose affairs have been managed by a
‘ negotiorum gestor.’ Finally, against persons who occupy
certain family relationships to others, e.g. against wives and
children, and vice versa against husbands and parents.
Antecedent rights in personam are divisible, according to
the investitive fact to which they owe their origin, into two
great classes. Such rights either arise or do not arise out of
a contract. In the former case they are described as rights
ea contractu. In the latter case, since they arise from facts of
various kinds to which it pleases the Law to affix similar results,
we shall describe them as rights ea lege; and it will be con-
venient to consider the rights which arise thus variously before
treating of those which arise solely from contract".
T. The rights which we describe as arising ea lege were
described by the Roman lawyers as arising quasi ex contractu,”
and more simply, ‘ ex variis causarum figuris”. We propose
to subdivide them into four classes, which we shall distinguish
as i. the Domestic ; ii. the Fiduciary; iii. the Meritorious;
and iv. the Official, respectively.
Fx lege.
* A distinction, which does not quite square with the above, is sometimes
drawn between obligations which arise from certain positions, obligations
d'états,’ ‘Zustandsobligationen,” and those which arise from certain acts, obli-
gations d'affaires,’ ‘Geschäftsobligationen.’
* Gaius, Dig. xliv. 7. I. pr,
DOM ESTIC. 165
*
i. We have already discussed those rights in rem, i.e. chap. xir.
against the outside world, which arise from the family rela- Domestic.
tions, and have stated how such relations commence and
terminate"; but from the same relations there arise also
rights in personam, i.e. of one member of a family against
another. Rights of this sort are of a somewhat undefined
character, and their corresponding duties consist often in life-
long courses of conduct rather than in lists of acts capable of
accurate enumeration. In advanced systems such rights are
only to a limited extent enforced by law, and that rather by
permitted self-help than by judicial process. It may appear
questionable whether the rights of husband and wife can be
reckoned among those which arise by operation of law rather
than out of contract. It is however submitted that this is the
true view. The matrimonial status is indeed entered upon, in
modern times, in pursuance of an agreement between the
parties, accompanied by certain religious or civil formalities;
but its personal incidents are wholly attached to it by uni-
form rules of law, in no sense depending on the agreement
of the parties, either at the time of the marriage or subse-
quently. The effect of the contract, coupled with the other
acts required by law, in producing a status, to which rights of
definite kinds are incident, closely resembles that of a sale of
property. In the one case, as in the other, the contractual
act is complete, so far as its direct effects are concerned, when
the status has been produced or the ownership changed. The
necessarily resulting rights of the person newly invested with
the status, or newly become owner of the property respect-
ively, are the creatures not of the will of the parties but
of fixed rules of law”. The rights of husband and wife are
summed up in the French Code as follows: ‘les époux se
doivent mutuellement fidélité, secours, assistance. Le mari doit
* Supra, p. II 2.
* See the remarks of Hegel, Phil. des Rechts, $ 7.5, on the treatment by Kant,
Rechtslehre, Werke, ix. p. 9o; of marriage as an obligatory contract. The
nature of marriage was discussed in Niboyet v. Niboyet, L. R. 4 P. D. 9.
166 PRIVATE LAW : RIGHTS ‘ IN PERSONAM."
€HAP. XII.
protection à la femme, la femme obéissance à son mari. La
femme est obligée d’habiter avec le mari, et de le Suivre
partout oil ille juge à propos de résider; le mari est obligé
de la regevoir et de lui fournir tout ce qui est nécessaire
pour les besoins de la vie, selon ses facultés et son état".’
The rights of a husband according to English law, as
against his wife, seem to be that she should associate with
him, in default of which he can petition for “restitution
of conjugal rights; that her behaviour should not exhibit
levity, in which case he might formerly have chastised her
and may now restrain her liberty; and that she shall not
commit adultery, in which case he may, by obtaining a divorce,
deprive her of any claim to his society or support. A wife
may also petition against her husband for “restitution of
conjugal rights”.’
A parent acquires on the birth of a child a right, which
he may enforce by moderate chastisement or restraint, of
controlling his actions while of tender years. Under some
systems a child has a right to be supported by his parents,
and a parent to be supported by his children. Under the
French Code, a necessitous son-in-law may insist on being
maintained by his father-in-law”; but a judgment in accordance
with this provision having recently been obtained from the
French Courts, the American Courts refused to give effect to
it in the United States, as being contrary to the policy of the
laws of that country 4.
The relation of guardian and ward is an artificial imitation
of that of parent and child, and is entirely regulated by
law. Another artificial relationship, that of ‘patronus’ and
‘ libertus, is now obsolete ; as is, for most purposes, that of
feudal lord and vassal.
* Code Civil, arts. 212–214.
* There seems to have existed in the old French law a proceeding by
which a wife might petition ‘pour étre embesoignée.”
* Code Civil, art. 206.
* Journal de Droit Int. Privé, t, vi. p. 22.
FIDUCIARY. 167
ii. Express trusts were in Roman law created only by an chap. xm,
act of a testamentary character. They were requests to the *y.
heir, or to a legatee, to hand over the inheritance, or portions
of the property included in it, to the person intended to be
benefited, and were resorted to in order to evade certain
stringent rules which beset the institution of a legal heir and
the bequest of legacies properly so called.
According to the law of England, trusts may be created Trusts.
&nter vivos as well as by testament, and their history is a
curious one, beginning, like the Roman fideicommissa, with an
attempt to evade the law. The Statutes of Mortmain, passed
to prevent the alienation of lands to religious houses, led to the
introduction of ‘uses,’ by which the grantor alienated his land
to a friend to hold ‘to the use” of a monastery, the clerical
chancellors giving legal validity to the wish thus expressed.
Although this particular device was put a stop to by 15 Ric.
II. c. 5, ‘uses' continued to be employed for other purposes,
having been found more malleable than what was called, by
way of contrast, ‘the legal estate.” They offered indeed so
many modes of escaping the rigour of the law, that, after
several other statutes had been passed with a view of curtailing
their advantages, the 27 Hen. VIII. c. Io enacted that, where
any one was seised to a use, the legal estate should be deemed
to be in him to whose use he was seised. The statute did not
apply to trusts of personal property, nor to trusts of land
where any active duty was cast upon the trustee, nor where a
use was limited ‘upon a use, i.e. where the person in whose
favour a use was created was himself to hold the estate to the
use of some one else. There continued therefore to be a
number of cases in which, in spite of the ‘Statute of Uses,’
the Court of Chancery was able to carry out its policy of
enforcing what had otherwise been merely moral duties. The
system thus arising has grown to enormous dimensions, and
trusts, which, according to the definition of Lord Hardwicke,
are ‘such a confidence between parties that no action at law
will lie, but there is merely a case for the consideration of
168 PRIVATE LAW : RIGHTS ‘IN PERSONAM."
CHAP. XII. courts of equity”,” are inserted not only in wills, but also in
- marriage settlements, arrangements with creditors, and num-
berless other instruments necessary for the comfort of families
and the development of commerce “.
Under a system of trusts, the person of inherence, ‘fidei-
commissarius,’ ‘cestui-qui-trust,’ enjoys a right in personam,
against the person of incidence, ‘fiduciarius,’ ‘trustee.’
Very similar rights are enjoyed against executors, adminis-
trators, “heredes,’ trustees of bankrupts, and co-proprietors.
Thus a legatee and a creditor of the estate of a testator have
rights to be paid the amount of the legacy and the debt
respectively by the executor. The creditor of a bankrupt has
a right against the trustee in bankruptcy to be paid out of the
assets. Co-heirs, or other joint owners, irrespectively of
partnership, have rights against one another for the due
management of the property; and similar rights result from
the relation of proprietor and usufructuary, and from ‘Bann-
rechte 3.”
º In many cases a fiduciary relation is implied by law. Thus,
according to the law of England, where land is conveyed on
trusts not yet declared, the alienee is a trustee for the alienor.
So also the intending vendor of land, after executing an agree-
ment for a sale of it, holds it in trust for the intending
purchaser, and a person in whose name property is bought
with the money of another is trustee for that other. It is a
principle of English law that a trust shall never fail for want
of a trustee.
Some of the above fiduciary relations are an obvious result
of the acceptance of the view expressed in the maxim, ‘Iure
Naturae aequum est neminem cum alterius detrimento et in-
iuria fieri locupletiorem *.’ Hence also the right of one who has
paid money under a mistake to recover it back again, a right
* 2 Atk. 612.
* By 29 Car. II. c. 3. § 9, an express trust relating to land must be in writing.
* Supra, p. 137; cf. Savigny, System, iii. p. 338.
* Dig. l. I 7. p. 206; cf. Savigny, Obligationenrecht, i. p. 26.
MERITORIOUS. 169
which in English law is expressed by saying that the causeless CHAP. XII.
receiver is “a trustee’ for the mistaken payer. In this and in a
multitude of similar cases the money might be recovered as
having been ‘ received to the use of the person claiming it".
iii. According to Roman law, a “negotiorum gestor,” or Meri-
person who volunteered to render some necessary service to torious.
property in the absence of its owner, had a claim to be com-
pensated by the owner for the trouble he had taken, and the
owner had also a claim for any loss which had resulted from
the interference of the “negotiorum gestor.” Of a similar
character are the rights given by English law to the salvors
of ships in distress, and recaptors of ships which have been
made prize by the enemy; and to those who have supplied
necessaries to persons who, being lunatics or in a state of
drunkenness, were incapable of binding themselves by con-
tract”. “This title to indemnity,” says Bentham, ‘is founded
upon the best reasons. Grant it, and he by whom it is
furnished will still be a gainer; refuse it, and you leave him
who has done the service in a condition of loss. Such a
regulation is less for the benefit of him who receives the com-
pensation than for the benefit of those who need the service.
It is a promise of indemnity made beforehand to every man
who may have the power of rendering a burdensome service,
in order that a prudent regard to his own personal interest
may not come into opposition with his benevolence. Three
precautions must be observed in arranging the interests of the
two parties. First, to prevent a hypocritical generosity from
converting itself into tyranny, and exacting the price of a
service which would not have been accepted had it not been
* See the long note upon the common count for “money had and received ’
in Bullen and Leake’s “Precedents of Pleadings.”
* As to lunatics, see Baxter v. Portsmouth, 5 B. and C. 170. In Gore
v. Gibson, 13 M. and W. 623, Pollock, C. B., said, “A contract may be implied by
law in many cases even where the other party protested against any contract.
The law says he did contract because he ought to have done so. On that
ground the creditor might recover against him when sober for necessaries
supplied to him when drunk.’
170 PRIVATE LAW : RIGHTS ‘IN PERSONAM."
CHAP. XII.
Official.
supposed disinterested. Secondly, not to authorise a mercenary
zeal to snatch rewards for services which the person obliged
might have rendered to himself, or have obtained elsewhere at
a less cost. Thirdly, not to suffer a man to be overwhelmed
by a crowd of helpers, who cannot be fully indemnified without
counterbalancing by an equivalent loss the whole advantage
of the service".”
iv. Any member of the community who becomes entitled
by circumstances to call upon a public official to exercise his
functions on his behalf, acquires thereupon a right in personam
against such official to that effect. This right, in so far as it is
enforceable by action against the official, is a private law right.
Such rights are enforced in English law against all ministerial
officers, as collectors of customs, registrars of births, bishops,
lords of manors, sheriffs, or postmen”; but high officials, such
as the Postmaster-General, are not responsible for the negli-
gence of their subordinates.
In Roman law, a suitor had a right, enforceable by action,
that a judge should decide his cause properly. The judge was
liable “si litem suam fecerit,' and this was the case when he
gave a wrong decision, either corruptly, “si evidens arguatur
eius vel gratia vel inimicitia, vel etiam sordes *, or from
ignorance, ‘licet per imprudentiam *.’ According to the
law of England, however, no person holding a judicial office,
be he judge, juryman, coroner, or arbitrator, unless he exceeds
the bounds of his authority, is liable for his judicial acts.
Special duties are sometimes imposed by statute on particular
classes of persons, in which case any individual who has a
right to call for the performance of those duties possesses a
right in personam against the person upon whom such per-
formance is made incumbent. It having thus been enacted
that shipowners must keep medicines on board for the crew,
* Dumont's Theory of Legislation, Hildreth's translation, p. 191.
* See Ashby v. White, I Smith, L. C.
* Dig. v. I. I 5. * Dig. xliv. 7. 5.
OFFICIAL. 171
any sailor who suffers from a neglect of this duty may sue CHAP. XII,
for the damage he has sustained. The desirability has been
suggested of recognising a right, which if recognised would
belong to the class now under consideration, but is probably
unknown to any system of law. “When a person is in danger,
why,’ asks Bentham, “should it not be the duty of every man
to save another from mischief, when it can be done without
prejudicing himself, as well as to abstain from bringing it on
him 1 P '
Under the head of rights available against a definite Torts
person, which person is specifically ascertained before any º!"
infringement of the right, one might be tempted to place
those rights the violations of which have sometimes been
called in English law ‘torts founded on contract.’ Actions
against surgeons for want of skill, against carriers for want
of care, and the like, have sometimes been treated as if
brought in pursuance of a right existing against persons pur-
suing such vocations, independently of any contract. It has
been said, for instance, that ‘ the right which a passenger by
railway has to be carried safely does not depend on his having
made a contract, but that the fact of his being a passenger
casts a duty on the Company to carry him safely *.’ The
simpler, and it is submitted, the truer view, would be to treat
all such rights as contractual. What is called, with reference
to carriers, the ‘custom of the realm, is really a term implied
by law in the contract of carriage. Any one taking a railway
ticket knows, or is presumed to know, what interpretation
is put by the law upon the agreement with the Company
into which he enters by the simple act of taking a ticket. He
knows that, in return for his money, the Company not only
undertake to put him into a train and to start it for its destina-
tion, but also undertake by all reasonable precautions to ensure
his safety during the journey. If, through the negligence of
* Works, i. p. 148. º:
* Per Blackburn, J., in Austin v. Great Western Railway Co., L. R. 2
Q. B. 447. .
172 PRIVATE LAW : RIGHTS ‘ IN PERSONAM."
CHAP. XII.
Ex Con-
tractu.
Two Senses
of Contract.
the Company, what is called an accident occurs on the road,
and the passenger's leg is broken, he may fairly say that the
Company is just as much guilty of a breach of their contract
with him as if they had stopped their train half way, and had
told him that he must accomplish the rest of the distance as
best he could.
TI. By far the most important class of rights in personam
are those which arise from that particular species of act which
is called a ‘Contract.” We have already explained that
acts which are directed to the production of a legal result,
* Rechtsgeschäfte,’ may be either one-sided, when the will of
one party only is active, or two-sided, when there is a concur-
rence of two or more wills in producing a modification of the
rights of the parties concerned . Such a two-sided act, having
for its function the creation of a right, is a ‘Contract, in the
widest sense of that term, in which it would include not only
the creation of rights in personam, but also assignments of
property, marriage, and other transfers or creations of rights
&m remo”. ‘. -
Thus if a man goes into a shop and buys a watch for ready
money, a contract has taken place. The watchmaker and his
customer have united in a concordant expression of will, and
the result has affected once for all their legal rights. The
customer has become owner of the watch, and the watchmaker
of its price, and the transaction is at an end. But suppose
that, instead of the instantaneous sale of the watch, the agree-
ment had been merely for its purchase at a future day, in this
case also there is a contract, but the right to which it gives
rise is not a vested right of ownership in the watch, but an
outstanding, or continuing, right in the customer to buy it
* Supra, p. 74.
* Ib., p. 140. So in English law “contract of sale” is used to describe both
a sale out and out, or, as it is sometimes described, ‘a bargain and sale,’ and a
contract to sell. A similar ambiguity lurks in the term ‘marriage contract,’
which may denote either the contract of marriage, or a contract to marry
hereafter. *
EX CONTRACTU, 173
at the time and for the price agreed upon, with a correlative CHAP. xii.
right in the shopkeeper to receive the price in due course.
In the former case, the contract has given rise to rights in rem,
and in so doing its force is instantaneously spent. In the
latter case, the results of the contract are deferred. It pro-
duces merely claims, or rights in personam, which continue
to be operative till the thing agreed upon is performed.
We are concerned in the present chapter only with that Obligatory
narrower, and more usual, sense of the term contract, which contract.
restricts it to signify such a two-sided act as gives rise to
rights in personam.
In this sense it is defined by Savigny as ‘the union of
several in an accordant expression of will, with the object of
creating an obligation between them'; ' by an old English
authority as ‘a speech between two parties whereby something
is to be done”; by Pothier as ‘l’espèce de convention qui a
pour objet de former quelque engagement *;’ by M. Ahrens
as ‘le consentement exprimé de plusieurs personnes à l’effet
de créer entre elles un rapport obligatoire sur un objet de
droitº.’ It is an agreement entered into by several by which
rights in personam are created available against one or more
of them.
It is necessary carefully to distinguish between the two- Cause and
sided act itself and the results to which it gives rise. The effect.
act alone is the contract, the resulting contractual relation is
quite a different thing; although, from the want of an appro-
priate terminology, the two things are sometimes confused
with one another in English law. Thus we talk of ‘assigning
a contract, while what is really meant is the assignment of
the rights and liabilities which arise out of the contract. In
the language of Roman law, the two ideas are distinguished
with the utmost precision. The ‘contractus' is one thing,
the “obligatio ex contractu' is another.
* Obligationenrecht, ii. p. 8 ; cf. Puchta, Inst. iii. p. 89.
2 The Mirrour, * Oblig. art. I. . * Cours, ii. p. 226,
174 PRIVATE LAW : RIGHTS ‘IN PERSONAM."
CHAP. XII.
Elements
of a con-
tract.
It has been paradoxically maintained by more than one
writer of eminence that no assistance should be given by law
to the enforcement of agreements, on the ground that they
should be entered into only with those whose honour can be
trusted ; and the laws of Charondas and of the ancient
Indians are stated to have proceeded upon this principle ".
The contrary view, embodied in the maxim, “pacta sunt
servanda,” Köpta etvai & Tu äv ćTepos étépºp Ópoxoyńon”, has, it
is hardly necessary to say, long ago received the adhesion of
the civilised world. .
An obligatory contract is, as we have seen, a species of
agreement, and an agreement has been well expressed to
consist in two persons being of the same mind concerning the
matter agreed upon. But many agreements do not produce
any legal effect on the relations of the parties. It will
therefore be necessary to enquire more minutely into the
characteristics of such an agreement as has this effect, and is
therefore alone recognised by law as giving rise to obligations.
The constituent elements of a contract will be found to be
(i) several parties; (ii) their agreement; (iii) that what they
agree to is possible and legal; (iv) that their agreement is
expressed ; and, very generally, (v) either a solemn form, or
some fact which affords a motive for the agreement. -
i. The very idea of a contract demands for its formation
at least two parties, a ‘promisor' and a ‘promisee, who in
Roman law are described as “debitor’ and ‘creditor;” which
terms have however a more general application. So it has
been held that where one and the same company had two
departments, one for insurance and one for annuities, an in-
surance effected by the latter department with the former was
a nullity 8. The promisee must not be an ‘incerta persona,'
Parties.
* Stob. Flor., tit. 44. 21 ; Strabo, xv. p. 709; cf. Arist. Eth. Nic. viii. 15. 6,
ix. I. 9.
* Dem. in Everg. p. 1162.
* Grey v. Ellison, 25 L. J. Ch. 666.
THE PARTIES TO A CONTRACT. 175
e.g. “the secretary for the time being,” but the offer may be, CHAP. XII.
in the first instance, made to an unascertained member of a
class, e.g. to the finder of a lost purse, whoever he may be.
There may be more parties than one to either side of a Joint con-
contract, ‘plures rei,” “joint contractors; ' and these are, tractors.
according to the position which they occupy, either ‘correi
credendi,” “joint creditors,” or ‘correi debendi,” “joint
debtors.”
ii. The agreement consists of an offer on the one side, Offer and
and an acceptance on the other. The rules as to which are “”
as follows:–
(1) The acceptance must be unconditional. Must cor-
respond,
and be
which may therefore be withdrawn at any time before it has contempo.
T3,116 OllS.
(2) The acceptance must be contemporaneous with the offer,
been accepted. So it has been held that a bidder at an auction
is not bound till the hammer has fallen. ‘An auction is not
inaptly called a locus poenitentiae. Every bidding is nothing
more than an offer on one side, which is not binding on the
other side till it is assented to *.’ -
There is however, in English law, an exception to this rule,
which has been introduced on grounds of obvious convenience.
The party making an offer by post cannot retract it after
an acceptance of the offer has been duly posted by his cor-
respondent *. -
(3) The agreement must not be vitiated by serious and un- Mistake.
avoidable mistake. When this is present, there is no contract:
‘non videntur qui errant consentire *.” Not only may all
liability under the apparent agreement be repudiated, but
any payments made in pursuance of it may be recovered back.
This will be the result if a person intending to contract with
a definite individual is led to contract with some one else.
* For a fuller explanation of the relation of offer to acceptance, see Sir
W. R. Anson's Principles of the English Law of Contract, p. 12.
* Payne v. Cave, 3 T. R. 148. -
* Adams v. Lindsell, I B. and Ald. 68 I ; cf. Harris's Case, L. R. 7 Ch. 587.
* Dig. 1. I6. II6; xliv. 55, 57.
&
176 PRIVATE LAW : RIGHTS ‘IN PERSONAM."
Where a customer sent an order for goods to a tradesman
with whom he had been accustomed to deal, but who had
disposed of his business to a successor, the successor having
supplied the goods without any notification of the change,
was not allowed to recover their price ".
The contract will also be vitiated by a mistaken belief that
the object to which it relates is in existence”; or by a mistake
arising out of the name of the object, e.g. ‘Si hominem
Stichum a te stipulatus quis fuerit, tu de Pamphilo senseris,
quem Stichum vocari credideris”:' and so when the agreement
was to buy a cargo of cotton ‘to arrive ex Peerless from
Bombay,’ and there were two ships so called, one of which
was intended by the buyer, and the other by the seller 4.
There are other circumstances which, while they do not,
like mistake, by negativing the presence of a consensus ad idem
render the apparent contract void ab initio, yet operate as flaws
in its formation, rendering the resulting obligation voidable at
the option of the party who is disadvantaged by it ".
Where one party has been guilty of fraudulent misrepresen-
tation or concealment, he is not permitted to hold the other
party to his bargain. The rhetorical phrases of a vendor are
not necessarily fraudulent, ‘simplex commendatio non obligat,’
nor is the contract voidable unless it has been materially
induced by the misrepresentation. A principal is responsible
for the fraud of his agent". What is known in English law
as “undue influence' is also held to make a contract voidable.
This consists in acts which, though not fraudulent, amount to
an abuse of the power which circumstances have given to the
will of one individual over that of another. In some relations,
such as that of solicitor and client, or parent and child, the
CHAP. XII.
Fraud.
* Boulton v. Jones, 2 H. and N. 564.
* Couturier v. Hastie, 5 H. L. 673.
* Inst. iii. 19. 23; cf. Dig. xlv. 83. I ; ib. 137. I.
* Raffles v. Wickehaus, 2 H. and C. 906.
* Plato mentions duress, fraud and haste, as grounds for avoiding a contract.
Crito, 52 E.
* On fraud as an infringement of a right in rem, v. supra, p. 158.
THE MATTER OF A CONTRACT. 177
existence of this exceptional power is often presumed, but its CHAP. XII.
existence is capable of being proved in other cases also. -
Duress, which is another ground on which a contract is void- Duress.
able, consists either in violence to the person, or in threatened
violence of the same character, “duress per minas.” It will
not be enough if the safety of a man’s house or goods only be
threatened, and the fear caused must be, as has been said, “not
a vain fear, but such as may befall a constant man;' ‘vani
timoris iusta excusatio non est'.”
iii. The matter agreed upon must be both possible and Possibility
legal. It makes no difference whether or no the impos- this.
sibility be known to the parties. A thing is said to be
impossible, not only ‘quod natura fieri non concedit,” but
also if it be practically out of the question, because it can
only be accomplished at an unreasonable cost, e.g. the
recovery of a ring which is known to be lying at the bottom
of the sea; or if it imports to have a legal effect unknown
to the law. A contract to do an illegal act is equally void.
So a sale of pork or wine is void according to Mohamedan
law “; and the law of England will not enforce a contract
of ‘marriage brokage *,' or for assigning the salary of a
public officer.
iv. The agreement must be expressed; whether in writing, Expres-
or by words, or by signs, or merely by a course of conduct, in sion.
which last case it is called an ‘implied contract.” In an old case,
it was said, with reference to an unexpressed acceptance, ‘your
having it in your own mind is nothing, for it is trite law that
the thought of man is not triable, for even the devil himself
does not know what the thought of man is 4.’
It must be expressed by the parties to one another; but in
developed systems of law it is not necessary that the parties
* Dig. l. I 7. 184. * Hidāyah, ii. p. 429.
* Cf. Cod. v. I. 6; Dig. xlv. 1. 134.
* Per Brian, C. J., 17 Ed. IV, quoted by Lord Blackburn in Brogden v.
Metropolitan Railway Co., L. R. 2 App. 692.
N
178 PRIVATE LAW : RIGHTS ‘IN PERSONAM."
CHAP. XII. shall be face to face at the time. They may communicate
May be by for the purpose of contracting, as well as for the purpose
agent.
of otherwise affecting their legal relations", by letter, or by
telegraph, or by means of a messenger or other go-between.
This go-between is called an agent or mandatory, and he acts
by virtue of the authority, or ‘mandate,’ confided to him by
his principal. The giving of this authority on the one hand,
and its acceptance on the other, constitute a special contract,
resulting in mutual rights and duties between the principal
and the agent, which will have to be discussed hereafter.
We are now only concerned with agents as being, for the
purposes of all contracts alike *, capable of giving binding
expression to the will of their principals. Each party to a
contract may be represented by an agent. It is a universally
received maxim, that a person who at the time had no
authority to act for another, may be retrospectively made his
agent by subsequent ratification. ‘ Omnis ratihabitio retro-
trahitur et mandato priori aequiparatur.’
An agent may in general be appointed without any
formality, though in English law an agent to execute a deed
must be appointed by deed, and for the purpose of binding his
principal under the Statute of Frauds, ss. I and 2, must be
appointed in writing. Agency may also be implied from the
acts of the principal, on the ground that if one person by his
acts represents another person to be his agent, he ought in
equity to be liable upon the contracts into which third parties
may enter on the faith of such a representation. A servant,
for instance, who is in the habit of ordering goods for his
master on credit, may continue to bind his master after his
authority has been withdrawn, with reference to third parties
who have had no notice of such withdrawal. So the master
of a ship is, in emergency, an agent to pledge the credit of
his employer for the good of the ship. It has however been
held that mere necessity does not, in general, create agency; so
* Supra, p. 73.
* The ratification of the promise of an infant could not however, under Lord
Tenterden's Act, be made by an agent.
FORMALITIES OF CONTRACTS. 179
a railway company is not liable for the fees of a surgeon who
has been called in by one of their station-masters to attend to
the sufferers from an accident'. According to a modern English
decision, a curious exception must be made to the ordinary
rule of implied agency in the case of a wife. It was held that
a prohibition to her to order goods, though uncommunicated
to her tradesmen, was sufficient to relieve the husband from
liability for her purchases”.
Agents are said to be ‘general when their authority is
defined by their character or business, as in the case of factors,
brokers, or partners; or ‘special” when their authority is
limited by the terms of their appointment. No private in-
structions, contrary to the usages of a general agent’s business,
will limit the liability of his principal. It follows from the
nature of agency, that a contract made by an agent is regarded
as the contract of his principal, who alone therefore can as a
rule sue or be sued upon it. The agent, having done his part
by acting as the intermediary, drops out of the transaction”.
If a man contracts avowedly as the agent of another but
without authority, neither can be charged upon the contract,
but the pretended agent is liable for the deceit *.
v. No system of law will enforce as a contract any trans-
action which does not exhibit all of the four characteristics
already described. Even when these are all present, the
transaction will generally be treated as a ‘nudum pactum,’
unless it is either effected in compliance with certain pre-
scribed formalities, or is the result of some underlying fact,
which the Roman jurists called ‘ causa.’ First as to super-
added formalities.
1. It is a topic of controversy whether ‘formal’ or
‘informal’ contracts are historically the earlier. Roman
CHAP. XII.
Form or
“causa."
* Cox v. Midland Railway Co., 3 Ex. 268.
* Jolly v. Rees, 16 C. B., N. S. 628.
* For a list of the exceptions, real or apparent, to this rule recognised
in English law, see Mr. Dicey's Parties to an Action, pp. 134-I43.
* Cf. Supra, p. I 59. - -
Form.
N 2.
180 PRIVATE LAW : RIGHTS - IN PERSONAM."
CHAP. XII.
Advan-
tages of.
legal speculation seems to have derived the informal contracts,
which they attributed to the ‘ius gentium,’ from a primi-
tive state of nature, regarding formal contracts as later in
date, because resulting from the idiosyncrasy of the Roman
people.
Recent investigators, after examination of a far wider
range of facts than was formerly accessible, are led to the
conclusion that complexity, rather than simplicity, is the
characteristic of primitive customs, and that the consensual
kernel of contract has only gradually dispensed with the husk
of ceremonial with which during long ages it was almost
identified. The evidence in support of this view is very
strong, but it may be questioned whether its adherents have
sufficiently noticed the fact that such bailments of every-day
use as pledging and letting seem to have been made in very
early times with no more formality than the mere transfer of
the possession of an object, the ownership of which was
probably notorious. -
A solemn form, be it observed, has two distinct advantages.
In the first place, it prevents the bargain from being rashly
struck; and in the second place, it facilitates the proof
of what has occurred. The formal contract of the best
ages of Roman law was the ‘stipulatio,” or solemn question
and answer, imitations of which may be found in the
Marriage and Baptismal Services of the English Church.
This, according to many writers, must have been a relie of
a still more formal ceremony in which the solemn words
were accompanied by the symbolic weighing of pieces of
copper in the presence of a balance-holder and five witnesses;
but Mr. W. A. Hunter has recently given good reasons for
thinking that the ‘stipulatio’ was independent of, and as old
as, the ‘mancipatio itself. It became usual to draw up
a written memorandum, ‘ cautio’ of the stipulation, and this
was held to be presumptive evidence that the contract had
been entered into. The restriction which originally pre-
vented a stipulation from being entered into by means of
FORMALITIES OF CONTRACTS. - 181
an agent was done away with in the later legislation. The CHAP. XII.
Franks were in the habit of contracting per festucam, Varieties
and in the presence of witnesses". The most solemn of.
form known to the law of England is a deed, or document
sealed and delivered. An agreement if thus entered into
is called a ‘specialty contract, while if made in any other
way, even in writing, it is a ‘simple' or ‘parol contract.”
As Roman law enforced a “stipulatio 4,” so English law en-
forces a ‘specialty contract, without looking behind it to
enquire into its equitableness, or into the motives which
caused it to be made; although both stipulations and deeds
may be impeached on the ground of fraud, mistake, or duress.
The parties are also, as it is said, estopped from denying the
truth of the statements to which they have set their seals.
Certain agreements cannot be made otherwise than by deed ".
A less solemn formality consists in the reduction of a Writing.
bargain to writing.
The ‘chirographa and ‘syngraphae of Roman law, and
the bills of exchange and promissory notes of modern Europe,
must be made in this way, or they could not be made at all;
but many agreements which might very well be entered into
by word of mouth have been rendered by positive enactment
void unless embodied in a written document. This has of
course been done with a view to guard against deception
and disputes.
So the English ‘Statute of Frauds,’ passed ‘for the pre-
vention of many fraudulent practices, which are commonly
endeavoured to be upheld by perjury and subornation of
* Leg. Rip. c. 71. It is maintained by some writers that consensual con-
tracts were unknown to the Germans. See Essays on Anglo-Saxon Law,
p. 189.
* The novel doctrine, that a stipulation needs a ‘causa,’ is combated by
Savigny, Obligationenrecht, ii. pp. 249–266.
* It has been given as the reason of the sufficient character of a deed that
it ‘imports consideration.” The statement is artificial on the face of it, and
becomes doubly so when we remember that deeds were binding before the
doctrine of consideration had been worked out. See Sir W. R. Anson, Contract,
P. 43.
182 PRIVATE LAW : RIGHTS ‘IN PERSONAM."
perjury, renders void any contract for the sale of goods
for the price of ten pounds and upwards, unless there be
part delivery of the goods, or part payment of the price,
or some note or memorandum in writing of the bargain,
made and signed by the parties, or their agents". The same
Statute, though it does not avoid the contract, allows no
action to be brought on it until it has been written down
and signed, when it makes an executor personally liable, or
guarantees the debt of another, or creates a liability in con-
sideration of marriage, or relates to an interest in land, or
is not to be performed within a year *. An acknowledgment
of a debt barred by the statutes of limitation must also be
written and signed ".
2. Apart from those cases for which particular formalities
are required, every legally permitted agreement is, according
to French law, legally binding. This view has long pre-
vailed, and is expressed in the old sayings ‘convenanche loi
vaine *,’ and ‘on lie les boeufs par les cornes et les hommes par
les paroles".’ It is qualified only by the rule that the agree-
ment must have a ‘cause, i.e. the ‘pourquoi' of its being
entered into must not be a mistake *.
Roman law only approximated, and that very gradually,
to this point. It recognised but eight informal contracts,
four of which, loan for consumption, loan for use, deposit and
pledge, were accompanied by a bailment; while the other
four, sale, letting, agency, and partnership, related to in-
dispensable transactions of every - day occurrence. Other
agreements, though never dignified by the name of contracts,
were in later times enforced as ‘pacta vestita.” All of these
were accompanied by a ‘causa, generally part performance;
CHAP. XII.
Cause and
considera-
tion.
* 29 Car. II. c. 3. s. I7.
* Ib. S. 4.
* 9 Geo. IV. c. 14. s. 1; 19 & 20 Vict. c. 97. s. 13.
* “Toutes convenanches sont a temir, et pour che, dit on, convenanche loi
vaine.” Beaumanoir, Cout. de Beauvoisis, ch. 34. 2.
* L’Oisel, Inst. Cout. liv. 3. tit. I. regle 2.
* Code Civil, art. I 131 ; Pothier, Oblig. art. 42.
CONSIDERATION OF CONTRACTS. 183
and agreements where there was no ‘causa’ continued to be
treated as ‘nuda pacta,’ on which, though they might be
ground for a plea, no action could be founded ".
The binding force of a mere agreement is limited in
another way by the law of England; which recognises no
promise, unless it be under seal, for which there is no con-
sideration.’ It has been laid down by the highest authority,
that although “it is undoubtedly true that every man is,
by the law of nature, bound to fulfil his engagements; it is
equally true that the law of this country supplies no means
nor affords any remedy to compel the performance of an
agreement made without sufficient consideration. All con-
tracts are by the laws of England distinguished into agree-
ments by specialty and agreements by parol; nor is there
any such third class as contracts in writing. If they be
merely written and not specialties, they are parol, and a
consideration must be proved 4.’ A ‘consideration has been
explained to be ‘any act of the plaintiff from which the
defendant, or a stranger, derives a benefit or advantage, or
any labour, detriment, or inconvenience sustained by the
plaintiff, however small the detriment or inconvenience may
be, if such act is performed, or inconvenience suffered by the
plaintiff with the assent, express or implied, of the defendant,
or, in the language of pleading, at the special instance and
request of the defendant *. The topic of consideration is one
which is dealt with by English law in great detail; most
of its rules upon the subject may, however, be reduced to two
principles. On the one hand, it is not necessary that the
consideration be adequate : so where a person had undertaken
gratuitously to carry for another, and deposit in a cellar,
certain hogsheads of brandy, and he, or his servants, so
carelessly performed his promise that some of the brandy
* “Sed cum nulla subest causa, propter [praeter?] conventionem, hic con-
stat non posse constitui obligationem.” Dig. ii. I4. 7. 4.
* Rann v. Hughes, 8 T. R. 35o.
* Per Tindal, C. J., Laythoarp v. Bryant, 3 Scott, 238.
CHAP. XII,
184 PRIVATE LAW : RIGHTS ‘IN PERSONAM."
CHAP. XII.
Modes of
strength-
ening a
contract.
Rights re-
sulting
from a con-
tract.
was lost, it was held that the confidence induced by under-
taking any service for another is a sufficient legal consideration
to create a duty for the due performance of it 1. On the
other hand, the consideration must have some value. A past
fact therefore, although it may be an influencing motive,
can never be a good consideration, which must always be
either present or future. It has indeed been truly observed
that a consideration must always be present, since a future, or
“executory,’ consideration consists in a present promise of the
one party to do something in return for the present promise
of the other party.
In addition to the requisites insisted on by law as essential
to the validity of a contract, other modes of strengthening its
obligation have been resorted to by the contractors themselves.
Some of these are of a supernatural character, consisting
in oaths, by which the Deity is as it were made a party to
the bargain, and which are sometimes taken in consecrated
buildings or in the presence of sacred objects. The desired
effect is however now more ordinarily produced by getting
third parties to guarantee the contract, or by giving property
by way of security for its due performance *.
Supposing a contract to have been duly formed, what is
its result P. An obligation has been created between the con-
tracting parties, by which rights are conferred on the one
and duties are imposed upon the other, partly stipulated for
in the agreement, but partly also implied by law, which, as
Bentham observes, ‘has thus in every country supplied the
shortsightedness of individuals, by doing for them what they
would have done for themselves, if their imagination had
anticipated the course of nature *.’ The nature of those
rights and liabilities depends of course in each ease upon
the special character of the contract. Contracts have been
* Coggs v. Bernard, I Smith, L. C. * Vid. Supra, p. 151.
£3 pra, p. I5
* Works, iii. p. 190.
CLASSIFICATION OF CONTRACTs. 185
classified upon many different principles. With reference, for chap. xrr.
instance, to— Possible
(1) The number of parties on either side, they are joint’.
or ‘several ; ’ cation.
(2) Both parties, or only one, being bound to a perform-
ance, they are “unilateral' or ‘bilateral’ (‘synallagmatic ');
(3) Special solemnities being or not being required for
their formation, they are ‘formal’ or ‘formless;
. (4) Their being entered into on their own account, or
necessarily presupposing some other contract, they are ‘prin-
cipal’ or ‘accessory;”
(5) Their object being liberality or gain, they are ‘gra-
tuitous or ‘onerous; ”
(6) Their being accompanied or not being accompanied
by the delivery of an object, they are ‘real' (“bailments’)
or ‘consensual ; ”
(7) Their depending or not depending upon an uncertain
event, they are ‘aleatory’ or not;
(8) Their being conditional or unconditional.
(9) They may also be classified with reference to the
particular kind of benefit promised, e.g. exchange, rendering
of services, &c.
Most Codes go through the heads of contract seriałim, Neglect of
without attempting to arrange them upon any principle. *
The order of the French Code, for instance, is the following:
marriage, sale, letting, partnership, loan for use, loan for
consumption, deposit, wagering contracts, mandate, surety-
ship, compromise, pledge, antichrèse, hypothèque *. This is
hardly an advance upon the list of contracts incidentally
given by Aristotle, viz. Sale, loan of money, security, loan for
use, deposit, letting for hire *.
It is however not only possible, but instructive, to group
the various contracts according to their natural affinities,
which we shall now endeavour to do *.
1 Code Civil, arts. I 387–2203. * Eth. Nic. v. 2. 13.
* The need of some reasonable grouping may be inferred from the fact that
186 PRIVATE LAW : RIGHTS ‘IN PERSONAM.’
CHAP. XII.
Classifica-
tion
adopted.
Principal.
For aliena-
tion.
Liberali-
ties.
Contracts may be divided, in the first place, into those
which are ‘principal,” that is to say, which are entered into
without an ulterior object, and those which are ‘accessory,’
i.e. which are entered into only for the better carrying out of
3. principal Contract.
I. Principal contracts may be subdivided into five classes,
according as their object is, i. alienation ; ii. permissive
use ; iii. marriage; iv. service; v. negative service; vi.
aleatory gain. -
i. An alienatory contract may be a mere act of liberality
on one side, or each party may intend by means of it to
secure some advantage for himself. In the former case it is
a contract to give; in the latter, a contract to exchange.
A contract to give is usually enforceable only in certain
rigidly defined cases. Thus in England it must be entered
into by deed, in France before a notary *; in Roman law,
though it may be made by word of mouth, it must be regis-
tered if dealing with a value exceeding five hundred solidi”.
In Roman law and the derived systems ungrateful conduct
on the part of the beneficiary would be ground for a re-
scission of the gift. Liberality is also often restrained by the
claims of the family, or the creditors, of the giver. Thus,
according to the French Code, the father of one child cannot
give more than half of his fortune to a stranger *, and a
‘voluntary' alienation is not allowed by the law of England
to defeat the claims of creditors 4.
Gifts in contemplation of marriage, which is, in the lan-
guage of English law, a “valuable' consideration, are not con-
sidered to be mere liberalities. The rules therefore which
regulate the presents made to the husband by means of the
Mr. Story, jun., in his well-known work on Contracts, vol. i. p. 75, divides
them into I. bailments, 2. sale and warranty, 3. guarantee, 4. between landlord
and tenant, 5. between master and servant.
* Code Civil, art. 93 I. * Inst. ii. 7. 2.
* Code Civil, art. 913. * I 3 Eliz. c. 5.
ALIENATORY CONTRACTS. 187
Roman ‘dos,’ and the presents made to the wife by means CHAP. xII.
of an English jointure, or marriage settlement, are not those
which would regulate merely ‘voluntary agreements.
The earliest form of Exchange, or commutative alienation, Barter and
is Barter, in which one commodity is given for another. Sale.
So the Greeks before Troy are represented as bartering brass,
iron, hides, oxen and slaves for wine". The exchange of
commodities for a price in money, which superseded this
ruder form of dealing, is Sale. After a long controversy
between opposing schools of the Roman jurists, it was finally
settled that an agreement for barter, ‘permutatio,” was a
different contract from an agreement for sale, ‘ emptio ven-
ditio*.’ The latter is an agreement for the future transfer of
the ownership of property, ‘merx,’ in consideration of the
payment, or an undertaking for the future payment, of a
price in money, ‘pretium.’
Special formalities have been imposed upon contracts for
the sale of certain kinds of property, such as ‘res mancipiº
by Roman law, and ‘real property and goods of the value of
ten pounds and upwards by the law of England. The Anglo-
Saxon laws directed every sale to be contracted before credible
witnesses, and prohibited the sale of anything above the value
of 200, except in market overt. Subject to the observance
of such formalities, where required, the contract is complete
when the price is agreed upon *; and the vendor is bound to
place the property at the disposal of the vendee, who is then
immediately bound to pay the price, unless the sale was
on credit. The vendor is usually protected by being given
a ‘lien upon moveable property sold, i.e. a right to retain
possession of it till the price is paid. The law of England
gives this further protection, known as the right of ‘stoppage
in transitu, to the unpaid vendor, that he is allowed while
the goods are still in transit and not delivered to the vendee,
* Il. vii. 472.
* Inst. iii. 23.
* On the actual transfer of ownership, vid. Supra, p. 141.
188 PRIVATE LAW : RIGHTS ‘ IN PERSONAM.’
£HAP. XII.
Warran-
ties.
on hearing of the insolvency of the latter, to reclaim them
and determine the contract.
There is much divergence of view between different sys-
tems of law as to the extent to which a vendor impliedly
warrants his title to the property sold or its quality.
‘The guarantee,” says the French Code, ‘which the vendor
owes to the vendee is twofold. It regards, in the first
place, the peaceable possession of the thing sold, in the
second place, the latent faults of the thing, or its red-
hibitory vices'.” This is in general correspondence with
the rules of Roman law, according to which the vendor,
though he did not undertake to make the purchaser owner of
the property, did guarantee him against being evicted from
it *, and also against all latent defects in the thing sold,
on discovery of which the purchaser might proceed against
For use.
him by the actions ‘redhibitoria,’ or ‘quanti minoris.’ The
law of England is more lenient to the vendor, its general
principle being ‘ caveat emptor. With reference to quality,
the exceptions to this principle are very few. A warranty of
title was at one time held to be implied by a feoffment, and
the use of the words “grant' or ‘give’ in a conveyance
was treated as equivalent to a covenant for quiet enjoyment,
but this construction has lately been negatived by Act of
Parliament 3.
ii. Contracts for permissive use are : I. Loan for con-
sumption, ‘mutuum ; 2. Loan for use, ‘commodatum ;
3. Letting for hire, ‘locatio conductio.” -
I. A Loan for consumption takes place when money or things
* quae pondere, numero, mensurave constant, sometimes called
“res fungibiles”,” are given to a man on the understanding that
he shall on a future day return to the giver, not necessarily the
things themselves, but their equivalent in kind. Since the
object given becomes the property of the borrower, the con-
Mutuum.
* Art. 1625. * Dig. xxi. 2. I.
* 8 & 9 Vict. c. 106. s. 4. * Supra, pp. 70, 135.
ÜONTRACTS FOR USE. 189
tract might be regarded as one of alienation. It is however CHAP. XII.
practically one for use only, since either the identical object,
or a similar object, has to be returned to the lender. The
contract takes of course many forms. Thus money at a
banker's is a loan for consumption to the banker, to be re-
turned when, and as, it is called for by cheques. The loan is,
as a rule, gratuitous, interest not being usually due upon it,
in the absence of special agreement. The highest amount of Usury.
interest which may be agreed upon has very generally been
fixed by law; but the inefficacy of thus attempting to protect
borrowers against extortion was conclusively established by
Bentham, and the English usury laws were repealed by a
Statute of the present reign 1.
The sole duty of the borrower, in the absence of any liability
for interest, is to return objects of the same quantity and
quality as those which he has received, and no excuse will
avail him for the non-performance of this duty.
2. In a Loan for use, which is essentially gratuitous, the Commoda-
duty of the borrower is to return the identical thing lent, and tum.
to use it in the meantime in accordance with the terms of the
contract. He is not generally responsible for ordinary wear
and tear, nor for loss by theft, but, since the contract is
wholly for his benefit, he will generally be expected to bestow
great care upon the thing.
3. Letting differs from Loan for use in being for the Letting.
advantage of both parties, since the hirer pays a rent,
‘merces,’ to the latter 4. A hirer therefore is not bound, in the
absence of express stipulation, to exercise the same care as is
expected from a borrower.
A lease of lands is usually accompanied by greater for-
malities than a letting of moveables. If for more than three
years, it must, according to English law, be by deed. Dif-
* 17 & 18 Vict. c. 90.
* Under ‘locatio conductio’ Roman law included not only the hiring of the
use of a thing, ‘rei,” but the hiring of services, ‘operarum,’ which we shall
treat separately. Cf. Code Civil, art. 1708.
190 PRIVATE LAW : RIGHTS ‘IN PERSONAM."
ÇHAP. XII.
To marry.
ferent views are taken of the right of the hirer to sub-let ;
of the effect of the accidental destruction during the term of
the thing let ; of the extent to which the letter guarantees
that the thing shall prove suitable for the purpose for which
it is hired; of the respective rights of landlord and tenant
in the case of improvements effected by the latter, especially
as to those additions to a building which English law calls
“fixtures,’ and with regard to ‘emblements, or crops which
may be growing on the land at the expiration of the tenancy.
iii. Engagements to marry, ‘sponsalia', are easily dis-
tinguishable from marriage itself. Just as an agreement for
sale gives rise only to personal claims, while an actual con-
veyance creates new real rights, so an engagement is a con-
tract per verba de futuro, creating a right in personam
to its fulfilment at the appointed time, while marriage is
entered into per verba de praesenti,’ and creates a ‘status.”
The former is a true obligatory contract such as those which
we are now considering. The latter is a contract only in
that wide sense of the term in which it may be applied to
any agreement affecting the legal rights of the parties, but
leaving no outstanding claims between them *.
The distinction has been to some extent obscured by
another which divides actual marriages into ‘clandestine’
and ‘regular.” A clandestine marriage is one which rests
merely on the agreement of the parties. The Christian
Church, adopting from Roman law the maxim that ‘con-
sensus non concubitus facit matrimonium,’ though it stigma-
tised such marriages as irregular because not made ‘in facie
ecclesiae, nevertheless upheld them as valid, till the Council
of Trent declared all marriages to be void unless made in the
presence of a priest and witnesses. Before the time of the
Council, and after it in countries such as France and England
where the decree in question was not received, either of
* “Sponsalia sunt mentio et repromissio nuptiarum futurarum.” Dig. xxiii.
I. I.
* Supra, pp. 14o, I65.
CONTRACTS TO MARRY. . 191
the parties to a clandestine marriage ‘per verba de prae- CHAP. XII.
senti’ could compel the other, by a suit in the ecclesiastical -
court, to solemnise it in due form. It has been judicially
stated that the English common law never recognised a con-
tract ‘per verba de praesenti’ as a valid marriage till it had
been duly solemnised", although under the name of a ‘pre-
contract of marriage,’ a term which covered also promises
‘ per verba de futuro, it recognised it, down to the middle of
the last century, as giving either of the parties a right to sue
for celebration, and as impeding his or her marriage with
a stranger to the contract”.
It has been much discussed whether an engagement to The action
marry ‘per verba de futuro,” as distinguished from an actual º:
marriage, “whether ‘clandestine’ or “regular,’ ought to be
enforced by law. It seems to have been the old practice in
Latium for the father of a girl to enter into a stipulation
with her lover on which he could bring an action *. Accord-
ing to Roman law the ‘sponsalia” entered into by an affianced
couple, without any formalities, could be repudiated at will
by either party, though if ‘arrhae’ had been given, the party
which broke off the match would lose twice the amount *. It
must however be remembered that marriage itself could be
dissolved with equal ease. Actions for breach of promise of
marriage seem to have first gained a footing in England in
the reign of Charles I, when it was held that the promise is a
‘good and not merely a ‘spiritual’ consideration, and that
whether it be made to a man or to a woman *. Modern con-
tinental law admits very sparingly of such an action. It is
recognised by the Prussian Landrecht", but expressly denied
by the code of Italy 7. In the silence of the French code, the
* R. v. Millis, Io Cl. & Fin., 655.
* These consequences were removed by 26 Geo. II. c. 33.
* Gell. iv. 4.
* ‘Alii desponsatae renuntiare conditioni et nubere alii non prohibentur.’
Cod. v. I. I. Cf Dig. xxiii. 1, xxiv. 2; Cod. Theod. iii. 5; Frag. Vat. 262.
* Rolle Abr. 22 ; 2 Bulstr. 48,
* Th. ii. tit. I ss. 75, 82.
* Art. 53.
192 PRIVATE LAW : RIGHTS ‘IN PERSONAM."
courts have expressed contradictory views upon the subject,
but, according to the better opinion, interference with the
freedom of matrimonial choice being contrary to public policy,
no action will lie unless the plaintiff has sustained a ‘préjudice
réel", and the Austrian code contains an express provision
to this effect ".
iv. The more important contracts for services are: I, for
care-taking ; 2, for doing work on materials; 3, for carriage;
4, for professional or domestic services; 5, for agency ; 6, for
partnership. Service of any kind may be to be rendered
either gratuitously or for reward, the responsibility of under-
taking to render it being considerably greater in the latter
case than in the former. Thus the gratuitous contractor is,
in English law, not liable for an omission to perform, and
liable only for gross negligence in performing.
I. Gratuitous care-taking of an object, commonly called
‘ deposit,” is well defined as ‘a naked bailment of goods to
be kept by the bailee without reward.” Of this contract,
* sequestratio’ and the “depositum miserabile,” or ‘necessarium,’
are recognised as species by the civilians”. The former occurs
when an object, the right to which is disputed, is placed in
the custody of a third party, pending the decision of the dis-
pute; the latter, when the deposit is made under circum-
stances, such as fire or shipwreck, which leave the depositor
no choice. Care-taking for reward is exercised, for instance,
by warehousemen, wharfingers, the ‘cloak rooms’ of railway
companies, livery-stable keepers, and inn-keepers. The very
extensive liabilities attaching to the last-mentioned class of
depositaries by the English common law have recently been
much reduced by Act of Parliament *.
2. A gratuitous contractor to do work upon materials be-
longing to the other contractor is usually liable only for
gross negligence in the doing of it. If the contract be for
CHAP. XII,
For
services,
Deposit.
Work,
* i.e. it is held that the remedy, if any, is under art. 1382 of the Code, and
not under art. II.42. * Arts. 45, 46.
* Dig. xvi. 3. I ; xxiv. 3. 22 ; Code Civil, arts. I947–1963.
* 26 and 27 Vict. c. 41.
CONTRACTS FOR SERVICES. 193
reward, each of the parties is responsible to the other for the
exercise of a high degree of care". English law gives to the
person who does the work a ‘lien' upon the article upon
which he has done it till he has been paid for his trouble”.
A gratuitous agreement to do work upon materials belonging
to the contractor, for the benefit of another, would amount to
a promise to give an article as yet unfinished. If the work is
to be done for reward, as when a builder undertakes to con-
struct a house or a tailor to make a coat, it may be questioned
whether the contract is one of sale, or for the performance of
services *.
CHAP. XIIs
3. A contract of carriage may relate to conveyance by land Carriage.
or by sea, and to goods or to passengers. Carriers of goods,
besides their duty to carry, share many of the responsibilities
of depositaries, and especially of inn-keepers, in respect of the
property confided to them. According to English law, a
‘common carrier’ is bound to take all goods of the kind
which he usually carries, unless his conveyance is full, or the
goods be specially dangerous; but may charge different rates
to different customers. He is supposed to warrant ‘safely
and securely to carry,’ and so is said to be “an insurer?
against all loss not immediately caused by “the act of God or
the king's enemies.’ He is thus responsible, even though he
is robbed, or the goods are accidentally burnt. By recent
legislation his right of limiting his liability by public notice
has been much curtailed, while on the other hand he is no
longer to be liable for the loss of very valuable articles, unless
the sender has declared their value and paid a higher rate for
their carriage accordingly. An ordinary common carrier may
still limit his liability by a special contract, but such a con-
tract, if made by a railway or canal company, must not only
be signed by the sender, but must also be such as the Courts
* This contract is narrower than ‘locatio conductio operis,” which covers not
only agreements for working upon materials, but also for doing any definite
piece of work, such as navigating a ship from one port to another.
* Supra, p. I54. * Inst. iii. 24. 4.
O
194 PRIVATE LAW : RIGHTS ‘IN PERSONAM."
will hold to be just and reasonable. And a railway is not
allowed to charge different rates to different customers".
The carriage of goods by sea is usually regulated by a
special contract between the ship-owner and the freighter
called a ‘charter-party,’ by which the owner is generally
relieved from liability for the act of God and the king's
enemies. His liability has also been limited by a recent
English statute to the value of £8 per ton”, nor is he respon-
sible for loss by fire, nor for very valuable articles unless
declared and paid for specially *. The payment to be made
by the sender of the goods to the owner of the ship is
called ‘freight.” Carriers of passengers do not insure their
safety, but are usually liable for injuries caused to them by
neglect or unskilfulness. -
The liability of a gratuitous carrier would be similar to that
of a gratuitous depositary.
4. Each of the heads of service hitherto considered implies
a “bailment,” or handing over of an object with reference to
which some work is to be done. In professional and domestic
services no bailment is presupposed, the undertaking being
merely for the performance by one party of certain acts for
the benefit of the other. Such an undertaking for reward is
described in the language of Roman law as ‘locatio conductio
operarum.” The exercise of certain professions was thought by
the Romans to be of too liberal a nature to be capable of
leading to a compensation in money recoverable by judicial
process. Advocates, teachers of law or grammar, philosophers,
surveyors, and others were accordingly incapable of suing for
their fees 4. A similar disability attaches to barristers under
English law to this day, and attached till a few years since
also to physicians. Those who thus give their aid gratuit-
gEIAP. XII.
Profes-
sional and
domestic.
* See I7 and 18 Vict. c. 31, and later Acts.
* 25 and 26 Vict. c. 63. * 17 and 18 Vict. c. 104.
* “Non crediderunt veteres inter talem personam locationem et conduc-
tionem esse, sed magis operam beneficii loco praeberi : et id quod datur ei ad
remunerandum dari, et inde honorarium appellari.” Dig. xi. 6. I pr,
THE CONTRACT OF AGENCY. 195
ously are, as a rule, free from liability for the negligent
performance of their self-imposed task; but a professional
person, employed for reward, is held to guarantee that he is
reasonably skilful and competent, and can recover nothing for
unskilful work.
The position of a domestic servant still exhibits traces of
the status of slavery out of which it undoubtedly has every-
where been developed. A servant is in English law entitled
to his wages although prevented by sickness from doing his
work. A master is not in general liable for injuries which
his servant may sustain in the course of his employment, or
which arise from the negligence of a fellow-servant. This
latter rule, when applied to the working of large undertakings,
such as railways, has led to a good deal of hardship, and seems
likely to be modified. -
CHAP. XII.
5. We have already had occasion to consider how far the Agency.
rights and liabilities of contracting parties may be affected by
their contract being made through the intervention of an
agent". The rights and liabilities in question were those of
the principal contractors, as against one another, or of the
agent in those exceptional cases in which, by the force of
circumstances, he himself acquires the rights or incurs the
liabilities of a principal. The questions which thus arise out
of contracting by agency are of a wholly different character
to those which arise out of ‘the contract of agency,’ which is
the topic now to be discussed.
This is a species of contract for services entered into,
not between two principals, but between a principal and his
agent. The undertaking of the agent, ‘mandatarius,’ is to
represent his principal, ‘mandans,’ in dealings with third
parties.
The possibility of such a representation seems to be admitted
only in developed systems of law. In the older Roman law a
man could be represented in dealings with others only by
* Supra, p. 178.
O 2.
196 PRIVATE LAW : RIGHTs ‘IN PERSONAM."
persons “in his power,’ such as a slave or unemancipated Son,
and only by such of their acts as were for his advantage,
The contractual agency of a stranger was only gradually
introduced, and was long recognised only as a gratuitous act
of friendship. ‘Originem ex officio atque amicitia trahit :
contrarium ergo est officio merces,’ says Paulus *. The
‘mandatarius, though thus gratuitous, was obliged to exhibit
in the execution of his voluntary promise the highest degree of
care, and in default was not only liable for damages, but was
also punished with infamy. His principal, on the other hand,
was bound only to indemnify him for any liability incurred in,
or expenses incident to, the execution of the contract. A
payment might indeed be specially promised to the mandatary
for his services, but was disguised under the name of a
* honorarium,’ and could be recovered only under an excep-
tional procedure.
The importance of agency, defined by the French Code
as ‘an act by which one person gives to another the power to
do something for the principal and in his name*, has greatly
increased with the development of business transactions. The
presumption, according to the Code, is in favour of its being
gratuitous, but English law, in the absence of evidence of a con-
trary intention, would imply a promise of reasonable remunera-
tion. Under any system the principal will doubtless be held to
guarantee the agent against expenses and personal liability,
and the agent will be obliged to conduct the business of his
principal with care, and, as a rule, not to delegate its manage-
ment to another. The contract must for some purposes be
entered into in a special form, as by a ‘power of attorney, or
before a notary. The rights and liabilities which result from
it are terminated, subject to certain qualifications, by the death
or bankruptcy of either principal or agent; by efflux of time,
when a period is fixed for the performance of the act to be
done by the agent ; by performance of the act ; by revocation
CHAP. XII,
* Dig. xvii. I. I. 4.
* Art. IQ84; cf. Code de Commerce, art. 91.
‘īHE CONTRACT OF PARTNERSHIP. 197
of authority on the part of the principal; by renunciation of CHAP. xm,
the commission on the part of the agent.
Agents are of various classes. Among the more important
classes recognised by English law are ‘factors,' who are
employed to sell goods for their principal. They have actual
possession of the goods, and usually sell them in their own
name *. “Brokers’ are mere mediums of communication
between buyer and seller. ‘ Del credere 'agents for the sale
of goods, in consideration of a higher payment than usual,
become responsible for the solvency of the person to whom
they sell them. Auctioneers, although before the goods are
knocked down they are agents only for the seller, become
afterwards agents for the buyer also.
6. When several persons unite for the purpose of carrying Partner.
on business in common, which is usually done upon the *
terms that each of them shall be an agent for all the rest,
the contract is called partnership, ‘societas,” and takes various
shapes, according to the business contemplated. It is defined
in the French Code as ‘a contract by which two or more
persons agree to place something in common, with a view of
sharing the profit which may result 4.’ In the widest sense
of the term, a partnership may be “universorum bonorum,” re-
lating to all the property of the partners, howsoever acquired;
or “universorum quae ex quaestu veniunt, relating only to
profits made in business dealings generally; or ‘negotiationis
alicuius, relating only to the profits of a particular under-
taking *.
The contract must be in writing, according to French law
if relating to a value greater than 150 fr., according to
English law if not to be performed within the year. An
agreement that one partner is to have all the profits, called
in Roman law ‘leonina societas,” is void. A partnership
may of course be for life or for a definite time.
It is terminated by mutual consent, or, if formed for no
* A factor could not pledge the goods entrusted to him, till he was em-
powered to do so by the ‘Factors Acts.”
* Art. 1832. * Dig. xvii. 2. 5; cf. Code Civil, arts. I835–42.
198 PRIVATE LAW : RIGHTS ‘IN PERSONAM."
CHAP. XII.
definite period, by the retirement of one partner even against
the wish of the others, by efflux of the time for which it was
formed, by the death or bankruptcy of any of the partners,
and by some other causes". Each partner is liable to account
to the others and is responsible for careful management. On
the other hand, he has a right of ‘contribution,’ ‘regress,’
against the other partners to be indemnified for liabilities
incurred for their common advantage.
A classification of trading partnerships which is due to the
French Code of Commerce divides them into ‘sociétés en nom
collectif, i.e. carrying on business under the name of a firm
with unlimited liability; ‘sociétés en commandite,’ in which,
besides the ostensible and fully responsible partners, there
are others whose liability is limited to the money which they
have placed in the concern ; and ‘sociétés anonymes,” which
bear a name indicating merely the nature of the undertaking,
can be formed only with the sanction of the Government,
and are wholly carried on by means of a capital divided into
equal shares, ‘actions,’ beyond the amount of which the
shareholders incur no risk. They are, in effect, companies
with limited liability”. Different views are taken of the
question whether an executory contract of partnership should
be enforced by law ; whether, that is to say, any one should
be obliged to become a partner against his will, or mulcted
in damages for refusing to become one.
v. Contracts for negative services, in which one party
promises to abstain from certain acts, are somewhat grudg-
ingly recognised by law, as interfering with freedom. So,
although English law will recognise as valid an agreement
not to marry a specified person, it will refuse to enforce a
general covenant not to marry, as being against public policy.
A promise whereby a man is restrained altogether, or within
very wide limits, from carrying on his profession or trade is
for
negative
Service.
* Dig. xvii. 2.63.
* Code de Commerce, art. I9; cf. Handelsgesetzbuch, arts, 15, &c. As to
Companies, vid. infra, chapter xiv.
…'
ALEATORY CONTRACTS. 199
similarly void; but if the restriction is reasonably limited with CHAP. XII.
regard to space, it will generally be upheld.
vi. An aleatory, or wagering, contract is defined in the Aleatory.
French Code as ‘one the effects of which, as to both profit and
loss, whether for all the parties, or for one or several of them,
depend on an uncertain event". This description includes
agreements of very different kinds.
I. Bets and stakes are, as a rule, not enforced under modern Wagers.
systems of law. Not long since an action could have been
maintained in England upon a wager, provided it was not
contrary to public policy, or immoral, or offensive to the
feelings or character of third parties; but it has been pro-
vided by a recent statute that “all contracts or agreements
whether by parol or in writing, by way of gaming or wager-
ing, shall be null and void 4.’ This enactment is however
expressly declared not to apply to any subscription or con-
tribution for any plate, prize, or sum of money to be awarded
to the winner of any lawful game, sport, pastime, or exercise.
The French Code, in refusing any action for a gaming debt or
the payment of a bet, makes a similar exception in favour of
“les jeux propres à exercer au fait des armes, les courses a pied
ou ä cheval, les courses de chariot, le jeu de paume, et autres
jeux de même nature qui tiennent à l'adresse et à l’exercice
du corps*.” Some gaming contracts have been declared not
only void but also illegal, and the difference in the character
of the contract leads to different rules as to the recovery of
money lent to enable it to be made, or paid mistakenly in
pursuance of it.
2. Lotteries are illegal in England *. Lotteries.
3. Wagering contracts on the price of stock were prohibited Stock-
by an Act, passed ‘to prevent the infamous practice of stock- jobbing.
jobbing,’ which has recently been repealed ".
* Art. I964.
* 8 and 9 Vict. c. Io9. s. 18. * Code Civil, art. 1965–7.
* By 1o and II W. III. and later Acts.
* 7 Geo. II. c. 8, repealed by 23 Vict. c. 28.
200 PRIVATE LAW : RIGHTS ‘IN PERSONAM.’
4. An agreement to pay an annuity so long as a given in-
dividual shall live, ‘rente viagère,” whether the individual in
question is a party to the contract or not, will generally be
supported. It will be void, under the French Code, if the
person on whose life it depends is ill at the time when it is
made and dies of the same illness within twenty days".
5. Loans to a shipowner, to be repaid only in case of the
successful termination of a voyage. Of such a nature are the
contracts known as ‘traiectitia’ or “nautica pecunica,’ ‘prêt
à la grosse,' ‘bottomry,’ and “respondentia.’ They have
always been allowed to be effected, by way of compensation
for the risk run by the lender, at an extraordinary rate
of interest, nauticum foenus.’
6. Insurance is a contract by which one party, in considera-
tion of a premium, engages to indemnify another against a
contingent loss, by making him a payment in compensation
if, or when, the event shall happen by which the loss is to
3,00I’U16.
* Marine insurance,’ according to an English statute, is of
immemorial usage, ‘by means whereof it cometh to pass, upon
the loss or perishing of any ship, there followeth not the
undoing of any man, but the loss lighteth rather easily upon
many than heavily upon few 4.” The insurers are known as
‘underwriters,’ because each of them signs the contract, or
‘policy,’ engaging to bear a certain proportion of the whole
indemnity, which may apply to the ship, to the freight which
it is to earn, or to anything on board. They are usually
liable in case of the loss, either total or partial, of the ship of
cargo, by any peril of the sea during a given voyage, to the
extent of the owner’s loss, and also for any payments he may
have been compelled to make on account of ‘Salvage,’ or by
way of ‘general average,’ ‘avaries grosses.’
Loss occasioned by fire on land is indemnified against by
‘ fire insurance; ' and damage of other kinds, e.g. to crops by
CHAP. XII.
Annuities.
Nautica
pecunia.
Insurance.
* Code Civil, art, 1968. * 43 Eliz. c. I 2.
ACCESSORY CONTRACTS. 201
bad weather or to glass by hailstones, by analogous contracts, CHAP. XII.
‘Life insurance has similarly been imitated of late years by
contracts for compensation in case of illness or accident. It
has been thought proper to restrict by legislation the right of
insuring without any interest in the risk insured against ".
II. Many contracts are entered into for the purpose of Accessory
creating a right which is to be merely ancillary to another contracts.
right. Of such contracts, which may properly be described
as ‘accessory,’ the more important species are—I, Suretyship ;
2, Indemnity; 3, Pledge; 4, Warranty; 5, Ratification; 6, For
further assurance. f
I. Suretyship, or guarantee, in French ‘ caution,’ is a Surety-
collateral engagement to answer for the debt, default, or ship.
miscarriage of another. Although thus entirely subsidiary
in its nature, it is sometimes legally binding when the
obligation to which it is subsidiary is merely ‘natural,’ in
other words is incapable of being judicially enforced”. A
promise made by a slave to his master, though it gave rise
only to a natural obligation, would nevertheless, in Roman
law, support a ‘fideiussio;' and in French, if not in English
law a guarantee of a promise made by a minor, and therefore
of no effect, may be enforced by action *. The contract is
under some systems a formal one. In Roman law it was
made by stipulation, and in England, by the Statute of Frauds,
must be in writing. It is a maxim that the liability of the
surety may be less than, but cannot exceed, that of the prin-
cipal debtor. Under some systems it passes, under others it
does not pass to his heirs. A contract of suretyship raises
three classes of questions. As between the surety and the
creditor, it may be asked, what acts on the part of the
creditor, e.g. giving time to the debtor, will discharge the
surety from his liability; whether the surety may insist on
the creditor bringing his action in the first instance against
* e. g. I9 Geo. II, c. 37; 14 Geo. III. c. 48. * * Supra, p. 162.
* Code Civil, art. 2012. -
202 PRIVATE LAW : RIGHTS ‘IN PERSONAM."
the principal debtor, ‘beneficium ordinis; ” whether each of
several sureties is liable for the whole debt, “in solidum,’
or only for a proportionate share of it, ‘beneficium divisionis.’
As between a surety and the defaulting debtor, it may be
questioned how far the former is entitled to the remedies of
the creditor against the latter, ‘beneficium cedendarum ac-
tionum,” or to “regress’ against him on an implied contract of
indemnity. As between several sureties, it is necessary to
determine how far any one of them who discharges the debt
for which all are jointly liable is entitled to ‘contribution’
from the others". The liability of a surety to the creditor
terminates by a discharge either of the principal obli-
gation by the debtor, or of the guarantee by one of his co-
sureties.
2. A promise to indemnify, or save harmless, may be
express or implied. It is implied not only between principal
and surety, and, in some systems, between one surety and
his co-sureties, but also in the contract of agency. The
principal promises by implication to indemnify his agent,
except in the performance of illegal acts, as to which it is a
maxim that ‘there is no contribution between wrong-doers.’
3. The contract of Pledge, besides giving rise, as we have
seen, to a peculiar species of right in rem”, gives rise also to
rights in personam. The debtor is entitled not only to have
the thing pledged redelivered to him, on the due payment of
his debt, but also to have it preserved with reasonable care in
the mean time. Whether it may be used by the creditor will
depend on the terms of the contract. The creditor, on the
other hand, can claim to be indemnified against any expense
to which he may be put in taking care of the pledge.
4. A Warranty has been defined as ‘an express or implied
statement of something which the party undertakes shall be
part of the contract; and though part of the contract, collateral
CHAP. XII.
. Indemnity.
Pledge.
Warranty.
* The English doctrine of contribution between co-sureties was unknown in
Roman law.
* Supra, p. 153.
RATIFICATION. 203
to the express object of it’.” On the one hand, it is a term
added to a contract, and must therefore be distinguished from
mere representations made with reference to the matter of the
contract, but forming no part of the agreement of the parties.
On the other hand, it is not so intimately connected with
the contract as to be a ‘condition precedent to the contract
coming into operation. It may be broken and give rise to
a right of action for damages, without producing any effect
upon the contract to which it is annexed.
A warranty refers most usually to title or to quality, and
though most frequently accessory to a contract of sale, is also
added to other contracts, for instance to a letting for hire”.
CHAP. XII.'
5. Ratification is the adoption by a person as binding upon Ratifica.
himself of an act previously done by him but not so as to be
productive of a subsisting legal obligation, or done by a
stranger having at the time no authority to act as his agent.
The ratification of a contract barred by the statutes of
limitation must in England be in writing, signed by the
original contractor, or his agent duly authorised ". A recent
Act of Parliament has made of no effect any promise made
by a person of full age to pay any debt contracted by him
during infancy, or any ratification made after full age of any
promise or contract made during infancy *.
The contract of a stranger can be adopted by a course of
action, as well as by words or writing, but can be adopted
only by one on whose behalf it was made. The agent must
have intended to act for the person who by subsequent ratifi-
cation becomes his principal. ‘ Ratihabitio,” says Julian,
‘constituet tuum negotium quod ab initio tuum non erat,
sed tua contemplatione gestum *.”
* Lord Abinger, C. B., in Chanter v. Hopkins, 4 M. and W. 404. Sir W.
Anson, Law of Contract, p. 295, has distinguished no less than six senses in
which this term is employed by English lawyers.
* Cf. Supra, p. 159 n., as to an implied warranty of authority as an agent.
* 9 Geo. IV. c. I4. s. I ; 19 and 20 Vict. c. 97. S. I3.
* 37 and 38 Vict. c. 62.
* Dig. iii. 5. 6.. 9.
tion.
204 PRIVATE LAW : RIGHTS ‘IN PERSONAM."
CHAP. XII. 6. Akin to ratification are the ‘constitutum ' of Roman
Account
.." law, and the promise of repayment which English law implies
on an ‘account stated ; ' as are also I. O. U.’s and promissory
notes. The contract in all these cases is superadded to a pre-
existing contract by way of strengthening it ; so that the
creditor may rely either upon his original claim, or upon the
new claim thus created, but can in no way receive more than
the sum originally due. There are cases in which the creditor
can recover upon the new contract, although the old one was
not legally enforceable ".
For further 7. Conveyances of land, and other instruments, frequently
” contain covenants for further assurance,’ and the like, which
are strictly accessory to the principal contract in which they
are inserted.
Transfer We have seen that a number of rights in rem are untrans-
ferable, and this is still more usually the case with rights in
personam. The transfer of these, when it takes place at all,
takes place either ‘by act of law or ‘by act of party”.’
Fº Of i. Certain sets of circumstances are invested by law with
3. the attribute of effecting a transfer of rights in personam, and
sometimes also of the corresponding liabilities, to new persons
of inherence and of incidence respectively. So the rights and
liabilities of a woman very generally pass on marriage to her
husband ; those of a deceased person to his heir, executor, or
administrator, or to a judicial functionary *; those of a bank-
rupt to his trustee in bankruptcy. On the death of one of
several joint contractors his rights and liabilities pass, not to
his personal representative, but to the surviving contractors.
It must however be remarked that rights and liabilities arising
from family relations, or which are closely connected with the
personal characteristics of either party, such as those arising
out of a promise to marry, or to use surgical skill, or to paint
a picture, are not thus transferred ‘by act of law.”
* See Chitty, Contracts, p. 589. * Supra, p. IoI.
* 21 and 22 Vict. c. 95. S. I9.
TRANSFER. 205
ii. The transfer of a right in personam ‘by act of party' is chap. xii.
of still more restricted application. Its possibility is indeed by act of
flatly denied by the older theories of law. ‘ Obligations,’ says party.
Gaius, ‘however contracted, admit of nothing of the sort";’
and it was an axiom of the English common law that “choses
Žn action are not assignable.” The practical inconveniences
resulting from this rule led to its gradual relaxation. It is
no doubt possible by consent of all concerned to substitute a
new debtor or a new creditor in place of the person of inher-
ence or of incidence as the case may be. This is however a
cumbrous process, and is obviously not an assignment, but an
extinction of the original right, followed by a contract creat-
ing a new right in substitution for the old one. It is an
example of what the Romans called ‘novatio*.’ The first
step towards the assignment of an obligation was taken by
allowing a stranger to it to bring an action upon it in the
name of the party entitled under it, and to retain the pro-
ceeds for himself. This was the process known in Roman law
as ‘cessio actionum. The assignor was held to be a trustee
for the assignee, or to have constituted the assignee his agent
for the purpose of bringing actions. The English Court of
Chancery, following the later Roman law “, goes so far as to
allow the assignee to sue in his own name, provided that he has
given consideration for the assignment, and that the debtor
has had notice of it, subject however to all defences which
would be good against the assignor *. Under the ‘Supreme
Court of Judicature Act, 1873,’ ‘Any absolute assignment, by
writing under the hand of the assignor, not purporting to be
by way of charge only, of any debt or other legal chose in
action, of which express notice in writing shall have been
given to the debtor, trustee, or other person from whom the
* Inst. ii. 38.
* ‘Novatio est prioris debiti in aliam obligationem, vel civilem vel naturalem,
transfusio atque translatio, hoc est ut cum ex praecedente causa ita nova
constituitur, ut prior perimatur.” Dig. xlvi. 2. I ; cf. Inst. iii. 29. 3.
* Cod. iv. 39. 7.
* See Lord Carteret v. Paschal, 3 P. Wms, 199.
206 PRIVATE LAW : RIGHTS ‘ IN PERSONAM."
assignor would have been entitled to receive such claim or
debt or chose in action, shall be, and be deemed to have been,
effectual in law, subject to all equities which would have been
entitled to priority over the right of the assignee if this Act
had not passed, to pass and transfer the legal right to such
debt or chose in action from the date of such notice ".’
Similar provisions are contained in several continental codes *,
and contractual rights of certain special kinds have been made
assignable by statute, such as, for instance, rights arising
on policies of marine and life insurance, bail bonds, and
bills of lading *. The assignee, be it observed, in all the
cases hitherto mentioned takes subject to all defences which
were available against the original creditor, and sometimes
subject to other drawbacks. Only one class of obligations
can be said to be fully assignable. It is first heard of in the
fourteenth century, and is the product of the wide extension
of modern commercial transactions. What are called “nego-
tiable instruments, or ‘paper to bearer, such as bills of
exchange, or promissory notes, do really pass from hand to
hand, either by delivery or indorsement, giving to each suc-
cessive recipient a right against the debtor, to which no
notice to the debtor is essential, and which, if the paper is
held bona fide and for value, is unaffected by flaws in the
title of intermediate assignors. It has been acutely remarked
that the assignability of a negotiable instrument is due to its
being in point of fact a material object, and so capable of
actual delivery. The written document is thus, as it were,
the embodiment of what would otherwise be an intangible,
and therefore untransferable, claim *.
Liabilities do not, as a rule, pass by voluntary assignment.
CHAP. XII.
* 36 and 37 Vict. c. 66. s. 25, 6. -
* e. g. in the Prussian Landrecht, i. II. ss. 376-444; Austrian Code, Ss.
1394–1396.
* Savigny, Oblig. ii. p. I 12, truly observes that ordinary shares in companies
are not obligations but parts of ownership, producing therefore not interest but
dividends. y
* Savigny, Oblig. ii. p. 99.
EXTINCTION. 207
Under a contract, it is, for instance, said to be only reasonable CHAP. XII.
that the creditor should continue to have a right to the benefit
he contemplated from the character, credit, or substance of
the person with whom he contracted. It was however a rule
of English common law that certain covenants between land-
lord and tenant, which are said to touch the land, shall “run
with the land, so that an ‘assignee of the term, i.e. a person
to whom a tenant transfers his lease, can not only sue, but
also be sued, upon them, as if he were the original lessee.
Like rights and liabilities, in respect of these covenants, have
been by statute made to attach to the person who succeeds to
the rights of the original landlord, or, as he is called, ‘the
assignee of the reversion ".”
We have already had occasion to mention incidentally some Extinction
of the modes in which the obligations resulting from particular
contracts are dissolved. It will however be necessary to con-
sider, from a more general point of view, the circumstances
which terminate rights in personam 2. They may perhaps be
classified under the following heads: i. Performance; ii. Events
preventing performance; iii. Substitutes for performance; iv.
Release of performance; v. Non-performance.
i. Performance of the acts to which the person of incidence by per-
is obliged is the natural and proper mode by which he becomes formance,
loosed from the obligation of performing them *. ---
Performance by a third person is sometimes permissible, so by sub-.
a debt was in Roman law extinguished on payment of the i.
amount by a stranger, even without the debtor’s knowledge.
ii. Some events which make performance impossible put an
end to any right to insist upon it.
* 32 Hen. VIII. c. 34.
* “Solutionis verbum pertinet ad omnem liberationem, quoquo modo
factam.' Dig. xlvi. 3. 54.
* By performance, and by some other facts, “etiam accessiones (i.e. sureties)
liberantur.” Ib. 1. 43.
208 PRIVATE LAW : RIGHTS ‘IN PERSONAM."
I. When the act due is intimately dependent on the indi-
viduality of either party, the right, or liability, to its per-
formance must necessarily be extinguished by his death. It
would be obviously absurd to make the executors of the
Admirable Crichton responsible for his non-performance of
a contract to marry, or those of Raphael for his inability to
return to life and finish the ‘Transfiguration.” Serious illness
may have a similar effect.
2. Under the old Roman law all claims against a ‘filius
familias’ were cancelled by even a ‘minima capitis diminutio,”
such as he sustained in passing by adoption from one family
to another.
3. ‘Confusio,” or ‘merger, i.e. the union in one person
of the characters of debtor and creditor, is sometimes held
to extinguish, sometimes only to suspend, the operation of
the right ". .
4. When the performance has reference to a specific thing,
its destruction, without fault of the parties, puts an end to
the right. So when the proprietors of a place of public enter-
tainment had agreed to let it on a certain day, before which
it was burnt down, they were held to be free from their
engagement”.
5. Bankruptcy has already been mentioned more than
once as one of the events which give rise to a universal
succession *. It has the further effect of freeing the bankrupt,
either wholly or partially, according to the special provisions
of the law under which he lives, from the claims to which he
was previously liable. --
6. The judicial rescission of a contract, or a decree of “resti-
tutio in integrum.” • *
7. A change in the law, or the outbreak of war between
the countries of the contracting parties, may operate to make
performance a ‘legal impossibility.’
CHAP. XII.
* Code Civil, art. I 3oo; Dig. xvi. 3. Io'7.
* Taylor v. Caldwell, 3 B. and S. 826.
* Supra, pp. Io2, 143.
SUBSTITUTES FOR PERFORMANCE. - 209.
iii. Among substitutes for performance, the following are chap. xII.
the more important. - - *
I. ‘Tender,’ ‘ oblatio,” of the precise amount due, followed Tender.
by ‘payment into Court,” or in Roman and French law by
‘ depositio, or ‘consignation,’ into the hands of a public
officer, even before any action has been brought', either ex-
tinguishes or suspends the debt.
2. Compromise, ‘transactio,” which may be analysed into Com-
a part payment, coupled with a promise not to claim the promise.
residue, can only operate as a discharge of the whole debt
when the subsidiary promise is made in such a form, or under
such circumstances, that it might equally well have been
a good discharge without any part payment. So in an old
English case it was resolved ‘ that payment of a lesser sum on
the day, in satisfaction of a greater, cannot be a satisfaction
to the plaintiff for a greater sum. When the whole sum is
due, by no intendment the acceptance of parcel can be a satis-
faction to the plaintiff.”.”
3. It was long debated but finally admitted by the Roman Datio in
lawyers that a “ datio in solutum,” or giving and acceptance of solutum.
something other than the thing due, and in place of it, dis-
charges the obligation”. So in English law it is laid down
that if a debtor pays to his creditor ‘a horse, or a cup of
silver, or any such other thing, in full satisfaction of the
money, and the other receiveth it, this is good enough, and
as strong as if he had received the sum of money, though the
horse or the other thing were not of the twentieth part of the
value of the sum of money, because that the other hath
accepted it in full satisfaction*.’
4. Set-off, ‘compensatio, defined by Modestinus as ‘debiti set-off.
et crediti inter se contributio", has been sometimes regarded
* Cod. iv. 32. Ig, viii. 43. 9 ; Code Civil, art. I257.
* Pinnel’s case, 5 Rep. II.7. On the whole theory of “accord and satisfac-
tion,” the Author may perhaps refer to his Essay on Composition Deeds,
chapters ii. and iii.
* Gai. iii. 168; Cod. viii. 43. 16. * Co. Litt. 212. a.
* Dig. xvi. 2. I. ~.
210 PRIVATE LAW : RIGHTS “IN PERSONAM."
CHAP, XII.
Substi-
tution.
as rateably extinguishing a claim “ipso iure, sometimes only
as foundation for a plea, to which a Court may give regard in
awarding judgment if the claim be sued upon. The French
Code lays down broadly that “la compensation s'opére de plein
droit, even without the knowledge of the debtors, and that
the two debts cancel each other rateably, from the moment
that they co-exist"; a view which was only very gradually ap-
proached by the Roman lawyers”. The applicability of set-off
has always been limited to debts of a readily calculable
kind”, and between the parties in the same rights. The
doctrine was unknown to the English common law, upon
which it was grafted for the first time by 2 Geo. II. c. 22.
5. The substitution of a new obligation for the old one by
mutual consent is a species of that mode of discharging an
obligation known to the Romans as ‘novatio.”
iv. The mere agreement of the parties to a discharge of
the liability is not always sufficient. The principle of Roman
law was that every contract should be dissolved in the same
manner in which it had been made. “Nihil tam naturale est
quam eo genere quidque dissolvere quo colligatum est, ideo
verborum obligatio verbis tollitur : nudi consensus obligatio
contrario consensu dissolvitur 4.’ So in the time of Gaius
there were certain obligations which could be released only by
means of a feigned payment accompanied by the ancient
ceremony of the “aes et libra", and an obligation arising out
of ‘stipulatio’ could only be extinguished by an equally solemn
“acceptilatio,” a method which was at a later period extended
by the ingenuity of the praetor Aquilius to the release of
obligations of all sorts *. A merely consensual contract, if
wholly unexecuted, could be discharged by the mere agree-
ment of the parties, but after part execution such an agree-
ment could amount only to a ‘pactum de non petendo,” which
Release.
* Art. 1290. * Inst. iv. 6. 30 ; Cod. iv. 31. I4.
* A merely ‘natural” obligation could be set off in Roman law. Dig. xl.
7. 20, 2. Cf. Supra, p. 162.
* Dig. 1, 17. 35. * Gai. iii. 173. * Inst. iii. 29. 2.
NON-PERFORMANCE. 211
might be a good plea to an action upon the obligation, but CHAP. XII.
left the obligation itself still in force.
English law requires that a contract made under seal, or
which under the Statute of Frauds has been necessarily made
in writing, should be discharged in like manner. The effect
of a mere agreement to discharge a consensual contract de-
pends upon the doctrine of ‘consideration.” If such a contract
be still executory, the mutual release from its liabilities is a
good consideration to each party for surrendering his rights
under it. If it has been executed on one side it can be
discharged only by an agreement founded on some new con-
sideration, or by a deed, which is sometimes said to “import
a consideration.” The rule does not however apply to a
discharge of promissory notes or bills of exchange, which
doubtless owe their immunity from it to deriving their
origin from the ‘law merchant.”
v. Non-performance by one party to a contract often puts Non-per-
an end to the rights which he enjoys under it against the formance.
other party. And some acts short of non-performance may
have the same effect. Thus if one party by his own act
disable himself from performance, or announce that he has no
intention of performing, the other side is in many cases
entitled to treat the contract as no longer binding. Since
however non-performance, or breach, has also the effect of
giving rise to remedial rights, its discussion may conveniently
be postponed till the next chapter.
P 2.
IPrimitive
remedies.
CHAPTER XIII.
PRIVATE LAW . REMEDIAT, IRIGHTS.
A RIGHT which could be violated with impunity, without
giving rise to any new legal relation between the person of
inherence and the person of incidence, would not be a legal
right at all. In an anarchical state of society an injured
person takes such compensation as he can obtain from a
wrongdoer, or, if strong enough, gets such satisfaction as may
be derived from an act of revenge. A political society, in
the first place, puts this rude self-help under stringent
regulation, and secondly, provides a substitute for it in the
shape of judicial process. Self-help is indeed but an un-
satisfactory means of redress. Its possibility depends upon
the injured party being stronger than the wrong-doer, a state
of things which is by no means a matter of course; and the
injured party is made judge in his own cause, often at a time
when he is least likely to form an impartial opinion upon its
merits. To suppress private revenge, to erect Courts of
Justice, and to compel every one who is wronged to look to
them for compensation, is however a task far beyond the
strength of a State which is still in process of formation.
SELF-HELP. 213
So the heroic age of Greece was characterised, according to chap. xm.
Grote, by the omnipotence of private force, tempered and
guided by family sympathies, and the practical nullity of
that collective sovereign afterwards called the City, who
in historical Greece becomes the central and paramount
source of obligation, but who appears yet only in the back-
ground 1.’ -
It is therefore not surprising that, as Sir Henry Maine has Regulated
put it, ‘the Commonwealth at first interfered through its self-help.
various organs rather to keep order and see fair play in
quarrels, than took them, as it now does always and every-
where, into its own hands”.’ The stages of social improvement
seem to be the following. First, the unmeasured, hot-blooded,
and violent retaliation of the injured party is superseded by
a mode of taking compensation the nature and formalities of
which are to some extent prescribed by custom. ‘The
primitive proceeding,’ says the author last quoted, ‘was un-
doubtedly the unceremonious, unannounced, attack of the
tribe or the man stung by injury on the tribe or the man
who had inflicted it. Any expedient by which sudden
plunder or slaughter was adjourned or prevented was an
advantage even to barbarous society. Thus it was a gain to
mankind as a whole when its priests and leaders began to
encourage the seizure of property or family, not for the
purpose of permanent appropriation, but with a view to what
we should now not hesitate to call extortion *.’ This is the
stage at which the seizure of pledges is so prominent, and to
it belongs also the singular custom of ‘sitting dharma,’ ae-
cording to which an Indian debtor fasts at the door of his
creditor till his debt is paid. Next comes the stage when
self-help, although permitted, is supervised and restrained by
the political authority. Distress may still be resorted to,
but only for certain purposes, and with many safeguards
* History, ii. p. 126.
* Early History of Institutions, Lect. ix.
* Ib., Lect. x.
214 PRIVATE LAW : REMEDIAL RIGHTS:
CHAP. XIII. against abuse. Life and property may be protected by force,
but the force used must not be in excess of the need.
Nuisances may be ‘abated,” but so as to interfere with no
Judicial man’s rights. Last of all comes the reign of the law-courts.
remedies. Legally regulated self-help is not wholly superseded, but,
as a rule, redress of wrongs must be sought only from the
tribunals of the sovereign.
.. The object of a developed system of law is the conserva-
as conserv-tion, whether by means of the tribunals or of permitted self-
ing rights; help, of the rights which it recognises as existing". So long
as all goes well, the action of the law is dormant. When
the balance of justice is disturbed by wrong-doing, or even
by a threat of it, the law intervenes to restore, as far as
possible, the status quo ante. ‘The judge,’ says Aristotle,
‘equalises”.’ He elsewhere adopts the saying of Lyco-
phron that the function of law is to guarantee that all
shall enjoy their rights”. ‘Hoc natura aequum est,’ says
Pomponius, ‘neminem cum alterius detrimento fieri locu-
pletiorem *.’
by preven- Sometimes the law interferes for prevention, as by the
tion, ‘injunctions’ which have long been issued by the Court of
Chancery to forbid a threatened mischief, and by the orders
made by the Roman praetors in cases of ‘novi operis de-
nuntiatio, or ‘damnum infectum *.’
by redress. The remedial interference of the law is however far more
frequent and important. When a right is violated, the law
endeavours to prevent the person of inherence from losing, or
the person of incidence from gaining. A new right is there-
fore immediately given to the former, by way of compensation
for his loss, and a new corresponding duty is laid upon the
latter, by way of make-weight against any advantage which
he may have derived from his aggression. In the language
* Supra, p. 54. * Eth. Nic. v. 7.3 and 8.
* "Eyyumrås &AAñAous Töv Šuicatov. Pol. iii. 9, 8.
* Dig. xii. 6. I4; cf. Supra, p. 61.
* Dig. xxxix. I and 2.
RIGHTS OF ACTION. 2 [5
of the French Code: ‘Tout fait quelconque de l’homme, qui CHAP. XIII.
cause à autrui un dommage, oblige celui par la faute duquel
il est arrivé à le réparer".
In examining early systems of law we seem to come upon
traces of a time when the State had to take special pains in
order to insure that the new right should be as acceptable to
its subjects as the indulgence of private revenge. Such is the
interpretation placed upon a provision of the Twelve Tables,
that a thief, if caught in the act, was to be scourged and
delivered as a slave to the owner of the goods, whereas if not
caught under circumstances offering to the owner a similar
temptation to violence, he was to be liable only for twice the
value of the goods. So the object of the early Teutonic
legislation is well described as having been, “to preserve the
Society from standing feuds, but at the same time to accord
such full satisfaction as would induce the injured person to
waive his acknowledged right of personal revenge. The
German Codes begin by trying to bring about the acceptance
of a fixed pecuniary composition as a constant voluntary
custom, and proceed ultimately to enforce it as a peremptory
necessity: the idea of society is at first altogether subordinate,
and its influence passes only by slow degrees from amicable
arbitration into imperative control”.’
The new right may thus be realisable by the regu- Self-help.
lated self-help of the injured person of inherence himself,
as when he is allowed to push a trespasser out of his field,
or to pull down a wall which has been built across his path.
More commonly it is realisable only with the aid of the law Right of
courts, in which case it is known as a ‘right of action,’ ‘ius action
persequendi iudicio quod sibi debetur.” The right, however
realisable, we call “remedial,” as opposed to the right from a
violation of which it arises, and which we call ‘antecedent 8.”
* Art. I 382.
* Grote, History, ii. p. 128. A cursory inspection of the ‘Leges Barbarorum’
will show how large a space in them is occupied by the topic of ‘Compositio.’
* Supra, pp. 93, Io'7.
216 PRIVATE LAW . REMEDIAT, RIGHTS.
CHAP. XIII.
for resti-
tution,
for com-
pensation.
The right
is in perso-
720%.
.*
Its object may be either restitution or compensation *. In
the former case, the aim of the law is to cancel, so far as
possible, the wrongful act. It allows the injured party to
remove a building which obstructs his window-light, it decrees
the “restitutio in integrum of a minor who has entered into
a disadvantageous engagement, it calls for and destroys a
contract which is tainted with fraud, or it orders the ‘specific
performance' of a contract which the person of incidence is
endeavouring to repudiate, or the return of an object of which
the person of inherence has wrongly been deprived. In the
latter, which is also the more usual, case, it gives to the
sufferer a right to be compensated in damages for a wrong
which cannot be undone.
We have seen that while some “antecedent’ rights are
available in rem, others are available only in personam.
“Remedial' rights are however available exclusively in per-
Sonam, i. e. against the wrong-doer, who, by the act of
wrong-doing, becomes at once the ascertained person of in-
cidence of the remedial right. Such rights as those of lien
and distress, and especially certain rights enforceable in Courts
of Admiralty, which are doubtless capable of being represented
as remedial rights in rem, may more conveniently be treated
as being merely modes of execution, by which the true
remedial right is made effective.
The causes, or ‘investitive facts,’ of remedial rights are
always infringements of antecedent rights, and have there-
fore been incidentally mentioned in the course of the dis-
cussion of such rights which has occupied the two preceding
chapters. It is indeed impossible to describe, what we have
called, the “ orbit’ of a right, without at the same time
mentioning the acts which break in upon it, since the extent
of a right is the same thing with the power of him who is
Origin.
* * Les actions sont des droits particuliers qui naissent de la violation des
autres droits, et qui tendent, soit à faire cesser cette violation, soit a en faire
réparer les effets.” Dalloz, s. v. No. 69.
THEIR ORIGIN. 217
clothed with it to interfere, positively or negatively, with the CHAP. XIII.
acts of others". It will now however be necessary to consider
infringements more specifically, and to classify them accord-
ing to the rights which they infringe, and with which indeed,
for the reason just given, they are precisely correlative.
Since conduct which is straightforward came to be spoken of Infringe-
eulogistically as being “rectum,’ ‘directum’ (whence ‘droit’), ments.
‘recht’ and ‘right,’ conduct of the opposite character naturally
came to be expressed by the terms “delictum,’ ‘délit,’ as
deviating from the right path, and ‘wrong’ or ‘tort,’ as
twisted out of the straight line. Similar conduct is less
descriptively called in German ‘Rechtsverletzung.’
These terms are alike employed in their respective lan-species of.
guages to denote, in a very general sense, acts which are
violations of rights. They are however usually applied only
to ‘wrongs independent of contract; i.e. the large class of
wrongful acts which are breaches of contract are specifically
so described; and certain other classes of wrongful acts have
for historical reasons specific designations which take them
out of the category of delicts, or torts. Thus Roman law
did not rank as delicts acts violating obligations quasi ex
contractu,’ nor are breaches of trust, or such acts as are
charged against a co-respondent in the Divorce Court, de-
scribed as torts by the law of England.
The distinction between those wrongs which are generically Difference
called ‘torts’ and those which are called crimes may at first .
sight appear to be a fine one. The same set of circumstances crimes.
will, in fact, from one point of view constitute a tort, while
from another point of view they amount to a crime. In the
case, for instance, of an assault, the right violated is that
which every man has that his bodily safety shall be respected,
and for the wrong done to this right the sufferer is entitled
to get damages. But this is not all. The act of violence is
a menace to the safety of society generally, and will therefore
be punished by the State. So a libel violates not only the
* Supra, p. 96.
2 I 3 PRIVATE LAW : REMEDIAL RIGHTS.
CHAP. XIII.
Possible
classifica-
tions of
wrongs.
right of an individual not to be defamed, but also the right
of the State that no incentive shall be given to a breach of
the peace. It is sometimes alleged by books of authority that
the difference between a tort and a crime is a matter of
procedure, the former being redressed by the civil, while the
latter is punished by the criminal courts. But the distinction.
lies deeper, and is well expressed by Blackstone, who says.
that torts are an ‘infringement or privation of the private,
or civil, rights belonging to individuals, considered as in-
dividuals; crimes are a breach of public rights and duties.
which affect the whole community, considered as a com-
munity.’ The right which is violated by a tort is always a
different right from that which is violated by a crime. The
person of inherence in the former case is an individual, in the
latter case is the State. In a French criminal trial there may
accordingly appear not only the public prosecutor, represent-
ing the State and demanding the punishment of the offender,
but also the injured individual, as ‘partie civile,’ asking for
damages for the loss which he has personally sustained".
Wrongful acts may be, and are, classified on five different
principles at least.
i. According to the state of the will of the wrong-doer,
which may conceivably be, (I) entirely absent; (2) such as
exhibits negligence; (3) such as exhibits intention, sometimes
described as “malice.”
ii. According to the state of the will of the injured party,
which may conceivably, (I) fairly consent to an invasion of
his right, which by being thus waived, becomes no right,
and its invasion no wrong, since ‘volenti non fit iniuria.”
An act ab initio wrongful may lose this character by the
subsequently given assent of the injured party; (2) be flatly
opposed to the act, which is then of course tortious, even
when an apparent assent to it is procured by duress; (3) be
induced to assent by the deceit of the party injuring, the
* Code d’Instruction Criminelle, art. 63.
CLASSIFICATION OF WIRONGS. 219.
act of so procuring assent by deceit being the wrong known CHAP. XIII.
as “fraud.’
iii. According to the means whereby the wrong is effected
whether, for instance, by physical violence, by words uttered,
or by omission to carry out a contract.
iv. According as actual loss to the injured party following
upon the act of the wrong-doer is or is not essential to its
tortious character.
v. According to the nature of the right invaded, whether,
for instance, it be a right to personal freedom, or to a
monopoly, or to the fulfilment of a contract.
Writers who waver between these various points of view, Principle
subdividing one portion of the whole class of wrongful acts selected.
upon one principle, and another portion upon another prin-
ciple, involve themselves in unnecessary difficulties. The last-
mentioned principle of division is to be preferred. When it
is once known of what right any given wrong is an invasion,
its other characteristics follow as a matter of course.
A tabular view of wrongful acts, in which each is referred List of
to the right of which it is an infringement, might easily be wrongs.
constructed from the data contained in the two preceding
chapters.
Among rights “in rem,” that to personal safety is violated
by assault or imprisonment; family rights, by abduction of,
or adultery with, a wife, by seduction of a servant, or en-
ticing away a slave; the right to one's good name, by
defamation; rights generally available, by nuisance, and
malicious arrest or prosecution; rights of possession, by
trespass, conversion, detinue, and ‘furtum ;’ rights of owner-
ship of tangible objects by the same acts; rights of copy-
right, patent-right and trade-mark, by infringement ;’ rights
‘in re aliena, by “disturbance’ of an easement, or con-
version of a pledge; rights to immunity from fraud, by
° deceit.”
Among rights ‘in personam,’ family rights, and their ana-
logues, are infringed by ‘subtraction,’ adultery, refusal of due
220 PRIVATE LAW . REMEDIAL RIGHTS.
CHAP. XIII,
Liability
for acts of
servants,
for
breaches
of contract
and torts.
Damages.
aliment, ingratitude on the part of a freedman, or neglect
by a vassal of his feudal duties; fiduciary rights, by breach
of trust; rights of a reversioner, by “waste; what we have
called meritorious rights, by refusal of the merited reward;
rights against officials, by neglect on their part to perform
their duties; rights ‘ex contractu,’ by breaches of contract,
consisting, according to the nature of the contract in question,
in such acts or omissions as non-payment, non-delivery, defec-
tive care-taking, default in marrying, non-render of services,
negligent render of services, refusal to enter into partnership,
doing of acts promised not to be done, breach of warranty,
or non-return of pledge.
With reference to these acts generally, the rule holds good
that ‘ qui facit per alium facit per se.” The employer is
responsible for acts which he has ordered to be done, or which
have been done by his servant, without orders but within the
scope of the servant’s employment. The right resulting from
‘wrongs independent of contract' is of a wider character
than that which results from breaches of contract. In the
former case only, as a rule, mental and bodily suffering may
be taken into account in measuring the damages to be
awarded. On the other hand, a breach of contract is more
readily established than a wrong of another kind, since it
does not necessarily depend on the state of the will of the
wrong-doer, and some damages may be had for every breach
of contract, whether or no it be the cause of any actual loss.
‘Direct,” or ‘general, damages are those which are the
necessary and immediate consequence of the wrong, while
* indirect,” or ‘special,’ damages are sometimes, granted in
respect of its remoter consequences.
What has been said as to the difficulties attending the
transfer of antecedent rights in personam applies, with greater
strength, to the transfer of remedial rights". The non-trans-
Transfer.
* Supra, p. 205.
TRANSFER AND EXTINCTION. 22]
ferability to the representatives of a deceased person of such CHAP. XIII.
remedial rights as arise from the violation of a right intimately
connected with his individuality is expressed by the maxim,
‘Actio personalis moritur cum persona.’
A mere performance of the duty antecedently owed is no Extinc-
discharge of the remedial right arising from its non-per- tion.
formance, but the right may be extinguished in a variety of
other ways, including some of those which are applicable to
the extinction of antecedent rights in personam ".
i. The person of inherence may formally release his right of Release.
action, for instance by deed or by the Acquilian stipulation;
or may give a covenant not to sue, ‘pactum de non petendo ;’
or may enter into, what is called in English law, ‘an accord
and satisfaction’ with the person of incidence, i.e. into an
agreement substituting some other act for the act which has
not been performed, and followed by the performance of that
act. The person of inherence may also by his conduct so Ratifica-
‘ratify” a wrong done to him as to waive his resulting right tion.
of redress, as when the owner of goods wrongfully sold treats
the sale as lawful by taking part of the purchase money. The
right may likewise be lost by—
ii. The bankruptcy of the person of incidence. Bank-
* tº ſº tº ruptcy.
iii. Set-off. Set-off.
iv. Merger. It has been laid down that the giving of a Merger.
covenant in the place of a simple contract does not ‘merge or
extinguish the debt, but it merges the remedy by way of
proceeding upon the simple contract. The intention of the
parties has nothing to do with that. The policy of the law
is that there shall not be two subsisting remedies, one upon
the covenant and another upon the simple contract, by the
same person against the same person for the same demand *.’
So a judgment in favour of the plaintiff is “a bar to the
original cause of action, because it is thereby reduced to a
* Supra, p. 207. * Price v. Moulton, Io C. B. 561.
222 PRIVATE LAW : REMEDIAL RIGHTS.
CHAP. XIII.
certainty and the object of the suit attained, so far as it can
be at that stage; and it would be useless and vexatious to
subject the defendant to another suit for the purpose of
attaining the same result. Hence the maxim Transit in rem
Żudicatam. . . . The cause of action is changed into a matter
of record, which is of a higher nature, and the inferior remedy
is merged in the higher".’ So in Roman law an obligation
was transmuted by ‘litis contestatio, and again by judgment,
which was expressed by saying, ‘ante litem contestatam dare
debitorem oportere, post litem contestatam condemnari opor-
Estoppel.
Prescrip-
tion.
tere, post condemnationem iudicatum facere oportere”. An
award under arbitration does not usually extinguish a remedial
right, unless followed by performance of the award.
v. ‘Estoppel,” by a judgment for the defendant. ‘The
facts actually decided by an issue in any suit cannot be again
litigated between the same parties, and are evidence between
them, and that conclusive, for the purpose of terminating
litigation *.’
vi. Bxtinctive prescription, or limitation of actions, intro-
duced, as it is expressed in the Act of James I, ‘for quieting
of men's estates and avoiding of suits *,” by depriving the
remedial right of its judicial remedy, reduces it to the position
of a merely ‘natural” obligation, which however still remains
capable of supporting a lien or pledge ".
The lapse of time necessary to produce this result varies
very widely in different systems, and with reference to rights
of different species. It begins to run from the moment when
the remedial right comes into existence, in other words, when
the antecedent right is violated. It may be interrupted, or
prevented from running by various causes, such as the
minority, imprisonment, or absence from the country of the
person whose right would otherwise be affected by it. On
the other hand, the person who would otherwise benefit by
* King v. Hoare, 13 M. and W. 494. * Gai, iii. 180.
* Boileau v. Rutlin, 2 Ex. 665; cf. Dig. xliv, 2. 7. 4.
* 21 Tac. I. c. 16. * Supra, pp. 152, 162.
SUSPENSION. 223
it may keep alive his indebtedness by such acts as part pay- chap. xIII.
ment, or payment of interest, or express acknowledgment
with a promise to pay.
There are cases in which a remedial right is suspended Suspen-
without being lost. Thus a Court will refuse to try an action “
while an action to try the same question is pending before
a Court of concurrent jurisdiction, in which case there is said
to be ‘lis alibi pendens.’ So also it is a principle of English
law that when the fact which gives rise to the remedial right
amounts also to a felony, the remedy of the injured individual
is postponed to the punishment of the crime.
Normal
and ab-
normal
persons.
CHAPTER XIV.
FRIVATE LAW - ABNORMAL.
AMONG the modes in which the field of law may be
mapped out, we have already explained that which divides
it into ‘normal’ and ‘abnormal; the former kind of law
dealing with rights as unaffected by any special charac-
teristics of the persons with whom they are connected, the
latter kind dealing with rights as so affected 1. In all
statements with reference to rights the standard type of
personality is assumed, unless the contrary is expressed ;
and it is only when there is a deviation from that type
that the character of the persons who are two of the
factors into which, as we have seen, it is possible to analyse
every right, needs any investigation. The typical person,
who is thus assumed as a factor, is, in the first place, a human
being, as opposed to what is called ‘an artificial person *.”
In the next place, he is unaffected by any such peculiarity
as infancy, coverture, alienage, slavery, and so forth.
In considering the various classes of substantive rights, we
have hitherto treated of them as normal. We are now about
* Supra, pp. 87, Ioy. * Supra, p. 66.
NATURAL AND ARTIFICIAL PERSONS. 225
to treat of the effect produced upon them by abnormity of CHAP. XIV.
personality.
It was usual in old grammars to explain the cases of nouns Abnormal
by a diagram, in which the nominative case was represented **
by an upright line, from the base of which lines, representing
the genitive, dative, accusative, vocative and ablative, sloped
off at gradually increasing angles. The accompanying figure
may serve to illustrate in a similar manner the variations of
juristic personality.
Normal person,
- infant,
feme covert,
convict,

lunatic,
&e.,
º
Artificial person.
The most marked distinction between abnormal persons is Natural
that some are natural, i.e. are individual human beings, #.rti-
while others are artificial, i.e. are aggregates of human beings,
or of property, which are treated by law, for certain pur-
poses, as if they were individual human beings".
I. It is by no means at the discretion of any aggregate of Artificial
human beings so to coalesce as to sustain a single personality.”
In the words of Gaius, ‘neque societas, neque collegium, neque
huiusmodi corpus, passim omnibus habere conceditur : nam et
legibus et senatusconsultis et principalibus constitutionibus
ea res coercetur”. Artificial persons have generally been
created by a charter granted by the executive authority in a
State, or by a special statute passed by the legislature, but of
* Supra, pp. 66, 90. Order lxiii. under the Judicature Acts provides that
the word ‘person’ shall, in the construction of the rules, unless there is any-
thing in the subject or context repugnant thereto, include a body corporate or
politic.
* Dig. iii. 4. I pr.
:
$
:
:
•
r
226 PRIVATE LAW : ABNORMAL.
late years also by virtue of general statutes which prescribe
the conditions under which voluntary associations may
acquire a corporate character". They may be formed wholly
of natural persons, or wholly of artificial persons, or of a
mixture of artificial and natural persons. They cease to exist
by no longer comprising the requisite number of subor-
dinate persons, or by the revocation or surrender of their
privileges. -
The characteristics of an artificial person differ from those
of a group of natural persons no less than from those
of a single natural person. On the one hand, it is not
merely the sum-total of its component members, but some-
thing superadded to them. It may remain, although they
one and all perish, “in decurionibus vel aliis universitatibus
nihil refert utrum omnes idem maneant, an pars maneat, vel
omnes immutati sunt *. The property which it may hold
does not belong to the members either individually or collect-
ively : ‘quibus permissum est corpus habere collegii, socie-
tatis, sive cuiusque alterius eorum nomine, proprium est,
ad exemplum rei publicae, habere res communes *. Its
claims and liabilities are its own, “si quid universitati
debetur, singulis non debetur; nec quod debet universitas
singuli debent *.” Its agent, though appointed by a majority
of the members, does not represent them, ‘hic enim pro
republica vel universitate intervenit, non pro singulis ".” In
all these respects true artificial persons are distinguishable
from clubs and unincorporated trading partnerships, however
large.
On the other hand, an artificial necessarily differs in many
respects from a natural person. “A corporation aggregate
of many is invisible, immortal, and rests only in intend-
* Such as ‘The Companies Act, 1862.’ The Crown may delegate its power
of creating corporations. “So,’ says Blackstone, ‘the Chancellor of the Univer-
sity of Oxford has power by charter to erect corporations; and has actually
often exerted it, in the erection of several matriculated companies of tradesmen
CHAP. XIV.
Character-
istics of.
subservient to the students.’ Comm. i. p. 474.
* Tig. iii. 4. 7. 2. * Ib. I. I. * Ib. 7. I. * Ib, 2.
ARTIFICIAL PERSONS. 227
ment and consideration of law. It has no soul, neither is CHAP, XIV.
it subject to the imbecilities of the body".’ Its will is that
of the majority of its members, and can be expressed only
by means of an agent; there are many wrongful acts of
which it is obviously incapable *; and its capacity for being
the subject of rights, ‘Rechtsfähigkeit,’ and for performing
legal acts, ‘Handlungsfähigkeit,” is strictly limited by the
purposes for which its existence is recognised.
The invention of corporations has been justly described by Utility of
a high authority upon the subject as one which, “perhaps
more than any other human device, has contributed to the
civilization of Europe and the freedom of its states.” “By
this means,’ says the same writer, municipalities were
furnished with a form of government which never wore out.
Charitable trusts were secured to the objects of them so long
as such objects should continue to be found, the protection,
improvement and encouragement of trades and arts were
permanently provided for, and learning and religion kept
alive and cherished in times through which probably no
other means can be mentioned that would appear equally
well qualified to preserve them *.’
The purposes which artificial persons are intended to pro- º
mote are very various, and such persons may perhaps be {º
classified, according as they subserve one or other of them,
under the following heads:—
(1) Subordinately political, such as municipal corporations
generally.
(2) Administrative, such as the Trinity House or the
College of Heralds.
(3) Professional, such as the College of Physicians or the
Incorporated Law Society.
* The case of Sutton’s Hospital, Io Rep. 32 b.
* Tig. iv. 2. 9, 3. I5; cf. Metropolitan Saloon Company v. Hawkins, 4 H.
and N. 87.
* Grant, on Corporations, p. 4.
Q 2.
228 PRIVATE LAW . ABNORMAL.
CHAP, XIV.
* Quasi-
Corpora-
tions.”
Older cor-
porations.
Trading
corpora-
tions.
(4) Religious, such as the Chapter of St. Paul’s or the
Church Missionary Society.
(5) Scientific and Artistic, such as the Royal Society or
the Royal Academy.
(6) For the Promotion of Education, such as the University
of Oxford or the Girls Public Day School Company Limited.
(7) Eleemosynary, such as St. Thomas’s Hospital or the
Corporation of the Sons of the Clergy.
(8) Trading, such as the Great Western Railway, the
Lambeth Water-works Company, or the Civil Service Supply
Association Limited.
The holders for the time being of certain official positions,
though not incorporated, are recognised in English law as
* Quasi-Corporations.’ So the Churchwardens of a parish and
their successors may hold goods but not land, as if they were
an artificial person; and larger rights have been conferred
by statute upon Guardians of the Poor, and Boards of
Management of district Schools or Asylums. The term is
also applied to the position occupied under certain statutes
by Banking partnerships and Commissioners of Sewers.
The legal position of a corporation of the older type is
comparatively simple. It exists generally for some purpose
of public utility, and its members have no defined personal
interest in the property which belongs to it.
The most complicated, as well as the most modern, branch
of the law of artificial persons relates to those which are
formed for purposes of trade. They are a natural accom-
paniment of the extension of commerce. An ordinary
partnership lacks the coherence which is required for great
undertakings. Its partners may withdraw from it, taking
their capital with them, and the ‘firm having as such no
legal recognition, a contract made with it could be sued upon,
according to the common law of England, only in an action
in which the whole list of partners were made plaintiffs or
defendants,
TRADING CORPORATIONS. 229
In order to remedy the first of these inconveniences, part-CHAP, XIV.
nerships were formed upon the principle of a joint-stock, the
capital invested in which must remain at a fixed amount,
although the shares into which it is divided may pass from
hand to hand. This device did not however obviate the
difficulty in suing, nor did it relieve the partners, past and
present, from liability for debts in excess of their, past or
present, shares in the concern. In the interest not only
of the share-partners, but also of the public with which they
had dealings, it was desirable to discourage the formation of
such associations; and the formation of joint-stock partner-
ships, except such as were incorporated by royal charter, was
accordingly, for a time, prohibited in England by the
“Bubble Act,’ 6 Geo. I, c. 18. An incorporated trading
company, in accordance with the ordinary principles regulat-
ing artificial persons, consists of a definite amount of capital
to which alone creditors of the company can look for the
satisfaction of their demands, divided into shares held by a
number of individuals who, though they participate in the
profits of the concern, in proportion to the number of shares
held by each, incur no personal liability in respect of its
losses. An artificial person of this sort is now recognised
under most systems of law. It ean be formed, as a rule,
only with the consent of the sovereign power", and is de-
scribed as a ‘société, or ‘compagnie,’ ‘anonyme, an ‘Ac-
tiengesellschaft, or ‘joint-stock company limited.’ A less
pure form of such a corporation is a company the shareholders
in which incur an unlimited personal liability. There is also
a form resembling a partnership ‘en commandite,’ in which
the liability of some of the shareholders is limited by their
shares, while that of others is unlimited.
Subject to some exceptions, any seven partners in a trading
concern may, and partners whose number exceeds twenty
must, according to English law, become incorporated by
* This requirement has been much discussed in Germany, and has been
modified in the later issues of the Handelsgesetzbuch ; see Arts. 215, 249.
230 PRIVATE LAW : ABNORMAL.
CHAP. XIV.
Bank-
ruptcy of
corpora-
tions.
Eoreign
corpora-
tions.
Proprie-
tary pecu-
liarities.
registration under the Companies Acts, with either limited
or unlimited liability as they may determine at the time of
incorporation.
The debts of an incorporated company of any kind are
payable in the first instance only out of the corporate funds.
Should those funds prove insufficient, the company becomes
bankrupt, or, as it is variously expressed, ‘is wound up,' or
‘goes into liquidation.” The appropriate Court investigates
its affairs, and calls upon the shareholders, in the case of a
limited company, for any balance which may be unpaid upon
their shares, and, in the case of an unlimited company, for
any further sum which may be required from their private
fortunes. Out of the fund thus available, the claims of
creditors which have been satisfactorily established are paid
either in full or rateably, as the case may be, and the company
ceases to exist.
The existence of a foreign corporation will generally be
recognised, if according to the law qf the country where it
was created it has attributes similar to those which are
assigned to corporations by the law of the country in whose
courts it is plaintiff or defendant.
The chief peculiarity of the proprietary rights of artificial
persons relates to their tenure of land. The accumulation of
estates in the hands of religious houses was directly opposed
to the interests of feudal lords, who accordingly made every
effort in England to get rid of such tenure, which they de-
scribed as being “in mortua manu, by a long series of
enactments. These ‘Statutes of Mortmain were extended in
time to the prohibition of the alienation of land to lay as
well as to spiritual corporations; and this continues to be
the rule of English law to the present day, when no licence
in mortmain is granted by the Crown, subject to a number
of statutory exceptions in the interests of religion, charity, or
other definite public object. The Wills Acts of Henry VIII,
now repealed, in giving a general power of devise, contain
ULTRA. WIRES. 231
an exception against devises to ‘bodies politic and corporate.” CHAP. XIV.
A corporation is also usually restrained from parting with
its landed property, and even from leasing it for more than a
certain number of years, without the sanction of a public
authority.
The form in which, as a rule, an artificial person enters into Contrac-, .
a contract or otherwise performs a legal act is, according to º
English law, by the imposition of its seal; unless when the
act is of trivial importance, or is necessarily incidental to the
carrying on of its business.
There are some acts of which an artificial person is obvi-
ously incapable, and there are others which the law will not
recognise its capacity to perform. It has long been settled
in England that an assumption on the part of a corporation
to do what is wholly beyond its competence may be ground
for a forfeiture of the charter on which its existence depends",
but there has been of late years much discussion as to the
classes of corporate acts which the law will support as valid
with reference to individual corporators and to third parties
respectively. When railway companies were first created
with Parliamentary powers of a kind never before entrusted
to similar bodies, it soon became necessary to determine
whether, when once called into existence, they were to be held
capable of exercising, as nearly as possible, all the powers of
a natural person, unless expressly prohibited from doing so,
or whether their acts must be strictly limited to the further-
ance of the purpose for which they had been incorporated.
The question was first raised in 1846, with reference to the
right of a railway company to subsidise a harbour company,
and Lord Langdale, in deciding against such a right, laid
down the law in the following terms:—
‘Companies of this kind, possessing most extensive powers,
have so recently been introduced into this country that
neither the legislature nor the courts of law have yet been
* R. v. Mayor of London, I Shower 274; cf. R. v. Eastern Archipelago Co.,
2 E. and B. 856.
232 PRIVATE LAW - ABNORMAL,
able to understand all the different lights in which their
transactions ought properly to be viewed. . . . To look upon a
railway company in the light of a common partnership, and as
subject to no greater vigilance than common partnerships
are, would, I think, be greatly to mistake the functions
which they perform and the powers which they exercise of
interference not only with the public but with the private
rights of all individuals in this realm. . . . I am clearly of
opinion that the powers which are given by an Act of
Parliament, like that now in question, extend no further
than is expressly stated in the Act, or is necessarily and
properly required for carrying into effect the undertaking and
works which the Act has expressly sanctioned".’
This view, though it has sometimes been criticised, seems
now to be settled law. In a recent case in the House of
Lords, the permission which the Legislature gives to the
promoters of a company was paraphrased as follows:—‘You
may meet together and form yourselves into a company, but
in doing that you must tell all who may be disposed to deal
with you the objects for which you have been associated.
Those who are dealing with you will trust to that memo-
randum of association, and they will see that you have the
power of carrying on business in such a manner as it
specifies. You must state the objects for which you are
associated, so that the persons dealing with you will know
that they are dealing with persons who can only devote
their means to a given class of objects *.’
An act of a corporation thus in excess of its powers is
technically said to be uſtra vires *, and is void even if unani-
mously agreed to by all the corporators. The same term is
also, but less properly, applied to a resolution of a majority
CHAP. XIV.
Ultra vires.
* Colman v. Eastern Counties Railway Co., Io Beav. 13.
* Per Lord Hatherley, in Riche v. The Ashbury Carriage Co., L. R. 7 E. and
I., App. 684.
* Perhaps first in South Yorkshire Rail. Co. v. Gt. N. Rail. Co., 9 Ex. 84
(1853).
CORPORATIONS SOLE. 233
of the members of a corporation which being beyond the CHAP. XIV.
powers of the corporation will not bind a dissentient minority
of its members".
Such artificial persons as have hitherto been described
result from the combination of a number of natural persons
for the performance of a common function, and are accord-
ingly described as ‘universitates personarum,” or, in English
law as, ‘corporations aggregate.” An artificial person may,
however, also exist without being supported by any natural
person. It may consist merely of a mass of property, of
rights and of duties, to which the law chooses to give a
fictitious unity by treating it as a ‘universitas bonorum.”
The most familiar example is a “hereditas’ before it has been
accepted by the heir, which in Roman law is treated as
capable of increase and diminution, and even of contracting
by means of a slave comprised in it, as if it were a person ".
It would have been quite possible to explain in the same
way the devolution of the lands of the crown, of a bishopric,
or of a rectory, from the sovereign, bishop, or rector, to his
successor; but English law has preferred to introduce for
this purpose the fiction, peculiar to itself, of a ‘corpora-
tion sole *.’ The origin of such a corporation is rarely trace-
able ; but the Master of Pembroke College and the Provost
of Oriel College, Oxford, were respectively made corpora-
tions sole by letters patent of Queen Anne *.
II. The chief varieties of status among natural persons may
be referred to the following causes: I. sex; 2. minority;
3. ‘patria potestas” and ‘manus;’ 4. coverture; 5. celibacy;
6. mental defect ; 7. bodily defect ; 8. rank, caste and
Corpora-
tions sole.
* The Earl of Shrewsbury v. N. Staff. Rail. Co., L. R. I Eq. 593.
* Supra, p. 67.
* A corporation sole, though it may hold lands, cannot hold goods and
chattels; because, says Blackstone, “such moveable property is liable to be
lost or embezzled, and would raise a multitude of disputes between the suc-
cessor and the executor, which the law is careful to avoid.’ Comm. i. p. 478.
* See I 2 Anne, St. 2, c. 6.
Natural
persons.
234 PRIVATE LAW . ABNORMAL.
CHAP. XIV.
Sex.
official position; 9, slavery; Io. profession; II. civil death ;
12. illegitimacy; 13. heresy; I4. foreign nationality; I5.
hostile nationality. All of the facts included in this list,
which might be extended, have been held, at one time or
another, to differentiate the legal position of persons affected
by them from that of persons of the normal type. It may
be worth while to give a few illustrations of each of the
special types of status thus arising.
I. The disabilities or privileges of women, as such, must be
looked for in modern times rather in the department of public
than in that of private law. It must however be remembered
that even in the time of Gaius the life-long tutelage of
women, ‘propter animi levitatem,” had not wholly become
obsolete", and that, by a senatusconsultum passed in the
reign of Claudius, they were allowed to repudiate any lia-
bility which they might have undertaken as sureties, ‘quum
eas virilibus officiis fungi et eius generis obligationibus ob-
stringi non sit aequum *.’
2. Minors are, as a rule, capable of holding and receiving
property, and liable for their wrongful acts, but incapable
of making a will, or entering into a valid contract without
the approval of a guardian or some public authority. The
exception to this rule, in favour of upholding an infant’s con-
tracts for necessaries, is obviously made in the interest of the
infant himself. The age of full majority is differently fixed
under different systems, and it may be remarked that English
law, in dividing human life for most of the purposes of
private law into two periods only, that which precedes and
that which follows the age of twenty-one, has departed from
the theory of the Roman lawyers and their followers. This
theory, which postpones the date of full majority till the
completion of the twenty-fifth year, distinguishes in the pre-
ceding period, infancy, proximity to infancy, and a qualified
majority attained by girls at the age of twelve, and by boys
at the age of fourteen years.
Minority.
* Inst. i. I44. * Dig. xvi. I. 2.
NATURAL PERSONS. 235
3. A “filius familias’ could hold no property, except, in chap. xiv.
later times, what he acquired by way of ‘peculium.’ He †.S.
could enter into most contracts, but was specially disabled,
by the senatusconsulturm Macedonianum from borrowing
money.
4. The effect of marriage, according to most systems of Coverture.
law, is to constitute a sort of partnership between husband
and wife, in which the former has very extensive powers
over the partnership property, while the latter has not only
no power of alienating it, but is also incapable of making
a will, or of entering into any contract on her own account.
The common law of England exhibits these disabilities of the
wife in their strongest form. Of the several systems between
which French law gives an option to persons about to marry,
the ‘régime de la communauté derived from the ‘cou-
tumiers,’ is least favourable to the wife, giving, as it does,
to the husband the absolute control of the common stock";
while the ‘régime dotal, an imitation of the dotal system of
Roman law, resembles that modern creation of the English
Courts of equity, a marriage settlement, in which the wife's
‘separate estate’ is protected not only from manipulation
by the husband, but also against the possibly improvident
disposal of it by the wife herself”. The contractual dis-
abilities of women in England have been much modified by
recent legislation, especially by the ‘Married Women’s Pro-
perty Act, 1870.’
5. Unmarried and childless persons were punished under Celibacy.
the lex Iulia et Papia Poppaea by forfeiture, either total
or partial, of the ‘ius capiendi ex testamento.”
6. Lunatics, though capable of holding property, are, strictly Mental
speaking, incapable of any legal act, although they are often “
held to a contract which the other side has made without
notice of the lunacy, especially if it has been wholly or partly
executed *. And a somewhat similar disability has sometimes
attached to persons whom a competent Court has declared
* Code Civil, art. I 399. * Ib, art. 15 ſo. * Moulton v. Camroux, 4 Ex. I 7.
236 PRIVATE LAW - ABNORMAL.
CHAP. XIV.
Bodily
defect.
Office.
to be ‘prodigals.” Drunkenness cannot be said to create a
status, and its effects in avoiding contracts may best be com-
pared with the similar effects of duress.
7. Deaf or dumb persons were unable to contract by ‘sti-
pulatio.”
8. The king, according to the maxim of English law, can
do no wrong. No action can be brought against him, nor
indeed against a foreign sovereign as such, or his ambassador.
Certain high officials are exempted from responsibility for the
Slavery.
Profession.
Civil death.
acts of their subordinates, and various public functionaries are
relieved from liability by the Statutes of Limitation at an
earlier date than other people.
9. It may well be questioned whether a human being who
is incapable of marriage, of holding property, and of contract-
ing, can be regarded as a legal person at all. This was the
position of a slave in Roman law, which declares that ‘ servile
caput nullum ius habet, and ‘in personam servilem nulla
cadit obligatio .” Nor was his private law position affected,
as Austin seems to think?, by the constitutions which made
it penal for his master to kill or grievously ill-treat him
without cause. These were in truth analogous to the pro-
visions in modern systems of public law for the prevention of
cruelty to animals. Since however a slave has, even for legal
purposes, some of the characteristics of a human being, it
is necessary to point out that his status is in private law
abnormal to the extent of being non-existent.
Io. A soldier on active service enjoys, under most systems,
certain exceptional testamentary privileges. By English law
a barrister is incapable of validly contracting to be paid for
his professional assistance, and the same disability attached
till recently also to a physician.
11. ‘A monk,’ says Blackstone, “when he entered into re-
ligion, might, like other dying men, make his testament
and executors; or, if he made none, the ordinary might
grant administration to his next of kin, as if he were ac-
* Dig. V. 5. 4. * Vol. ii. p. 8.
NATURAL PERSONS. 237
tually deceased intestate ".’ A somewhat similar loss of legal CHAP. xiv.
rights resulted also from attainder for treason or felony.
12. An illegitimate child is incapable of inheriting ‘ab IIlegiti-
intestato’ from an ascendant or collateral, because the law “
regards him as “nullius filius.” Under the French Code such
a child may however acquire a limited right of succession
if solemnly recognised by his parents, or one of them *.
13. Religious nonconformity has been an important cause Nonconſor-
of civil disability from the date of the imperial constitutions mity.
which are collected in the first book of the Code of Justinian,
down to the laws by which a Roman Catholic was disqualified
from owning a horse worth more than £5 in Ireland, and
or which rendered Jews incapable of holding land in
Roumania.
14. The gradual extension of the rights of ‘connubium 'Alienage.
and ‘commercium ” with Roman citizens to the neighbouring
Italian tribes is a well-known chapter of the history of
Roman law. The Act of 1870, by which aliens were allowed
to own freehold land in the United Kingdom, marks the last
step in the assimilation of their position, as far as private
law is concerned, with that of British subjects.
I5. The contracts of an alien enemy with a British subject Hostility.
made during the war are void, and his right to sue upon
other causes of action is suspended during the war.
The incapacity by English law of the witness to a will to
take a legacy under it, and of a husband or wife, as a rule,
to take by donation one from the other in Roman law, are
instances of restrictions placed upon persons occupying for
the time being certain relations to other persons, which from
the limited extent of their operation can hardly be said to
constitute a status.
* Comm. i. p. 132. * Art. 334.
CHAPTER XV.
PRIVATE LAW - ADJTECTIVE.
A REMEDIAL right is in itself a mere potentiality, deriving
all its value from the support which it can obtain from the
power of the State. The mode in which that support may
be secured, in order to the realisation of a remedial right, is
prescribed by that department of law which has been called
“adjective,’ because it exists only for the sake of ‘substantive
law', but is probably better known as ‘Procedure.” In the
exceptional cases in which an injured party is allowed to
redress his own wrong, Adjective law points out the limits
within which such self-help is permissible. In all other cases
it announces what steps must be taken in order duly to set in
motion the machinery of the law-courts for the benefit either
of a plaintiff or of a defendant.
Rules of procedure occupy so prominent a place in early
society, and furnish so much curious illustration of the history
of civilisation, that they have attracted a share of attention
perhaps in excess of their real importance. One might almost
suppose from the language of some writers that an elaborately
organised Procedure may precede a clear recognition of the
* Supra, pp. 61, Io?. See Bentham, Works, ii. p. 6.
NATURE OF THE TOPIC. 239
rights which it is intended to protect. It has been said that
law is concerned more with remedies than with rights. It
would be as reasonable to say that a field consists in its hedge
and ditch rather than in the space of land which these enclose.
In point of fact, a right must be recognised at least as soon
as, if not before, the moment when it is fenced round by
remedies. The true interest of the topic of Procedure is
derived, first, from the close connection which may be traced
between its earliest forms and the anarchy which preceded
them ", and secondly from the manner in which the tribunals
have contrived, from time to time, to effect changes in the
substance of the law itself, under cover of merely modifying
the methods by which it is enforced.
Adjective law, though it concerns primarily the rights
and acts of private litigants, touches closely on topics, such
as the organisation of Courts and the duties of judges and
sheriffs, which belong to public law. It comprises the rules
for (i) selecting the jurisdiction which has cognisance of the
matter in question ; (ii) ascertaining the Court which is
appropriate for the decision of the matter; (iii) setting in
motion the machinery of the Court so as to procure its deci-
sion; and (iv) setting in motion the physical force by which
the judgment of the Court is, in the last resort, to be rendered
effectual. These rules, like those of substantive law, are
primarily applicable to persons of the normal type, and only
with certain modifications to abnormal persons.
CHAP. XV.
Contents.
i. It is by no means the case that a remedial right is Jurisdic.
capable of being enforced everywhere. An English Court tion.
will for instance entertain an action for breach of contract
quite irrespectively of the place where it was made, or broken,
or in which the parties reside, but will not hear an application
for a divorce unless the parties are domiciled in the country,
nor would till recently try an action for trespass to land unless
the land were within the realm,
* See, for instance, Maine’s Early History of Institutions, lect. ix and x.
240 PRIVATE LAW - AIDJECTIVE.
CHAP. xv.
Court.
ii. It is also necessary that proceedings be taken in the
appropriate Court. Thus in England, even after the changes
introduced by the Judicature Act, it will usually be advisable
that an administration suit should be commenced in the
Chancery division, and a salvage suit in the Admiralty divi-
'sion, of the High Court of Justice. There are also matters
which can only be tried in one or other of the divisions of
that Court, and not in any inferior tribunal.
iii. The choice of the appropriate Court is a simple matter
compared with rightly setting its machinery in motion. In
this operation, which has been described by such phrases as
‘legis actio,’ ‘l’instance,” “la demande judiciaire,’ ‘action,”
‘suit,' ‘Verfahren, the following stages are usually distin-
guishable.
I. The summons, or citation, by which the plaintiff brings
the defendant into Court.
2. The pleadings, by which the plaintiff informs the Court
and the defendant of the nature of his claim, and the defen-
dant states the nature of his defence. The defence may be to
the effect that, even granting the truth of the plaintiff’s alle-
gations of fact, they are in law no ground for his claim
against the defendant, or it may consist in denying altogether
the facts alleged by the plaintiff, or in admitting them, but
alleging other facts, such as a release or the Statutes of Limita-
tion, which neutralise the effect which they would otherwise
have had. A defence of the last-mentioned kind was called
in Roman law an ‘exceptio, and in England a plea in ‘ confes-
sion and avoidance".’ A plea may be either ‘dilatory,” showing
that the right of action is not yet available, or ‘peremptory,’
showing that it is non-existent. The exchange of pleadings
continues till it is clear how much is admitted and how much
is denied on either side, and therefore what is precisely the
dispute between the parties. This process may be carried on
* “Comparatae sunt autem exceptiones defendendorum eorum gratia cum
The action.
Citation.
Pleadings.
quibus agitur : saepe enim accidit ut, licet insa actio qua actor experitur iusta
sit, tamen iniqua sit adversus eum cum quo agitur.” Inst, iv. 13.
PLEADINGS AND TRIAL. 241
orally in the presence of the Court, as under the new code of chap. xv.
Civil Procedure for the German Empire", or in writing or print,
as in England. When well managed it gives much scope for
dexterous intellectual fencing, but its tendency to over-subtlety
has been a fertile theme for legal critics from the time of
Gaius to that of Bentham”.
3. The trial, hearing, or “audience,’ at which each of the Trial.
parties endeavours to establish to the satisfaction of the
Court the truth of the view maintained by him of the
question at issue, whether it be one of law or one of fact ;
if of law, by citing authorities, if of fact, by adducing proofs.
Proofs may be either documentary or oral, and certain rules
exist in most systems with reference to their admissibility,
amounting in some systems to a body of law of no little
complexity. Such a ‘law of evidence' is more necessary Evidence.
when questions are tried by a jury than when they are de-
cided by a professionally trained judge. Its objects are on the
one hand, to limit the field of enquiry, by the doctrine that
certain classes of facts are already within the ‘judicial
notice’ of the Courts, and by ‘presumptions’ by which cer-
tain propositions are to be assumed to be sufficiently proved
when certain other propositions have been established, and
On the other hand, to exclude certain kinds of evidence as
having too remote a bearing on the issue, or as incapable of
being satisfactorily tested, or as coming from a suspicious
quarter. For the last-mentioned reason certain classes of
persons, or persons occupying certain relative positions, are
rendered incapable of being witnesses. There are also rules
regulating the right of the parties to appear in person, or to be
* Civilprocessordnung für das Deutsche Reich, § 119.
* The ‘legis actiones,’ says Gaius, gradually fell into disrepute, “namgue ex
nimia subtilitate veterum, qui tune iura condiderunt, eo res perducta est, ut
vel qui minimum errasset litem perderet ; iv. 30 ; and he gives the following
instance, ‘cum qui de vitibus succisis ita egisset ut in actione vites nominaret,
responsum est eum rem perdidisse, quia debuisset arbores nominare, eo quod
lex xii tabularum, ex qua de vitibus succisis actio competeret, generaliter de
arboribus succisis loqueretur;' ib. 11. Cf. Bentham, Works, ii. p. 14.
R
242 PRIVATE LAW - ADJECTIVE.
CHAP. xv. represented by advocates, and the order in which the parties
or their advocates may tender their evidence and address the
Court.
Judgment. 4. The judgment, by which the Court decides the question
in litigation. It may relate to a right to property, or
an ascertainment" or a dissolution * of status, or an affirma-
tion of the due execution of a legal act, or an award of
damages for a wrong, or an order for the performance or
non-performance of a certain act. **
Costs. The judgment usually charges upon the losing side the
‘costs to which the other party has been put in consequence
of the suit *.
Appeal. 5. The procedure on Appeal, when an Appeal is possible
and is resorted to by either party.
Execution. iv. Execution, whereby a successful party calls upon the
officers of the Court, or other appropriate State functionaries,
to use such force as may be necessary in order to carry the
judgment into effect. It may be remarked that a successful
defendant, except for the recovery of his costs, has obviously
no need of execution, and that execution of a judgment in
a civil cause is not ea officio, i. e. does not take place except on
the demand of a litigant party.
Extraneous Besides the original parties to an action, whose interests
** are directly involved in it, other persons may be brought
into it by the authority of the Court. In some actions,
which involve wider interests than those of the parties, notice
must be given to a State functionary, who may then inter-
vene in the proceedings on public grounds 4.
Default. A maximum interval may be fixed between each step in an
* E.g. on a declaration of nullity, or under the Legitimacy Declaration Act,
21 and 22 Vict. c. 93.
* On a decree of divorce. * Cf. Supra, p. 121.
* See Code de Procédure Civile, P.I.. liv. ii. tit. 4, De la Communication au
Ministère Public ; Gerichtsverfassungsgesetz für das Deutsche Reich, § 142;
Civilprocessordnung, § 568; and, as to the Queen's Proctor, 23 and 24 Vict.
C.. I 44. S. 5.
ABNORMAL A.DJECTIVE LAW. 243
action, on pain of a decision being given ‘in default’ against CHAP. xv.
the party who neglects to proceed in due course.
Adjective, no less than Substantive, law may be normal Abnormal
or abnormal: that is to say, artificial persons, and such Aºtive
varieties of natural persons as those considered in the pre-
ceding chapter, are in a different position with reference to
suing and being sued from that occupied by ordinary in-
dividuals. The modifications of the rules of procedure which
take place with a view to abormal personality are of a some-
what technical character, and it may be sufficient here to
refer, by way of illustration, to the rules of English law, that
an alien enemy has no ‘persona standi in iudicio,” that a
peer is privileged from arrest, as is a clergyman on his way
to or from the performance of divine service, that if one
of the parties in an action for a divorce be lunatic, the suit
may proceed notwithstanding his, or her, inability to plead,
and that a husband must be joined in an action against his
wife.
CHAPTER XVI.
PUBLIC L.A.W.
The char. ‘I CONSIDER,” says Lord Bacon, ‘that it is a true and received
acteristics . . . . iº g * ſº *
j." division of law into ius publicum and ius privatum, the one
law. being the sinews of property, and the other of government".’
The nature of the distinction has been already explained”. In
private law the State is indeed present, but it is present only
as arbiter of the rights and duties which exist between one of
its subjects and another. In public law the State is not only
arbiter, but is also one of the parties interested. The rights
and duties with which it deals concern itself of the one part
and its subjects of the other part, and this union in one per-
sonality of the attributes of judge and party has given rise
to the view, from which we have already expressed our dis-
sent, that the State, or as it is expressed, the Sovereign,
not only has no duties, but also has no rights properly so
called *.
The conception of public, as opposed to private, law is due
to the Romans, who say of it ‘ad statum rei Romanae spectat,’
* Preparation towards the Union of Laws, Works, vii. 731.
* Supra, p. 78. * Supra, p. 83.
CHAËACTERISTICS. 245
* in saeris, in sacerdotibus in magistratibus eonsistit *,' and, as OHAP. xvI.
a matter of faet, include in it also the law of crime. With
this extended meaning the phrase has been aecepted, and is
in daily use, in the legal speculation and praetice of the eon-
tinent of Europe, but unfortunately finds no equivalent in
our insular legal terminology. An English lawyer, when he
had been made to understand the idea, whieh to his foreign
colleagues is at onee rudimentary and indispensable, would
probably come to the eonclusion that it eovers the topics
which are recognised in this country as * Constitutional law,'
* Ecclesiastical law,' * Revenue law,' and * Pleas of the Crown.'
It is therefore somewhat remarkable that perhaps the most
masterly summary of the nature of publie law is to be found
in the writings of an English Lord Chancellor. * Ius Pri-
vatum,' says Lord Baeon, * sub tutela Iuris Publici latet. Lex
enim cavet civibus, magistratus legibus, magistratuum autem
authoritas pendet ex maiestate imperii et fabriea politiae et
legibus fundamentalibus. Quare si ex illa parte sanitas fuerit;
et recta eonstitutio, leges erunt in bono usu, sin minus, parum
in iis praesidii erit. Neque tamen Ius Publicum ad hoe
tantum speetat, ut addatur tanquam eustos Iuri Privato, ne
illud violetur atque ut eessent iniuriae, sed extenditur etiam
ad religionem et arma, et disciplinam et ornamenta et opes,
denique ad omnia circa Bene Esse civitatis *.'
The distinctions in aeeordance with which the field of Its parts.
private law has been divided and subdivided apply to .
publie law also. In the latter as well as in the former
we may detect a * substantive * body of principles adopted for
the general welfare, and * adjective* rules by which those
prineiples are safe-guarded and redueed to praetiee. The dis-
tinction between rights in rem and rights în perso^am is as
* Dig, i. I. I. 2. * Publicum ius est quod ad statum rei Romanae spectat,
privatum quod ad singulorum utilitatem. Sunt enim quaedam publica, utilia,
quaedam privatim.'
* Exemplum tractatus de Iustitia universali, Works, i. p. 8o4; cf. ib. vii.
p. 732.
246 PUBLIC LAW.
CHAP. XVI.
Classifica-
tion of its
topics.
clearly traceable in one department of law as in the other, as
is also that between rights ‘antecedent ' and “remedial,” and
that between rights ‘normal' and ‘abnormal.”
The last-mentioned distinction is indeed so strongly marked
in public law as to have led to a serious misconception as to
the nature of the whole subject. The reason is not far to
seek. Of the two persons who are constituent elements of
every right, one must always in public law be the State,
acting of course through its various functionaries. Now a
State is an artificial person, the often highly complex con-
struction of which introduces numerous complexities into the
rights of which it is one of the factors. Mr. Austin was so
struck with this characteristic of public law as to be led to
identify the whole subject with those rules which define the
different kinds of political status, and so to deny its separate
existence and to regard it merely as one branch of what he
calls the law of persons, but we prefer to describe as the law
of abnormal rights. He is thus a revolter, in the unwonted
company of Blackstone, against what, according to the Roman
and modern continental systems, is the primary division of
the field of law. Instead of attempting a detailed disproof of
a heresy which perhaps sufficiently refutes itself, by leading
its apologist to conclusions which he evidently feels to be
inconvenient, it may perhaps be sufficient to confront it with
what we conceive to be the true doctrine, namely that among
the distinctions which are traceable in public as well as in
private law, that between normal and abnormal rights is
among the most conspicuous.
It by no means follows from the same principles of division
being applicable both in public and in private law, that they
are most conveniently applied in the same order in the two
departments, or that their application produces in each case
similar results.
The correlation of the parts of public law one to another is
indeed far from being settled. It never attracted the attention
of the Roman lawyers, and has been very variously, and
ITS DEPARTMENTS. 247
somewhat loosely, treated by the jurists of modern Europe. CHAP. xvi.
The subject is indeed one which lends itself but reluctantly
to systematic exposition, and it is with some hesitation that
we propose to consider it under the heads of I, Constitutional
law; II, Administrative law; III, Criminal law; IV, Criminal
procedure; V, the law of the State considered in its quasi-
private personality; VI, the procedure relating to the State
as so considered".
The first four of these heads contain the topics which are Relations
most properly comprised in Public law. It would be possible, *.
though not convenient, to arrange these topics in accordance º:
with the classification adopted in Private law. If the attempt law.
were made, antecedent rights would have to be sought for in
Constitutional and Administrative and also in Criminal law ;
remedial rights in Criminal and also in Administrative law;
adjective law mainly in Criminal procedure; and abnormal
law mainly in Constitutional and Criminal law. The im-
portance of the last-mentioned topic is due, as already stated,
to the fact that, whereas in Private law both of the persons
concerned with any given right are, as a rule, perfectly
similar, and of that normal type which requires no special
investigation, the persons concerned in a Public-law right are
necessarily dissimilar, one of them being always that highly
abnormal person which is called a State. It may also be
remarked that the majority of the rights dealt with in Public
law are permanently enjoyed by the State as the person of
inherence against its subjects as the persons of incidence. In
Private law, on the contrary, he who is to-day the person of
inherence with reference to a right of any given description
may very probably become to-morrow the person of incidence
with reference to a precisely similar right, and vice versa.
The rules contained under the fifth and sixth heads of our
arrangement are rules of Public law, because they relate to
* It may be worth while to remark that what the Germans call “Staatsrecht’
deals with the topics into which we have analysed ‘Public law,' omitting
Nos. III. and IV.
248 PUBLIC L.A.W.
CHAP. XVI.
Constitu-
tional Law.
The
Sovereign
power.
Its factors.
the rights of the State; but they approximate closely to rules
of Private law, because they relate to the State merely as the
greatest of artificial persons, and not as governing, administer-
ing, or preserving order.
It is beyond the scope of the present treatise to attempt
more than a very brief indication of the topics included under
each of the six heads under which we have distributed the
matter of Public law.
I. The primary function of Constitutional law is to as-
certain the political centre of gravity of any given State. It
announces in what portion of the whole is to be found the
‘ internal sovereignty,’ ‘suprema potestas,’ ‘Staatsgewalt, or,
as Aristotle called it, Tô köptov Tſis TóAegos". In other words,
it defines the form of government.
The sovereign part of the State, as thus ascertained, is
omnipotent. Since it is the source of all law, its acts can
never be illegal. As little can they be, strictly speaking,
unconstitutional. The latter term is properly applied only to
characterise an act of an inferior political authority in excess
of its delegated powers. Thus a statute passed by the Congress
of the United States may be unconstitutional, because the
sovereign people has empowered the President and Congress
to legislate only subject to certain reservations, and has en-
trusted to a Supreme Court the duty of deciding whether any
given enactment is or is not made in pursuance of the re-
stricted powers thus delegated ; but the authority of the Queen,
Lords, and Commons in England is fettered by no such
limitation. An act is, strictly speaking, never unconstitu-
tional unless it is also illegal, and can never be either if it is
the act of the sovereign power. Only in a lax sense of the
term is it permissible to describe as unconstitutional acts
of the sovereign power which run counter to the expecta-
tions and political usage of the inhabitants of a country.
The definition of the sovereign power in a State necessarily
* Polit. iii. Io; cf. Supra, p. 39.
CONSTITUTIONAL LAW. 249
leads to the consideration of its component parts. The dis-CHAP. xvi.
tinction between legislative, executive, and judicial functions is
as old as Aristotle *; but it was left for Montesquieu to point
out the importance of these several functions being discharged
by distinct groups of persons”. With reference to all these
questions constitutional law enters into minute detail. It
prescribes the order of succession to the throne ; or, in a
Republic, the mode of electing a President. It enumerates
the ‘prerogatives’ of the king, or other chief magistrate. It
regulates the composition of the Council of State, and of the
Upper and Lower Houses of the Assembly, when the Assembly
is thus divided; the mode in which a seat is acquired in the
Upper House, whether by succession, by nomination, or by
tenure of office ; the mode of electing the members of the
house of representatives; the powers and privileges of the
assembly as a whole, and of the individuals who compose it ;
and the machinery of law-making. It deals also with the
ministers, their responsibility and their respective spheres of
action ; the government offices and their organisation ; the
armed forces of the State, their control and the mode in which
they are recruited; the relation, if any, between Church and
State; the judges and their immunities; local self-govern-
ment; the relations between the mother-country and its
colonies and dependencies. It describes the portions of the
earth's surface over which the sovereignty of the State extends,
and defines the persons who are subject to its authority. It
comprises therefore rules for the ascertainment of nationality 9,
and for regulating the acquisition of a new nationality by
‘naturalisation.” It declares the rights of the State over its
subjects in respect of their liability to military conscription,
to service as jurymen, and otherwise. It declares, on the
other hand, the rights of the subjects to be assisted and
* Polit. iv. II. I. * Esprit, xi. c. 6.
* M. Cogordan, La Nationalité, p. 2, points out the recent origin of this
term, and that it appears in the Dictionnaire de l'Académie française for the
first time in 1835.
250 PUBLIC L.A.W.
protected by the State, and of that narrower class of subjects
which enjoys full civic rights to hold public offices and to
elect their representatives to the Assembly, or Parliament, of
the Nation. Among the circumstances which may disqualify
a subject for citizenship are minority, infamy, heresy, colour,
lack of settled abode, insufficiency of income, and also sex, for
in spite of the tendency of modern thought upon this subject,
there are still those who say, die Politik ist Sache des
Mannes 1.”
A constitution has been well defined as ‘l’ensemble des
institutions et des lois fondamentales, destinées à régler
l'action de l'administration et de tous les citoyens”. It is
often, as in England, an unwritten body of custom, though,
since the assertion of the ‘rights of man' which preceded
the French Revolution, the written enactment of such fun-
damental principles has been not uncommon, as well on the
European continent as in America. A written constitution
usually contains provisions which make innovation less easy
than in the case of customary constitutions, such as that of
England, any part of which may be modified by an ordinary
act of Parliament *.
The contents of the constitutional branch of law may be
illustrated by reference to a draft piece of legislation, which
enters far more into detail than is usual in such undertak-
ings. The Political Code of the State of New York purports
to be divided into four parts, whereof ‘The first declares what
persons compose the people of the State, and the political
rights and duties of all persons subject to its jurisdiction:
the second defines the territory of the State and its civil
divisions: the third relates to the general government of the
State, the functions of its public officers, its public ways, its
general police and civil polity: the fourth relates to the local
government of counties, cities, towns, and villages.” The
Code begins with an announcement that ‘the sovereignty
CHAP. XVI.
* Bluntschli, Die Lehre vom Modernen Staat, i. p. 246.
* Ahrens, Cours, ii. p. 38o. * Ib. p. 381.
ADMINISTRATIVE LAW. 251
of the State resides in the people thereof,” and the people CHAP. xvi.
is said to consist—‘I. of citizens who are electors ; 2. of
citizens not electors.”
II. The various organs of the sovereign power are described Admini-
by constitutional law as at rest ; but it is also necessary that º
they should be considered as in motion, and that the manner
of their activity should be prescribed in detail. The branch
of the law which does this is called Administrative law,
‘Verwaltungsrecht, in the widest sense of the term. In
this sense administration has been defined as ‘the exercise of
political powers within the limits of the constitution *, as ‘the
total concrete and manifoldly changing activity of the State
in particular cases *, and as ‘the functions, or the activity, of
the sovereign power”.’
Different views are taken as to the topics which are included Its widest
under this very wide conception. It may fairly be said to ”
include the making and promulgation of laws, the action of the
government in guiding the State as a whole, the administra-
tion of justice, the management of the property and business
transactions of the State, and the working in detail, by means
of subordinates entrusted with a certain amount of discretion,
of the complex machinery by which the State provides at once
for its own existence and for the general welfare.
Administrative law, as thus conceived of, is not a coherent Its more
body of doctrine, and it is convenient so to specialise the use º
of the term as to apply it only to two of the five above-
mentioned topics. Of the rest, legislation and executive
government are more fitly treated of under those chapters of
Constitutional law which deal with the legislature and the
sovereign ; the rules for the administration of justice must
be sought, so far as they provide for the organisation of the
courts, under Constitutional law, so far as they govern civil
procedure, under Adjective Private law, and so far as they
* Ahrens, Cours, ii. p. 38o. * Bluntschli, u, S. iii. p. 465.
* Putter, apud Holzendorff, Encyclopädie, p. 695.
252 PUBLIC LAW.
CHAP. xvi. govern crimes and criminal procedure, under those heads of
Public law, namely the third and fourth, which we devote
specifically to those topics; while the law relating to the
State property and its business transactions would be found
in the fifth and sixth of our heads of public law.
Its func- Administrative law, in the specific sense of the term, which
tions. is identical with that in which some German writers employ
the term ‘Polizei,’ deals with such topics as the following:—
Revenue. i. The collection of the Revenue.
Armed ii. The recruitment, equipment, and control of the Army
forces and Navy; Ship-building and Fortifications.
Depend- iii. The government of Colonies and Dependencies.
ºil. iv. The collection of statistics; the registration of births,
deaths, and marriages (‘6tat civil’) and of conveyances and
mortgages of land; the custody of wills; the naturalisation
of aliens; the granting of charters to corporations.
Material v. The promotion of the material welfare of all the in-
welfare.
dividuals of whom the State is composed, either by the
prevention of evil or the production of good. Among the
operations carried on by State functionaries for this purpose
are the following :-
I. Measures of sanitary precaution, such as the organisa-
tion of drainage, the inspection and even destruction of
unhealthy dwellings, the regulation of dangerous undertak-
ings, such as mining, and of unwholesome trades; the in-
spection of ships; the prevention of the employment of
women or children in certain occupations, or for more than
a certain number of hours; quarantine ; vaccination; the
supply of pure water; the prevention of the adulteration of
articles of food and drink.
2. The regular working of a poor-law, or the exceptional
working of relief works and doles in time of famine.
3. The visitation of lunatic asylums and nunneries.
4. The protection of the coinage and the inspection of
weights and measures.
ADMINISTRATIVE LAW. 253
5. The supervision of professions and trades. CHAP. XVI.
6. The collection of information as to foreign commerce;
the supervision of banks, insurance societies, and companies
generally.
7. The Supervision of roads, railways, canals, telegraphs, and
posts.
8. The maintenance of lighthouses, harbours, sea-walls, and
dykes.
9. The preservation of order, the detection of crime, and
the management of prisons.
vi. The promotion of the intellectual and moral welfare of Moral
the public generally, by such measures as:— welfare.
I. The organisation of schools, and the sustentation of
museums and libraries.
2. The prevention of Sunday trading, the supervision of
places of amusement, and the licensing of plays.
It must be remembered that much of this work, except in Self go-
very highly centralised States, is entrusted to local authorities, vernment.
often to the same authorities who also exercise an inferior
criminal jurisdiction.
Tisputed questions of administrative law, or cases of refusal Admini-
to comply with its rules, are in England usually in minor †.
matters brought before a justice of the peace. More serious *
questions are tried either in the criminal courts, or, when they
relate to liability arising under the Revenue law, before the
Exchequer division of the High Court. But it is maintained
by some writers that such questions should be decided by
special tribunals, which have accordingly been instituted in
Some countries. An appellate “Verwaltungsgerichtshof” was,
for instance, established in 1863 for the Grand Duchy of
Baden. A mixed court of a similar character was created in
1847 in Prussia, and the ‘conseil d’état 'performs the functions
of such a court in France. The discipline of the Army and
Navy is everywhere maintained by those special tribunals
called ‘courts-martial.”
254 . PUBLIC LAW.
CHAP. XVI.
Criminal
Law.
III. Perhaps the most important of the functions of the
State is that which it discharges as the guardian of order;
preventing and punishing all injuries to itself, and all dis-
obedience to the rules which it has laid down for the common
welfare. In defining the orbit of its rights in this respect,
the State usually proceeds by an enumeration of the acts
which infringe upon them, coupled with an intimation of the
penalty to which any one committing such acts will be
liable. The branch of law which contains the rules upon
this subject is accordingly described as ‘Criminal law,’ ‘Droit
pénal,’ ‘Strafrecht.”
It is comparatively modern. The early tendency was to
punish offences against the sovereign power by an exceptional
executive or legislative act, and to treat offences against
individuals, even when, like theft and homicide, they were
a serious menace to the general welfare, as merely civil
injuries to be compensated for by damages. The law of
Rome continued to the last to treat as civil delicts acts
which would now be regarded exclusively as crimes, although,
by a long course of unsystematic legislation, it had also
attached penal consequences to some of them. The merely
practical and disorderly character of the criminal law which
is preserved, for instance, in the ninth books of the Codes of
Theodosius and Justinian is readily explicable. The pre-
rogative of punishment, exercised in early times by the king
and the ‘comitia centuriata' and in later times shared by the
senate, was usually delegated in each case to a magistrate or
body of commissioners. The series of statutes by which
standing delegacies, ‘quaestiones perpetuae,’ were instituted
for the trial of offences of particular kinds, whenever they
might be committed, commences with the lex Calpurnia,
B.C. I49, and was continued till a number of courses of
conduct had been from time to time branded as criminal".
The legislation of the emperors, though it superseded the
‘ quaestiones’ by the simpler procedure of the ‘iudicia ex-
Its modern
origin.
1. Cf. Maine, Ancient Law, ch. x.
CRIMINAL LAW. 255
traordinaria,’ followed the lines of the old criminal statutes, CHAP. xvi.
and produced a body of rules large indeed but formless,
and owing hardly anything to the great men whose wisdom
had interpenetrated every doctrine of private law. The
Teutonic view of even violent wrongs resembled the early
Roman, in regarding them as concerning almost exclusively
the person injured, to whom therefore atonement was to be
5
made by way of damages, ‘compositio.” When the idea began
to be clearly grasped by the Germans that wrong-doing might
injure not merely the individual, but also the State itself, they
found little assistance towards formulating it in the legal
system to which they were most accustomed to turn for
guidance. The criminal law of Rome, deeply tinged as it
was with national idiosyncrasies, had never been prepared
by juristic exposition for more general usefulness. Original
legislation was therefore necessary, and the first attempt was
made in the ‘Constitutio Criminalis Carolina,’ of the Emperor
Charles V. This attempt to provide a criminal law for the
whole Empire lost much of its importance from the com-
pilation of national codes for Bavaria, Austria, and many
other German States during the latter half of the eighteenth
century, but was the forerunner of the penal code for all
Germany, ‘Strafgesetzbuch für das Deutsche Reich,’ which
came into operation in 1872. Of the other great criminal
codes now in force, the ‘Code pénal' became law for France
in 1810, and has been imitated by the Latin races of the
continent ; while the penal code for British India which was
drafted in 1834 by Lord Macaulay was promulgated in 1860.
In the mean time the whole theory of punishment and of
the classification of offences has been thoroughly discussed
by such men as Beccaria, Bentham, Feuerbach and Mitter-
maier; and the criminal branch of public law may now be
said to be divided upon recognised principles, and to possess
a terminology, though a somewhat loose one, of its own.
It is divided into a body of substantive criminal law and
a body of criminal procedure. The former, with which alone
256 PUBLIC LAW.
CHAP. xvi. we are concerned at present, consists of two parts, a general
and a particular.
i. The more general part deals with such topics as the
following: the nature of a criminal act ; the responsibility of
the wrong-doer on the ground of intention or negligence 4;
facts which negative responsibility, such as tender age, com-
pulsion, idiocy, lunacy or drunkenness; facts which may
justify an act otherwise criminal, such as the consent of the
party injured, self-defence, lawful authority or the public
welfare; the list of punishments, such as death, banishment,
imprisonment, hard labour, whipping, loss of civic rights,
liability to police supervision, or pecuniary fine; the period
of time, if any, which will be a bar to criminal prosecution *;
the aiding and abetting of crime; criminal attempts; cumu-
lative punishments. Here also we expect to find those dis-
tinctions between different grades of crime which occur in
almost all systems. The distinction drawn by English law
between “felonies’ and ‘misdemeanours” is as familiar as it
has become unmeaning. The French Code opens with a
threefold classification of wrongful acts into ‘contraventions,’
‘ délits, and ‘crimes,’ according to their being respectively
punishable by ‘peines de police,’ ‘peines correctionelles,” or
‘peines afflictives ou infamantes;’ and the German Code draws
a similar distinction between “Uebertretung,' ‘Vergehem,’ and
‘Verbrechen.’ The Criminal Code Bill now before Parliament
recognises only the distinction between indictable offences
and others, expressly abolishing that between felonies and
misdemeanours.
To the introductory portion of a Crimiual Code belong also
provisions as to the relation of the prosecution of an offence
to the recovery in a civil action of damages for the injury
caused by it to an individual. Such is the rule of English
* Cf. Supra, pp. 72, 97.
* E. g. Code d’Instruction Crim. art. 637; Strafgesetzbuch, art. 65. In
Its general
part.
Fngland the rule “nullum tempus occurrit regi’ still holds good, except in so
far as it has been derogated from by statute. .
CRIMINAL LAW. - 257
law that the civil remedy for a wrong which also amounts CHAP. xvi.
to a felony is suspended till the felon has been convicted,
and such is the article of the Code pénal which declares
that “la condemnation aux peines établies par la loi est
toujours prononcée Sans préjudice des restitutions et dom-
mages-intérêts qui peuvent étre dus aux parties'.”
ii. The special part contains a classification of criminal Its special
acts, and specific provisions with regard to the penal con- part.
sequences of each.
Such acts may be, in the first place, distinguished into The list of
offences committed directly against the State, or community offences.
generally, and offences the mischief of which is primarily
directed against particular individuals.
The State, or community generally, is injured by:—
I. Acts tending to interrupt its friendly relations with
foreign powers; whence the enactments against ‘foreign
enlistment,’ and against compassing the death of foreign
sovereigns.
2. Acts tending to the subversion of the government,
such as assassination of princes, rebellion, and similar acts
of High Treason.
3. Acts tending to the subversion of the liberties of the
subject”.
4. Riots and other offences against public order and
tranquillity.
5. Abuse of official position.
6. Resistance or disobedience to lawful authority.
7. Obstruction to the course of justice by perjury, or
falsification of documents, or rescue or harbouring of offenders.
8. Omission to give information, or giving false informa-
tion, as to births, deaths, and similar matters, included by
the French under the phrase ‘6tat civil.”
9. Offences relating to the coinage, or to weights and
IY) 623;SUl]'éS.
* Art, Io. * Cf. Code Pénal, tit, i. ch. ii.
258 & PUBLIC L.A.W.
‘CHAP. XVI,
Io. Acts offensive to religious feeling.
II. Acts injurious to public morality, such as bigamy, and,
under some systems", adultery.
12. Acts injurious to the public health, such as neglect of
vaccination, and various forms of nuisance.
Many wrongful acts, affecting primarily individuals, and
therefore giving rise to remedial rights in private law, are
also so harmful to society as to be punished by it as crimes”.
They may perhaps be classified under the following heads:—
I. Violence to the person, in its various kinds and degrees
of homicide, wounding, rape, assault, or imprisonment.
2. Defamation of character, sometimes justifiable when
shown to be true and for the public benefit.
3. Offences against family rights, such as abduction of
children.
4. Offences against possession and ownership, such as theft
and arson, or other wilful destruction of property.
5. Certain breaches of contract of a kind likely to cause
social inconvenience.
6. Fraudulent misrepresentations and swindling.
It may be remarked that offences against the property of
the State are often assimilated to offences against that of
individuals; and, in many instances, particular kinds of
State property are, for the purposes of the criminal law,
vested by statute in certain State functionaries”.
TV. Adjective criminal law, “Penal procedure,” “Instruction
criminelle,’ ‘Strafprocess,’ is the body of rules whereby the
machinery of the Courts is set in motion for the punishment
of offenders.
Criminal
procedure.
* Code Pénal, art. 337; Strafgesetzbuch, art. I 71 ; Indian Penal Code,
art. 497.
* Supra, pp. 217, 219.
* Thus by 7 W. IV and I Vict. c. 36. s. 40 articles sent by post are, for the
purposes of the Act, made the property of the Postmaster-General. It would
have been sufficient, and in accordance with fact, to declare that such articles
are in his possession.
CRIMINAL PROCEDURE. 259
It consists usually of two species; a simpler, ‘peines de chap. xvi.
police,’ ‘summary convictions,’ applicable, unless with the
consent of the accused, only to trifling transgressions; and
a more solemn, for the trial of serious crimes.
Each of these consists of several stages, having a strong
resemblance to the stages of procedure in private law . In
the more solemn procedure we may distinguish :-
i. The choice of the proper jurisdiction. Jurisdic-
tion.
ii. The choice of the proper Court. -- Court.
iii. The procedure proper, consisting of- Procedure.
I. The summons, by which the accused is called upon, or
the warrant, under which he is compelled, to appear to
answer the charge.
2. The preliminary investigation, terminating in the dis-
charge of the accused, or in his being committed for trial.
3. The measures ensuring that the accused shall be forth-
coming for trial, viz. either imprisonment or security given
by himself or his friends.
4. The pleadings, by which on the one hand the prosecu-
tion informs the Court and the accused of the nature of the
charge against him, and, on the other hand, the accused
states the nature of his defence.
5. The trial, conducted on a prescribed plan and in ac-
cordance with rules of evidence which differ in certain
respects from those which prevail in civil suits *.
6. The verdict and judgment.
7. The procedure on appeal, so far as an appeal is per-
missible.
iv. Execution, which is carried out by the functionary to Execution.
whom the force of the State is entrusted for the purpose.
The bringing of criminals to justice may be confided, as Public
it generally is on the continent, to a ‘ministère public,’ prosecutor.
‘Staatsanwaltschaft, or left as it generally has been in
* Supra, p. 239. * Supra, p. 241.
S 2.
260 PUBLIC LAW.
CHAP. XVI.
Taw of the
State as a
juristic
person.
England, and was at Rome, to the industry of the injured
individual'.
V. Besides its rights and duties as the guardian of order,
in which respect little analogy can be remarked to anything
in private law, the State as a great juristic person enjoys many
quasi-rights against individuals, as well strangers as subjects,
and is liable to many quasi-duties in their favour. These
rights and duties closely resemble those which private law
recognises as subsisting between one individual and another.
The State, irrespectively of the so-called ‘eminent domain '
which it enjoys over all the lands forming its territory, is
usually a great landed proprietor; and in respect of its land
is entitled to servitudes over the estates of individuals, and
subject to servitudes for the benefit of such estates. It owns
buildings of all sorts, from the palace to the police-station,
and a large amount of personal property, from pictures by
Titian and Tintoretto to cloth for making the prison dress of
convicts. It carries on gigantic manufacturing undertakings,
lends and borrows money, issues promissory notes, and
generally enters into all kinds of contracts. It necessarily
acts by means of agents, who may exceed their powers or
act fraudulently. Its servants may wilfully or negligently
cause damage to individuals. It may become a mortgagee,
and in many cases allows itself a tacit hypothec by way of
security for what is owed to it. It is capable of taking
under a will, and succeeds ab intestato to all those who die
without leaving heirs. Its rights and liabilities under many
of these heads are different from those of individuals, or
even of private artificial persons, especially with reference
to liability for injuries done by its servants, and as to the
* A Roman form of indictment is preserved in the following fragment of
Paulus: “Consul et dies, apud illum praetorem vel proconsulem, Lucius Titius
professus est Se Maeviam lege Iulia de adulteriis ream deferre, quod dicat eam
cum Gaio Seio, in civitate illa, domo illius, mense illo, consulibus illis, adul-
terium commisisse.” Dig. xlviii. 2. 3. The office of ‘T)irector of Public
Prosecutions’ has been established in England by 42 and 43 Vict, c. 22.
QUASI-PRIVATE. 261
barring of its rights by prescription, though here the modern CHAP. xvi.
tendency is to modify the strictness of the old rule that
‘ nullum tempus occurrit regi.’
VI. The substantive law affecting the State as a quasi- Law of
private juristic personality is supplemented by a body of Procedure.
adjective rules, prescribing the mode in which the State, as
such a personality, may sue or be sued. The procedure thus
provided is not, it may be remarked, as in private law,
similar for both parties, but varies according as the party
plaintiff or defendant is the State or a private individual.
In other words, the procedure, as compared with the ordinary
procedure between individuals, is always abnormal; and its
abnormity takes different forms when the sovereign takes
proceedings against one of his subjects, or a subject takes
proceedings against his sovereign. The reason, of course,
being that the litigation is between the sovereign, who is
the source of all right, and the subject, whose rights are
wholly dependent on the will of the sovereign.
The character of this procedure varies considerably in
different countries.
In England the old common law methods of getting Against
redress from the Crown are by ‘pétition de droit’ and the sate.
‘monstrans le droit,” in the Court of Chancery or the Court
of Exchequer, and in some cases by proceedings in Chancery
against the Attorney-General. It has recently been provided
by statute' that a petition of right may be entitled in any
one of the superior Courts in which the subject-matter of
the petition would have been cognisable, if the same had
been a matter in dispute between subject and subject, and
that it shall be left with the Secretary of State for the
Home Department, for her Majesty’s consideration, who, if
she shall think fit, may grant her fiat that right be done,
whereupon an answer, plea, or demurrer shall be made on
behalf of the Crown, and the subsequent proceedings be
* 23 and 24 Vict, c. 34. See Tobin v. The Queen, 16 C. B., N.S. 3 Io.
262 -- PUBLIC LAW,
assimilated as far as practicable to the course of an ordinary
action. It is also provided that costs shall be payable both
to and by the Crown, subject to the same rules, so far as
practicable, as obtain in proceedings between subject and
subject.
The Crown may obtain redress against its subjects by
such common law actions as are consistent with the royal
prerogative and dignity; but much easier and more effectual
remedies are usually obtained by such prerogative modes of
process as are peculiarly confined to it *, such as an ‘inquest
of office,’ a ‘writ of extent,’ a ‘writ of scire facias,” or an
‘information exhibited by the Attorney-General in the Ex-
chequer Division of the High Court. The old exemption of
the Crown from the payment of costs in proceedings with
subjects has been nearly abolished by a succession of statutes.
CHAP. XVI.
By the
State.
* Blackstone, 3 Com. 258.
CHAPTER XVII.
iNTERNATIONAL LAW.
THE body of rules regulating those rights in which both The nature
of the personal factors are States" is loosely called ‘the Law :
of Nations,’ but more appropriately ‘Ius inter gentes,” or law.
* International Law 4.’
It differs from ordinary law in being unsupported by the
authority of a State. It differs from ordinary morality in
being a rule for States and not for individuals. -
It is the vanishing point of Jurisprudence ; since it lacks
any arbiter of disputed questions, save public opinion, beyond
and above the disputant parties themselves, and since, in
proportion as it tends to become assimilated to true law by
the aggregation of States into a larger society, it ceases to be
* Supra, p. 78.
* The former of these names is due to the Oxford Professor, Richard Zouch,
1650; the latter to Jeremy Bentham, who uses it in the Principles of Morals
and Legislation, first published in 1789, as appropriate to the ‘mutual transac-
tions of sovereigns as such ; ” adding in a note: ‘the word international, it
must be acknowledged, is a new one; though, it is hoped, sufficiently analogous
and intelligible. It is calculated to express, in a more significant way, the
branch of law which goes commonly under the name of the law of nations.”
264 INTERNATIONAL LAW.
itself, and is transmuted into the public law of a federal
government. The realisation of the ‘civitas magna’ of which
theorists have dreamed would thus be not the triumph, but
the extinction, of International law, which can subsist only
between States which, on the one hand, sufficiently resemble
one another, and are closely enough knit together by common
interests, to be susceptible of a uniform pressure of public
opinion, while, on the other hand, they are not so politically
combined as to be controlled by the force of a central
authority. These conditions of political independence and
social sympathy have been twice realised in the history of the
world. Very imperfectly, between the various cities of Hellas,
which accordingly acknowledged, as in some degree obligatory
on all, Tå kolvå Töv ‘EAAjvov vöuipa". More fully between
the States of modern Christendom, no one of which would
venture at the present day expressly to repudiate the duty
of conforming to the precepts of International law in its
dealings with the rest. -
Just as what is not very conveniently termed ‘Municipal”
law is recognised as supreme over all questions of private
or public right arising within the jurisdiction of any given
State”, so it is conceded that ‘International law,” so far as its
doctrines have been generally received, is decisive of all ques-
tions which arise between one State and another. Its true
nature and functions have never been better described than
in the following passage, in which they were for the first
time rationally set forth in the early years of the seventeenth
century. ‘Ratio autem huius partis iuris est,’ says Suarez,
* quia humanum genus, quantumvis in varios populos et regna
divisum, semper habet aliquam unitatem, non solum speci-
ficam, sed etiam quasi politicam et moralem, quam indicat
CHAP. XVII.
* Thuc. iii. 59.
* Cf. Supra, p. 79. Bentham, Principles of Morals and Legislation, ch. xvii,
is mistaken in supposing Blackstone to have been the first to use ‘municipal’
as equivalent to ‘national' or ‘internal” law; a sense of the term which was
well established at least as early as the sixteenth century.
AN ALOGY TO PRIVATE LAW. 265
naturale praeceptum mutui amoris et misericordiae quod ad CHAP. XVII.
omnes extenditur, etiam extraneos et cuiuscunque rationis.
Quapropter licet unaquaeque civitas perfecta respublica, aut
regnum, sit in se communitas perfecta et suis membris con-
stans, nihilominus quaelibet illarum est etiam membrum
aliquo modo huius universi, prout ad genus humanum spectat
. . . hac ergo ratione indigent aliquo iure quo dirigantur et
reete ordinentur, in hoe genere communicationis et societatis.
It quamvis magna ex parte hoc fiat per rationem naturalem,
non tamen sufficienter et immediate quoad omnia, ideoque
aliqua specialia iura potuerunt usu earum gentium intro-
duci 1.’
Although, as being concerned with the relations of States,
‘ international' is said to be a department of public law, its
analogies are rather to the private than to the public branch
of law municipal. The reason being that, while in public
(municipal) law the personal factors in a right are always dis-
similar, in international, as in private, law they are always
similar. Just as the parties in private law are two individuals,
so in international law are they two States. Much confusion
is occasioned by authors who, failing to grasp this essential
characteristic of International law, speak of sovereigns and
ambassadors as ‘international persons,” or treat of States as
capable of having international relations with individuals ;
regarding, for instance, the seizure of a blockade-runner as
an exercise of authority by a belligerent State over a neutral
subject.
Hence it is that the topics of this science may be most
conveniently grouped in general accordance with the principles
of division which were originally discovered by the analysis of
private law. There is a ‘substantive and an “adjective’ law
of nations: the persons governed by this law may be ‘normal’
or abnormal;’ and their rights may be ‘antecedent’ or ‘re-
medial,’ in rem or in personam.
* De lege et Deo legislatore, ii. c. xix. § 9.
266 INTERNATIONAL LAW,
CHAP. XVII,
Classifica-
tion of
topics.
Inter-
national
persons.
A distribution of the subject upon these lines, rather than
in accordance with the method which, originated by Klüber,
has since become traditional, especially on the other side
of the Atlantic, has been elsewhere advocated by the author
in the following terms:—‘The law of nations is but private
law “writ large.” It is an application to political commu-
nities of those legal ideas which were originally applied to the
relations of individuals. Its leading distinctions are therefore
naturally those with which private law has long ago ren-
dered us familiar. In international, as in private law, we
are concerned with the Persons for whose sake rights are
recognised; with the Rights thus recognised; and with the
Protection by which those rights are made effective. We
have a law of Persons; a Substantive law which sets forth
and explains the rights of those persons; and an Adjective
law, which describes the procedure by which redress is to be
obtained when those rights are violated. The international
law of persons consists of an investigation into the nature
of a sovereign State and of the deviations from it. The sub-
stantive law of nations enquires into the character, origin,
and termination of the rights which States may enjoy; while
the adjective law of nations describes the procedure by which
redress is obtained for international wrong-doing. This last-
mentioned department is subdivided into the law which regu-
lates the relations of the belligerents to one another, and the
law which regulates the relations of each belligerent with
States which take no part in the war. The whole science is
thus divisible into four great chapters, which may be shortly
described as treating respectively of international Status; of
Peace; of Belligerency; and of Neutrality".”
I. The Persons known to International law are States.
The normal international person is a State which not only
* From an Oxford lecture, which appeared under the title ‘Les Débats
diplomatiques récents dans leur rapport avec le Systemè du Droit inter-
national,’ in the Revue de Droit International for 1878, p. 167.
INTERNATIONAL PERSONS. 267
enjoys full external sovereignty, but is also a recognised CHAP. XVII.
member of the family of nations. States which vary from
this type either by being defective in sovereignty, or by
having no place in the family of nations, are abnormal
international persons.
The characteristics of a State, as distinguished from non-Normal
political societies, have been necessarily touched upon in an iºnal
earlier chapter; where also will be found an explanation
of the differences between a State which possesses full ‘ex-
ternal sovereignty and one which is “mi-souverain,’ ‘pro-
tected,” or otherwise dependent on another'. “The family
nations’ is an aggregate of States which as the result of their
historical antecedents have inherited a common civilisation,
and are at a similar level of moral and political opinion. The
term may be said to include the Christian nations of Europe
and their offshoots in America, with the addition of the
Ottoman Empire, which was declared by the treaty of Paris
of 1856 to be admitted to the ‘concert Européen.” Within
this charmed circle, according to the theory of International
law, all States are equal. Without it, no State, be it as
powerful and as civilised as China or Japan, can be regarded
as a normal international person.
The topics of semi-sovereignty and protection present con-
siderable analogies to those of infancy, coverture, and tutelage
in Private law. It may also be remarked that as individual
human beings are born, attain the age of majority, and die,
so States come into existence, obtain full international recog-
nition, and cease to be.
A new State arises either : Originally, where no State §. of
existed previously, a case now necessarily of infrequent occur- "
rence; or derivatively, by separation from a previously existing
State, and this either by agreement with the older State, or
against its wishes. It is in the last-mentioned case that other
nations often feel a difficulty in deciding upon the reception
which should be given to the new claimant for national
* Supra, p. 39.
268 INTERNATIONAL LAW.
CHAP. XVII.
honours. In any case the existence of the new State is,
according to the strict theory of International law, a matter
of fact which is wholly independent of foreign recognition.
Termina-
tion.
Ante-
cedent in-
ternational
rights.
“In rem.”
The question at what moment a State ceases to exist is
the same with the enquiry as to what constitutes its identity.
The identity of a State is admittedly not affected by any
change of constitution or dynasty, or diminution or extension
of territory, but only by the merger of one State in another,
as when Poland was divided between the neighbouring Powers,
or by such a dissolution of the political bond as has happened
in the case of the Jews.
II. The rights of a State, like those of an individual, are
‘ antecedent,’ as subsisting independently of any wrong-doing,
or “remedial,” as given.by way of compensation for an injury
sustained ". Rights of the former class may be available
either, in rem, against all other States, or in personam, against
a given State only; while rights of the latter class are avail-
able exclusively in personam.
i. Antecedent international rights in rem, i.e. those which
do not result from wrong-doing, and are enjoyed by a State
as against all others, present many analogies to the corre-
sponding topics of Private law 4. They may be classified as
having reference to (1) Safety; (2) Reputation; (3) Ownership;
(4) Jurisdiction; and (5) the protection of subjects in foreign
countries. Other classes of rights are mentioned in some
books upon International law “, which, if they ought to be
treated as separate heads of right at all, would be species of
rights in rem. Such are the so-called rights of Equality,
of Legation, and of Negotiation and Treaty-making; which
according to our system should be rather discussed under the
law of international status, being, as they are, mere corollaries
from the conception of a Sovereign State as an artificial
person.
* Cf. Supra, p. 93. * Supra, p. Io9.
* Klüber, Droit des gens moderne ; Wheaton, Elements.
ANTECEDENT RIGHTS. 269
(1) The right of a State to exist in safety calls for no CHAP. xvii.
remark.
(2) Of the right to a good name, it has been well said that
‘the glory of a nation is intimately connected with its power,
of which it is a considerable part. It is this distinction which
attracts to it the consideration of other peoples, which makes
it respectable in the eyes of its neighbours. A nation the
reputation of which is well established, and especially one the
glory of which is striking, finds itself sought by all sovereigns.
They desire its friendship and fear to offend it. Its friends,
and those who wish to become such, favour its enterprises,
and its detractors do not venture to show their ill-will 4.’
(3) International ownership, ‘Dominium,’ though it applies
to property of all kinds, is chiefly important with reference
to the “territory,’ which is, according to modern conceptions,
essential to the existence of a State. In a territory, “univer-
sitas agrorum intra fines cuiusque civitatis”,” are comprised
the rivers which flow through it, and the ports and harbours,
creeks and bays, by which its coasts are indented. The
ownership of it may be acquired originally, or derivatively.
In the former case, by ‘occupatio rei nullius *,’ by accessio 4,”
and possibly by “acquisitive prescription *;’ and here difficult
questions may arise as to the extent of the acquisition, for
the solution of which distinctions are drawn between ‘agri
limitati,’ ‘agri adsignati per universitatem,’ and ‘agri
arcifinii.” In the latter case", by cession, succession, or
conquest.
Besides the ‘dominium ” which a State enjoys of its own
territory, it may also have rights over the territories of its
neighbours. Such ‘iura in re aliena 7” may be in the nature
of feudal superiority, mortgage, or servitude.
(4) The right of Jurisdiction, ‘Imperium,' is intimately
connected with that of dominion; being, like it, exercisable
* Wattel, i. 186. * Dig. 1. I6. 239. * Cf. Supra, p. 138.
* Cf. Supra, p. I40. * Cf. Supra, p. 139. * Cf. Supra, p. 140.
* Supra, p. I44.
270 INTERNATIONAL LAW.
CHAP. VII.
only within the bounds of a given space. The rights of a
nation over its territory are indeed, as Wattel says, twofold:—
‘1°, le domaine, en vertu duquel la nation peut user seul de ce
pays pour ses besoins, en disposer, et en tirer l'usage auquel
il est propre. 2°, l'empire, ou le droit du souverain com-
mandement, parlequel elle ordonne et dispose à Savolonté de
tout ce qui se passe dans le pays".”
The personal jurisdiction which a State claims to enjoy
over its own subjects, wheresoever they may be, is a matter
rather of public than of international law, but the jurisdiction
which it exercises over all persons, be they subjects or aliens,
in respect of acts committed by them within its territory, is
legitimated only by the rule of international law which obliges
the State to which such aliens may belong to acquiesce in
their punishment.
Although the Dominion and the Jurisdiction of a State
are both circumscribed by its territory, the two rights are not
coextensive, since by the custom of nations, “territory' is,
with a view to the exercise of the latter right, artificially
extended in some directions and restricted in others. On
the one hand, the Jurisdiction of a State is allowed to ex-
tend, beyond the bounds of its dominions, to all the ships
that carry its flag upon the high seas, and, for certain pur-
poses, to all ships, not being ships of war, whatever flag they
may carry, which pass within three miles of its coasts. On
the other hand, jurisdiction is artificially restricted by what
is known as the doctrine of ‘exterritoriality, in accordance
with which certain persons and things, notably foreign
sovereigns, ambassadors and ships of war, though actually
within the territory, are treated as if they were outside of it.
Very extensive privileges of exterritoriality are usually granted
by Oriental nations to Christian residents by express treaty;
and a nation has sometimes assumed, even without treaty, to
exercise a jurisdiction over its own subjects who are resident
in barbarous countries”.
* Liv. i., § 204; cf. Grot, De I. B. et P. ii. 3. 4. * E. g. 26 and 27 Vict, c. 35.
RIGHTS ‘IN PERSONAM." 271
A concurrent jurisdiction is allowed to all nations upon the CHAP. XVII.
high seas for the suppression of piracy. Since there is, as
Grotius says, “naturalis et tacita confederatio inter omnes
homines contra communes societatis humanae hostes.’
(5) A State is not only entitled to the immunity from
injury of its territory and of all persons therein, but may also
insist that its subjects individually, wherever they may be,
shall receive no harm from foreign governments or their
subjects. ‘Prima maximeque necessaria cura pro subditis,”
says Grotius; adding, ‘Sunt quasi pars rectoris".’
ii. The antecedent rights of nations in personam, i.e. such ...
as one nation may enjoy against another given nation, are
almost exclusively contractual, i. e. they arise from Treaty.
It will be remembered that a contract in private law was
shown to imply—i. Several parties; ii. their agreement;
iii. the possibility and legality of their agreement; iv. the
expression of their agreement ; and very generally, v. a
solemn form, or some fact which affords a motive for the
agreement”. All the elements of this analysis, with the
exception of the last, are equally present in a treaty; though
some of the subordinate rules under each head are incapable
of transplantation from private to international law. Thus
a treaty is not, like an ordinary contract, voidable on the
ground of ‘duress,’ nor are the acts of plenipotentiaries as
binding on their sovereigns as they would be under the
ordinary law of agency.
Treaties, like contracts, may be divided into those which
are ‘principal,” which may again be subdivided, in accordance
with their purpose, into treaties of peace, of alliance, of
cession and the like ; and those which are ‘accessory,” e. g. by
way of mortgage or guarantee *.
Since a nation is obviously incapable of entering into
contracts, or otherwise giving expression to its will, unless
through a representative, the topic of agency occupies a large
* I. B. et P. ii. 25. I. * Supra, p. 174. * Cf. ib. p. 186.
272 INTERNATIONAL LAW.
CHAP. XVII.
Belliger-
ency.
Steps short
of war.
space in international law, and is sometimes added to the
list of international rights, under the style of ‘the right of
Legation.’ This is submitted to be an error. A nation
cannot be said to have a right of negotiating or of sending
an embassy, since it cannot insist that any other nation shall
either entertain its proposals or receive its ambassador.
The law of international agency deals with the functions,
privileges, and ranks of ambassadors and other public
ministers; also with consuls and other agents who do not
enjoy a diplomatic character. The whole question of the
inviolability and exterritoriality of diplomatic personages is
naturally analogous to nothing in private law, but resembles
rather that branch of public municipal law which describes
the safeguards provided for the protection of government
officials in the execution of their duties.
Remedial international rights vary according to the nature
of the right violated; thus entitling the injured State to an
apology, by Salute to its flag or otherwise, for an insult to
its dignity; to restitution of territory, or other property, of
which it has been deprived ; or to a money indemnity.
III. The Adjective law of nations prescribes the procedure
by which the Substantive law may lawfully be enforced, and
corresponds roughly to what is popularly called ‘the law of
nations in time of war.’ So far as it affects the disputant
parties only, it is the law of “Belligerency.’ So far as it
regulates the relations of the disputants to parties not en-
gaged in the struggle, it is the law of “Neutrality.’
Redress for a violated right may be obtained in a friendly
manner, ‘ via amicabili, by (1) negotiation, (2) arbitration,
or (3) the mediation of other States. Or it may be obtained
by force, ‘ via facti,” which is always necessarily in the nature
of self-help, and liable to all the disadvantages of a procedure
in which the injured party is a judge in his own cause".
In the latter case, if the right violated be one to acts
* Cf. Supra, p. 212.
BELLIGERENCY, 273
of mere ‘comity,” the remedy is what is called ‘Rétorsion de CHAP. XVII.
droit,” i.e. a refusal to perform similar good offices. If the
right be one of those which are allowed to be ‘stricti iuris,”
various courses of action are still open to the injured State,
short of actual war. Such are ‘Reprisals,” which, in their
earliest form, were ‘special,’ i. e. exercised by injured indi-
viduals against the fellow-citizens of those by whom they had
been injured; but are tolerated at the present day only in the
form of ‘general reprisals,’ allowed by the government of a
State to its subjects generally, or to its public forces. Their
characteristic, in either case, being that they take place
in time of peace, ‘non nisi in pace represaliis locus est.’
‘Embargo' and ‘Pacific blockade' may be regarded either as
species of general reprisals, or as coordinate examples of pre-
belligerent hostility.
Actual war has been well described as ‘the litigation of War.
nations.’ Ought it, like an action in private law, to com-
mence with a notice served by one party upon the other,
i.e. with a formal ‘Declaration’? Upon this point there has Declara-
been much difference of opinion and alteration of practice. tion.
According to Gentili, “si non est bellum clandestina magis
contentio quam contentio legitima fori est iudiciorum, haec
primum petitio et denuntiatio fieri debet'.”
When war has once commenced, the rules by which it is Effect of
regulated refer in the first place to the effect of its outbreak outbreak.
upon the subsisting treaties between the belligerents, some of
which are ipso facto abrogated, while others remain in force;
and upon the rights of each belligerent over such subjects
of the other belligerent and their property as may be found
within its territory at the time. They refer, in the second
place, to the actual conduct of warfare, on land or at sea, and
to its effect upon the ownership of property.
Questions relating to the conduct of warfare may be con- Conduct of
sidered under four heads: viz. (1) military operations, under warfare.
* De I. B. ii. C. I.
T
274 INTERNATIONAL LAW.
CHAP. XVII.
which head will come rules as to stratagems, as to the use of
certain weapons, as to sieges and bombardments, as to spies
and marauders, as to quarter, ransom and prisoners of war,
and as to hospitals, surgeons, and the wounded; (2) treat-
ment of the enemy's country while occupied, and therein of
property, public and private, and of requisitions and con-
tributions; (3) “commercia belli,’ i.e. such exceptions to the
rule against intercourse between enemies as truces, capitula-
tions, safe-conducts, and cartels; (4) “reprisals, in the sense
of the special punishments to be awarded to enemies guilty
of breaches of the law of war.
The rules as to the effect of war upon ownership deal with
questions of the title to conquered territory, of ‘booty,” of
‘prize,’ of such immunity as is accorded to national property
in works of art and to private property, of the acquisition
of debts due to the enemy, and of recapture.
TV. It is not unusual to find in systems of municipal law
prohibitions against taking up the law-suits of others by way
of ‘champerty’ or ‘maintenance,’ and against interference
with the course of criminal justice. In international law
somewhat analogous topics have come to occupy a very im-
portant place. The conduct of warfare was long discussed
with reference only to belligerents, but it became clear in the
course of the last century that a far more complex class of
questions had arisen with reference to the rights of the
belligerents towards nations which stand aloof from the war.
It had become necessary to arrive at some agreement as to
the mode of reconciling the right of each belligerent to carry
on his warfare, with the no less undeniable right of a neutral
quietly to pursue his ordinary business". Attention was
very early drawn to the conflict of the rights of a belligerent
State with the trade of the subjects of neutral States, but
Neutrality.
* The difficulty, says Grotius, had been perceived long before his time,
‘cum alii belli rigorem, alii commerciorum utilitatem defenderent ; u. s.
iii. 15.
NEUTRALITY. 275
the relations of a belligerent State to a neutral State were CHAP. xvii.
hardly considered till quite modern times. The subject is
most conveniently considered with reference, first, to the
Rights; and, secondly, to the Duties of Neutrals. -
The Rights of a Neutral are the fundamental rights of a Rights of
State, modified in certain respects by war; and may perhaps Neutrals.
be enumerated as follows:—
i. To the inviolability of its territory; and so to prevent,
or cancel, all belligerent acts, either in the territory itself
or in the adjacent waters, to exercise there the right of
asylum, and to prohibit the exercise there of any belligerent
jurisdiction.
ii. To the inviolability, subject to certain exceptions, such
as the ‘ius angariae,’ of its property and that of its subjects,
even in the territory of a belligerent. -
iii. To the inviolability of its public ships.
iv. To the continuance of diplomatic intercourse with the
belligerents.
v. To recognise, under certain circumstances, a revolting
population as a de facto belligerent, or even as a new sove-
reign State.
The Duties of a Neutral may, it is conceived, be classed Duties of
under three heads, of which the First consists of restraints Neutrals.
on the free action of the State, as such ; the Second, in an
obligation to restrain in certain respects the acts of indi-
viduals; and the Third, in an obligation to acquiesce in the
punishment of its subjects by a belligerent for acts which
apart from the war would be innocent.
i. The restraints imposed upon the action of a neutral
State, as such, forbid it from furnishing troops, or arms, or
money, or allowing passage, to either belligerent, or opening
its ports so as to further belligerent objects.
ii. The State is bound to a positive interference with the
acts both of its own subjects and of aliens, so as to prevent
belligerent acts, or enlistments, or perhaps the equipment of
T 2
276 INTERNATIONAL LAW.
CHAP, XVII.
war-ships, taking place within its territory, and generally to
prevent its territory from being used as a base of operations
by either belligerent.
iii. There are certain acts of neutral subjects with which,
though detrimental to the interests of one or other of the
belligerents, the Neutral State is not bound to interfere.
She is however under an obligation in these cases to forego
her ordinary right of protecting her subjects, and to allow
them to be interfered with, and their property to be con-
fiscated, by the belligerent who has ground to complain of
their conduct. -
Many commercial transactions, which in time of peace are
perfectly unobjectionable, thus become in time of war punish-
able offences. Such are “breach of blockade,’ ‘ carriage of
contraband,’ “breach of the rule of the war of 1756, and, at
any rate till recently, the carriage of enemies' goods under a
neutral flag, and, according to the views of some nations,
sending neutral goods under the flag of an enemy.
Most writers have been in the habit of seeing in these
cases a direct relation between a belligerent State and in-
dividual subjects of a neutral State. It is submitted that
such a relation should never be recognised by international
law, which ought to be regarded as occupied exclusively with
rights and duties subsisting between State and State.
CHAPTER XVIII.
THE AIPPIICATION OF L.A.W.
So long as law is regarded as a body of abstract principles,
its interest is merely speculative. Its practical importance
begins when these principles are brought to bear upon actual
combinations of circumstances.
Many questions may be raised as to the extent and mode Three
in which this takes place, and, for their solution, rules have questions.
been laid down which, like other legal rules, are susceptible
of analysis and classification. They make up that department
of Jurisprudence which we propose to call ‘the Application of
law.” When a set of facts has to be regulated in accordance
with law, two questions of capital importance present them-
selves for solution. First, what State has jurisdiction to
apply the law to the facts? and secondly, what law will
it apply? The former of these questions is said to relate
to the appropriate “Forum,” the latter to the appropriate
* Lex.’
A third question, which is of less importance than these
two, and may be dismissed in a few words, relates to ‘In-
terpretation.’
278 THE APPLICATION OF LAW.
CH. XVIII.
Questions
of Forum.
The appli-
cation of
private
law.
Possible
C&SeS.
Possible
Fora.
It will be necessary to show very briefly how these
questions arise, and in what modes they are answered, in
private law; and how far the same or analogous questions
have to be considered also with reference to public and to
international law.
§ 1. Private Law.
In private law all three questions have to be answered;
and first as to the “Forum.”
I. Given a set of circumstances the legal consequences of
which are disputed, it obviously becomes necessary to ascer-
tain in the Courts of what country the dispute can be
decided; in other words, what court has jurisdiction to try
the case ratione territoriº +. -
For this purpose it is indispensable to classify on the one
hand possible sets of circumstances, and on the other hand
possible Courts.
The circumstances which may give rise to legal con-
troversies have been already classified in the preceding
chapters.
The Courts in which proceedings may possibly be taken
are, that of the country in which the plaintiff or the de-
fendant is domiciled, or to which he owes allegiance; that
of the country in which the object in dispute is situated;
that of the country in which the act in question, which may
have been for instance a marriage, or a sale, or the making
of a will, took place; that of the country in which a
contract was to produce its results; or that in which the
plaintiff chooses to commence proceedings.
It might be convenient to describe these ‘Fora’ respectively
as the
* This phrase seems better adapted than its older equivalent ‘jurisdiction
ratione personae' to distinguish the question stated in the text from questions
as to “jurisdiction ratione materiae, i.e. as to the proper court, within a given
territory, for the trial of a particular class of actions.
THE COMPETENT FORUM. 279
Jorum domic?!?, or Zigeantiae, actoris, CH. XVIII.
forum domicilii, or Zigeantiae, rei,
forum re; sitae,
Jorum actus, including contractus,
and the forum. /ăţis moſae, or fortuitum.
Of these technical terms one only, the forum (domiciſii)
zei, has obtained general currency, doubtless by means of
the long prevalence of the maxim, ‘actor sequitur forum rei.’
As examples of the questions which arise as to the forum,
it may be sufficient to mention that an English Court will
almost always decline jurisdiction in divorce, unless the
husband be domiciled in the country; and that an English
Court will take cognisance of a contract, wherever made
and between whatever parties, while a French Court is, as
a rule, incompetent to do so unless one of the contracting
parties be domiciled in France.
The Courts of a given country have not only from time
to time thus to decide on their own competence, but also
Occasionally to investigate the competence of the Courts of
other States; the decrees of which, when duly made, they will
often recognise; just as they do other foreign facts creating
rights; which rights may thus continue to subsist outside of
the jurisdiction which originally gave them validity.
II. The question as to the applicable ‘Lex’ is far more Questions
complicated than that as to the competent ‘Forum.” The of Lex.
circumstances which affect its solution may be enumerated as
Concentricity, Time, Race, and Place.
i. It often occurs that special are included in more Concen.
general circles of law. A city may be governed not only tricity.
by its own statutes, but also by the law of the kingdom to
which it belongs, and of the empire in which that kingdom
is included, and it may be doubted whether the affairs of
the citizens are to be regulated by the civic, royal, or
imperial laws, where these differ from one another.
280 THE APPLICATION OF LAW.
UH. XVIII.
Time.
Race.
The general rule is that the nearer and narrower law is to
be applied rather than the more remote and wider, ‘Stadt-
recht bricht Landrecht, Landrecht bricht gemein Recht : '
thus ‘gavelkind’ prevails in Kent rather than the general
law of England as to succession to realty.
ii. It might be supposed that the universally admitted
principle that laws have, in the absence of express provision
to that effect, no retrospective operation, “leges et con-
stitutiones futuris dare formam negotiis, non ad facta prae-
terita revocari", would prevent all doubt whether a given
state of facts is to be governed by a new or by an old law.
This is however by no means the case, since some legal
relations, such for instance as acquisition by prescription or
under a will, are the result of a series of facts occurring
through a prolonged period. There is accordingly a literature
devoted to the discussion of the “temporal limits’ of the
application of law 3.
iii. There is a stage of civilisation at which law is addressed,
not to the inhabitants of a country, but to the members of a
tribe, or the followers of a religious system, irrespectively
of the locality in which they may happen to be. This is
the ‘personal' stage in the development of law. The govern-
ments which the barbarians established on the ruins of the
Boman empire did not administer one system of justice
applicable throughout a given territory, but decided each
case that arose in pursuance of the personal law of the
defendant ; so that, according to an often-quoted passage
in one of the tracts of Bishop Agobard, it might often
happen that ‘five men, each under a different law, would be
found walking or sitting together *. In one and the same
* Cod. i. 4. 7. gº tº
* E.g. Struve, Uber das positive Rechtsgesetz ricksichtlich seiner Ausdehnung
in der Zeit, 1831, Savigny's discussion of the ‘Zeitlichen Gränzen,” System, Bd.
viii. pp. 368-540, and Chabot de l’Allier, Questions transitoires sur le Code
Napoléon, 1809.
* Adv. legem Gundobadi, c. 4, Op. i. p. I I I.
THE APPROPRIATE LEX. 281
town the Frank, the Burgundian, and the Roman lived
each under his own system of law. A similar phenomenon
may be seen at the present day in British India. ‘The
notion of a territorial law,’ it has been said, ‘is European
and modern. The laws which Hindus and Mahomedans
obey do not recognise territorial limits. The Shasters and
the Koran revealed religion and law to distinct peoples, each
of whom recognised a common faith as the only bond of
union, but were ignorant of the novel doctrine that law and
sovereignty could be conterminous with territorial limits".”
The British Courts, in dealing with members of the Hindu
or Mahometan communities, hold that wherever such persons
go within the limits of British territory, they carry with
them as a personal law applicable to their family and pos-
sessions, Hindu or Mahometan law respectively”.
CH. XVIII.
iv. According to modern ideas, a system of law applies not Place.
to a given race, but to a given territory. It follows from
the independence of each State within its own borders that
it might, without contravening any principle of international
law, regulate every set of circumstances which calls for
decision exclusively by its own law. This law, technically
described as the ſea ſori, may be said to be the natural law
for the Courts of each State to apply; and it is that which
will undoubtedly be applied by them, in the absence of
special reason to the contrary. With the development of
civilisation and commerce it has however become as in-
convenient as it is inequitable to apply this law rigidly to
all transactions, whether completed wholly within the terri-
tory, or partly outside of it, and to acts of all persons,
whether permanently settled in the country, or merely passing
through it. The Law Courts are of course bound to apply to
each case the law which the sovereign has provided for its
regulation, but, as has been well observed, there is no reason
to suppose that the sovereign enacted the ſea, fori with a
* Cowell, Tagore Lectures, 1870, p. 40. * Cf. ib. p. 5.
282 THE APPLICATION OF LAW.
CH. XVIII.
Possible
C3;S6S.
Possible
laws.
view to the exceptional cases in question. It accordingly
became necessary to classify these ‘mixed cases,’ and to
determine what are the categories of law by which, in
accordance with equity and with the general convenience,
each ought to be governed.
The possible cases must come within the classification
with which the previous chapters have familiarised us, i. e.
they must be cases of status, of property, of contract, and
so forth. The possible law may be that of the country to
which one of the persons concerned owes allegiance, or
in which he is domiciled, or in which the thing in question
is situated, or in which the wrong in question was com-
mitted, or in which an act such as the making of a will,
or of a contract, was performed, or in which a contract
was to be carried out. These distinctions may be technically
expressed by the following terms respectively :—
/ea, ſigeantiae,
Zew domieiſii,
Zea. Zoe? delicſ; commissi,
ſea, Zoe? actus, of which contractus is a species,
ſea ſoci solutionis.
The ſea ſori has been previously mentioned. All of these
terms are in current use, except only the lea, Zigeantiae,
which is suggested as conveniently descriptive of the law
of the country to which a person owes national allegiance;
a law which, in the opinion of the school of jurists now
predominant in Italy, ought to decide many of the questions
which have usually been determined by the ſea, domiciſii ".
The selection from this list of the lea, which is properly
applicable to the decision of questions of a particular class,
those relating for instance to marriage, to minority, or to
bankruptcy, is guided in each country by the laws of that
* Cf. Codice Civile, art. 6–9. This doctrine it will be observed, though
presenting some analogies to that of the ‘personality of laws,' explained
at p. 28o, is by no means identical with it.
NOMEN CLATURE. 283
country. There is however a considerable general resem-
blance between the rules of different systems of positive law
upon these points; and positive law is more inclined with
regard to such questions than to others to pay deference
both to the positive law of foreign countries, and to the
theories of such experts as have written upon the subject
from the point of view of propriety and convenience. The
assimilation thus produced of positive systems to one another
and to the theories of experts has led to an erroneous im-
pression that there exists something like a common law of
civilised nations upon the subject, instead of, as is really
the case, a gradual approximation of national practice, guided
to some extent by a growing body of theory. Some writers
have indeed been led so far astray as to assert the invalidity
of any national laws which do not conform to their views
upon the subject ".
CH. XVIII.
The body of principles adopted in positive systems or Classifica-
recommended by theorists, for the selection of the territorial
ion of
1
momencla-
‘lex’ which is appropriate to the decision of any given "*
question of private law, has been called by many names,
the variety of which attests the obscurity which has involved
the true nature of the subject. They may be reduced to
Seven classes.
I. The controversy having first been raised with reference Statutes.
to the competing claims of the ‘statuta' of different Italian
cities, the whole topic was treated from this point of view.
The example set by Bartolus in his comment on the code
in the fourteenth century 4 was followed by a series of
writers such as John Voet, who wrote “De Statutis’ in
1698°. As recently as 1823 J. Henry published a “Treatise
on the Difference between Personal and Real Statutes;’ and
a “Traité des statuts, lois personelles et réelles, et du droit
international privé, by M. de Chassat, appeared in 1845.
* E. g. Struve, § 9. 37. * Ad 1. ‘ cunctos populos,’ i. I.
* In his Comment. ad Pandectas, lib. i. tit. 4. pars 2.
284 THE APPLICATION OF LAW.
CH. XVIII.
Conflict.
lExtra,-
territorial
effect.
2. A more descriptive name for such diseussions was
suggested in I 653 by Rodenburg, who prefixed to his
work On the law of married people a tract entitled * de iure
quod oritur ex statutorum eonflictu.* Paul Voet followed,
in 166 I, with a treatise * de statutis eorumque eoncursu,'
Huber, in I 688, with his famous chapter * de eonflietu
legum ',' and Hertius, in the same year, with his tract
* de collisione legum *.* Ham, in I 792, wrote * de statutorum
collisione et praeferentia ;* Wächter, in I 84I and I 842, * über
die Collision der Privatrechtsgesetze ° ; ' Livermore, in 1828,
* On the contrariety of laws ; * and Brinkmann, in 183 I,
* von dem Wiederspruehe ausländischen und einheimischen
Gesetze.' Story's * Confliet of Laws * was published in I 834,
and Wharton's work of the same name in I 872.
3. The faet that effect is given to laws outside of the
territory of the State on whose authority they depend is
emphasised in the titles of such works as that of Cocceius,
* de fundata in territorio et plurium loeorum concurrente
potestate,' I 684* ; of Scheinemann, * de auetoritate legum
civilium extra territorium legislatoris,* I 696; of Sejer, * de
vi legum et deeretorum in territorio alieno,' I 777 ; also in
Savigny's expressions as to the * oertlichen Gränzen °,' and
Schmid's * die Herrschaft der Gesetze, nach ihren raümlichen
Grenzen 6.°
4. The question as to the choice of the law to be applied
becomes prominent in the treatise of Oerstadt, * über die
Anwendung fremder Gesetze,' I 822 7, in that of Struve, * über
das positive Rechtsgesetz in seiner Beziehung auf raümliche
Verhältnisse und über die Anwendung der Gesetze ver-
Applica-
tion.
* In his Praelectiones iuris Romani, pars ii. ad Pand. lib. i. tit. 3.
* Comm. et Opusc. i. p. I 29. 3 See Archiv für civ. Praxis, Bd. xxiv, xxv.
* Exercit. Curios. i. p. 68o. ° System, vol. viii. pp. 5, 8—367.
° The full title of his work is * die Herrschaft, der Gesetze mach ihren
raümlichen und Zeitlichen Grenzen im Gebiete des bürgerlichen und peinlichen
Rechts,' Jena, I863.
' " Eunomia, i. pp. I—Io5.
NOMEN CLATURE. 285
schiedener Oerte,’ 1834, and in incidental expressions occurring oil. XVIII.
in Savigny’s System *.
5. It is of course a merely voluntary act on the part of Comity.
any State when it gives effect to foreign law. In the
language of Huber, ‘Rectores imperiorum id comiter agunt
ut iura cuiusque populi intra terminos eius exercita teneant
ubique suam vim *.’ Sir Robert Phillimore accordingly
entitles the volume of his Commentaries which deals with
this subject ‘ On Private International law, or Comity.’
6. Schäffner gave to his book, published in 1841, a title Inter-
national
apparently intended to indicate that it dealt with the mode Private
in which rules of private law are borrowed by one State law.
from another. He called it “die Entwickelung des in-
ternationalen Privatrechts; and it was followed by
Pfeiffer’s ‘das Princip des internationalen Privatrechts,’
1851; and by von Bar’s ‘das internationale Privat-und-
Strafrecht,’ 1862.
7. In 1840 Foelix began a series of articles du conflit Fº
g • fºra/ g tº $ tº * } .., , inter-
des lois de différentes nations, ou du droit international *,’ national
and re-published them in 1843 as the ‘Traité du droit inter- law.
national privé, ou du conflit, des lois.’ Mr. Westlake fol-
lowed in 1858, with his ‘Private International Law, or the
Conflict of Laws; ” M. Fiore, in 1869, with his ‘T)iritto
internazionale privato, o principii per risolvere i conflitti
tra legislazione diverse in materia di diritto civile e com-
merciale; M, Haus with ‘Le droit privé qui régit les
étrangers en Belgique, ou du droit des gens privé considéré
dans ses principes fondamentaux et dans ses rapports avec
les lois civiles des Belges,’ 1874; M. Brocher with his
• Nouveau traité du droit international privé, 1876; and
* viii. pp. 15, 32, Io9 ; cf. Sir H. Maine's definition of the topic as ‘the
conditions on which one community will recognise and apply a portion of the
jurisprudence of another.’
2 Prael. iuris Romani, parsii, ad Pandect. lib. i. tit. 3.
3 In the Revue Étrangère et Française de legislation, t. vii. p. 81.
286 THE APPLICATION OF LAW.
CH. XVIII.
Objections
to Statutes,
to Con-
flict,
to Extra-
territori-
ality,
to Comity,
Mr. Foote with his ‘Private International Jurisprudence,’
1878. In 1874 M. Clunet established at Paris the ‘Journal
du droit international privé.’
Objections, well and ill founded, have been urged against
each and all of these phrases. The nomenclature of the
‘Statutes,’ an attempt to resolve a legal into a merely
grammatical question, is indeed obsolete. Of the other
phrases one is distinctly misleading, while the rest are
rather inadequate than erroneous.
Those who deny that a ‘Conflict of laws’ ever really takes
place are right if they mean only that the authority of
a domestic can never be displaced by that of a foreign law.
It cannot however be denied that, although each State is
free to adopt for the decision of any given question its
own or foreign law, and between various foreign laws to
choose that which it prefers, yet the rival claims of these
bodies of law do present themselves to the legislature or
the court as competing or conflicting. There is no strife
for the mastery, but there is a competition of opposite
conveniences.
Such expressions as seem to attribute an extraterritorial
supremacy, ‘Herrschaft,’ to any system of law, are more
obviously open to censure, as being inconsistent with
the absolute sovereignty of each State within its own
territory.
When, on the other hand, the theory of ‘Comity is,
attacked, on the ground that a Court, in applying a par-
ticular ‘lex, is guided not by courtesy but by legal principle,
it seems to be forgotten that, although the Courts of each
State are guided by the law of the State, the State in making
that law is guided not by law but by an expectation of
reciprocity, or by general considerations of equity. “Comity
thus expresses the truth that the adoption of this or that rule
by a State is a matter of indifference to international law.
The new Italian school would indeed deny this proposition,
asserting that a State, in applying foreign law to certain
OBJECTIONS TO NOMEN CLATURE. 287
sets of circumstances, is but complying with an international CH. XVIII.
duty of ‘perfect obligation *.” *
The phrase “Application of law,’ ‘Anwendung der Gesetze, to Applica-
is liable to no objection except that it is too wide; embracing, tion,
as it does, all the topics of the present chapter.
‘International Private law,’ though a dangerously am- to Inter-
biguous term, is not incapable of being understood to denote º:I
the mode in which rules of private law are borrowed by the *
Courts of one State from those of another.
The transposed version of this term as ‘Private International to Private
law” is wholly indefensible. Such a phrase should mean, in ºtºw.
accordance with that use of the word ‘international which,
besides being well established in ordinary language, is both
Scientifically convenient and etymologically correct, ‘a private
species of the body of rules which prevails between one
nation and another.” Nothing of the sort is however in-
tended; and the unfortunate employment of the phrase, as
indicating the principles which govern the choice of the
system of private law applicable to a given class of facts,
has led to endless misconception of the true nature of this
department of legal science. It has also made it necessary
to lengthen the description of International law, properly so
called, by prefixing to it the otherwise superfluous epithet
‘public.’
It is most important, for the clear understanding of the
real character of the topic which for the last forty years has
been misdescribed as ‘ Private International law,’ that this
barbarous compound should no longer be employed. Nor is
its abandonment less desirable with a view to the rehabilita-
tion of the term ‘international for the scientific purpose for
which it was originally coined”.
* See a Report by Signor Mancini, late Minister of Justice, to the Institut
de Droit International, Revue de Droit International, t. vii. p. 329.
* Supra, p. 263. Mr. Frederic Harrison, in two singularly able articles
in the Fortnightly Review for 1879, has suggested as a substitute for “Private
International law' the term ‘Intermunicipal law.” This is surely no improve-
288 THE APPLICATION OF LAW.
CH. XVIII.
The con-
tents of the
topic.
The choice
of a name.
Interpreta-
tion.
The topic in question consists of the body of rules which
prevail in a given country, or countries, or which theorists
think ought to prevail generally, as to the selection of the
law to be applied in cases where it may be doubted whether
the domestic or a foreign law, and, in the latter case, which
foreign law, is appropriate to the facts. With this topic it
is usual to combine that of the choice of the competent
forum, and also that of the effect to be given to a foreign
judgment.
The group of topics is undoubtedly hard to name. Of
the old names, ‘the Conflict of laws’ is probably the best.
‘Private International law' is indubitably the worst. ‘The
Application of Foreign law,” or ‘the Extraterritorial Recogni-
tion of rights,” would at any rate not be misleading, while
the latter phrase might be useful as calling attention to the
fact that what really happens when a law seems to obtain an
extraterritorial effect, is rather that rights created and defined
by foreign law obtain recognition by the domestic tribunal.
Thus it is that the status of marriage will be recognised as
resulting from an observance of the formalities prescribed by
by the ſea ſoci celebrationis, and an obligation resulting from
the judgment of a competent Court in one State will be
enforced by the Courts of another".
III. In order that the competent Court may rightly
apply the appropriate law, it is necessary that the words of
the law shall be properly construed. ‘Interpretation is
thus a third, though a very subordinate, topic of the applica-
tion of law. It is said to be either ‘legal,’ which rests
ment, since ‘municipal,” in accordance with established use, is either equivalent
to ‘national,' or relates to civic organisation.
* The theory of the text, it will be observed, assumes the foundation of this
whole topic, whether it be described as ‘the application of foreign law,’ or the
“extraterritorial recognition of rights,” to be that of ‘vested rights;’ a doctrine
which, though usually identified with Wächter, is as old as Vattel (ii. I Io), and
appears to the author to remain unshaken by the numerous attacks which
have been directed against it.
THE CRIMINAL FORUM. 289
on the same authority as the law itself, or ‘doctrinal,’ which OH. xviii.
rests upon its intrinsic reasonableness.
‘Legal interpretation' may be either ‘authentic, when it Legal.
is expressly provided by the legislator', or “usual,” when it
is derived from unwritten practice.
‘Doctrinal interpretation’ may turn on the meaning of Doctrinal.
words and sentences, when it is called ‘grammatical,’ or
on the intention of the legislator, when it is described as
‘logical.’ When logical interpretation stretches the words
of a statute to cover its obvious meaning it is called ‘ex-
tensive ; when, on the other hand, it avoids giving full
meaning to the words, in order not to go beyond the in-
tention, of the legislator it is called ‘ restrictive.”
§ 2. Public Law.
It is chiefly in the criminal branch of Public law that The appli-
questions of the kind now under consideration present them- ;
selves for solution. law.
I. The ‘forum ” which, ratione territorii, is properly seized The
of the punishment of an offence has been at different times Eorum.
asserted to be—that of the nation of which the offender is
a subject, that of the domicil of the offender, that of the
nation injured, that of the place of the arrest or detention
of the offender, and that of the place where the offence was
committed. These may be respectively described as the
Jorum. /*geantiae,
forum domicilii,
Jorum civițaffs /aesae,
forum deprehensionis, or fortuitum,
forum de/ict; commissi.
The last-mentioned ‘forum,’ which was indeed the first to
assert its claims, has in recent times nearly superseded the
* As in what are called the ‘interpretation clauses’ of a modern Act of
Parliament. Cf. Cod. i. 14. 9 and 12.
U
290 THE APPLICATION OF LAW.
OH. XVIII.
The terri-
torial
theory.
The per-
sonal
theory.
others, as being the most compatible with modern ideas of
the nature of sovereignty. Four theories as to the competent
“forum ' are heard of at the present day.
i. What is known as ‘the territorial theory of jurisdiction,”
founded upon the competency of the forum delict commissä,
asserts that each State may, and ought to, deal with all persons,
be they subjects or aliens, who commit offences within its
territory, or on board of its ships, against its criminal law.
This proposition, though indisputably true, is as indisputably
inadequate to secure the due punishment of crime. Its insuf-
ficiency to provide for the punishment of criminals who have
escaped from the territory in which their offence was com-
mitted is partially redressed by treaties of Extradition, under
which such offenders are returned to the forum delict; ; but
it still needs supplementing by other principles.
ii. According to ‘the personal theory of jurisdiction,” each
State has a right to the obedience of its own subjects, where-
soever they may be. It follows that a subject may be tried
on his return to his own country, or even in his absence, for
an offence against its laws committed while within the
territory of another State. This second theory, which asserts
the claim of the forum. /geantiae, is very variously applied
in practice. England and the United States use it but
sparingly, as introducing a very limited list of exceptions to
the standard principle of territorial jurisdiction. It is thus
provided by Act of Parliament that a British subject may be
indicted for murder, manslaughter, or bigamy, whether com-
mitted within the Queen's dominions or without, and may
be tried ‘in any place in England or Ireland in which he
shall be apprehended or be in custody".’
The continental States agree in punishing offences com-
mitted abroad by a subject against the government or
coinage of the country to which he belongs, but differ widely
in their treatment of offences of other kinds. The French
* 24 and 25 Vict. c. Ioo. ss. 9, 57; cf. as to Treason, 26 H. VIII. c. 13.
THEORIES OF JURISDICTION. 291
Code of 1808 punished offences committed abroad by French- CH. xviii.
men against Frenchmen". The Code for the German Empire
will punish acts of its subjects which are criminal in the
country where they were committed as well as in Germany ”.
The Italian * and the Austrian 4 draft Codes, of 1868 and
1867 respectively, are to the same effect; providing however
that the punishment shall not, as a rule, exceed that which
might have been awarded by the law of the place where
the act was done. The Bavarian Code of 186 I stated the
liability of subjects without any such reservation", but it
is perhaps carried furthest by the French Code, as amended
in 1866, which provides that ‘tout Français qui hors du
territoire de la France s'est rendu coupable d'un crime puni
par la loi française, peut €tre poursuivi et jugé en France".’
This enactment is is accordance with an opinion given to the
government by the Cour de Cassation in 1845 and approved
by twenty-four Courts of Appeal and six Faculties of law,
against the exclusively territorial character of penal juris-
diction. ‘Ce qui est vrai,” said the Court, ‘c’est que le droit
de punir, au nom de la loi française, ne peut s'exercer qu’en
France; ce qui est erroné, c'est que l'acte punissable, commis
sur le sol étranger, ne puisse, dans aucun cas, étre régi par
cette loi 7.’
The forum ligeantiae is not concurrent with, but excludes,
the forum delict; in the case of Europeans whose govern-
ments have capitulations to that effect with the governments
of Oriental States.
iii. ‘The theory of self-preservation’ is in some continental º: theory
g - º gº º " : º f is of self-pre-
systems considered in certain cases to confer a jurisdiction º:
which, since it is neither ‘territorial’ nor ‘personal,' has
* Code d'instruction criminelle, art. 7.
* Art. 4. 3. * Arts. 6, 9. * Art. 4.
* Inlănder unterliegen den Bestimmungen der Bayerischen Strafgesetze
wegen aller von ihnen im In-Oder-Auslande verübten strafbaren Handlungen,
art. Io. -
* Arts. 5–7.
* Cited by M. Brocher, Rev. de Droit Int. vii. p. 46.
TJ 2.
292 THE APPLICATION OF L.A.W.
CH XVIII.
been described as “quasi-territorial.’ It allows that the
Courts of a State may punish offences although committed
not only outside of its territory but also by persons who are
not its subjects. Such a jurisdiction, which might perhaps
be described as claimed for the forum civitatis Zaesae, is
asserted with reference to offences against the government of
the State, or against its subjects.
The French Code, as revised in 1866, provides for the
trial and punishment of any alien who, having committed
abroad an offence ‘attentatoire à la sûreté de l'État ou de
contrefaçon du sceau de l'État, or against the French
coinage or paper currency, shall afterwards, voluntarily or
by means of extradition, come within the French territory".
The Italian draft Code of 1868° and the German Code of
1872 ° contain similar articles. The Bavarian Code of 1861
went further; providing also for the punishment of offences
committed abroad by aliens against Bavarian subjects, ‘in the
absence of anything to the contrary in the treaties of the
State or the principles of International law “.’
At its Brussels Session, in 1879, the ‘Institut de Droit
international,” after much discussion, adopted the following
resolution upon this subject :—‘Tout état a le droit de punir
les faits commis même en dehors de son territoire et par des
étrangers en violation de ses lois pénales, alors que ces faits
sont une atteinte à l’existence sociale de l’état en cause, et
compromettent sa sécurité, et qu'ils ne sont point prévus par
la loi pénale du pays sur le territoire duquel ils ont eu lieu.’
The Institut rejected a resolution extending the right to
other cases.
iv. The theory which may be described as one of general
supervision,’ or ‘of cosmopolitan justice, looks merely to the
forum depreſensionis, which we have also called fortuitum,
ascribing to each State the right of punishing any criminal
who may come into its power.
The theory
of cosmo-
politan
justice.
* Art. 7. * Arts. 5, 7. * Art. 4. I. * Art. 1 2.
CONCURRENT JURISDICTION. 293
This theory has long found favour with reference to ch. xviii.
pirates, on the ground that they have thrown off their
subjection to any political authority, but some writers have
claimed for it a far wider application. Wattel, for instance,
makes an exception to the rule of exclusively territorial
jurisdiction in the case of ‘ces scélérats qui, par la qualité
et la fréquence habituelle de leurs crimes, violent toute
sūreté publique et se déclarent les ennemis du genre humain.”
He continues: “Les empoisonneurs, les assassins, les in-
cendiaires de profession, peuvent étre exterminés partout oil
on les saisit : car ils attaquent et outragent toutes les Nations,
en foulant aux pieds les fondements de leur streté commune.
C'est ainsi que les pirates sont envoyés à la potence par les
premiers entre les mains de qui ils tombent. Sile souverain
du pays oil des crimes de cette nature ont été commis, en
réclame les auteurs pour en faire la punition, on doit les lui
rendre, comme a celui qui est principalement intéressé à les
punir exemplairement’.” The Austrian draft Code accordingly
provides for the punishment of serious offences committed
abroad by aliens, subject to the stipulations of any treaty to
the contrary”; and the Italian Draft contains a similar pro-
vision, in case the State to which the alien belongs shall
have refused to take him in extradition, with a view to
punishment *.
It is obvious that the adoption by a State of one or Combina.
another of the four current theories of jurisdiction, or of a #. Of
combination of several of them, will determine not only the jºis-
exercise of its own criminal jurisdiction with reference to
a given set of facts, but also its recognition of the rightful-
ness of the exercise by other States of their jurisdiction with
reference to the same state of facts. In cases where it
recognises the concurrent competence of several States, it
may or may not regard the decision of the Courts of any
one of them as final, so as to give an offender the benefit of
* Droit des Gems, i. § 233. * 1868, art, 6. * 1867, art. 6.
294 THE APPLICATION OF I.A.W.
'CH. XVIII.
The Lex.
the maxim, ‘ne bis in idem.” Provisions to this effect are
not uncommon in continental Codes", but the law of
England accords no such recognition to a foreign criminal
judgment.
The readiness, or disinclination, of a State to surrender its
own subjects in extradition is another result of the view
which it adopts with reference to criminal competence. The
continental nations, among which the doctrine of ‘personal
jurisdiction' is fully entertained, refuse extradition of their
own subjects; while England readily surrenders its subjects
because it is not, as a rule, prepared to punish them for
offences committed outside of the country.
II. Questions as to the appropriate ‘Lex are not of
frequent occurrence in criminal law. Of the four classes of
such questions which may conceivably be raised, those as
to (i) Concentricity, and (ii) Time”, no doubt occasionally
occur, but questions of (iii) Race, and (iv) Place, are hardly
separable from the question of “Forum.” The ‘comity’
which often determines a controversy in private law in
accordance with rules borrowed from a foreign system, has
no place in trial of crimes. No State will undertake to
administer the criminal law of another, though it may some-
times go so far as to enquire into the amount of punishment
to which a crime would be liable according to the law of
the place where it was committed.
The topics of criminal ‘forum' and “lex’ have sometimes
been treated in conjunction with the analogous topics of
private law, as, for instance, by von Bar in his ‘Internationales
Privat-und Strafrecht.” They have indeed much in common,
and the title of von Bar's work would be objectionable only
on the ground of ambiguity, if it did not seem to lend itself
to the support of statements by other writers which involve
the whole subject in hopeless confusion.
* French Code, art. 5; Italian Draft, art. 8 ; German Code, art. 5, 7. Cf.
Fiore, Effetti internazionale delle sentenze penale.
* E. g. German Code, art. 2.
THE FAMILY OF NATIONS. 295
It may perhaps be assumed that the reader who has ch. xviii.
followed the argument of the last few pages will at once
detect the astonishing inconsistency of view which is betrayed
by the following extract from a work of deservedly high
authority. ‘ On appelle,’ says M. Foelix, ‘droit international
privé l'ensemble des régles d'après lesquelles se jugent les
confliès entre ſe droit privé des diverses nations ; en d'autres
termes, le droit international privé se compose des lois civiles
ou crimineſſes d'un état dans le territoire d’un état étranger 1.’
It would not be too much to say that ‘Private Inter-
national law,' if thus conceived of, is neither ‘private ’ nor
‘international’ in the sense in which either of those terms
are usually and properly employed in Jurisprudence.
III. What was said of the ‘Interpretation of private, Interpreta-
will apply also to that of public law. tion.
§ 3. International Law.
I. No question of ‘Forum can arise in International Law, The appli-
of which it is an essential principle that each nation is the i.
judge of its own quarrels, and the executioner of its own tional law.
decrees.
II. The question of ‘Lex’ does indeed arise, but in a way The Lex.
that presents but a slight analogy to anything in either
department of Municipal law. It is merely whether a given
set of circumstances comes, or does not come, within the
operation of International law at all. In other words,
whether the States between which a controversy has arisen
are, or are not, members of ‘the family of Nations”. If
* Droit International Privé, Ś I. M. von Bar, who defends his combination
of the two topics by the authority of R. v. Mohl, Staatsrecht, Völkerrecht u.
Politik, p. 682, endeavours to avoid the difficulties raised by his title by
distinguishing between ‘Internationales Recht’ and “Völkerrecht.” The
former term he employs to signify a genus, of which the two species are
respectively “Völkerrecht,' by which he means Public International law, and
‘Internationales Privatrecht.”
* Supra, p. 267.
296 THE APPLICATION OF LAW.
CH. XVIII, not, the principles to be applied to the facts are derivable not
from International law, but from views of national interest
tempered by general morality. Much confused reasoning
has resulted from forgetfulness of the limited area within
which it is possible or desirable to apply the rules of
International law, as such.
* III. What has been said upon the subject of ‘Interpreta-
tion’ with reference to Municipal law, applies mutatis mu-
tandis to International law also.
The axioms of the science and the doctrines of received
text-writers will be susceptible in general only of ‘logical
interpretation,’ but something analogous to ‘authentic in-
terpretation' would be quite possible in the case of such
quasi-legislative expressions of international opinion, as, for
instance, the Geneva Convention, or the Declaration of Paris.
I N D E X.
IN DE X.
A.
Abandonment, 131, 143.
Abatement, 2I4, 2I6.
Abduction, 219.
A bettors, 256.
Abnormal, 224, 246.
— persons, 224, 233, 246, 265.
— rights, 87, 91, 224, 246.
Absolute duties, 82.
Abuse of process, I 2 I.
Acceptance, I 75.
Accessio, I4o. *
Accessory, 7o, I35, I40, 186, 201,
256.
— contract, I85, 201.
Accidentalia Negotii, 74.
Accord and Satisfaction, 209 m, 221.
Account stated, 204.
Acquisition, derivative, 14o.
— Original, I 38.
Acquisitive prescription, 14o.
Act, 63, 64, 72, 97, 99, 172.
— criminal, 256.
— same may infringe public and private
right, 81.
— lawful and unlawful, 73.
-- of law and of party, IoI, 2O4.
Actiengesellschaft, 229.
Action, 240.
— cause of 216.
— right of, 215.
Actions, limitation of, 140,
Adiumctio, 14o.
Adjective law, 61, 94.
— criminal law, 258.
— international law, 272.
— private law, Io'7, 238.
Adjudication, 5o.
Administrative law, 91, 251.
— classification of, 252.
— jurisdiction, 253.
Adultery, II.4, 217, 219, 258.
Advantages, open to community gene-
rally, Io9, I2O.
Advocates, IQ4, 236, 242.
Age, 234, 256.
Agency, 178."
— implied, I 78.
— international, 272.
— pretended, I59, 179.
— classes of agents, 179, 197.
— the contract of, 195.
Agreement, I 74, 175.
Aleatory contract, I85, Igg.
Alienation, IoI, I4o, I4I.
300
INDEX.
Alienation, contract for, 185, 186.
Aliens, 237.
Aliment, 22d.
Alluvio, I4o.
Alveus derelictus, I4o.
Animals, I 39.
Animus, 124, 126.
— domini, I 27.
Annuities, Igg.
Anonyme société, 229.
Antecedent rights, 93, Io8, 215, 268,
27I.
Antichresis, 153.
Appeal, 242, 259.
Application, the, of law, 277, 284,
287, 289.
— of foreign law, 288.
Aristocracy, 40.
Aristotle, 28, 81, 185, 214.
Armed forces, 252.
Artificial persons, 65, 66, 72, 225,
247, 26o.
— Characteristics of 226, 230, 243.
— Classification of, 227.
— disabilities of 230, 231, 243.
Assault, III, 217, 219.
Assignment, 142, 205.
Attainder, 237.
Attern.pt, criminal, 256.
Auction, I 75.
Auctioneers, 197.
Audience, 24.I.
Austin, 8, 47, 82, 91, 246.
Avulsio, I40.
B.
Backofenzwang, 137.
Bacon, Lord, 53, 244, 245.
Bailment, I 29, I58, I85, 192, 194.
Banker, 189.
Bankruptcy, Io2, 143, 204, 208, 22 I.
Bannrechte, I 37, 168.
Bargain and Sale, 172 m,
Barter, 187.
Belligerency, 266, 272.
Bentham, 4, 12, 99, I 22, 123, 263 m.
Bets, IQ9.
Bigamy, 258.
Bilateral contract, 185.
Bill of Sale, 156.
— exchange, I81, 206.
Birth, 66.
Blackstone, Sir W., 86, 218.
Blindness, IO4 n.
Blockade, 276.
Bona, I 38
Bonitarian ownership, I44.
Bonorum universitates, 67, 137.
Bottomry, 200.
Breach of contract, 2II, 22 O.
— promise to marry, 191.
— trust, 2 I 7, 22 o.
Brokers, IQ7.
Bundesstaat, 39.
C.
Calumniae iudicium, I 2 I.
Capitis diminutio, 208.
Caretaking, IQ2.
Carolina, the, 255.
Carriage, IQ3.
Causa, I 79, 182.
Cause, 92.
Cause and effect in Contract, 173,
I84.
Celibacy, 235.
Cessio actionum, 205.
Champerty, 274.
Change in the law, 208, 28o.
Charter party, 194.
Church and State, 249.
Citation, 24o, 259, 273.
Citizens, 25o.
Civil death, 66, 143.
— obligation, 163.
Classification of abnormal natural
persons, 233.
Classification of adjective private
law, 239.
Classification of administrative law,
252.
Classification of artificial persons,
227.
Classification of Constitutional law,
249.
INDEX.
Classification of Contracts, 186, 187.
Classification of Criminal law,
255–57.
Classification of Fora, 279, 289.
Classification of International law,
266.
Classification of law, 60, 93.
Classification of offences, 257.
Classification of Private law, Io'7, IoS.
Classification of Public law, 246.
Classification of rights, 76.
Classification of territorial laws,
279.
Classification of treaties, 271.
Classification of wrongs, 218.
Claves Horrei, I 24,
Co-heirs, 168.
Coinage offences, 257.
Colonies, 252.
Comity, 273, 285, 286.
Command, law as a, 60.
Commandite Société en, n. 229.
Commercia belli, 274.
Committee, II6. .
Commixtio, I40.
Commodatum, 189.
Common law, the, 46.
Common, rights of, I47.
Company, 229, see also Artificial
persons, Partnership, Société.
Comparative law, 9.
Comparative philology, 7.
Compensatio, 209.
Compensation, 216.
Cormplex masses of rights and
duties, 143.
Compositio, 2 I5 m, 255.
Compromise, 209.
Compulsion, 73.
Concentricity of laws, 279.
Condition, 75.
Conditional Contract, 185.
Condominium, I 44, 168.
Confession and avoidance, 240.
Conflict of laws, 284, 286.
Confusio, I 4o, 208.
Consensual contract, 185.
Consideration, 182, 183, 186, 21 1.
Consolidation, I 50.
301
Constitution, defined, 250.
Constitutional law, 9 I, 247, 248.
Constitutum, 204.
Contraband, 276.
Contract, I 4o, I 72.
— agreement in, 175.
— assignment of, I 73.
— criminal breach of 258.
— effect of, 184.
— elements of, I'74.
— expression of, I 77.
— form and cause of I79, 182, 185.
— formal and informal, I 79.
— implied, 177.
— international, 27I.
— modes of strengthening, I84.
— obligatory, I 73.
— parties, I 74, 185.
— possibility and legality, I 77.
— rescission of 208.
— speciality and parol, 18 I.
— two senses of the term, I 72, 190.
— void and voidable, 176.
Contracts, accessory, 186, 201.
— aleatory, I85, 199.
— alienatory, I86.
— bilateral, 185.
— classification of, I84, 185, I86.
— conditional, I85.
— consensual, I85.
— formal, 185.
— formless, 185.
— gratuitous, I85.
— joint, 185.
— for marriage, I86, I90.
— onerous, I 85.
— principal, 185, I86.
— real, I85.
— for service, I86, 192.
— for negative service, 186, 198.
— several, I85.
— unilateral, I85.
Contractual right, II 7, 172, 184.
Contribution, IQ8, 202.
Contributory negligence, 98.
Conversion, 219.
Conveyance, 140.
Conviction, I43.
Copyright, I 35, 136, 142, 219.
302
INDEX.
Co-respondent, II.4.
Corporations, 227, 230.
– aggregate, 232.
— foreign, 230.
— sole, 233.
— trading, 228.
Corporeal thing, 68, 138.
Corpus, I 24.
Cosmolitan justice, theory of 292.
Costs, 12 I, 242.
Court, choice of, 24o, 259.
Courts martial, 253.
Covenant running with the land,
2O7.
Coverture, 235.
Creditor, I 74.
Crime, 218, 244.
Criminal Acts, classification of, 257.
Criminal jurisdiction, 289.
Criminal law, 92, 254.
— adjective, 258, 259.
— conflict of, 294.
— general, 256.
— special, 257.
— procedure, 258.
Curator, II 6.
Custom, 44.
— how transformed into law, 47.
Customs, I 46.
D.
Damage, II9, 219.
Damages, 22O, 2.42.
— general, 220.
— special, ib.
Dangerous things, II 2.
Datio in solutum, 209.
Deafness, 236.
T)eath, II 2.
— effect of on obligations, 208.
— effect of on ownership, 143, 204.
— civil, 66, I43, 236.
Debitor, I 74.
Deceit, 219.
Deed, I81, 2II.
Defamation, 219.
Default, 242.
Del credere agent, 197.
Delict, 217, 254.
Delivery, I41, 185.
Democracy, 4O.
Deposit, I02.
Derivative rights, Io9.
— origin of States, 267.
— possession, I26.
Destruction of a thing, 208.
Determinate authority, 24, 33.
Detinue, 219.
Dispositive fact, Ioo, 143.
— voluntary and involuntary, 143.
Dissolution of artificial person, 67,
23O. -
Distress, I54, 213.
Disturbance, 219.
Divestitive fact, Ioo.
Divorce, 191.
Dolus malus, 158.
Domestic rights, 165.
Dominant tenement, 145.
Dorminical, II6.
Dominium, I 32, 269.
Dominium eminens, 134.
Donatio mortis causa, Io9, 141.
Donation, I43, 186, 237.
Droit, I 2, 57, 217.
Trunkenness, 168, 236.
Duress, 73, 177.
Duties as basis of Classification, 6o.
Duties of neutrals, 275.
Duty, absolute and relative, 82, 83.
— legal and moral, 59.
E.
Easements, 146, 147, 219.
Elements of an act, 72.
Elements of a right, 63.
Brmbargo, 273.
Embezzlement, I 26.
Emblements, 190.
Emphyteusis, I44, 145.
Enemy, 237, 243.
Equilibrium of States, 39.
INDEX.
Equity, 32, 5o.
Error, 175.
Erworbene Rechte, Io9.
Essentialia Negotii, 74.
F}stoppel, 222.
Etat civil, 252, 257.
Etat Fédératif, 39.
Bºthic, 22.
— defined, 23.
Etiquette, 20.
Events, 64, 7I, 99.
— preventing performance, 207.
Evidence, law of, 24I, 259.
Exceptio, 240.
Fºxchange, I86.
Execution, 242, 259.
Executive functions, 249.
Expression of Will, 73.
F}xpression of agreement, I 77.
Bxtent of a right, Io 2.
Extinction of rights, 209.
Bxtinctive prescription, 222.
Extradition treaties; 290, 294.
Extraterritorial effect of laws, 284,
286.
IExtra territorial
rights, 288.
Extraterritoriality, 270, 291.
recognition of
Factors, 197.
Facts, 64, 71, 99, 207.
— dispositive, Ioo.
— divestitive, Ioo.
— investitive, Ioo.
— involuntary, IoI.
— translative, Ioo.
— voluntary, IoI.
Familienrecht, 85.
Family of Nations, the, 267.
Family rights, Io9, II 2, 165, 204, 219,
258.
Fashion, 20, 24.
Felony, 223, 256, 257.
Feudal duties, 220.
Fidei-commissarius, 168.
303
Eiducia, 153.
Eiduciary rights, 167, 220,
Filiusfamilias, 235.
Firm, a, 228.
Fixtures, 190.
Foelix, unfortunate terminology of,
285, 287, 295.
E'orbearance, 63.
I'oreign enlistment, 257.
Foreign judgments, 279, 288, 293.
Forfeiture of a right, 99, 150.
Form of Expression of Will, 73.
IForm of government, 40, 248.
E'ormal contract, I'79, I80, 185.
Formalities, I4I, 187.
— of a contract, I 79, I80. .
Forum, in private law, 278.
— in public law, 289.
— actus, 279.
— civitatis laesae, 289, 292.
— contractus, 279.
— delicti, 289, 29O.
— deprehensionis, 289, 292.
— domicilii, 279.
— fortuitum, 279, 289, 292.
— ligeantiae, 279, 289, 290, 291.
— litis motae, 279.
Franchise, I 37, I42.
Eraud, 176, 216, 218, 219, 258.
Fraud, right toimmunity from, Io9, 158.
Frauds, statute of, I81.
Freight, IgA.
Fructuum perceptio, I39.
Fruits, I5o.
Fungible things, 68, 135, rq9, 188.
Furtum, 219.
G.
Gaming, I09.
Generally available rights, 219.
Geschäftsobligationen, 164 n.
Gift, I43, I86.
God, law of, 33.
Grammar, comparative, 46.
Gratuitous contract, 185, 186.
Guarantee, 184, 188, 201.
Guardianship, II6, 166, 234.
304
INDEX.
Habit, 44.
Habitatio, I49.
IHighways, use of, I 20.
Historical School, the, 49.
IHolmes, O. W., I 26 m.
Honorarium, IQ4 m, 196.
Honour, laws of, 20, 24.
Hypothec, I54.
Hypothekenbücher, 156.
I.
Illegality, I77, 248.
Illegitimacy, 237.
Imperium, 269.
Implied Contract, 177.
Impossibility, I 77, 208.
Imprisonment, III, 219.
Impulheres, 72.
Inaedificatio, I4o, I44.
Incerta persona, I?4.
Indemnity, 202.
Indeterminate authority, 24.
Industrial fruits, 150.
Infant, 72, 203, 234.
Infringement, 2I 7, 219, 254.
Ingratitude, 22O.
Injunctions, 2 I4.
Innkeepers, IQ2.
Inscriptions, I56.
Insult, II8, II9.
Insurance, I93, I94, 200.
Intangible property, I 42.
Intention, II8, 126.
Interest, 189.
— who has an, I 28.
International law, 32, 78, 92, 263,
276, 295 m.
— application of 295.
— persons, 265.
— private law, 285, 287.
Interpretation, 289, 295, 296.
— authentic, 289, 296.
— doctrinal, 289.
— extensive, 289.
— grammatical, 289.
Interpretation, legal, 289.
— logical, 289, 296.
— restrictive, 289.
— usual, 289.
Intestate succession, Iog.
Invention, 142.
Investitive fact, Too.
Iudicia extraordinaria, 254.
Iura in re, I 22.
— aliena, I44, 269.
Iuris-consulti, 2 n.
Iurisprudentia, meaning of term, 2, 3.
Tus, I2, 57.
— gentium, 7 n., 30.
— in personalm, I63.
— possessionis, I23.
— possidendi, I23.
— privatum, 244.
— publicum, 244.
— in rem, I63.
Iusta causa, too, I 39.
J.
Jest, 74.
Joint and several contracts, 175, 186,
2O4.
Joint-stock company, 229.
Judge, liability of, I 70, 249.
Judgment, 242, 259.
– as merger, 220.
Judicial notice, 24.I.
— functions, 249.
Jurisdiction, 239.
— administrative, 253.
— criminal, 259.
— international, 268, 269.
— ratione materiae, 278 m.
— cosmopolitan theory of, 292.
— personal theory of 290.
— self-preservation theory of 291.
— territorial theory of, 290.
Jurisprudence, 3.
— defined, II.
— as equivalent to law, 4.
— a science, 5.
— a formal science, ib.
t
INDEX.
Jurisprudence, abstracted from posi-
tive law, 7.
— progressive, 8. –
— not divisible into general and par-
ticular, 8.
— nor into historical and philoso-
phical, 9.
— rightly into civil and criminal, II.
— its relation to comparative law, 7.
— analytical, 5.
— censorial, 4.
— expository, 4.
— general, 8.
— historical, 9.
— local, 5.
— particular, 8.
— universal, 8.
— use of the term law in, I8.
Juristic act, 73.
— one-sided, 74.
— two-sided, 74, 172.
Justification, 1 Io, I IQ, 256.
K.
Rant, 23, 53, I 22.
Larceny, I 26 m.
Tuaw, I2.
— in the physical sciences, 16, 17.
— in the practical sciences, 15, 17.
— as a rule of action, 18, 19.
— in Jurisprudence, 18, 34.
— application of, 277 294, 295.
— interpretation of 288, 295, 296.
– object of 52, 54, 2I4.
— object of, means of attaining, 54,
238.
— sources of, 43.
— divisions of, 94.
— abnormal, 91, 94, 224.
— adjective, 61, 94, Io'7, 238, 245, 265.
— Administrative, 91, 247, 251.
— Constitutional, 91, 247, 248.
— Criminal, 92, 247, 254.
Y
305
Law, of Evidence, 241, 259.
— of God, 33.
— International, 78, 92, 94, 263, 266.
— — private, 285, 287, 295.
— Moral, 25.
— Municipal, 79, 264, 287 m.
— of Nature, 26, 29.
– normal, 91, 94.
— personal, 28o.
— of persons, 82, 224, 243, 246.
— positive, 35.
– private, 79, 82, 91, 94, Io'7, 244.
— — international, 285, 287, 294.
— public, 80, 81, 94, 244, 246.
— substantive, 61, 94, Io'7, 245, 255,
265.
— territorial, 28I.
— of things, 92.
— written and unwritten, 5 I.
Taw, a, a proposition, IQ.
— a, a command, 19, 34, 6o.
Law, act of, IoI, 2O4.
Taw-making Organs, 57.
Tiegacy, IoE, I4I.
Legal duty, 59.
— right, 55.
Tiegality, I'77.
Legation, law of, 272,
Legislation, as source of Law, 56.
Legislative functions, 249.
Letting, 189.
Tiex loci actus, 282.
— loci contractus, ii).
— loci delicti commissi, ib.
— domicilii, ib.
— fori, 28 I, 282.
— loci solutionis, 282.
Libel, 217.
Licences, I 5 I.
Life-interest, I49, I5o.
Lien, I54, 187, IQ3.
Limitation of actions, 222, 236.
Limited liability, 229.
Livelihood, right to, I2O.
Loan for consumption, I88.
Loan for use, I89.
Locatio-conductio, 189, 194.
Lotteries, IQ9.
Lunatics, 72, 83, 92, II6, 235.
306 INDEX.
M.
Maine, Sir H. S., 40, 213, 239.
Maintenance, 274.
Malice, I 18, 218.
Malicious prosecution, 121, 219.
Malum per se, 31.
Malum prohibitum, 31.
Marital rights, I66.
IMarriage, II 3, 165.
— clandestine and regular, 190.
— temporary, II.4.
— effect of on ownership and liabilities,
I43, 204, 235.
— contract, I 72 m, 186, 190.
— brokage, 177.
— settlement, 187.
IMenace, III.
Merger, 208, 22 I.
Meritorious rights, 169, 220.
Method, 95, I61, 247, 265.
Might, 58.
Ministère public, 242 m.
TMinors, 73, 234.
Mistake, 73, I 75.
IModus acquirendi, Ioo.
Monarchy, 40, 249.
Money had and received, 169.
Monogamy, II.4.
Moral duty, 59.
Moral law, 25.
TMoral principles, 25.
Morality and custom, 45.
Mortgage, I53, I56.
Mortmain, statutes of, 167, 230.
Mühlenzwang, I37,
Municipal law, 79, 264, 287 m.
IMutuum, I88.
N.
Nationality, 249.
Natural Law, 5, 26–30.
— deductions from theory of, 31.
— fruits, 150.
— obligation, I62, 20I, 2 Io n.
— person, 65.
— rights, Io9, I34, I45.
Naturalia Negotii, 74.
Naturalisation, 249.
TNautica pecunia, 200.
INecessaries, 169.
Negative services, 199.
INegligence, III, 218.
— contributory, 98.
TNegotiable instruments, 206.
Negotiorum gestio, I64, 169.
Neutrality, 266, 272, 274.
Nomology, 22, 24.
— defined, 23.
Nôpos, I4.
Non-conformity, 237.
TNon-performance, 2II.
Normal right, 87, 91.
— persons, 87, 265.
INovatio, 205, 2 Io.
Nuda proprietas, 144.
Nudum pactum, I 79, 183.
Nuisance, 219.
Oaths, 184.
Object of law, 53, 59, 2I4.
— of a right, 56, 63, 85.
Objects of ownership, I 35.
Oblatio, 209.
Obligation, is it a ‘res’ $ 69.
— definitions of, 162.
— natural, I62, 20I.
— civil, I63.
Obligationes, 161.
— ex contractu, 162, I 73.
— quasi ex contractu, I62, 164.
— ex delicto, 162.
— quasi ex delicto, I62.
Obligatory contract, I 73.
Occupatio, I 38.
Offences, 255.
— classification of 256.
— list of, 257.
Offer, 175.
Official rights, 17o.
Onerous contract, 185.
Operae servorum, 149.
Orbit of a right, 96, 216, 254.
~1
Origin of law, 43.
— of states, 267.
— of artificial persons, 67.
Ownership, I 23, 132, 219.
— acquisition of, I 38.
— bonitarian and Quiritarian, 144.
— elements of, 133, I44.
— international, 268, 269.
— joint and several, I44.
— legal and equitable, I44.
— limits of, I 33.
- transfer of, I 34, I40, I43.
P.
Pacific blockade, 273.
Bacta, nuda, I 79, I83.
— vestita, I82.
Pactum de non petendo, 2 Io, 22I.
Parental rights, II 5.
Partnership, IQ7, 228.
— classification of, IQ8.
Farol contract, I8I.
Part, ideal, 71.
— physical, 7I.
IPartie civile, 2 I 8.
Parties to an action, 242.
— to a contract, I 74.
Partus ancillae, I4o.
Party, act of, IoI.
Patents, I36, I42, 219.
IPawn, I53.
Peace, 266.
Peculium, 235.
People, 36.
Performance, 207.
— events preventing, 207.
— substitutes for, 209.
— release of 2 Io.
Perjury, 257.
Permissive use, I86, 188.
Person, abnormal, 224, 233, 243.
— artificial, 65, 66, 225, 243, 246.
— of incidence, 63, 65.
— of inherence, 63, 65.
— international, 265, 266.
— natural, 65, 66, 225, 233.
— normal, 87, 239, 265.
INDEX. . " * 307
Person, offences against the, 258.
— political, 78.
— public and private, 77.
Persona, 65.
— standi in judicio, 243.
Personal law, 28o.
— and real statutes, 283.
— theory of jurisdiction, 290.
Personality, extension of, I23, 130.
Persons, law of, 57, 83–92, 224.
Petition of right, 261.
Pictura, I4o.
Pignus, I53.
Pirates, 271, 293.
Blace, 72.
— in the application of law, 28.I.
Plantatio, I4o.
Plea, in confession and avoidance, 240
— dilatory, 240.
— peremptory, 240.
Pleadings, 240, 259.
Pledge, I 44, I5I, 2O2, 2I9.
Plures rei, I 75.
Political person, 78.
Polizei, 252.
Positive law, 8, 35.
— relation of, to natural, 27, 3I.
Possession, nature of, I 23, 130.
— commencement of, I 3o.
— derivative, I 26, 128.
— elements of I.24.
— as a mode of acquiring ownership,
I39.
— representative, I26.
— right to, Io9, 123.
— symbolical, I 24.
— termination of, I 31.
Possibility, I 76.
Precontract of marriage, I91.
Predial servitudes, I45.
Prerogatives, 249.
Prescription, acquisitive, I40.
— extinctive, I4o, 222.
— in criminal law, 256.
Presumptions, I 77, 24.I.
Price, 187.
Primary rights, 93.
Principal and accessory, 7o, I 35,
I4o, I86, 201, 256.
X 2.
308
INDEX.
Principal and agent, I05, 272.
— contract, I85, I86.
Brivate International law, 285, 287,
288, 295.
Private law, 78, Io'7, 244.
— abnormal, 223, 243.
— adjective, 238.
— application of, 278.
— normal, Io7.
— substantive, Io'7.
IPrivileges, 157.
IPrivilegium, Ioo.
Procedure, 238, 255, 259, 261.
Prodigi, 73, II6, 236.
Profession, 194, 236.
Profits-a-prendre, I 46, 148.
Promisor and promisee, I74.
Promissory note, 204.
Proof, 241.
Property, I 34.
— intangible, 142.
— literary and artistic, I42.
— offences against, 258.
— tangible, 138.
Proprietary rights, Io9, I22.
Protection of subjects, right of, 268,
27I.
Proximity, I 43.
Public law, 78, 80, 81, 239, 244.
— application of, 289.
— characteristics of, 245.
— relation of to private law, 244.
— classification of, 246.
IPublic opinion, 55, 58.
Public prosecutor, 218, 259, 260 m.
Punishment, theory of, 255.
— special part of the, 257.
Purchase, I43.
Q.
Quaestiones perpetuae, 254.
Qualification, Ioo.
Quasi-corporations, 228.
Quasi-possession, I 32.
Quasi-rights and Duties of the
State, 26o, 261.
Quasi-territorial jurisdiction, 292.
Quasi-usufruct, I49.
Queen’s Proctor, 242 m.
Quiritarian ownership, I44.
R.
Race, in the application of law, 28o.
IRailway-carriers, IQ4.
Ratification, 178, 203, 22I.
Real contract, I85.
— servitudes, I 45.
Beallast, I5o.
Recaptor, I69.
Recht, I 2, 57, 2I 7.
— objectives and subjectives, 57.
Rechtsgeschäft, 73, I 72.
Recognition, 268, 275.
Redhibitory action, I88.
Begistration of incumbrances, I 56.
Release, 2Io, 22I.
Religion, entering into, 143, 236.
— offences against, 258.
Remainderman, I5o, 22O.
Remedial rights, 93, Io?, IoS, 2I 2,
2 I 4, 272.
— extinction of, 22 I.
— origin of, 216.
— suspension of, 223.
— transfer of, 220.
Remoteness, 98.
Rent, I89.
Reprisals, 273.
Reputation, right to, Io9, I 18, 219,
268, 269.
— offences against, 258.
Bes, corporales and incorporales, 68,
I35 72.
— fungibiles
I35, I88.
— mancipi, I 36.
— nullius, I39.
Besponsibility, 99, 256.
Bestitutio in integrum, 208, 216.
Bestitution, IQ m, 60.
IRétorsion, 273.
IRetrospective application of law,
28o.
and nonfungibiles, 68,
INDEX.
Revenge, 2I2, 2I5.
Revenue, 252.
Reversioner, 22O.
Right, a, what is, 55.
— ambiguity of the term, 57.
— analysis of, 62, 84.
— definition of, 58.
— dynamical elements of, 64, 94, 99.
— extent of, Io2.
— infringement of 96, 217.
— object of 56, 63, 85.
— orbit of, 96, 216, 254.
— statical elements of, 64, 94.
— waiver of 99, 218.
Tight of action, a, 215.
Rights, as a basis for the classification
of law, 60, 94, IoS.
— primary distinction between, 81.
— classification of 76, 94, Io9, 164, 257.
— abnormal, 87, 91, Ioy, 224, 246.
— absolute, 93.
— antecedent, 93, Ioo, Ioy, IoS, 265,
268.
— of common, I47.
— contractual, II 7, I/2, I84.
— ex contractu, I 72, 220.
— derivative, Io9.
— of disposition, I 34.
— domestic, I65.
— dominical, II6.
— of enjoyment, I33.
— family, II 2, 165.
— fiduciary, I67, 220,
— to immunity from fraud, I58.
— imperfect, 273.
— legal, 56, 59.
— ex lege, I64.
— meritorious, 169, 220.
— marital, II 3, 166.
— moral, 56, 59.
— natural, Io9, 134, 145.
— normal, 87, 91, Io'7, 224, 246.
— official, I 7o.
— ordinary, I2O.
— parental, II 5, 166.
— to personal safety, IIo.
— in personam, 92, Ioo, IoS, I61, I63,
216, 245, 265, 27.I.
— — ex contractu, I 72, 27I.
309
Rights in personam, ex lege, 164.
— — transfer of, 204.
— — extinction of 207.
— perfect, 273.
— to possession, I.33.
— primary, 73.
— private, 78, 218.
— proprietary, 122.
— public, 78, 218.
— relative, 93.
– in re aliena, I44, 219.
– in rem, 92, Ioo, Io'7, IoS, 245, 268.
– remedial, 93, Io'7, IoS, 212, 220,
246, 265, 272.
— to reputation, II8.
— of Sale, 152.
— sanctioned and sanctioning, 93.
— secondary, 93. -
— tutelary, II5.
Riots, 257.
Rules of action, I8.
— postulates of, 2I.
S.
Safety, right to, Io9, 219, 268.
Sale, contract of 172 m, 187.
Salic law, I 28.
Salvage, 169.
Sanction, 19, 26, 60.
Satio, I4o.
Sciences, the, separation of, I5.
— limits to province of each of 22.
— practical, I5, 21.
— practical, division of into Ethic and
Nomology, 22. -
— theoretical, I5.
Scientific discussion, 5o.
Seal, contract under, see Deed.
Secondary rights, 93. -
Security, I52, 184.
— discharge of, I 37.
— transfer of Iš7.
Seduction, II 5, 2IQ.
Self-defence, 256.
Self-government, 253.
Self-help, I65, 212, 215, 238, 272.
310
INDEX.
Self-preservation, theory of 291
Sequestratio, I 92.
Servants, 126, 195.
— liability for acts of, 178, 220.
Services, contract for, 186, 192.
— right to, II 7.
— negative, I86, 198.
Servitude, 144, 145.
— acquisition and loss of, 14o.
— characteristics of 146.
— classes of, I46.
— real, I4I, I46.
— personal, I 45.
— predial, I46, I 48.
– rural and urban, 147.
Set-Off, 209, 22I.
Sex, 234.
Shares in cormpanies, 206 n.
Ships, I55.
— jurisdiction over, 270, 290.
Singular succession, Ioz.
Sitting dharma, 213.
Slave, 66, I 16, 236.
Societas, see Partnership.
— leonina, IQ7.
Société anonyme, 229.
— en commandite, 198.
— en rom collectif, 198.
Soldiers, IoA m, 236.
Solutio, I62, 207 n.
Sources of law, 43, 44.
— of rights, Ioo.
Sovereign political authority, 34,
36.
— its component parts, 249.
Sovereignty, 38, 248.
— external, 39, 248.
— internal, 40, 248.
— difficulties of theory of, 4o.
Special property, 129.
Specialty contract, I 81.
Specific performance, 216.
Sponsalia, Igo.
Staatsgewalt, 248.
Staatsrecht, 247 m.
Stadtrecht bricht Landrecht, 28o.
State, a, 36, 246.
— definition of, 37.
— may have rights and duties, 83.
State functionaries, 242.
— its organs for law making, 51.
— in international law, 267.
— intervention of, 60.
— as arbiter, 79.
— as a juristic person, 26o.
— as party, 8o.
— property of, 258, 26o.
— as source of law, 33, 43, 56.
— Origin of, 38, 267.
– objects of 54, 249, 252.
— offences against, 257, 267, 290, 292.
— termination of, 268.
States, classification of, 37.
– mi-soverains, 39, 267.
Status, 65, 83, 86, 9o, 233, 242.
Statuta, theory of the, 283, 286.
Stipulatio, I80, 236.
Stock-jobbing, I09.
Stoppage in transitu, I87.
Suarez, 264.
Substantive law, 61, 94.
— private law, Io'7.
Substituted right, 2 Io.
Substitutes for performance,
2O9.
Subtraction, 219.
Succession, Io2.
— intestate, Io9.
— singular, Io2.
— testamentary, Ioq.
— universal, Io2.
Summa potestas, 38.
Summons, 240.
Superficies, I44, I45.
Suretyship, see Guarantee.
2O7,
Taking, 157.
Tangible property, I 38.
Tender, 209.
Tenement, dominant and servient, I45,
Territorial theory of jurisdiction,
29O.
Territory, 269.
Testament, Io.4.
INDEX.
Testamentary succession, IO4, 143.
Thing, a, 64.
— accessory, 135.
— definition of, 69.
— divisibility and componibility of, 7 I.
— complex, 135.
— consumable, I 35.
— identity of, 70.
— intangible, 136.
— intellectual, 68, 85.
— material, 68, 85.
– principal, I 35,
— simple, I 35.
— tangible, I 35.
Things, classification of 7o, I 35.
— law of, 57, 83–92.
Time, 72, 256.
— in the application of law, 28o.
Title, 99, Ioo.
Titulus, Ioo.
Tort, 217.
— and crime, 217, 254, 255.
Torts founded on contract, I 71.
Trademark, 136, 142, 16o, 219.
Traditio, 141.
Transactio, 209.
Transfer of rights in personam, 204.
Transfer of rights in rem, II.4, II 5,
I 34, I4 I, I43.
Transfer of rights by act of law
and of party, IoI, 204.
Translative fact, Ioo.
Treason, 257.
Treasure trove, 139.
Treaties, 271.
Trespass, 219.
Trial, 24I, 259, 273.
Trust, breach of 217, 220.
Trusts, I67, 168.
Tutor, II 5, 234.
TJ.
311
Undue influence, 176.
TJnion of States, 39.
TJniversal succession, Io2, I43.
TJniversitates bonorum, 67, I 37, 143,
233.
TJniversitates personarum, 67, 233.
Unwritten law, 51.
TJrrechte, Io9.
TJsage, 44.
Tse, I48.
Uses, 167.
Usucapio, I 39.
TJSufruct, I48, 150, 161.
Usury, 189.
Tsus fori, 50.
V.
Verfassungsrecht, 248.
Vermögen, Io2, I 38.
Verwaltungsrecht, 251.
Vested rights, theory of 288 m.
Void and voidable contracts, 176.
Voluntary agreements, 187.
W.
TJ1tra vires, doctrine of 232.
unconstitutional, meaning of the
term, 248.
Underwriters, 2OO.
Wadset, I53.
Wager, 199.
Wagering contract, see Aleatory,
Waiver of a right, 99, I Io, 218, 221,
256.
War, 2.73.
— effect of on property and obligations,
2O8, 272, 276.
Warfare, conduct of 273.
Warranty, 160, 188, 202.
Waste, 22d.
Whole, ideal and physical, 71.
Wife, liability for acts of, 179.
— how suable, 243.
Will, a, IO4, I43.
Will, the, 21, 22, 172, 218.
— capacity of, 72.
— exertion of, 72.
312 INDEX.
Will, expression of 73. Wrongs, classification of 218, 219.
— — form of 73, 177. — list of, 219.
Witness, incapacity for being, 237, — independent of contract, 21 220.
* 24I. -
Women, 72, 234, 250.
Work on materials, 192. - Z.
Written law, 51.
— contract, I81. Zouch, 263 m.
Wrong, 217. - Zustandsobligationer, I 64 m.
C O R. R. I. G E N D A.
. 65 n. for istuntur read utumtur.
. 79, l. 27, for has read have.
. I 22 n. for meine read meiner.
. 182 n. for sont read font.
. 221, 1. II, for Acquilian read Aquilian.
. 237, 1. I2, omit and.
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