^^>— i ;tion f Col. G Smith, Here ] UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY tis :^Bq; JBqiua d 9'9S pnpaj *p9i[d sv 10 SS8I kx '^^ o^ I siqrs in aij:^ onpaj UK o; — sjBaA OAv; ui auin D"0 '¥C^^ ^^^i^,." M] ■.<«s f^W^^ft^L THE LAW OF PRIVATE RIGHT BY GEORGE H. SMITH, Author of Elements of Right, and of the Law" and of Essays or, " The Certaintf of the Law, and the Uncertainty of Judicial Decisions" " The Trtu Method of Legal Education" and other subjects. Naivra enim juris explicanda nobis, eaque ab hominis repetenda natura. NEW YORK : THE HUMBOLDT PUBLISHING CO., 28 LAFAYETTE PLACE. Dytl Copyrighted, 1890, BY The Humboldt Publishing Co. PREFACE. The following work, being the substance of the general or intro- ductory part of a course of lectures upon the Law of Private Right as administered in this country, delivered before the Los Angeles Law Students' Association, owes its origin to a conviction entertained by the author that the theory of jurisprudence now generally prevailing in England and in this country is fundamentally erroneous, and that to this is to be attributed, as to a common source, the loose and inac- curate character of our modern text-books and judicial decisions, the low standard of professional education, the uncertainty in the admin- istration of justice, and the generally unsatisfactory condition of the law in all its aspects at the present day. In the following pages I have attempted to expose the radical errors of the theory referred to, and also to expound the true theory of the law, which, though generally recognized by the jurists of other countries and former ages, seems, since the time of Austin, to have been lost to the profession in this country and England, and, indeed, to the English-speaking race generally. How far I have succeeded, it is not for me to say. But I may, at least, claim for the work — whatever its merits or demerits in other respects — that it is a pioneer on the road that must be traveled before any improvement in the existing degenerate state of the law, and of its literature, can be looked for. GEORGE H. SMITH. CONTENTS INTRODUCTION. § I. Explanation of the Design and Scope of the Work § 2. Of the Definition of the Law § 3. Of the Division of the Law PACK i ▼ XV PART I. Of the Nature of the Law of Private Right CHAPTER L Analytical Outline of the Law of Private Right § I. Division of the Law of Private Right § 2. Classification of Rights .... § 3. Classification of Actions .... § 4. Of the Subject-Matter of Private Right § 5. Definition of Contract and its Place in the Law § 6. Of the Arrangement of the Law, with a View to its Exposition CHAPTER II. Of the Nature of Right, and of the Law of Private Right, and their Relation to Each Other § I. Division of the Subject .... § 2. Of the Nature of Right .... § 3. Of the Several Theories of Jurisprudence . § 4. Of Right as an Element of the Law § 5. Of Actionable and Non-Actionable, or Juridical and Non-Juridical Rights § 6. Definition of the Law .... § 7. Historical Verification of the Theory of this Chapter X z 2 4 6 10 12 14 14 14 16 18 20 21 22 PART II. Of the Law of Private Right as Historically Developed CHAPTER I. Of the Historical Development of Jurisdiction § I. Of the Development of the Jurisdiction of the Courts of Law § 2. Of the Development of Equity Jurisdiction 27 27 27 34 vi CONTENTS. CHAPTER II. PAGE Historical Development of the Law (as Opposed to Equity) . 38 § I. General Remarks on the Development of the Law, and Division of the Subject ......... 38 § 2. Of the Common-Law Actions ...... 40 § 3. Of the Common-Law Doctrine of Real Estate . , . ,45 CHAPTER III. Historical Development of Equity ..... 47 § I. Of Equitable Actions ....... 47 § 2. Of Equitable Rights, and herein, first, of Uses and Trusts prior to the Statute of Uses ........ 48 § 3. Of Modern Trusts ....... 51 PART III. Of the Nature and of the Method and Principles of Right . 60 CHAPTER I. Definition of Rights ....... 60 CHAPTER IL The Same Subject Continued, and herein, of the Standard of Right and Wrong ....... 63 CHAPTER III. Of the Method and First Principles of Right . . .70 CHAPTER IV. Of the Limit to the Liberty of the Individual, Imposed by the Rights of the State ....... 75 § I. Of the Rights of the State Generally ..... 75 § 2. Of the Right of Jurisdiction ...... 75 § 3. Of Jurisdiction, Continued, and herein, of Rules of Court . . 76 § 4. Of Jurisdiction, Continued, and herein, of Rules Established by Judicial Precedent ........ 77 § 5. Of the Right of Legislation ...... 79 CHAPTER V. Natural Rights Demonstrated from the Above Principles § I. Of the Right of Self-Ownership § 2. Of the Right of Property g 3. Of Rights in rem, other than the Right of Property § 4. Of Rights in personam, or Obligations, and herein, first, of Obligations ex Delicto ..... § 5. Of Obligations ex Contractu § 6. Of Obligations ex Mero Jure 81 85 83 85 86 87 90 INTRODUCTION. § I. Explanation of the Design and Scope of the Work. The objects which I have proposed to myself, and which I have kept steadily in view in the preparation of this work, are fourfold, viz.: 1. To explain the nature of the law and the nature of its several subjects or parts, and their relation to one another ; 2. To set forth and explain those general principles of natural right upon which every system of law is based, and which in every system constitute, not in bulk, but in extent and frequency of application, the chief part of the law of Private Right ; 3. To give a brief account of the principles and rules, both of law and equity, which have grown out of the historical development of our law, and are therefore peculiar to the system ; and 4. To explain and illustrate the method of the law of Private Right, or, in other words, the true method of investigation and reasoning to be used in determining controversies between men as to their rights. That the ends proposed, and thus briefly stated, may be better un- derstood, I will add a few words of explanation. With regard to the first, it is necessary only to remark that the law is, in this respect, like other sciences or subjects of inquiry, and that, in studying it, it is essential for the student to acquire, at the very outset of his course, a clear and correct, and, as far as possible, ade- quate notion of the nature of the law and of the questions or problems presented by it, and also of its several divisions or parts, and their relation to one another. This information, once acquired, will serve as a clew or thread to guide him through the labyrinth of law, and will enable him, in taking up any subject for study, to understand at once the nature .of the problem to be investigated, the place of the subject in the law, and its relation to other subjects. It will enable him also, as he proceeds with his studies, to bring together in its nat- ural correlation the information acquired ; and the knowledge thus obtained will gradually form itself in his mind, not as a loose mass of arbitrary rules, difficult to remember or to recall when needed, but as an organic whole, requiring no effort of the memory to retain it, and ever ready to suggest itself when required for use.' In no other viray, in my opinion, can the law be readily mastered and retained ; and to the lack of this, more than to any other cause, is to be ascribed the failure of existing methods of instruction. For it is an unfortunate fact, and one very discreditable to the profession, that the definitiDn * The Roman lawyers were distinguished for the habit of thus regarding the law^ In its scientific unity, as a consistent whole, and hence resulted the remarkable consist- ency, or, as they called it, elegance {elegantia) of the Roman law. viii INTRODUCTION. and the divisions of the law in our books are altogether incorrect, and serve only to mislead and confuse the student. With regard to the second and third of the objects proposed, a more extended explanation will be necessary. The law, as described by the great Lord Mansfield, is nothing else than reason modified by custom and authority. Hence, every system of law is composed of two elements, which may be described as the rational or scientific element, and the historical. For all systems of law agree in their main features and in their general principles, which are, in the main, rational in their character, but differ from each other in this : that there are in each certain peculiar rules established by statute or custom, which constitute its historical element. These two elements were distinguished by the Roman lawyers by the terms jus civile and jus gentiujn, ox jus naturale. " Every people," they said, " ruled by laws and customs {legibus et moribus), uses partly its own peculiar law, and partly a law common to all men ; for that law, or part of the law, which each people has established for itself, is peculiar to the State, and is called the jus civile, as belonging pecul- iarly to the State ; but that law which natural reason has established among all men is observed generally among all peoples, and is called iho. jus gentium, as being the law which all nations use."* The distinction thus made by the Roman lawyers corresponds pre- cisely with that of Aristotle, who divided the law into the vo/xoc 'iSw:, or peculiar law, and the vo/ao? xojvw^, or common law, the former of which he defined as the law, or part of the law, which each State has established for itself, and which is therefore peculiar to it ; and the latter as that which is conformable merely to the dictates of Nature, and which appears to be recognized among all men.* •Jus autem civile a jure gentium distinguitur : quod omnes popuH, qui legibus et moribus reguntur, partim suo proprio, partim communi ominum hominum jure utun- tur. Nam quod quisque populus ipse sibi jus constituit, id ipsius proprium civitatis est, vocaturque jus civile, quasi jus proprium ipsius civitatis : quod vero naturalis ratio inter omnes homines constituit, id apud omnes peraeque custoditur, vocaturque ius gentium, quasi quo jure omnes gentes utantur. Et populus itaque Romanus partim suo proprio, partim communi ominum hominum jure utitur. Inst, i, i, I. * Eth., Bk. 5, Ch. 6, 7 ; Rhet., Bk. i, Ch. 10 and 13. Considering the difficulty of the subject, and the period at which he wrote, perhaps no other part of the works of Aristotle exhibits more favorably the character of his original and profound genius than his views of the law. The subject is treated at large by Dr. Taylor, in the " Elements of Civil Law," in his chapter on the " Law of Nature," from which we extract the following: " Natu- ral Law is the Rule and Dictate of Right Reason. . . . Positive, Voluntary, Arbitrary or Instituted Law ... is that which does not flow from the general condition of human nature, but has for its objects things merely indifferent, and is founded in the sole pleasure of the Legislature. And these [after quoting Aristotle] are the very ■words of the Emperor: ' Otnnes populi qui legibus et Jiioribus reguntur, partim suo pro- pria, partim communi omnium hominum jure utuntur.' " For both writers, by common or universal, mean natural law, and by private or fitiritcular, the proper institutions of separate communities, differing from each other according to the different features of government, the wants and exigencies, the tem- per, disposition and other circumstances of each society ... so that Aristotle's dis- tribution stands thus (translating the Greek) : The Law (v(5//of). I >• — — — — ,, The Common The Peculiar or Natural Law. or Instituted Law. Unwritten. Written. "This twofold division of law, as it is the earliest, so it is, perhaps, the best, and INTRODUCTION. ix The distinction also corresponds to the distinction made in our law between the. principles and the rules of the law, and between reasoning irova principle and reasoning from authority ; of which the one consists merely in applying the established rules of the law to cases coming within their explicit terms, and the other in logical deduction from principles. To the former applies the maxim, Quod vera contra ratio- nem juris receptuui est, non est producendunt ad cousequentias ; ' to the other, the maxim, Ubi eadem ratio, ibi idem jus. Or, as the distinction is expressed by Bacon : " Let reason be prolific, but custom sterile, that it may breed no cases. Therefore, what is received against the reason of the law, or even where its reason is obscure, is not to be drawn into consequence."* The jus civile, or peculiar law, considered with reference to its im- portance and the generality of its application, constitutes in every system but a comparatively inconsiderable part of it, and the jus gen- tium or naturale, or common law, the principal part. The latter is purely rational and scientific in its character, and can be taught scientifically precisely as geometry is taught; and, as it con- stitutes the principal part of the law, it follows that the law can in the main be taught in a purely scientific manner. Taught in this way, I believe it to be practicable to compress in a very small space what is now spread through hundreds, and even thousands, of volumes.* The law, however, cannot be learned wholly in this way ; for every system of law is so implicated with arbitrary and accidental rules, established by statute or custom, that it is impossible to understand the text-books and reports without being familiar with this historical element ; and a familiarity with this element is the more essential from the fact that the technical terms used in each system are gen- erally of historical origin. Accordingly, I have aimed to give a clear notion, as well of the historical as of the scientific or rational part of the law ; which is but to state again the second and third of the ob- jects above specified. With regard to the method of the law (the explanation of which is the fourth of the objects proposed), I will say nothing for the present, ■except to refer briefly to a very prevalent misconception of the subject. has been generally received by lawyers and philosophers." (Elements of Civil Law, 3d edit., pp. 99, ei seq.) ' Dig. 1, 3, 14 ; cited in Broom, Leg. Max. « De Augme?iiis, Bk. 8, Ch 3, Aph. 11. ^ It is doubtless true, as remarked by Mr. Holmes in his able work upon the Com- mon Law, that for the exposition of the law "other tools are needed besides logic." But it is a great practical error not to recognize the fact that logic is, and always has been, the principal tool, and that it does, in fact, constitute the life of the law. Nor could a greater practical mistake be made than to attempt to impart a knowledge of the law to the beginner by mere historical exposition. To this the student must resort in the further progress of his studies ; but at first it should be resorted to no further than is absolutely necessary to enable him to understand the books. Hence, for the beginner, the dogmatic is the preferable method, and the historical should be deferred to a later period. Nor should it ever be forgotten that the historical element of the law at any given time owes its force to its then reception, and not to the fact that it had anciently been received. Hence, when any part of it has fallen into disuse, it is no longer part of the law ; nor is it of any interest to the jurist, unless he be also an historian, save as it may explain the present condition of the law. Nor can there be a greater mistake than to suppose that the historical facts of early times are the germs out of which the law has been developed. The development of the law consists in the eradication of its historical element, and the substitution of rational principles ; and of this development logic is the principal instrument. X INTRODUCTION. Of late years the notion has sprung up, and has become more and more prevalent, that all questions of law are to be decided simply by referring to some statute, or some rule established by precedent. If this were so, all that would be required of the lawyer would be a facility in hunting up authorities and a retentive memory. But this is very far from being the case. Where an authority is found, the still more difficult task remains to determine its value, and this can only be determined by means of a thorough familiarity with the general principles of the law, and by the exercise of our independent reason. This is one of the most important functions of the lawyer, and perhaps in no other respect is the difference between the thorough and the mere case lawyer so manifest as in the capacity for performing it. In this and in other ways, the function of the lawyer involves, in the highest degree, the exercise of the reasoning or logical faculty. He must, if he would be a competent jurist, possess the faculty of broad and comprehensive generalization, and also that of fine and accurate distinction ; he must be capable of correct and scientific definition, and of reasoning boldly and logically from his premises, and of form- ing confidently his own conclusions. If these should agree with the rules established by the prevailing authorities, then he will understand the reason of the law ; in which, as Chief-Justice Holt justly observes, the law in fact consists. If, on the other hand, an authority should appear to him to be in conflict with the settled principles of the law, then, in most cases, he will not hesitate to reject it ; and at all events, even if, like Galileo, he is forced by authority to acquiesce in a false proposition, he will still be able to perceive its falsity, and will thus at least preserve the integrity of his mtellect and his conscience, which by any other course must be seriously impaired ; for nothing can be more destructive to the reasoning faculties than to accept as true what is logically false, or to the conscience, than to confound the just and the unjust. In short, without this independent exercise of the reason, the faculty of judging of the decisions, and even of understanding or of correctly applying them, will be lost. This was illustrated by the condition into which the Roman lawyers had fallen in the time of Justinian, and for some centuries previous — who had, in fact, as is remarked by Mac- keldey, lost entirely the capacity of weighing the authorities, and of judging their relative values. To supply this defect, various ineffect- ual expedients were resorted to. For example, certain jurists were named whose authority, when accordant, should be conclusive ; where they differed, the majority was to prevail ; and, where they were equally divided, the authority of one (Papinian) was to determine. The expedient, of course, proved entirely ineffectual, as must be the case with all devices for supplying the want of the reasoning faculty in lawyers and judges ; and hence, on account of the continued ineffi- ciency of the judges and lawyers, and the consequent confusion in the administration of justice, it was found necessary to codify the law,^ which resulted in the Codes, the Pandects, and the Institutes of Jus- tinian.' ' The collections of Justinian are often referred to by the advocates of the codifica- tion of our own law with too much praise. In the opinion of the most competent authorities, the work was very badly done. The event took place after the fall of the Western lloman Empire, and at a period when every spark of original genius, either in the law or in literature generally, had become e.xtinct among the Roman people. INTRODUCTION. xr The profession of our own country and time has gone very far in the same direction, and the same remedy is proposed ; but this deca- dence in the genius of the EngHsh and American bar I regard as the consequence of accidental causes only ; and it needs but the introduc- tion of better methods, of which many signs appear, entirely to ar- rest it. § 2. Of the Definition of the Law. The term " the law," accordingly as it is used by the English or the American lawyer, varies somewhat in meaning. The former, when he uses it, has in view the law of England, a single State ; the latter, though he sometimes refers to the law of his own State, most com- monly has in view the American law, or the law common to all the States. For though the several States are, with reference to each other, and, with certain well-defined exceptions, with reference also to the Federal Government, sovereign or independent political communi- ties, each with its own legislature and system of courts, yet substan- tially the same system of law is administered, with one exception, in the courts of all the States, and also in the Federal courts. To this common law of all the States, or, as it may be called, the "American Common Law," and not to the law of any particular State, our text- books are almost exclusively devoted ; and, in accordance with this custom, it will constitute the subject of our present investigations. In these investigations our first inquiry Avill be as to the nature of this law, or rather — as all systems of law are in essential nature the same — as to the nature of positive, or, as Blackstone calls it, municipal law in general. In which task we can receive but little aid from the various definitions given in the books ; for these are so various and conflicting that it will be impossible to reconcile or even intelligently to discuss them until we have investigated in detail the nature and general principles of the law. Indeed, even could a correct definition be devised, it would be of little service to us at the present stage of our investigations. For, to the student just entering upon the subject, it would carry with it but a vague meaning ; while, to older lawyers, owing to inveterate errors almost universally prevailing as to the nature of the law, it would probably serve only to excite prejudice against the views of the author ; and it would thus prove, in the ex- pressive language of Scripture, to the one a "stumbling-block," and to the other "foolishness." We must, therefore, regard the definition of the law rather as the end and crown than as an appropriate begin- ning of our labors. But, while even a perfect definition of the law would do but little to help us at the threshold of our inquiries, an incorrect definition, by giving us a false notion of the law, and misleading us as to the method to be pursued in studying it, may do us infinite harm ; and hence it will be necessary for us to examine at some length the vari- ous definitions that have been offered — so far, at least, as may be nec- essary to avoid being misled by them. Nor should the somewhat protracted attention we are about to devote to the subject of definition be regarded — as it probably will be by some — as wasted. For it is not an exaggeration to say that It had no effect in improving the Roman lawyers ; but perhaps it was a necessary ex- pedient at a time when the bar, as well as the people generally, had so profotindly degenerated. xii INTRODUCTION nearly all errors of human thought in social and political science may be traced to errors engendered by a misconception of the meaning of words. " Men imagine," says Bacon, " that their reason governs words, while, and in fact, words react upon the understanding ; and this has rendered philosophy and the sciences vain and inactive."' Or, as he otherwise expresses it, " words still manifestly force the understanding, throwing everything into confusion, and lead mankind into vain and innumerable controversies and fallacies."' Hence, what is sometimes contemptuously called logomachy, or fighting over words, is often the decisive battle by which a theory is established or overthrown. And this, indeed, will be found to be the case with the subject under inves- tigation ; which, in fact, will be found to furnish the most remarkable instance in the history of philosophy of this tyranny of words over the human mind. The definitions of the law given in the books, though varying widely in terms, may all be reduced to four, of which, however, the first three only are real definitions, and the last a mere description of the law. The first, in effect, defines the law as being a mere expression of the will of the State ; or, in other words, as consisting altogether of laws {leges), or statutes. To this effect is the definition of Blackstone, as amended by Christian ; viz., that the " law is a rule of civil conduct prescribed by the supreme power in a State ; "^and also the definition of Austin, that a law is a command of the sovereign, and the law an aggregate of such commands ;* and that of the code of the New York Code Commissioners, which defines the law as "a rule of property and of conduct prescribed by the sovereign power of the State ; "^ and also that of the California Code, according to which it is *' a solemn expression of the will of the State."^ These definitions are all, in effect, the same ; and, though embodying a conception of the law now almost universally prevailing, are so palpably in conflict with patent and no- torious facts that their acceptance must ever remain at once a reproach to the intelligence of English and American lawyers, and the most curious of all phenomena in the history of philosophy. For no fact is more obvious or more fully recognized than that the law has been developed, not by the legislature, but by the courts in the ordinary exercise of their jurisdiction ; and that, so far as its formal expression is concerned, it is to be sought, not in the statutes (which constitute but an inconsiderable part of it), but in the decisions of the courts. The definition is, therefore, obviously untrue even when applied to the law of a particular State, and is still more manifestly so when applied to the American law, which has neither a common lawgiver nor com- mon tribunals, and which, therefore, obviously cannot be brought un- der the definition. We might, therefore, at once dismiss the subject from further con- sideration, were it not for the influence the definition has exercised, and still continues to exercise, upon the professional mind in this country and in England — an influence so profound and deleterious that, until removed, it will stand as an insuperable obstacle to the intel- ligent study of the law. On this account, therefore, some further con- sideration of the subject will be necessary. The definition in question originated in an unfortunate mistake of ' Nov. Org., Aph. 59. * Id., Aph. 43. ^ i Blackstone, Com, 44. * I Austin, Jur. 91. ^ N. Y. C. C, sec. 2. * Pol. C. 4466. INTRODUCTION. xii£ Sir William Blackstone as to the meaning of the term/«j civile^ as used in the Roman law. According to the conception of the Roman law- yers — as we have already explained — the law is made up of two ele- ments, viz., i\\e JUS gentium and the. jus civile, the former consisting of those rational principles which are common to, and indeed constitute the principal part of, all systems of law ; and the latter, of the arbi- trary or accidental rules peculiar to any given system. According to this view — which is obviously the true one — the jus civile constitutes, not the whole, but only a part of the law ; and indeed — if we have regard to importance rather than bulk — we may say a very incon- siderable part of it. But Blackstone unfortunately mistook it for the whole, and avowedly founded his definition upon it." So obvious a blunder could hardly have occurred, and still less, for over a century, have escaped detection, had it not been for the unfort- unate ambiguity of the term, " law " — which, in its most familiar sense, denotes a law or statute (lex), or an aggregate of such laws ; but which is also used to denote the more complex subject, which we call the law, and which in its latter application has naturally carried with it its more familiar connotation. For, in all other languages but our own, what we call the law is de- noted by a term signifying right: as, for instance, in the Latin hy Jus; in the German by recht ; in the French by droit ; in the Italian by diritto^ etc. — a usage once common with ourselves, and not yet altogether ob- solete; as, for example, in the term Folk-right, the ancient name of the Common Law, and, in its later equivalent, "Common Right."* By this usage of terms, and by their familiarity with the conceptions of the Roman jurists, the lawyers of Continental Europe have been preserved from this error ; and hence the conception of the law in- volved in the definition is a peculiar growth, or rather excrescence, of English jurisprudence, and, as observed by Sir Henry Maine, is not so much as "known on the Continent at all."' To Blackstone himself and to the lawyers of his time the definition carried with it but little significance. They knew the law too well to be misled by it ; and hence their practical conception of the law, as evidenced by their works, was altogether different from, and incon- sistent with, that embodied in their formal definition. But unfortu- nately the definition fell into the hands of Bentham and Austin, by whom, or rather by the latter of whom, it was developed into a formal and comprehensive theory — which has of late years, in England and this country, almost entirely usurped the whole domain of theoretical jurisprudence, and which has exercised, and still continues to exercise, an almost despotic dominion over the English and American mind. This theory rests entirely upon the definition as its foundation, and is in fact but a mere series of deductions from it. Its principal tenets may be briefly stated in the following propositions : ' " Municipal or Civil Law," he says, " that is, the rule by which particular dis- tricts, communities, or nations are governed [isj thus defined by Justinian : Jus civile est quod quisque sibi populus constituit." I Com. 44. '^ " It [the Common Law] had an ancienter original than Edwin the Confessor, and was first called the folc-right, or the people's right." (Aston, J., in Miller v. Tay- lor, 4 Burr. 2343.) " And it is to be observed, the Common Law of England is sometimes called right, sometimes common right, and sometimes communis justitia. In the Great Charter the common law is called right. Nulli vendemus, nulli negabimus, aut differemus justi- tiamvel rectum." Co. Lit. 142. ^ Vill. Com. 66. xiv INTRODUCTION. 1, The law is a mere expression of the will of the supreme govern- ment, 2, The courts in fact exercise legislative functions. Hence judicial decisions are mere expressions of the will of the State through its officers, the judges ; and in their essential nature differ in no respect from statutes or legislative acts, 3. Custom is no part of the law until recognized and adopted by the government, either through its legislature or the courts,* 4. International law is not law in the true sense. 5, Nor is constitutional law, 6. Rights are mere creatures of the will of the supreme government, 7, Hence there are no such things as natural rights, 8. Hence the State itself cannot have any rights, or be subject to any obligations, either as to its own citizens or as to foreign nations. 9. The legislative will is not only the source of rights, but the para- mount standard of the just and the unjust, and of right and wrong generally, 10, The power of the sovereign is incapable of legal limitation ; or, in other words, the supreme government is legally absolute, or despotic. With a little reflection it will be perceived that all the above con- clusions follow logically from the definition, and cannot be consist- ently rejected by anyone who accepts it.' It is obvious, therefore, that the definition, as well as the theory based upon it, is subversive of human rights and liberty, and of morality itself ; and the mere statement of the theory may be, there- fore, taken as a reductio ad absui'dum of the definition. We have dwelt at length upon this definition, because it is almost universally received by the profession, and because, as we have already remarked, so long as this continues to be the case no intelligent study of the law, in its scientific aspect, is possible. The second definition defines the law as consisting of the general customs of the realm, or State.* This definition is of earlier date than the former, and is supported by the concurrent authority of all our writers, ancient and modern. The essential idea intended to be con- veyed by it is beyond all question correct ; for there is no fact more certain or more important than that all law rests in the main upon custom. But, as expressed, the definition is inaccurate ; for it is obvious that custom is only one of the elements of the law. The third definition regards the law as identical with justice. This is implied in our common speech ; as, for example, when we speak of "courts of justice," or of "the administration of justice," and is ex- pressly asserted by the highest authorities. Thus Bracton, following the Roman lawyers, defines jurisprudence, or the knowledge of the law, as "the science of the just and the unjust" {justi atque injusti scientia), and the law " as the art of the good and the equitable " {ars boni et ce(/ui)\ and accordingly he says: "Justice, therefore, is the virtue, jurisprudence the science ; justice the end [sumfnum bonum), jurisprudence the means." And with this agrees precisely the defini- tion of Sir Matthew Hale ; according to which " the common law of ' This is shown more at length in an article published in the American Law Review, March-April. 1887, entitled "The English Analytical Jurists," where will be found condensed into a brief space a clear view of the theory of jurisprudence generally ac- cepted in England and this country. * I Blackstone, Com. 63. INTRODUCTION. xv England is the comtnon rule for administering justice within this king- dom J " and also the forms of the old commissions to the judges, which were : facturi quod ad justitiam pertinet secundum legem et consuetudinem Anglice j^ and indeed the books are full of expressions of eminent jurists which, in effect, assert the same proposition.* But, to say the least, this definition is inaccurate ; for the law is obviously made up in part of laws and customs, the former of which are purely arbitrary, and the latter to a large extent accidental, and both often unreason- able and absurd. The common fault of all these definitions is that they each regard only a part of the law, and ignore the remainder. For the law is in fact made up of laws or statutes, customs, and principles of natural reason ; and no definition which ignores either of these elements, or which fails to express the manner in which they are related to the law and to each other, can be accepted as satisfactory. The fourth definition, or supposed definition, does not aim to express the essential nature of the law, but merely to distinguish and identify it, and thus to determine the proper subject of our investigation. According to it, the law is simply the aggregate of the principles and rules, whether arbitrary, accidental, or of natural reason, by which the courts are governed in the exercise of jurisdiction ; or, as expressed by Sir Matthew Hale, " it is generally that law by which the deter- minations in the (king's) ordinary courts are guided." ' This definition, or rather description, of the law is equally con- sistent with all the definitions given, and indeed with any definition that can be devised. Hence it furnishes a common ground upon which the advocates of all theories of jurisprudence may stand at least equally well, and it may be conveniently used as giving a rough and approximately correct description of the law. Let it be assumed, therefore, for the purpose of defining the scope of our inquiries, that the law, whose nature we are seeking to ascertain is the law which the courts enforce, or at least are supposed to enforce ; or, more spe- cifically, that it is the aggregate of the rules and principles by which the courts are governed in the exercise of jurisdiction. This description of the law, however, gives us no information as to the essential nature of the rules of conduct which are thus enforced, and which, according to it, constitute the law. It remains, therefore, to investigate the nature of these rules or principles, a problem purely historical, and which can only be solved by an examination of some actually existing system of law. In making this investigation we will, for obvious reasons, generally have in view our own, or the American, law ; but what we will have to say will be equally applicable to all systems. § 3. Division of the Law. The law is not a homogeneous whole, but consists of several different ' Co. Lit., 142 a. 2 See especially Co. Lit., 142 a, 158 b, 976, 97 b. ^ This is also in effect the definition of Von Ihering, who defines the law as "em- bracing all the principles of law {Recht) enforced by the State." (Struggle for Law, 5); and that of Bliss, who defines it as " the aggregate of the rules recognized or pre- scribed by the supreme power of the State . . . regulating the property and per- sonal relations of men" (Sov., 52) ; and that of Holland (Jur., 12), according to which ' ' a law is a general rule of external conduct enforced by a sovereign power, and the law merely an aggregate of laws." In fact, however, these and the definition in the text are not definitions in the true sense, but mere statements of the subject to be defined. xvi INTRODUCTION. parts or branches, which differ essentially in their nature. Its nature, therefore, can only be understood by an analysis and separation of it into its several parts, and by the division and subdivision of each part, until we have presented to our view, as a connected whole, the vari- ous subjects which make up the aggregate which we call the law. Our first step, therefore, will be to examine and analyze the law as it is actually administered by the courts. If we observe the course of business in the courts of ordinary civil and criminal jurisdiction, we shall find that they are exclusively occu- pied either in determining controversies between individuals with ref- erence to their reciprocal claims and demands upon each other, or in determining accusations of crime, which, in effect, are controversies between individuals and the State. The power to hear and determine such controversies is Cd\\&di jurisdic- tion, and is either civil or criminal; the former consisting in jurisdiction over civil cases, or controversies between individuals, and the latter in jurisdiction over criminal cases, or accusations of crime.' An obvious division of the law, therefore, is into the civil and the criminal law — the former being the branch of the law which governs the exercise of civil, and the latter that which governs the exercise of criminal, jurisdiction. The crimmal law in this country consists almost wholly of statutory enactments, which are simple in their nature and readily understood ; and a sufficient knowledge of it for purposes of the general practi- tioner can, therefore, be readily acquired by the student by the perusal of the criminal code of his particular State, and perhaps, also, of some good text-book on the subject. It differs so essentially from the civil law in its nature that it will only produce confusion to con- sider them together ; and we will, therefore, for the present, dismiss it from consideration, adding only that the civil law is the branch of the law with which lawyers in general are principally, and indeed almost exclusively, concerned. The civil law is that branch of the law by which the determination of civil cases is provided for and governed, and it consists of the law of civil procedure and the law of private right {Jus privatum). The former will first be briefly explained. To every civil con- troversy there are two parties ; viz., the plaintiff and the de- fendant {actor and reus). The former is he who demands relief from the court against another ; the latter, he against whom the relief is demanded. The proceeding by which the demand is made by the plaintiff and resisted by the defendant is called a suit {lis), and also an action {actio). The latter term, however, has a more appropriate signification, in which we shall be compelled habitually to use it ; and we will, therefore, in the present connection, use the former exclusively. In general, the determination of a suit involves two classes of ques- tions, which are distinguished as questions of law, and questions of fact. The latter depend for their determination upon the evidence ; the former, upon general rules and principles, which in the aggregate constitute the law. ' ' ' Jurisdiction is the power to hear and determine the subject in controversy be- tween parties to a suit" (Rhode Island v. Mass , I2 Pet. 717) ; it has also been defined as "an authority or power which a man hath to do justice in causes of com- plaint brought before him." (Jacobs's Law Diet., "Jurisdiction.") INTRODUCTION. xvii Questions of law are again of two kinds, viz., those which relate to jurisdiction, or other points of procedure ; and those which relate to the merits of the controversy, or, as they are called, questions of right. The determination of questions of fact is part of the procedure in a case, and the subject of evidence, therefore, belongs to the law of civil procedure, the whole object of which is to elicit and present to a competent tribunal the question of right involved in the case. The law of civil procedure may, therefore, be described as that branch of the law which provides for the creation of a jurisdiction, and which regulates the mode of procedure to be followed by the parties and the court in the conduct of the case (including the deter- mination of all questions of fact), in order to elicit the questions of right involved ; and which also regulates the subsequent proceedings necessary to carry the judgment of the court into effect. In England, and in many of the States, the law of civil procedure is reduced to statutory form, and a competent knowledge of it can be obtained only by the study of the code of civil procedure of the State in which the student proposes to practice. It presents no great diffi- culty in its acquisition, and will, therefore, at this time, require no further remark. The law of private right may be described as consisting of the ag- gregate of the rules and principles, whether statutory, customary, or of natural reason, by which the courts are, or are supposed to be, governed in determining the questions of right involved in civil cases or contro- versaries. This description, however, like our general definition of the law, though it may serve to direct and define the object and scope of our investigations, gives us no information as to the essential nature of the rules and principles which constitute the law of private right. We must, therefore, seek further for a definition ; and, in doing this, we cannot do better than to pursue still the method originally marked out, namely, to observe and analyze the actual course of busi- ness in the courts. PART I. OF THE NATURE OF THE LAW OF PRIVATE RIGHT. CHAPTER I. ANALYTICAL OUTLINE OF THE LAW OF PRIVATE RIGHT. § I . Division of the Law of Private Right. IN every civil suit the immediate question to be determined by the court is whether the force of the Government shall be used in behalf of the plaintiff to compel some act or forbearance on the part of the defendant. This power of coercing another by means of the force of the State is called an action ; and the immediate question in every controversy, therefore, is to determine whether the plaintiff has an action against the defendant, or otherwise. The nature of an action is simple and readily understood. It is thus defined by Brac- ton, following Justinian's Institutes : " Actio nihil aliud est quani jus persequendi in judicio quod alicui debetur." But it is to be observed that the Latin Jus has a somewhat wider signification than the English term right, and is used with propriety to denote actions or legal pow- ers as well as rights ; and, on account of this ambiguity, the defini- tion of Heinnecius' is to be preferred, viz. : ^^ Actio non est jus sed vie- dium jus persequendi. ' ' An action, however, does not imply the actual power of coercion, nor does such actual power necessarily constitute an action. Thus should A have the property of B, which he refuses to return, or should he owe money to B, which he refuses to pay — in either case B would have an action against A, even though, in attempting to enforce it, he should be defeated by perjury or defective evidence, or by the ignorance or corruption of the judge ; and this is true, whatever the- ory we adopt as to the nature of the law ; for even if we should sup- pose the impracticable dreams of the codifiers to be realized, and the law to be composed altogether of laws, or statutory enactments, enumerating ?11 possible injuries, and prescribing the corresponding actions, yet the most absolute power could not always render the remedy effectual. Whether an action exists, therefore, is to be deter- mined in every case, not by the result of the particular suit, but by general principles applicable to all similar cases. Of these principles the fundamental one is, that wherever there is a right there shall be an action ; or, as it is expressed in a maxim com- mon to our own and the Roman law, " udi jus ibi remedium " (where ' Cited in Austin, Jur., 792. 2 THE LAW OF PRIVATE RIGHT. there is a right there shall be a remedy) ; and the converse of the principle is also true, for all actions are in theory mere means of en- forcing rights. The law of private right, therefore, treats of two principal subjects — viz., rights and actions ; and it is obvious that its nature can be understood only by understanding the nature of these two. For this purpose a classification of rights and of actions is necessary, and fort- unately we have at hand the accurate and scientific classification of the Roman lawyers, which, though practically unknown to us, is uni- versally recognized by other jurists. § 2. Classification of Rights. Rights are of two kinds, differing essentially in their nature : namely, rights of ownership — such as the right which one has in his horse, land, or other property ; and rights of obligation — such as the right to the payment of a debt or the performance of any other obligation. A right of the former class is generally called a right in re7n ; and a right of the latter, a right in pcrsonatn, or in personam certafn j that is to say, against a specific person." The most common and familiar of the rights in rem, or rights of ownership, is the right of property ; and an analysis of this right will disclose to us the nature of this class of rights generally. The propositions that one has a right to a horse or other thing ; that it is his, or his own, or that it belongs to him, or is his property, are all equivalent expressions, and signify that the thing specified is, or rightly should be, appropriated to him ; that it is (in the sense of the Latin propriiis), proper or peculiar to him, and not common to others. The term "property," or "right of property," therefore, sig- nifies rightful appropriation by the owner of the thing owned ; and in it are implied the following propositions : 1. Actual appropriation is not sufficient to constitute the right, nor is it necessary to its existence ; for a man may appropriate that which is another's, and the owner be thereby deprived of the enjoyment of his right ; 2. The owner of the thing may, to the extent of his right, act freely with regard to the thing owned, according to the dictates of his own will ; and 3. The power of free action with regard to the thing owned is taken ' " The terms jus in rem and jus in personam were devised by the civiHans of the middle ages, or arose in times still more recent. I adopt them without hesitation, though at the risk of offending your ears ; for of all the numerous terms by which the distinction is expressed, they denote it the most adequately and the least ambigu- ously." (Austin, Jur. 380.) " Rights in rem maybe defined in the following manner : rights residing in persons and availing against other persons generally ; or . answering to duties incumbent upon other persons generally. . . . The following definition will apply to personal rights : rights residing in persons, and availing exclu- sively against persons specifically determinate ; or . . . answering to duties which are incumbent exclusively on persons specifically determinate." {/d. 381.) The term "exclusively" should be omitted. The terms "rights in rem" and "in personam" were derived from the names of the corresponding actions ; and accordingly the former are defined by Thibaut as rights which can be enforced by an action in rem, and the latter as those enforced by an action in personam. (Lindley, Introd. to Jur. 57.) The classical Roman jurists divided rights into those of ownership {dominium), and those of obligation {oliiigationes), the latter term including not only obligations, but the corresponding rights. (Austin, Jur. 956.) ANALYTICAL OUTLINE. 3 from the rest of the world, and a corresponding moral restraint or duty is imposed upon them. All other rights /// rem are of essentially the same nature as the right of property. Thus, a man's right in his own person consists in its being, like his horse or his land, appropriated {^proprius) to him- self, and free from the power or control of others. So also a hus- band's right in his wife, or a wife's right in her husband, or a parent's in a child, or vice versa, consists in the wife, husband, child, or parent, as the case may be, being, for certain purposes and to a certain extent, appropriated or exclusively devoted to the husband, wife, parent, or child, respectively, and free from the power, control, or interference of others.^ These rights, therefore, to the extent indicated, are of the same essential nature, and in each case we may say of the object of the right, whether property, wife, husband, or child, that it belongs to the one having the right, or that it is his, or his own {proprius); or, in other words, that it is, or should be, appropriated or exclusively devoted to him. An obligation is a duty owing from one person to another, the per- formance of which may be rightfully exacted by the obligee or person to whom it is owed. A mere duty, without such corresponding right to exact its performance, is not, properly speaking, an obligation. Thus there is an obligation on the part of a bailee to restore the prop- erty intrusted to him, and the bailor may rightfully exact the perform- ance of this obligation ; but there may be a duty upon the part of a man to perform a charitable act without any right upon the part of another to exact it, or obligation on his part to perform it.^ The right to exact the performance of an obligation is called a right in personam. Obligations and the corresponding rights i7i personam originate either from contract, or from delict, or from mere right {ex inerojure), with- out the intervention of contract or delict.' ' " Considered as the subject of the real right (right in rem) which resides in the child, the parent is placed in a position analogous to that of a thing. In short, who- ever is the subject of a right which resides in another person, and which avails or ob- tains against a third person or persons, is placed in a position analogous to that of a thing, and might be styled (in respect to that analogy) a thing." (Austin, Jur. 39S.) * " The term 'obligation' has two senses : in its more extensive signification it is synonymous to duty, and comprises imperfect as well as perfect obligations. Those obligations are called imperfect for which we are accountable to God only, and of which no person has the right to require performance. Such are the duties of charity and gratitude. . . . The term ' obligation,' in a more proper and confined sense, comprises only perfect obligations, which are also called personal engagements, and which give the person with whom they are contracted a right to demand their per- formance. . . . Jurists define these obligations to be a jural tie which binds us to another, either to give him something, or to do, or to abstain from doing some act : V inculum juris quo necessitate adstringimur alictijus rei solvendce, obbgationiim sub- stantia consistit lit alitim nobis obstringat ad dandum aliquid, vel faciendum, vel prcE- standum." (Pothiur on Obligations, p. i.) " By the classical jurist, 'obligation' is never employed in that large generic sense which it has acquired in subsequent times " (Austin, Jur. 956), i.e., as synonymous with "duty." ^ In the Institutes, obligations are divided into obligationes ex contractu, ex male- Jicio, quasi ex co?itracttt, and quasi ex maleficio. (Just. Inst., 3, 14, 2) ; the last two together constituting the class of obligations ex mero jure. Gains, however, divides them as in the text : " Obligationes aut ex contractu nascuntur, aut ex maleficio, aut propria quodatn jure ex variis causarum figuris " (Dig., 44, 7, I, cited in 2 Austin, Jur. 1017) — the last being again subdivided into obligationes quasi ex contractu and quasi ex maleficio. In the common law, according to the most ordinary division, obli- gations are divided into those which arise from contract, and those which arise from. 4 THE LA W OF PRIVA TE RIGHT. To the first class belong all obligations arising out of contracts or agreements ; to the second, all obligations arising from invasions or violations of rights in rem; and, to the third, all other obligations. The three propositions implied in the nature of a right in rem are equally true, mutatis mutandis, with reference to a right in personam j that is to say : i. Actual power to enforce the obligation is not neces- sary, nor is actual power to compel another to do an act sufficient, to constitute a right ; 2. The owner of the right has the liberty to exercise it or not, as he pleases ; 3. There is a duty or moral restraint on all the rest of mankind not to interfere with the exercise of the right, or the performance of the obligation. But in the case of a right in personam there is an additional element, viz., an obligation or duty upon a specific person — namely, the obligor — toward the owner of the right. The characteristic distinction between a right in rem and a right ifi personam, therefore, is that in the former case the subject of the right is the thing owned, and in the latter it is an obligation due from another. This distinction between rights in rem and rights, in personam — or of dominium and obligatio — seems to correspond precisely with the dis- tinction made by Aristotle between distributive and corrective, or (as it may, perhaps, be more properly called) comfnutative, justice ; the former being that branch of justice which determines the distribution or relative appropriation of things, and also of persons, where the latter are the objects of ownership — as, for instance, where they are parties to the family relation ; and the latter, that is, corrective or commutative justice, that which relates to obligations.' § 3. Classification of Actions. It is only when a right is violated by a breach of the corresponding duty that force can be directly applied to effectuate it, and then only by the enforcement of the duty. We say directly, for it is obvious that rights may be indirectly enforced by the threat of punishment for their violation, or, in other words, by the criminal law ; but this con- stitutes a branch of the public law {Jus publicufn), which for the pres- ent we are not engaged in discussing. In the case of rights in persona?n, the corresponding duty is an obli- gation exactly commensurate with the right, and therefore such rights may be directly enforced. In the case of rights in rem, the only cor- responding duty is the general negative duty resting upon all men not to interfere with the right ; and this can be directly enforced only tort {ex contractu and ex delicto) — obligations ex mero Jure being called implied con- tracts, and classed under the first head. ' " But of the particular justice, and of the particular just which is according to it, one species is that which is concerned in the distribution of honor, or of wealth, or of any of those things which can possibly be distributed among the members of a polit- ical community ; , . . the other is that which is corrective in transactions between man and man ; and of this there are two divisions, for some transactions are voluntary and others involuntary. The voluntary are such as follows : selling, buying, lending, pledging transactions, borrowing, depositing of trusts, hiring ; and they are so called because the origin of such transactions is voluntary. Of involuntary transactions some are secret, as theft, adultery, poisoning, pandering, enticing away slaves, assas- sination, false witness ; others accompanied with violence, as assault, imprisonment, death, robbery, mutilation, evil speaking, contumelious language." (Ethics, Bk. 5, Ch. 3, pp. 8, g.) "Voluntary" transactions correspond precisely to obligations ex contractu ; " involuntary," to obligations ex delicto and ex mero jure. AN-ALYTICAL OUTLINE. 5 when the right is violated or threatened; in which case there arises a specific duty in the particular person invading the right, or in other words, an obligation, and a corresponding right in personarn in the person injured. Hence, rights in rem cannot be enforced directly, but only indirectly, either by the fear of punishment or by enforcing the rights in personam arising from their violation,' In certain cases of violation of rights in rein, the party injured may himself enforce the corresponding obligation — as, for instance, where this is necessary in defense of himself or property ;" but in general the natural liberty which every man, in the absence of government, would have to en- force his right is, by the institution of government, taken from him and vested in the courts, and, in lieu of it, there is given him an action, or power of invoking the exercise of the force of the State to compel the performance of the obligation. As we have observed, obligations are divided, according to a classi- fication commonly received in our law, into obligations arising from contracts, express or implied, and obligations arising from torts ; and a corresponding division is made of actions, viz., into actions ex con- tractu and ex delicto. It is convenient, however, to divide obligations, considered with reference to actions, into those obligations which arise upon an actual or threatened invasion of a right in retn to restore the party injured to its free enjoyment, and obligations to transfer to the obligee money or other property belonging to the obligor. The obligation resting upon any one who has possession of the property of another to restore it, is an instance of the former class ; an obligation to pay a debt or compensate for an injury, of the latter. The former may be called -vindicative, the latter commutative, obligations ; or, more properly, the corresponding rights in personatn may be called respectively vindicative and commutative. Actions to enforce the former class of obligations are called actions in rem, or real actions ; those to enforce the latter, actions in personam, or personal actions.^ This division of actions was originally taken from the Roman lawyers, but is equally applicable to our own law, and must be adopted as at once the most convenient and the most scientific. The terms used are, however, open to the objection that they seem ' Hence the duties corresponding to rights in rem are not, in the proper sense, obligations. ^ 3 Blackstone, Com.: " Self-defense, that original right of man which, as Cicero says, is a law enacted by Nature itself, and which the Roman jurists were ingenuous enough to believe could not be ignored in any body of laws in the world. Vim vi repellere omnes leges omniaque jura permittunt." (Ihering, Struggle for Law, 122.) * This division of actions was adopted into our law at an early day, and will be found explained by Bracton, precisely as by the Roman lawyers. The true nature of the distinction was, however, afterward lost sight of, and real actions came to be con- sidered as including only actions affecting real estate, and personal actions as includ- ing all others. (Stephen, Pleading,* 3.) Thus, detinue, which was an action for the recovery of the possession of personal property, though in reality a real action, was classed by the English lawyers as a personal action. The old real actions, with one or two important exceptions, finally became obso- lete, and were replaced by the action of ejectment ; which was in form a personal action for trespass, but was made to serve also for recovering possession of the land. The meaning of the distinction thus became altogether lost to the profession, and the distinction itself faded out of the law. As the old forms of action are now generally abolished, there is no reason why we should not return to the more rational classi- fication. 6 THE LA W OF FRIVA TE RIGHT. to imply that actions in rem have not for their object the enforcement of obligations, which is not the case. For such actions, as well as actions in perso?ia7n, have for their immediate object the enforcement of rights in personam, or obligations ; and the only difference is that, in the one case, the enforcement of the obligation is the ultimate as well as the immediate object of the action, while, in the other, the obligation is merely subsidiary, and the ultimate object is the vindica- tion of the right in rem which has been invaded or threatened.' It would be more appropriate, therefore, to term the two classes of actions vindicative and commutative ; the former having for their ulti- mate object the vindication of rights in rem already existing in the obligee, and the latter the transfer to the obligee of a right in rem previously belonging to the obligor. The use of the terms "actions in rem" and "actions in personam" is, however, so familiar that it will be well to retain them. Actions in rem may again be divided into rcstitiitive and preventive actions ; the former having for their object to restore the plaintiff to the enjoyment of a right in re^n which has actually been invaded, and the latter to prevent a threatened invasion. Actions in personam may be subdivided into actions for the specific performatice of contracts, and compensative actions, or actions for dam- ages ; and the latter, again, into actions ex contractu and ex delicto. The following examples will illustrate the nature of the different classes of actions, viz. : An action to recover real or personal prop- erty is a restitutive action in re7n j an action to enjoin interference with the plaintiff's property is a. preventive action in rem ; an action to com- pel the performance of a contract to convey land is an action in per- sonam for specific performance ; an action for damages for breach of contract is a compensative action in personatn ex contractu j and an ac- tion for damages for trespass on property or person is a compensative action in personam ex delicto. § 4. Of the Subject-Matter of Frivate Right. The doctrine of rights and that of actions must necessarily consti- tute the principal divisions of the Law of Private Right ; but there are involved in these terms certain notions which must be considered independently. These are signified by the terms, persons, things, and eve/its, which in fact constitute the subject-matter with which the jurisprudence had to deal. The term things, in its widest sense, would include persons, and also events. But in jurisprudence it is important to distinguish between events, or things that happen, and objects which exist, and of the latter to distinguish between human creatures and other things ; and in ordi- nary language the terms are generally used with regard to these dis- tinctions. By a person, therefore, is denoted simply a human creature; by a thing, any other existing object; and by an event, anything that may happen. ' "All rights of action must, it is evident, be founded on rights ?'« personam — that is, CD rights which avail exclusively against the determinate person or persons against whom the action will lie — although these persons may have been brought under that designation by committing an offense against a right in rem. Actions in retn are rights of action founded on an offense against aright in rem, and seeking the restitu- tion of the party to the enjoyment of that very right, and not merely satisfaction for being deprived of it." (Austin, Jur. 3S9.) ANALYTICAL OUTLINE. 7 There is necessarily implied in the idea of a right a person, or per- sons, in whom it is vested, or to whom it belongs, and who may there- fore be called the owners of the right. There is, indeed, an apparent exception to this proposition in the case of corporations, or bodies politic, which are said to be fictitious persons, and in whom rights are said to be vested ; but in reality, in all such cases, the rights reside, not in the so-called fictitious person, but in the persons composing the corporations ; that is to say, in the officials of the corporation, in trust for the stockholders. The same proposition is also true of the State (the type of all corporations, or bodies politic), of which we habitually speak as being vested with rights, and subject to obligations. But in fact, the so-called rights of the government are vested in its officers, and are purely fiduciary in their nature, being held by them in trust for the people. The proposition, therefore, remains absolutely and universally true, that rights can be vested only in human creatures. There is also implied in the idea of a right some person or thing in or over which it exists, and who or which may be called the subject of the right/ Thus, in the case of a right to property the subject of the right is the thing owned, and in the case of other rights of owner- ship — as, for instance, that of the parent in a child — it is the person in or over whom the right exists, who, considered as the subject of a right, occupies a position analogous to that of a thing. In the case of an obligation, the subject of the right is said to be the obligation; but in its ultimate analysis it is, in fact, the person owing the obli- gation. There is also implied in the creation or initiation, and, therefore, in the existence, of any right the happening of some event in which it originated, and the same is also implied in every modification, and 'n the termination of every right. Or, in other words, every right origi- nates in the happening of some event or series of events, and no right can be varied or terminated except by the same means.* Thus the right of self-ownership, or property in one's person, origi- nates upon the mere event of one's birth, is varied by the event of his reaching maturitj% and terminates with his death. For this right, though at first restricted by the necessary conditions of infancy, is born with every human creature, and upon his reaching maturity be- comes unrestricted, except by the necessary conditions imposed by the rights of others ; and finally, at the end of his life, dies with him. The rights of parent and child originate with the birth of the child, concurring with other events, such as marriage, etc., and are varied by the event of the child's reaching maturity, and terminate by the death of either party. The rights of husband and wife originate in the event of marriage, and such rights are terminated by the death of either party, or by divorce. The original title to personal property may originate either in the event of its manufacture by the owner, or, • The modem German jurists call the owner the subject, and the subject the object of the right ; thus Mackeldey says (Compendium of Modern Civil Law, sec. 14): " In connection with every right we find a subject and an object. The subject of a right is the person on whom a right is conferred ; the object of a right is the matter to which it relates." To this use of terms Mr. Austin very strenuously, and I think rightly, objects ; and I profit by his views upon this point, as well as upon many others. * I am indebted to M. Ortolan for the perception of this important fact, which, he observes, was overlooked by the Roman lawyers. I cite from memory, not having his •work at hand. 8 THE LA W OF PRIVA TE RIGHT. in some cases, in the event of its mere appropriation. Derived titles may be acquired by conveyance from former owners, or by prescrip- tion, which is a series of events. The right to property terminates upon its destruction, or may terminate by abandonment. Rights aris- ing from contracts, and also those arising from delicts, are illustra- tions of the same principle ; the former originating in the execution of contracts, and the latter in the commission of injuries, and each terminating in satisfaction or release, or some other event.' Persons, things, and events, therefore, constitute the subject-matter of private right, precisely as quantity, with its changes and relations, constitutes the subject-matter of mathematics. The subject of persons presents itself in private right in two espe- cially important aspects, viz. : First, with regard to the relative ca- pacity of persons to acquire and enjoy rights, and to contract or be subject to obligations ; and, secondly, with regard to the modifications of private rights in 'cases where there are more than one owner, and of obligations where there are more than one obligor. In the latter aspect the subject belongs to the general subject of rights, and is most conveniently treated in connection with the sub- ject of rights of ownership, or with obligations, as the case may be. The former — which constitutes the subject of status — may, and in- deed to some extent must, be treated in connection with the general subject of rights ; but it is also convenient to consider the subject of status independently ; with reference to which, however, it will be sufficient here to say that, in general, all men are considered equal in capacity for rights and obligations, and that, when any difference is made by the law, it is only for the protection of those w^ose capacity is affected — as, for instance, in the case of lunatics or persons of unsound mind, infants or minors, and femes covert or married women. Things may be divided in innumerable ways, according to differences in them which are regarded. There are, however, certain divisions which are important from the stand-point of jurisprudence, and which accordingly have been adopted and more or less adequately explained by the jurists of our own or the Roman law; and to these we will briefly refer. The first distinction to be referred to is that between those things which are susceptible of permanent appropriation and those which are not — as, for instance, air or running water ; or, as the distinction is expressed in the Roman law, between res in cotnmercio and res extra commercium J or, as it is otherwise expressed, ^^ quce vel in nostra patri- monio, vel extra patrimonium nostrum habentur." But, as it is only with the latter that jurisprudence has to deal, it will be as well to leave the former out of view, and to use the term as denoting only such things as are susceptible of permanent appropriation ; or, in other words, such as may be subjects of rights. Using the term in this sense, there is included under it everything that may be the subject of a right, except persons ; and, thus under- stood, things may be said to be either corporeal — that is, such as are * The above remarks equally apply to actions ; that is to say, every action must have an owner and also a subject, and no action can originate, terminate, or be in any way modified otherwise than by the happening of some event. It will be more con- venient, however, to treat the subject with reference to rights only, leaving it to be understood that what is said will in general apply equally well to the case of actions. ANALYTICAL OUTLINE. 9 perceptible to the senses — or incorporeal ; that is, such as the mind alone can perceive. The most important instances of the latter class of things are those presented by patent-rights, copy-rights, franchises, and other monop- olies, and also trade-marks ; and it is on account of these only that the distinction between corporeal and incorporeal things necessarily arises ; for, though the term " incorporeal things " is used both in our own and the Roman law to denote easements or servitudes and also obligations, these matters can be considered quite as well, and per- haps better, without regarding them as things. Thus a servitude or easement is nothing but a right in land, and the land is really the sub- ject of the right ; and so, in the case of obligations, it is the person who owes the obligation that is really the subject of the right. There are numerous other divisions of things, such as into things movable and immovable (or lands and chattels), principal and accessory , fungible and i?7fungible ; and to these should be added the important distinction made in the Roman law between single and collective things — {universitates rerum), such as a flock of sheep, a stook of goods, etc.; the latter of which, though composed of corporeal things, are in reality ideal or incorporated, being regarded as continuing the same notwith- standing a change of the particular things composing them. Every right, as we have observed, originates in the happening of some event or series of events, and a right can be varied or termi- nated only by the same means ; but there are many events that do not affect rights in any way ; and the converse of the proposition, therefore, is not true. Events by which rights are affected may be called juridical events, and it is with these alone that jurisprudence is concerned. Juridical events are of two classes, viz.: acts or events occurring by human agency, and accidents, or events occurring without human agency. An event of the latter class is quaintly called, in our law, ^^ Actus Dei J " and it is a maxim "Actus Dei nemini facit injuriam." The term act in its proper sense necessarily implies a volition, or act of the will ; and hence does not include what are improperly called involuntary acts — as, for instance, what a man does in his sleep, or in a state of total mental aberration. It is also to be observed that, as to parties whose jural relations are being considered, the acts of third persons are in their effect the same as accidents ; and, as to such persons, may be called accidents. And hence the maxim. Res inter alios acta alteri nocere non debet ; which, though usually applied only to limit the effect of a judgment to parties and privies, yet rests upon the principle I have stated, and equally forbids in any other case that parties should be affected by the acts of strangers. Acts are divided into transactions or acts which operate to transfer a right, or to create an obligation, as for instance a grant — and those things which do not ; as, for instance, the manufacture of goods, or the appropriation of unappropriated property ; which may be called, for lack of a better term, acts of original acquisition. Transactions are either contracts (under which head we include grants and other executed contracts) or injuries, the latter including violations of contracts, and torts, or violations of rights of ownership. Acts may also be divided into private acts, or acts of private lo THE LA IV OF PRIVA TE RIGHT. persons, and political acts or acts of the government ; which latter are ^xXh^x judicial or legislative ; the last being variously called Acts of the Legislature, or of Congress, or of Parliament — as the case may be — or Statutes. The subject of legislative and judicial acts will be treated of at length in the third part of this work ; to which also properly belongs the subjects of Torts and that of Contracts. But the last will require some observations here, in order that we may be in a position to un- derstand the nature of the law of private right. § 5. Definition of Contract, and its Place in the Laiv. A contract is deiined by Blackstone to be " An agreement, upon sufficient consideration, to do or not to do a particular thing.'" Other English and American authorities omit from the definition the element of consideration,^ but otherwise follow Blackstone. All, with excep- tion of Mr. Wharton, whose views will be again referred to, agree in defining contracts so as to include only executory contracts, or obliga- tory promises, excluding executed contracts, such as grants, sales, etc. But the latter are universally regarded as a species of contract, and the definition, therefore, cannot be accepted without giving to the term " contract " a narrower meaning than is justified by usage. Another definition must, therefore, be sought that will include at once both classes of contracts ; and this is, in fact, suggested by the class of contracts omitted from the common definition — /. e., executed contracts. These obviously are mere agreements for the transfer of rights ; and this, upon a little consideration, will appear to be equally true of executory contracts. For, as we have already observed, an obligation, in its ultimate analysis, gives rise to a right in, or over, the obligator himself ; and hence, by an obligatory promise, or executory contract, there is, in fact, transferred to the promisee a power to con- trol the action, or determine the conduct, of the promisor, which pre- viously belonged to the latter. An executory contract, therefore, is, in its essential nature, the transfer by the promisor to another of a right in himself. For, in spite of our natural aversion to such a view of the case, all rights of obligation consist in a limited dominion over the obligor, which differs in degree only from the dominion a master has over his slave ; and, looking to the bottom of the matter, the obligor is, to the extent of the obligation, the property of the obligee, precisely as land subject to an easement is, to the extent of the ease- ment, the property of him in whom it is vested. And hence, accord- ing to a common and not improper usage, obligations are classed as a species of property ; though this is euphemistically expressed by say- ing that the subject of ownership is the obligation, instead of the obligor. All contracts, therefore, may be regarded merely as agreements for the transfer of rights ; and as there is no other conception of con- tract which applies equally to executory and executed contracts, this must be accepted as the basis of the true definition. Such agreement, however, is to be understood as referring, not (as is often supposed) to the secret wills or intentions of the parties, but ' 2 Com. 442. * Sturgisv. Crowinshield, i Wheat. 197 ; Parsons, Cont. 6; N. Y. Civil Code, 744. ANALYTICAL OUTLINE. ii to their acts, or expressed volitions ; for obviously it is the latter only that are to be regarded. Thus, if I promise, upon sufficient consider- ation, to pay to another a certain sum of money, but with no inten- tion of doing so, a contract exists, notwithstanding the entire lack of will or intention on my part to perform it. So in the case put by Paley, when Temures proposed to the garrison of Sebastia that, if they would surrender, no blood should be shed, he in effect contracted to spare the lives of the garrison upon their surrender — such being the obvious meaning of his proposition, though at the time of making it he secretly intended to bury them alive, as he in fact did. It is, therefore, in the concurrence of assents, or expressed volitions, rather than the union of wills, that a contract consists. Nor is it necessary that the expression of assent should be simul- taneous, for in fact such simultaneousness is in many, if not in all, cases impossible. All that is required to constitute a contract is that, to an unrevoked subsisting expression of assent, there be a concur- rence of the assent of the other party.' A contract, therefore, may be defined as an agj-eement or coiiciirrence of parties in the expression of an assent to the transfer of a right from one of the pat-ties to the other, or to a third party; the term " party " being used (as it is commonly used in the law) to denote, not necessarily one person only, but two or more, when there are more than one con- tracting or contracted with. Generally where one contract occurs there is also another, the one being the consideration of the other. Thus, where A agrees to per- form labor for B, and the latter to pay him for it, there are two execu- tory contracts, or promises ; so, when A sells and conveys property to B, who gives him his note for it, there are two contracts, one executed, and one executoiy; and so when A conveys property to B, and B pays him for it in cash, or by conveying to him other property, there are two executed contracts ; and in each of these cases the one contract constitutes the consideration of the other. And upon this fact Mr. Wharton bases his definition of a contract, which he defines as *'an interchange by agreement of legal rights."* But, obviously, this defi- nition excludes an important class of contracts — namely, gifts or gra- tuitous conveyances — in which there is only the one contract ; namely, that of the donor to the donee. Upon the same fact — that is, upon the general concurrence of con- tracts in pairs — is based also the division of contracts into unilateral and bilateral ; but this distinction is clearly inadmissible. Every con- tract is in one sense bilateral — that is, it needs the concurrence of two parties to constitute it — but it is in all cases a mere single agreement for the transfer of a right ; and, hence, what is usually called a bilat- eral contract is not a single contract, but two separate contracts ; and iCcan only produce confusion to consider them as one. ' According to Kant, " a contract is effected only by the combined or united wills of both (parties), and consequently so far only as the will of both is declared at the same time or simultaneously." This, he justly remarks is, as a matter of fact, impossible; and hence arise difficulties which can be removed only by the " transcendental deduction of the conception of acquisition by contract " (Philosophy of Law, Hastie, 102) — a method which, I confess, I do not quite understand. A simpler solution is to reject the false assumption which gives rise to the difficulty, and to recognize the obvious fact that a contract consists, not in the concurrence of the secret volitions of the parties, but in the concurrence of their acts of assent ; which need not, and, indeed, as Kant very conclu- sively shows, cannot be simultaneous. * Wharton on Cont., sec. i. 12 THE LA W OF PRIVA TE RIGHT. It is obvious, from our definition, that contracts are to be regarded as a mere means by which rights are transferred, and hence they be- long to the general subject of juridical events. In the case of an executed contract, the right transferred is a right of ownership, or in rem; in the case of an executory contract, a right of obligation, or in personam. The subject of contracts is, therefore, involved in the consideration of each of these classes of rights ; and, in the former, to an even larger extent than in the latter. For nearly all rights of property originate in contract, and the law of property is, therefore, in the main but an application of the principles of contract.' Rights of property, however, do not originate exclusively in con- tract, but may originate in other juridical events ; and the same is true of obligations. Hence, neither the law of property nor that of obligations can be considered as a branch of the subject of contracts ; nor can the subject of contracts be considered as belonging to either the subject of ownership or that of obligations ; though the law of both of these subjects, as we have seen, consists to a large extent in the application of the principles of contract. Hence, contracts must be considered as belonging to the preliminary subject of juridical events ; which, as constituting the only means by which rights can be originated, transferred, terminated, or in any way affected, must be considered before the detailed investigation of rights can be entered upon. § 6. Of the Arrangement of the Law with a View to Its Exposition. It is obvious that rights may be considered, and for that purpose divided, according either to the persons to whom they belong, the subjects to which they relate, or the juridical events in which they originate ; and in fact it is, for different purposes, necessary to use in turn each of these principles of division. Thus, in order to segregate the subject of Private Right ijus pri- vatum^, and to treat it independently, it is convenient to distmgush it from Public Right {jus publicum) — the former treating of the rights of individuals, the latter of those of the State, and the division, there- fore, being obviously based upon a regard to the owners of rights, or persons in whom they are vested. Again, with regard to private rights it is convenient for certain pur- poses to divide rights into two classes, according to the persons in whom they are vested, viz.: into rights vested in persons of normal status {sui juris), and those vested in persons under disability {alieni juris); and upon this distinction is based the division of the law into Xh^ jus personarum andy«^ rerum — terms singularly inappropriate, and which have given rise to much misapprehension and confusion. Another and more important division of rights is according to their subjects, viz.: into rights of ownership and rights of obligation — the subjects of the former being things, or persons occupying a position analogous to things, and those of the latter being obligations. Finally, rights may be divided, according to the events in which ' This has been remarked by Mr. Bingham, the only author I know who seems fully to have appreciated the fact: "Individual rights to land," he says, "depend upon the application of contracts, and can be sustained on no other foundation. It follows, therefore, that in all or most cases of dispute in regard to individual property in land, the questions that may arise are questions concerning contracts." (Law of Real Property, lo.) ANALYTICAL OUTLINE. 13 they originate, into rights arising from contract, those arising from tort, etc. ; and this, in fact, is the division we have adopted of rights in personam. Nor would it be unprofitable to consider rights in r^;« from the same point of view, if for no other purpose than to perceive the important truth that the law of property, real and personal, including equity as well as law, and equitable as well as legal estates, is in the main but a mere application of the principles of contract. In view of the different principles of division that may be followed, there is obviously room for much variety in the arrangement of the law for the purpose of its exposition, and accordingly different writers will vary in their treatment of the subject. But there seems to be a general concurrence among the best class of writers in the division we have adopted, viz.: into Public and Private Right {jus publicum zxv^jus privatum)., with subdivision of the latter into Rights and Actions., and of each of these into Rights or Actions i7i rem and in personam. This (omitting the division \nio Jus persofiarum diWdjus rerum, which was a mere contrivance for the purpose of making a place for the treatment of the subject of status, and may well be dispensed with) is substantially the arrangement of the Institutes, in which, omitting the JUS personarum, the various subjects of the law are arranged under the three general heads of Dominium, Obligationes, and Actiones, the first two corresponding to rights in rem and in personam. And this is, perhaps, to be preferred to the arrangement of the law of private right under the head of Rights and Actions, which we have adopted. For rights of ownership, rights of obligation, and actions are disparate subjects, and cannot be regarded as separate and inde- pendent parts of the law, but rather as each in itself constituting the law in a certain aspect. Thus the subject of ownership (including under that head all rights in rem) may be regarded as coextensive with, and therefore as in fact constituting, the law — obligations and actions being regarded merely as means of effectuating the princi- ples of the law of ownership. Or the law may be regarded simply as the doctrine (including both the science and the art) of obligations, the subject of actions being regarded merely as the means of enforc- ing obligations, and the subject of rights of ownership (out of which, as we shall see, all obligations arise) as merely part of the doctrine of obligations. Or the law of private right may be regarded (as I pro- pose in the following chapter to regard it) merely as the doctrine of actions, and the doctrine of rights, whether in rem or in personam, merely as a subsidiary part of the doctrine of actions. Whichever arrangement be adopted, however, the exposition of rights in rem and in personam should be preceded by a general part, treating of the nature of rights, and of the method, first principles, and subject-matter of right ; which subjects constitute the necessary pro- legomena to the detailed exposition of rights. And in this part should be considered at length the subject of juridical events — in which alone rights originate, and by which alone they can be transferred, or in any way affected ; and under this head especially the subject of contracts, and that of legislative and judicial acts ; and in connec- tion therewith the subject of Hermeneutics, or the art of interpreting language and other signs by which human intention is expressed. To this part of the law especially belongs the subject of contracts, for which no other place can in fact be found. For the whole subject 14 THE LAW OF PRIVATE RIGHT. of property, including both the legal and equitable doctrine, as well as that of obligation consists — as we have already observed — in fact almost entirely of a mere application of the principles of contract,' CHAPTER II. OF THE NATURE OF RIGHT, AND OF THE LAW OF PRIVATE RIGHT, AND THEIR RELATION TO EACH OTHER. § I. Division of the Subject. FROM what has been said, it is obvious that the Law of Private Right consists of, or rather embraces, two principal subjects, viz., the Science or Doctrine of Rights, and the Doctrine of Actions ; and it will, therefore, be necessary for us to determine the nature of each of these and their relation to each other. The former, which may appropriately be termed Right, is simple in its nature, and, as will be seen, eminently susceptible of clear definition and accurate and scientific exposition. The latter is of a complex nature, being inextricably involved with the subject of rights, and hence is more difficult to explain. The former, therefore, must first be considered. ■ %2. Of the Nature of Right. Right, as we have indicated, may be defined simply as the science or doctrine of rights ; and, to understand fully its nature, it will be necessary for us to investigate the nature, and to determine the defi- nition, of rights ; and this will be done in a subsequent chapter. But, for our present purpose, it will be sufficient to call attention to one element only in the signification of the term "a Right," or "Rights," which is that, in its proper sense, and as universally used, it connotes and necessarily implies the quality of Tightness. Thus, to say one has a right to property, is but another mode of saying that it is right for him to have it ; or to say that he has a right to the payment of a debt, or to the performance of any other obligation, is only in effect to say that it is right for him to exact it. Hence, the supposed distinction between legal and moral rights and between legal and moral justice, now so generally received, and which has had so much to do with the existing imperfect and confused state of legal thought, is inadmissible. All rights are moral rights ; and it is as much a contradiction in terms to speak of a right that is not a moral right as to speak of a square circle or a four-sided triangle. It is thus that the term is uni- versally received, except by a small clique of jurists, who find it im- possible to reconcile their theory with this obvious meaning of the term ; and in this sense is the proposition to be understood when we ' This fact is obscured in the English law by the prevalent error, to which we have referred — from which Mr. Wharton is the only writer on contracts who is exempt — of defining contracts so as to include merely executory contracts — an error the more strange from the fact that it is not only in conflict with the decisions, but also with the practical view taken, in spite of their theory, by all writers on the subject of contracts. THE NATURE OF RIGHT. 15 say that it is the function of the State to protect and enforce rights or to administer justice, which is but the observance of rights, or the rendering to every man his right ;' by which is meant nothing else than rights and justice in the famiUar and proper sense of the term. It is thus, for instance, we use the term when we say, with Blackstone, that " the principal aim of society is to protect individuals in the en- joyment of these absolute rights which were vested in them by the immutable laws of Nature ;" or when we say, with Cousin, "Govern- ment, in principle at least, is precisely what Pascal desired — justice armed with force ; " and in this sense the terms are used, and the things noted by them guaranteed to us, in the Great Charter, the Bill of Rights, and other fundamental laws of English liberty, and in the Declaration of Independence, the Constitution of the United States, and the constitutions of the several States. For the State to give us under the name of justice anything but justice, or the protection of our rights as thus understood, would be to "palter with us in a double sense ; to keep the word of promise to the ear, and break it to the hope." To verify these remarks, we have only to glance over the several classes of rights which are, in fact, enforced by the States. When we speak of the right of personal liberty or self-ownership, or of the rights of a father in his child, or of a child to the protection and sup- port of his father, or of the right to property, whether produced by the hand of the owner, or vested in him by the grant either of another individual or the State ; or when we speak of the right to the return of property which one has deposited with another, or of which he has been wrongfully deprived, or of the right to the repayment of money loaned, or to compensation for an injury, or of the right to the per- formance of any other obligation — we speak of things not created by the will of the legislature, but by the principles of natural right as developed and established in the popular conscience, which rest not upon the arbitrary will of man, but upon that law which, as Coke says, "God, at the time of the creation of the nature of man, infused into his heart for his preservation and direction.'"' Hence, these rights do not differ essentially under different systems of law. They are not one thing in America, another in England and its colonies, and still another in the several countries of modern Europe ; but they are everywhere substantially the same ; and we may travel through- out the civilized world without finding them materially affected. And it is, in fact, in this general recognition and firm establishment of hu- man rights that the superiority of modern European civilization essen- tially consists. Rights, therefore, being not artificial creations, but natural phe- nomena, the theory of rights must be a true science; and this science belongs at once to morality and to the law, and constitutes a province com- mon to both. Nor does it vary essetitially in its nature, whether viewed in the one aspect or the other. The proposition italicized constitutes what I conceive to be the dis- tinctive principle of the true theory of jurisprudence. It rests, how- ever, as we have seen, upon the proposition that the term, a right, or ^ Jusiitia est constans et perpetua voluntas jus suum cuique tribuere. {Inst. I, i.) This is a definition of the virtue. Justice in the abstract consists in rendering to every man his right, or, in other words, in the observance of rights. * Calvin's case, Rep. 12. 13. 1 6 THE LA W OF PRIVA TE RIGHT. rights, connotes or necessarily implies, the quality of Tightness or moral rectitude — a notion extremely difficult to define, and with refer- ence to which there are many conflicting theories. It would seem in- cumbent upon us, therefore, to determine here what is meant by the term right, when used in this sense, /. e., as expressing a quality, or, in other words, to fix the meaning of the adjective right, and the test, or standard by which right and wrong are to be determined. This problem will be considered more fully in a subsequent chapter; but for the present it will be sufficient to remark that it is not in fact neces- sary for us to determine it, and that it will make no difference in our reasoning what theory as to the abstract nature of right may be adopted, provided only that the reality of moral distinctions, and the possibility of perceiving them be admitted — the former of which propositions is attested by the common consciousness, and the latter by the common experience, of mankind, and both are necessarily assumed in all theories of morality properly so called. We, therefore, do not attempt to define the term right otherwise than by saying that we use it in its ordinary acceptation, as denoting a universal and ap- parently necessary conception of human consciousness, leaving it to the reader to adopt a more specific definition, according to the theory he may prefer; as, for instance, that it consists in comformity to the will of God, or to Nature, or to universal order, or to the end or destiny of sentient beings, or to utility, or tendency to promote the happiness or welfare of mankind. All that it is necessary for us to assume, I repeat, is the existence of moral distinctions. When this is admitted, all theories as to the nature of the law, if logically developed, must substantially agree. Hence all theories of jurisprudence may be classed in the one or the other of two categories, viz., those which admit, and those which deny, this proposition ; and to verify this remark, before proceeding directly with our subject, we will briefly refer to the several theories of juris- prudence now more or less extensively prevailing. § 3. Of the Several Theories of Jurisprudence. The term "jurisprudence" may denote either the science of rights or that of the law, according to the sense in which we use the term jus; but it may be appropriately used to denote either, distinguishing the former by the term " theoretical," and the latter by the term "positive" or "practical jurisprudence." The essential characteristic of the theory of jurisprudence here expounded is, that it asserts that the end of the law is the realization of rights, or the administration of justice, in the familiar and proper sense of those terms; and, hence, that the science of rights or of jus- tice, in the same sense that it constitutes a department of morality, also necessarily constitutes a part of every system of law. Opposed to this is the theory of Austin, referred to in our introductory chapter, which has been generally accepted by English and American jurists, and which asserts that the law has nothing to do with rights or jus- tice in the ordinary sense, or, as they are termed, moral rights and moral justice ; but that the rights with which it has to deal, and in fact the only rights which in a proper sense can be said to exist, are merely such legal powers or privileges as may be granted by the State, and therefore mere creatures of its will. The latter theory — resting THE NATURE OF RIGHT. 17 for its foundation, as it does, upon the notion that the law is merely legislation — may be appropriately termed the " legal," and the for- mer — which regards the law as a means of realizing justice or of en- forcing rights — the ^^ jural" theory of jurisprudence. And we will accordingly, for convenience of reference, make use of these terms to distinguish the two theories. Of the legal theory, assuming the correctness of its first principle, it may be said that it is in the main logical and consistent ; and, as de- veloped by Austin, it has at least served the purpose of showing by actual experiment the applicability of a strict logical method to the law. His exposition of it, indeed, stands unrivaled as an example of accurate and profound analysis and consistent and intrepid logic ; and to this, doubtless, is to be ascribed the remarkable domination of his genius over the English mind, in morality and philosophy, as well as in jurisprudence — a domination unparalleled, except by that of Aristotle over ancient and mediaeval thought generally. But the theory, when logically developed, is so in conflict with the actual character of exist- ing law, and so subversive of human rights and liberty, and of the very foundations of justice and of morality generally, that Austin's own statement of it may be taken as a reductio ad absurdion. Its general acceptance is to be accounted for by the difficulty of explaining the co-existence in the law of the rational or scientific ele- ment with the accidental and arbitrary, or, in other words, the histori- cal element, of both of which, in spite of their apparent incongruity, the law undoubtedly consists. But upon an analysis of the law, this difficulty disappears, and it becomes easy to perceive how the two elements may, and in fact do, co-exist ; and this will still more clearly appear when we come to investigate more particularly the method and principles of right, to which the third part of this work will be devoted. The advocates of the jural theory may with propriety be termed the jurlsls ; and this use of the term is justified by the fact that the theory has been generally received, and, in more or less explicit terms, asserted, by the jurists both of ancient and modern Europe, except those of England and America in the current century. Modern jurists have indeed been divided into two schools, corre- sponding to the distinction between theoretical and positive morality, and called respectively Iht philosophical 2iXi& the historical schools ; but this division indicates rather a difference of method than of essential theory. The historical school regards the law as consisting of the jural prin- ciples, or notions of right and justice, established in the manners and customs of the people, without seeking any further foundation for those principles than the fact that they are so established ; or, in other words, they regard the law as resting upon custom. This conception is embodied in the old definition of the common law of England as consisting of the general customs of the realm ;' and also in one of the definitions of the jus gentium of the Roman lawyers as being "the law or jus commonly observed by all men " {jus gentijim est quo gentes humance utuntur). And this, indeed, is the primitive conception, not only of justice, but of morality generally, as is indicated by the ety- mology of that term, and also by that of the kindred terms "ethics," '■'' 7nores" "8utj/' etc. * I Blackstone, Com. *62, *67. 1 8 THE LAW OF PRIVATE RIGHT. We find, however, universally accompanying the principles thus es- tablished, the conception of just and unjust. This is recognized by the historical as well as by the philosophical jurists ; but they differ in this, viz.: that the former accept the received principles of right, or at least the more fundamental of them, as ultimate facts, while the latter hold they are in the main but expressions, more or less accurate, of necessary truths which are susceptible of scientific proof. In other words, the one asserts, and the other denies, or rather fails to recog- nize, the scientific nature of the principles of justice or right, and of morality generally.' The historical theory corresponds precisely with the etymology of the term "yW," which is derived from jur^ to bind,'* and originally denoted merely the aggregate of the principles or rules regarded by the community as binding or compulsory on men in their dealings with each other. The philosophical theory corresponds with the later signification of the term, and to that of its derivative, justitia, and of its modern equivalents, right, Recht, droit, etc. And the difference between the two schools is, perhaps, precisely indicated by the advance from the primitive conception originally denoted hy Jus to the concep- tion of right or justice as now commonly held. The historical theory is, therefore, inadequate rather than false, and is in fact included in the philosophical ; for in jurisprudence, as well as in morality generally, the practical standard to which rights are habitually referred, and by which they are in fact determined, is the general conscience, or, to use the Greek term, vo/io? — or, in other words, the concurring moral convictions of the people ; and both schools hold this to be the legitimate, and indeed only possible, prac- tical standard. The philosophical jurists, however, while they accept received notions as the practical standard, go further, and hold that these notions should be subjected to the test of reason, in order that they may be either scientifically vindicated, or, if wrong, gradually corrected. We may, therefore, class the two schools together under the common appellation of jurists. Accordingly, we find that the older jurists pass habitually and un- consciously from one school to the other. Thus, the old common lawyers, while they defined the law as consisting of general customs, also asserted that reason was the life of the law, and, indeed, that the law itself was nothing else but reason. So the Roman lawyers defined the JUS gentium as the y^^ commonly observed by all peoples, and also as the Jus which reason has established among all men. So also Aris- totle defines the vo/xo? xoivo's, or common law, as " the unwritten rules which appear to be recognized among all men," and also as " that- which is conformable merely to the dictates of Nature." § 4. Of Right as an Element of the La^v. Whether considered as a branch of morality, or of the Law, Right, or the Science of Rights, is, of all branches of Moral and Political science, the most vitally important. For the term " rights " includes, in its signification, every claim which men can have to personal liberty ' This remark is, however, to be understood as applying only to the fundamental principles of jus ; for otherwise both schools have treated the law scientifically, and the former — as, for instance, in the case of Savigny — with perhaps more success thaa the latter. * Skeat, Etym. Diet.; Leverett, Lat. Lex. THE NATURE OF RIGHT. 19 or security — to the acquisition and use of property, to the existence and enjoyment of the family relations, and even to life itself ; and the term " law " denotes, as the principal of the subjects included in its signification, the practical means by which, in each State, these vital claims are enforced or protected, and thus practically realized. The science of jurisprudence, therefore, deals with the very foundations of the social order — the necessary conditions of its very existence ; and the problems presented by it are in fact the fundamental problems of all social and political philosophy.* Its importance, therefore, can- not be exaggerated ; and, in view of the breaking up of old opinions and beliefs now going on, and the manifestly impending dissolution of many of the existing social and political institutions, it will not be extravagant to say that it presents itself to our modern civilization as the riddle of the Sphinx, which must be solved under the penalty of extinction. It is, however, with Right as an element of the law that we are for the present concerned ; and to this we will confine our attention. In this aspect, as we have said, it is of essentially the same nature as when considered as a department of morality ; but — as is the case with all sciences considered with a view to their practical application — it is in some respects modified, and to some of these modifications we will briefly refer : The most important of these modifications results from the fact that right, considered as a branch of morality, deals only with abstract cases, and is unembarrassed by questions of fact ; but it is otherwise with the law, which has to deal at once with questions of right and questions of evidence. Such questions of evidence in gen- eral arise only in actual cases coming before the courts for adjudica- tion, and the general principles of right in such cases are not affected; but often it is necessary to deal with cases by classes, and to deter- mine in advance what evidence shall be required, or shall be sufficient, for the proof of certain classes of facts. Such provisions find their justification in the danger of perjury, and in the probability that to allow oral testimony as to such classes of facts would as often result in the violation of rights as in their vindication. Hence the necessity, or supposed necessity, of such legislation as the Statute of Frauds and Perjuries, and of such rules of law as that which makes a written instrument conclusive, and forbids the introduction of oral evidence to contradict or vary it ; and of an analogous character are also such rules as that simplex cotnmendatio nott nocet, and others of a like sort. And, indeed, nearly all legislation designed to affect the determination of rights is of this kind. Hence, it is easy to see that the theory of right, when considered with reference to its practical application, must be profoundly modified by its implication with questions of evidence. It must also be modified, and to a still greater degree, by the fact that the above and other rules for the practical application of the theory of rights must, from the nature of the case, be the result of ' To ignorance on this point are to be attributed the numerous schemes invented for the regeneration of the world — such as Socialism, Communism, Nationalization of land, Protection, and other forms of utilitarianism. In view of which, we may well say, with the peasant in Erckmann-Chatrian's tale: " Mon Dieu, quand done les homines seront-ils justes ? " I do not include in my reference Nihilism, because in view of the evils suffered by mankind from governments, and political institutions, it is but an exaggeration of a very natural and proper feeling ; or Anarchism, because I do not know but that it is the ideal toward which all political organization should tend. 20 THE LAW OF PRIVATE RIGHT. human instrumentality, which is always and necessarily imperfect. Hence mistakes and blunders will be made, and, under the influence of custom and precedent, become stereotyped in the law. For, while all questions of right are essentially the same wherever and however they be considered, yet, with reference to the mode in which such rights shall be enforced — or, in other words, with reference to actions — there is room for infinite variety. And hence, in different systems, the forms of actions which, as we have said, constitute the formulae in which the law for practical purposes is expressed, in fact differ greatly, and are more or less adequate or inadequate for the purpose for which they are designed, viz., the administration of justice. Thus, in our own and in the Roman law, the legal actions — which were the actions origi- nally devised — proved altogether inadequate ; and this in both systems gave rise to the equitable jurisdiction by which equitable actions were devised for the purpose of supplementing and correcting those exist- ing at law. And so now, in England and generally in this country, all the old forms of actions are abolished, and the fundamental prin- ciple, ubi jus ibi remedium, allowed an almost unrestricted application. Still, however, the technicalities of the old system to some extent retain their influence, and we have added also many others of our own ; and, hence, there still remains, and indeed to some extent there must always remain, a divergence of practice from theory. § 5. Of Actionable and N on- Actionable, or Juridical and Nor. -Juridical Rights. From these causes it results that, while in theory actions should correspond precisely with rights, in practice they fail to do so, and thus many rights are without the corresponding remedy. Hence, in practical jurisprudence, we have the distinction, unknown to the the- ory of right, between actionable and non-actionable, or, as they are otherwise called, between juridical and non-juridical, rights' — a dis- tinction in theory extremely important to observe, and with reference to practice no less so ; for there is no fallacy more common and more pernicious in its consequences than to infer, from the non-existence of an action or remedy, the non-existence of the right. It was said, in- deed, by Chief-Justice Holt,' that a right without a remedy is a vain thing ; and, in the connection in which it was said, the remark was true, and embodied a principle which may be called the vis medicatrix of the law, namely, that no right shall be suffered to be without a rem- edy, or, in the words of the maxim, ubi Jus ibi remedium; for it is the recognition of non-actionable rights, and of the necessity of providing remedies for them, which in the past has produced and governed the development of the law, and which is no less essential to its future development, whether that is to take place in the main spontaneously, as heretofore, or to a larger extent by legislation. But, under the influence of prevailing theories, this maxim has been perverted, and it is now the prevailing notion that where there is no remedy there is no right ; or, as it is otherwise expressed, that the actual power of en- forcement is an essential element of a right.^ ' Kaufman's Mackeldey, Int. i, i, 12. * 2 Ld. Raym. 957. ^ Holland (Jur. 62, cited infra, p. 61 ) : " Every right is, as such, accompanied by a power of compelling the performance of, or forbearance from, some positive act. In the absence of such a power, no right, properly speaking, is conceivable." (Thibault: Lindley's trans., § 59.) THE NATURE OF RIGHT. 21 The contrary, however, is not only an obvious and necessary deduc- tion from the very notion of a right, but is very clearly recognized in our law. Thus, it is a well-settled principle that a right barred by the statute of limitations continues to exist, though the remedy be forever gone.* So, also, it has been repeatedly held with reference to con- tracts declared void by the usury and banking acts, and with refer- ence to conveyances of married women declared void by statute on account of defective acknowledgments, and with reference to mar- riages technically void for want of compliance with statutory provis- ions as to the mode of solemnization, that rights existed under and by virtue of such contracts, conveyances, and marriages, though expressly declared to be void by statute ; and, accordingly, subsequent statutes declaring them valid have been upheld on the ground that the vali- dating acts did not create new rights, but simply provided remedies for rights already existing.^ Otherwise such laws would be clearly uncon- stitutional ; for, on the theory that there were no pre-existing rights, they would operate to transfer the property of one set of persons to another, which is forbidden by all the American Constitutions, State and Federal.' The nature of rights, therefore, is not affected by the imperfections and defects of the methods provided for carrying them into effect ; nor is the science of rights, considered as a part of the law, in anywise different in its essential nature from the science of rights as a branch of pure morality. § 6. Definition of the Law. In the beginning of our investigations, we defined the law of private right as consisting of the aggregate of the rules and principles by which the courts are governed, or are supposed to be governed, in the determination of questions of right presented to them for decision. In all cases, however, as we have observed, the immediate question before the court is simply to determine whether the plaintiff has an action against the defendant. It is only with actions, therefore, that the courts can deal directly ; with rights they can deal only indirectly through the medium of actions. Hence, the rules and principles by which actions are determined are, as we have said, the formulae by which the law of private right is expressed for the purpose of its prac- tical application, and the subject of actions is, therefore, obviously co-extensive with the law of private right, and in fact constitutes that law in its practical aspect. The law of private right may, therefore, be defined without impropriety simply as the doctrine or (using the term " science " in a loose sense) the science of actions; for this is but another form of our original definition. And this enables us to understand the one element of truth con- tained in the theory of Austin and the later English jurists. Accord- ing to that theory, the law consists of mere legal powers, or, as they are erroneously termed, legal rights ; or, in other words, of powers or so-called rights, created or at least recognized by the State, either through its legislative or its judicial department. And so, in one ' Sichel V. Carillo, 42 Cal. 493. " Syracuse Bank v. Davis, 16 Barb. 103 ; Dentzel v, Waldie, 30 Cal. 144 ; Goshen V. Stonington, 4 Conn. 309. * The existence of non-actionable rights is also very fully recognized, and many important consequences deduced from it, in the Roman, and in the modern Civil Law. (Savigny on Obligations, Brown's Abridgment, sections 5-1 1.) 22 THE LA W OF PRIVA TE RIGHT. sense, it does; and if, instead of calling such powers rights, we call them actions, the theory may be accepted, at least so far as to admit that prac- tically, at any given time, the law of private right consists merely of the actions which are recognized and enforced by the courts. But the fundamental error of the theory is that it ignores the exist- ence of rights in any proper sense of the term, and regards the law as consisting only of mere arbitrary regulations, which is altogether a false view of the case; for, in every system of law, the rights which are established in the general conscience, or concurring moral convictions of the people, and which are generally recognized in the community, are recognized by the law, and actions are regarded merely as the means of effectuating such rights. And neither in our law nor in any other has the State ever attempted, except in certain well-defined cases herein- after to be referred to, to create or essentially to modify rights. It is, indeed, conceivable — though not in fact possible — that actions might be prescribed by law or legislation for every given state of facts, without any reference to rights, and jurisdiction in all other cases denied to the courts ; but this in fact has never been attempted. But the theory of the law has always been — as expressed in the maxim ubi jus ibi remedium — that actions shall be allowed in all cases where rights exist ; and the recognized function of the judges has consisted in finding appropriate remedies for such rights. In the exercise of this function the courts have, at different periods, in different degrees, been controlled or influenced by rules established by precedent and, in lesser degree, by statutory regulations ; but in theory, and mainly in fact, their recognized function, as expressed in the old commis- sions, '■'' facturi quod ad justitidm pertmet secundum legem et consuetu- dinem Anglice,'' has been to administer justice or to protect and en- force rights.* Hence Right, or the science of Rights, is necessarily a part of the law of Private Right ; and though, to the practical lawyer, whose aim is simply to know the law as administered, it is merely subsidiary, yet, in one sense, it is the principal part of it, for the protection of rights is the end and raison d'etre of the law. § 7. Historical Verification of the Jural Theory. The theory propounded in this chapter has been derived from a careful analysis of the law, from which it seems obviously and neces- sarily to follow. It may be added that it is also the theory upon which the actual development of the law invariably proceeds, and upon which alone that development can be explained. This will be found to be fully verified by the history of our own law, to which the second part of this work will be devoted ; and it is equally true with reference to the Roman law, which divides with ourown the dominion of the civilized world. Every system of law begins with the mere establishment of a juris- diction, or power to administer justice in cases actually presented for decision ; and at this period of its history — outside of the laws or institutions by which such jurisdiction is established — there is in fact no law other than right or justice, as established in the common con- science.' Jurisdiction, then, at least at this period, is precisely what ' " Et quidem initio civitatis nostras populus sine lege certa, sine jure certo pri- mura agere instituit oraniaque manu a regibus gubernabantur. Exactis deinde regibus THE NA TURE OF RIGHT. 23 its etymology indicates — the power of declaring the right, or adminis- tering justice in actual cases presented ; or, as it has been defined, it is " an authority or power which a man hath to do justice in cases of complaint brought before him." ' From this condition, the law is in the main developed by the courts in the exercise of their jurisdiction, or, in other words, in the actual administration of justice ; and every step in its development has con- sisted not in the exercise of legislative power, but merely in the exer- cise of the judgment of the court upon the question of right pre- sented to it for decision. Hence it follows that the law — except to the limited extent to which it has been affected by statutory provisions — is in fact but an attempted application of the principles of jus- tice or right (in the words of Magna Charta, jiistitia vel rectuni)^ to the jural relations of mankind ; and it follows also that, precisely to the extent to M^hich the functions of the courts have been well per- formed (as in the main they have been), the law of private right is in fact identical with right or justice. In the exercise of jurisdiction, two functions devolve upon the judge, viz.: (i) That of determining whether there is an obligation upon the defendant to the plaintiff, and a corresponding right in the latter ; and (2) That of applying the appropriate action to enforce the right, or — if his jurisdiction admits of it — that of devising such an action if it does not already exist. The former question is in all cases purely f scientific one — demanding only, for its decision, the exercise of the cultivated reason and judgment of the judge. In making his decision he is assisted by the opinions of other judges and jurists who have investigated the same or analogous questions, and his own decision is again considered and criticised by others. Thus the theory of rights has been developed by a strictly scientific process, more or less per- fectly applied, and (so far as the doctrine of rights is concerned) it is in fact, except where errors have occurred, a mere development of the principles of natural right universally recognized in all systems of law. And though this development has been obstructed, especially in our own law, by a lack of philosophical knowledge and of logical consistency and scientific method, yet on the whole it has gone on with reasonable and ever-increasing consistency ; and even where it has erred, its errors have been quickly made apparent, and generally corrected, by the necessity of testing the deductions arrived at by applying them to actual practice, or have been ultimately eradicated by the establishment of some inconsistent principle. Hence, in every system of law, the theory of rights at all times more or less perfectly represents the notions of justice prevailing among the people, and is, as it were, a mirror reflecting the general conscience. And by this fact alone is the maxim to be justified, that every one is presumed to ' know the law ; for it is in the main written in his conscience, and y otherwise the maxim would be unreasonable and absurd. Hence, the doctrine of rights, in the main without legislation, and often in spite of it, has in all civilized countries advanced hand in hand with civili- zation, and has become, like the water we drink, though, as it were, tinctured by locality, essentially the same throughout the civilized world. lege tribunitia omnes leges hse exoleverunt iterumque coepit populus Romanus incerto magis jure et consuetudine uti quam per latam legem." (Dig. i, 2, 2, §§ i, 2.) ' Jacobs's Law Diet., " Jurisdiction." 24 THE LA W OF PRIVA TE RIGHT. Nor does the fact that principles of natural right are confirmed by statute, or consecrated by judicial usage and observance, in any way alter their essential nature; for it is the function of the State to provide for the administration of justice, and all law, however formulated, is therefore, in theory, an attempted expression or application of natural right; and hence, just so far as it answers the end of its existence — which in all civilized countries it very fairly does — it is, except so far as it provides for matters jurally indifferent, in fact natural right. Thus the principle that one has a right to the return of his property which he has intrusted to another, or of which he has been unjustly deprived by another, is a principle of natural justice logically dedu- cible from the principle of property, which is also a principle of the same kind ; and neither is the less a principle of natural right because it has been generally recognized and enforced in all political com- munities. Nor does a principle of natural right cease to be such even though its observance be enjoined by a statute. Thus the principles of personal liberty and security and of property still continue to be principles of natural right, although the provisions of Magna Charta, and also of all the American Constitutions, expressly enjoin their ob- servance and forbid their violation. So, also, the principle of the obli- gation of contracts is not less a principle of natural right in America than elsewhere, although the Federal Constitution expressly forbids the enactment of any law impairing their obligation. Hence the Roman law, like our own, is, as Celsus says of it, " a true philosophy," or "body of reasoned truth,"' differing from justice, as popularly received, simply in being a more scientific, and therefore a truer, expression of natural right. And this explains and justifies the parallel between the Roman law- yers and Greek geometers drawn by Leibnitz, who was conversant at once with philosophy and the law, and of whom, it is justly remarked by Dugald Stewart, that "few writers, certainly, have been so fully quali- fied as he was to pronounce on the characteristical merits of both." " I have," says Leibnitz, " often said that, after the writings of the geometricians, there exists nothing which, in point of strength, subtility, and depth can be compared to the\vorks of the Roman lawyers ; and, as It would be scarcely possible from intrinsic evidence to distinguish a demonstration of Euclid trom one of Archimedes or Apollonius [the style of each of them appearing no less uniform than if Reason her- self were speaking through her organs], so also the Roman lawyers all resemble each other, like twin brothers, insomuch, from the style alone of any particular opinion or argument, hardly any conjecture could be formed about its author ; nor are the traces of a refined and deeply meditated system of natural jurisprudence anywhere to be found more visible or in greater abundance. And even in those cases where its principles are departed from in compliance with language consecrated by technical forms, or in consequence of new statutes or of ancient traditions, the conclusions which the assumed hypothesis renders it necessary to incorporate with the eternal dictates of right reason are deduced with a soundness of logic and with an ingenuity that excites admiration. Nor are these deviations from the law of Nature so fre- quent as is commonly supposed."' ' " Philosophy is, or aims at becoming, reasoned truth." (i Grote's Plato, vii.) "^ To which may be added the following just and eloquent expressions of Cousin : " Universal and absolute law is natural justice, which cannot be written, but speaks THE NA TURE OF RIGHT. 25 Hence, as we have seen, the law was defined by the Roman jurists and by our own Bracton as the science of the just and the unjust [justi atque injusti scientia), or, regarded in its practical application, as "the art of the good and the equal" {ars boni et cequi)\ "of which," says Bracton, following Celsus, "• some one deservedly calls us the priests, for we conduct the cult of justice, and administer the princi- ples of sacred right." To the same effect, also, is the definition of Leibnitz, " who defines jurisprudence to be the science of right {scientia juris) on some case or fact being proposed ; " * or, in his own language, as "the science of actions in so far as they may be termed just and unjust ;"' and of Suarez, who defines it as being "nothing more than a certain application of moral philosophy to regulate and govern the political morals of the State";' and with these definitions agrees Coke's proposition, that the Common Law is the " perfection of rea- son," or "nothing else but reason." It is thus that the law has in fact always been habitually regarded by the jurists of the Roman law, and by our own until lately ; and in view of the very nature of the conception of rights, as established in the most profound moral convictions of civilized peoples, and as em- bodied in all the fundamental laws of the English race, it is obvious that the law, which is but the expression, and attempted realization, of rights, cannot in theory be otherwise regarded. It is obvious also in view of the substantial identity of rights in the different States of the Union — each with its own independent system of law — and in Eng- land and its numerous colonies, and in all the independent states of Western Europe, that the part of the law in which rights are expressed, or, in other words, the substantive part of the law, is essentially iden- tical in all civilized countries. So that thus far the noble dream of Cicero is realized : '■'■Non erit alia lex Ronux, alia Athenis j alia nunc, alia posthac ; sed et apud omnes gentcs et omnia tempora una eademque lex obtinebif." For the law, by which rights are ascertained and determined, is no other than "right reason "; which "is itself a law, congenial to the feelings of Nature, diffused among all men, uniform, eternal ; nor does it speak one language at Rome and another at Athens, varying from place to place, or from time to time ; it addresses itself to all nations and to all ages, deriving its authority from the common Sover- eign of the universe "; and this is the law of which Brougham speaks, when he says, it is " a law above all the enactments of human codes ; to the reason and heart of all. Written laws are the formulas wherein it is sought to express, with the least possible imperfection, what natural justice requires in such and such circumstances. . . . Positive right rests wholly on natural right, which at once serves as its foundation, measure, and limit. The supreme law of every positive law is that it be not opposed to natural law ; no law can impose on us a false duty, nor deprive us of a true light." (Cousin : " The True, the Beautiful, and the Good," Lect. 15.) Nevertheless, although laws have no other virtue than that of declaring what exists before them, we often found on them right and justice, to the great detri- ment of justice itself, and the sentiment of right. Time and habit despoils reason of its natural rights, in order to transfer them to the law. What then happens ? We either obey it, even when unjust, which is not a very great evil, but we do not think of reforming it little by little, having no superior principle that enables us to judge it ; or we continually change it, in an invincible impotence of founding anything, by not knowing the immutable basis on which written law must rest. In either case, all progress is impossible, because the laws are not related to their true principle, which, is reason, conscience, sovereign and absolute justice. * Heron, Jur. 521. 8 Id. 523. ^ Id. 306. 26 THE LA IV OF FRIVA TE RIGHT. the same throughout the world ; the same in all times. It is a law written by the finger of God upon the heart of man." ' In no other way can be explained the history of the adoption of the Roman law by modern Europe, and its subsequent influence upon jurisprudence and morality, and upon civilization generally. We are wont to speak of the reiiaissance of literature following the fall of Constantinople in the latter half of the fifteenth century, as the renais- sance par excellence j but, if we have regard to the most vital elements of civilization, the true renaissance of European civilization must be dated back to the early part of the twelfth century, when Irnerius, an obscure professor of an obscure school at Bologna, rediscovered the Roman law for the modern world, and delivered his lectures on the Corpus Juris Civilis, as collected by Justinian. The eagerness with which there flocked to him, and to his successors, students from every part of Europe, numbering before the close of the century more than ten thousand, and, within a short period afterward, twenty thousand, the rapid diffusion of the new learning by its enthusiastic disciples, its introduction into the universities everywhere, or rather the creation of universities for imparting it, the general reception of the Roman law as the common law of the civilized world, and its subsequent effect in developing scientific jurisprudence, of which it forms the basis, and international law, which is but an application of its principles, cannot be accounted for in any other way than by the recognition of the fact that the Roman law is, as Leibnitz says, " a refined and deeply medi- tated system of natural jurisprudence; " or, as it is often called, " writ- ten reason." ' Heron, Jur. 148, 289. PART 11. OF THE LAW OF PRIVATE RIGHT AS HISTORICALLY DEVELOPED. CHAPTER I. OF THE HISTORICAL DEVELOPMENT OF JURISDICTION. § I. Of the Development of the Jurisdiction of the Courts of Law. THE English law — which, in modified form, constitutes the com- mon law of all the States of the American Union, except Loui- siana — was, in the main, developed in the practical administra- tion of justice by four courts, which existed in England from an early period until they were abolished by the late Judicature Act, and which were known as the Courts of King's Bench, Common Pleas, Ex- chequer, and Chancery. Of these courts, the first three were vested with substantially the same jurisdiction over civil cases, and were known as the Courts of Law ; the last, the jurisdiction of which differed materially from that of the others, both in its origin and nature, was called the Court of Equity. From this it resulted that the English law is composed of two distinct and independent systems of jurisprudence, which were •developed respectively by the Courts of Law and the Court of Equity, and which are known as Law and Equity. Hence, to understand the nature of this development, some account must be given of the origin and growth of these two jurisdictions ; and of these, the former being first in order of time, will first receive our attention. In Saxon times, justice was ordinarily administered by the county ■court and other local courts, and these continued by sufferance to exist and to exercise a certain jurisdiction for some time after the Con- quest. But the jurisdiction of these courts soon became practically obsolete, and may, therefore, be left entirely out of account in con- sidering the development of the law. It may, therefore, be stated, without error, that upon the Conquest all jurisdiction vested in the King, and was exercised by him, either in person, with or without the advice of his council, or by special dele- gation to such officers or judges as he might choose to designate. At this period (with the exception of the county and other local courts — whose jurisdiction, as we have said, soon became obsolete) there were no regular courts or tribunals other than the King himself, "who in fact, therefore, exercised an absolute and supreme control over 28 THE LA W OF PRIVA TE RIGHT. the administration of justice.' Hence all suits or applications for justice were made, in the first place, directly to the King, and consid- ered by him, or by his Chancellor, or the Keeper of his Seal, who was the ministerial officer specially charged, among other duties, with assisting and advising the King in the exercise of jurisdiction, and who, on that account, was said to be the keeper of the King's con- science. Thereupon, it was the function of the Chancellor to deter- mine whether the case was one calling for the intervention of the King ; or, in other words, whether, assuming the facts alleged to be true, the plaintiff was entitled to his action, and, in the ordinary course of business, upon the determination of this question in the affirmative, a writ was issued, called the original writ, which was in the form of a precept or mandate from the King, under the great seal, addressed to the sheriff of the county in which the cause of action arose, or where the defendant resided, commanding him to appear before some designated officer or judge, or before the King himself ^ or King's Court {Curia Regis), at a certain day to answer the com- plaint.* Whether the case should be decided by the King or King's Court, or by some officer specially delegated, depended upon the nat- ure of the mandate, or, in other words, upon the will of the King.^ In the latter case, in the earlier periods following the Conquest, there seems to have been no fixed rule as to the class of officers to whom cases were referred. In some cases the sheriff, the ordinary presiding officer of the county court, or some other judge especially appointed to preside over it, was designated ; in others, the writ was returnable to itinerant justices, commissioned from time to time by the King, to hold independent courts ; and in the reign of Henry III. the latter became a permanent institution under the name of " Justices ia Eyre," * but were afterward discontinued. In the mean time, the King himself was accustomed to exercise a, general and constantly increasing jurisdiction in his own court, called the ^^ Aula," or ^^ Curia Regis ;" and ultimately, upon the discontinu- ance of the justices in eyre — the jurisdiction of the local courts having- in the mean time become obsolete — the general administration of jus- tice throughout the realm became vested in it, and it " became the ordinary tribunal for the administration of justice in all questions arising between subjects." ^ It is difficult to ascertain from the current histories of the law the precise nature of the original constitution of this court ; but, accord- ing to the common account, it seems to have consisted, in the latter part of the Conqueror's reign, of the King himself, the Grand Jus- ticiary, the Chancellor, and the other great officers of the palace, "with whom were associated certain persons called 'justices' or '■jus- titiarii,' to the number of five or six, on whom, with the Grand Jus- ticiary, the burden of judicature principally fell." ' It seems, also, that the great persons who held in capite of the crown — or, in other words, the bishops, earls, and barons — when summoned, were members of this court, which, however, was then called the cojnmime concilium regni, or parliament.' But, ordinarily, the court consisted merely of the * I Spence, Eq. Jur. lOl, 120; i Blackstone, Com. 266, 267 ; 2 id. 24-31. ' I Spence, Eq. Jur. 226, 238, 239 ; 2 Blackstone, Com. 273. ^ Id. III. * Id. loi, 115. ' Li. 284. * I Reeves, Hist. Com. L. (Finlayson's ed.), 264, 266. ' I Bac. Abr. , tit. Courts, A ; i .Spence, Eq. Jur. 102, 106, 107, 119, and note. DEVELOPMENT OF JURISDICTION. 29 great officers of the palace and the associated justices, and was pre- sided over by the King himself, or, in his absence, by the grand jus- ticiary.' It was the function of this court originally to advise the King, not only as to judicial proceedings, but also as to affairs of state and matters of legislation ;' but in the reign of Henry 111. the judicial business of the court was finally separated from the legislative, and ■"the Curia Regis, for the dispatch of judicial business, was created or iinally established." ' From this court the common-law courts ultimately established were derived in the following order : The first division of jurisdiction took place in the reign of the Conqueror, when a separate division or branch of the court was established, especially charged with matters of revenue, which was called the Court of Exchequer.* This court was composed of the same members as the ordinary court, and seems to have been " very little else than the Curia Regis sitting in another place — namely, ad scaccariu?n — only it happened that the justices, when they sat at the exchequer, were called barons ; " " or, as it is expressed lay another writer, "as they sat in the hall, they were a court criminal, and, when up-stairs, a court of revenue ; civil pleas they heard in either court." ' A further division of jurisdiction took place in the reign of John, resulting from the provision of Magna Charta that common pleas should no longer follow the King ; and, " from this time, chief and other justices were appointed expressly to hear and determine pleas of land and injuries merely civil, which were known as common pleas ; and that branch of the King's Court was held at Westminster. This is the origin of the Court of Common Pleas." ' The court still held before the King, from which the Court of Com- mon Pleas and of Exchequer had been separated, was afterward called the Court of King's Bench. In this way the King's Court was divided into the three courts re- ferred to — namely, the Court of King's Bench, the Court of Common Pleas, and the Court of Exchequer — which in the reign of Edward I. were finally established, and their jurisdiction settled, as they after- ward continued to exist until abolished by the Judicature Act ; and, as thus established, each court consisted of one chief and three puisne judges — those of the Exchequer, however, being called barons. Of these courts as originally organized the Court of Common Pleas was the regular court for the transaction of civil business, and had exclu- sive, or almost exclusive, jurisdiction of civil cases between man and man. The Court of King's Bench had jurisdiction of all criminal matters, and also of all civil suits relating to its officers, and of all personal actions where the defendant was already in the custody of the court. The Court of Exchequer had jurisdiction of all suits for the collection of the revenue, and also of all suits by tenants and ' I Reeves, Hist. Com. L. (Finlayson's ed.), 264. ' I Bac. Abr., tit. Courts, A ; i Spence, Eq. Jur. 103. ^ Id. 107. * I Spence, Eq. Jur. 102. * I Reeves, Hist. Com. L. (Finlayson's ed.), 269. * I Bac. Abr., " Courts, "A, It is called the exchequer {scaccarium) , from the checked cloth resembling a chess-board, which covers the table there, on which, when certain King's accounts are made up, the sums are marked and scored with counters (Jacobs's Law Diet., " Exchequer ; " which suggests a fact, well to be remembered, that this was a period antedating the introduction of the Arabic numerals. ' I Spence, Eq. Jur. 103, 104. 30 THE LA W OF FRIVA TE RIGHT. debtors of the King. But the two courts last mentioned subsequently- acquired substantially a concurrent jurisdiction of civil cases.' Having thus given an account of the establishment of the common- law jurisdiction — the instrument by which the law, as distinguished from equity, was developed — let us now briefly review the develop- ment of the law itself from the beginning of the Norman rule down ta the period at which the jurisdiction of these courts was finally settled in the early part of the reign of Edward I. Upon the accession of the Conqueror to the throne of England, there was no formal abrogation of the old Saxon law ; but, with some modi- fications hereafter to be adverted to, the law continued to be the same for some time after the Conquest as before. The positive insti- tutions, or jus civile of the Anglo-Saxons, however — like that of all rude societies — related almost exclusively to the political and the criminal law, and hardly touched at all upon matters of private right." Nor did even the few and meagre provisions as to private rights,, which did exist, long survive the Conquest; for the King's courts — by which, as we have seen, the old local courts were supplanted — were presided over by Norman judges, who were in general ignorant of the laws and customs of the Saxons, and hence it naturally re- sulted that the Saxon law soon became obsolete, along with the courts that administered it." It must, therefore, be assumed, as a fact beyond controversy, that the origin of the English common law — by which is here meant the jus civile^ or that part of the law peculiar to the system — is to be sought in the period subsequent to the Conquest. Nor is it difficult to trace the general course, or to understand the precise nature of its development. In the beginning of the Norman rule there was, as we have seen, nO' developed system of law in England; nor, indeed, with the exception * I Id. 114, 115. The acquisition of this jurisdiction by the King's Bench was based upon the fiction that the defendant was in the custody of the court. Hence the form of the declaration in that court always contained the allegation that the defendant was. in such custody, which the court did not permit to be disputed. That of the ex- chequer was based upon the fiction that the plaintiff was a debtor, or tenant of the King, and that the defendant, being indebted to him, he was thereby {quo minus) ren- dered less able to pay the King ; hence the writ by which jurisdiction was acquired was called, from these words of the writ, the writ of quo minus (see Blackstone,. passini). '•'"The rules of legal decision among a rude people," says Mr. Hallam, "are always very simple, not serving much to guide, still less to control, the feelings of natural equity. Such were those that prevailed among the Anglo-Saxons ; . . . minute to an excess in apportioning punishments, but sparing and indefinite in treat- ing of civil rights." (Hallam, Middle Ages, 347, 348 ; i Spence, Equity Jur. 86, 282.) ^ This, indeed, is at variance with the theory commonly prevailing with the English lawyers, who have always asserted that the English common law is of Saxon origin. (i Blackstone, Com. 411, 412.) But, however true this opinion may be with reference to constitutional law — which, doubtless, had its germs in the rude but free institutions of our Saxon ancestors — all competent authorities now agree that, with reference to private right, the opinion is altogether unfounded. This can be readily verified by a comparison of the provisions of the Saxon codes, as given by Reeves, Spence, or Hal- lam, with the treatises of Glanville and Bracton, and other early writers on the common law, " The laws of the Anglo-Saxon kines," says Maddox, in a passage quoted by the writers named, " are as different from those collected by Glanville as the laws of different nations." (Hallam, Middle Ages ; i Spence, Eq. Jur. 122, 126 ; i Reeves,, Hist. Com. L., c. 4, p. 285.) "There is not," adds Reeves, "the least feature o£ resemblance between them." DEVELOPMENT OF JURISDICTION. 31 of the few meagre provisions of the old Saxon law with reference to private rights, which were soon to become obsolete, was there any law at all other than justice or right, as commonly received in the community. The jurisdiction of the King, therefore, consisted in the power and duty to administer justice and right, and was, with the exceptions above stated, altogether unrestricted, either by positive regulations or otherwise, except by the nature of the function itself. This jurisdiction was never formally parted with by the King, but was, in fact, exercised by the King himself, either personally or by judges to whom jurisdiction was temporarily delegated by him. And although, in the course of time, regular courts came in the manner we have explained to be established, they did not, as originally con- stituted, nor did the Curia Regis, from which they were derived, have any general jurisdiction to decide all or any particular class of cases, but only a special jurisdiction to determine such particular cases as might be especially referred to them by the King. Hence it became a fundamental principle of the law, and one that ex- ercised a controlling influence in determining the course and nature of its subsequent development, that the King's writ, or the " original writ," was essential, in every case, to confer jurisdiction upon the court.' Hence the form and nature of actions, and the question whether in any particular case an action would lie, were determined by the orig- inal writ ; or, what amounts to the same thing, by the Chancellor, upon whom devolved the function of determining the cases in which the writ should issue. This function, therefore, was strictly judicial in its nature, and consisted merely in determining whether in the case presented there was a right for which a remedy was required ; and his functions were therefore, in this respect, substantially identical with those of the praetor in the Roman law ; that is to say, in the one case it was the function of the praetor, and in the other of the Chan- cellor, to determine whether upon the facts presented an action would lie, and the form and nature of the action. In other respects, however, the functions of the Chancellor differed from those of the praetor ; " for, though the Chancellor issued all writs, the judges of the common-law courts assumed exclusive jurisdiction to decide upon their validity, disregarding the sanction of the Chan- cellor and his college of clerks. Nor could the Chancellor declare ' "These writs were made out in the name of tlie King, but with the teste of the Grand Judiciary ; for the making and issuing of which (as well as for otlier offices) the King used to have near his person some great man, usually an ecclesiastic, who was called his Chancellor, and had the keeping of his seal." (i Reeves, I list. Com. L., Finlayson's ed., 267.) " And for the ease of the Chancellor, who, besides having the care of the great ser.l, had other important duties to perform, there were associated with the Chancellor a cer- tain number of clerks, called prj:ccptorcs (afterward masterr,). . . . Their duties as regards the issuing of writs were to hear and examine the complaints of those who sought redress in the King's court, and to furnish them with the appropriate writs. . . . Besides the masters, or superior clerks, there were six other clerks belonging to the Chancellor, whose duty it was to engross writs not strictly of course, and junior clerks to write out from the register of the chancery, in which the forms of writs were enrolled, those writs which were of course." (i Spence, Eq. Jur. 23S, 239.) This de- scription of the function of the Chancellor and his clerks in the issuing of original writs is to be understood, however, as referring only to latter limes, when his jurisdic- tion, like that of the common-law judges, had beco.r.e established by usage, to the ex- clusion of that of the King. Originally, he acted as a mere oaicer or deputy of the King. 32 THE LAW OF PRIVATE RIGHT. what should be a sufficient defense to an action ; indeed, with this part of the judicial machinery he had no opportunity to interfere.*" While on the one hand, therefore, the jurisdiction of the common- law courts was limited to the cases delegated to them by the Chan- cellor, on the other hand, the jurisdiction of the Chancellor to grant writs was limited by that of the common-law courts. From this, and the strict subserviency to the authority of former decisions, which at this period, and for some centuries afterward, characterized the common-law courts, it resulted that the forms of writs originally devised (a register of which was kept in the chancery) came to be regarded as precedents beyond which the power of the Chancellor to grant writs could not be exercised. On the other hand, in all cases where a precedent could be found in the register, the writ issued as of course; and thus the function of granting writs, originally judicial^ ultimately, by force of custom, became merely ministerial. The jurisdiction of the common-law courts thus became, in effect, a general jurisdiction over all that class of cases for which precedents could be found in the register, instead of a special jurisdiction in each case delegated to it, but was rigidly limited by the precedents. With this change in jurisdiction a corresponding change also took place in the form of the law itself. As we have seen, in the beginning the exercise of jurisdiction, whether by the Chancellor or judges, or by the King, was unembarrassed by positive rules, either statutory or established by precedent, and cases were decided by the principles of natural justice generally received in the community. At that time, therefore, the administration of justice, in so far as the functions of the courts were properly performed, was in fact precisely what its name indicated ; which is but to say, in other words, that right or jus- tice constituted the law, and the only law of private right, or jus, at that time existing in England, In the end, however, not only had the power of the Chancellor to issue new writs ceased, or rather ceased to be exercised, and the jurisdiction of the courts thus come to be limited by the precedents found in the register, but in exercising even this limited jurisdiction the judges had imposed upon themselves the fetters of an iron rule, which bound them rigidly to follow their own prior decisions, and those of other judges. Thus the law, so far as expressed, became in the main a mere body of rules established by precedent, or the custom of the court ; and at this period, therefore, we find very nearly realized the ideal of those jurists who hold that the law consists, or ought to consist, of rigid rules, at once absolutely controlling and limiting the jurisdiction of the courts, and unsuscept- ible of change except by legislative power ; and, it may be added, it would be difficult to conceive of a more perfect reductio ad absurdum of the theory itself than was presented by the law at that time, or a more striking illustration of Lord Mansfield's remark, that "the law of England would be an absurd science if founded on precedents only." For, in establishing the rule that for the future justice should be administered only in those cases in which it had previously hap- pened to be administered, the Chancellor and judges to that extent had abdicated the function of administering justice which had been intrusted to them ; and thus the law as administered by them had be- come grossly inadequate to the administration of justice, and the clearest and most obvious rights were often without remedy. ' I Spence, Eq. Jur. 324, 325. DEVELOPMENT OF JURISDICTION. 33 To remedy this evil it was enacted by the Statute of Westminster, 2, 13 Edw. I. c. 24, that, "As often as it shall happen in the Chan- cery that in one case a writ shall be found, and in a like case {in con- simili casu) falling under the same right, and requiring like remedy, no writ shall be found, the clerks in chancery shall agree in making a writ, or adjourn the case to the next Parliament, and write the cases in which they cannot agree, and refer them to the next Parliament, lest it happen for the future that the court of our lord the King be deficient in doing justice to the suitors.'" And had this act been orig- inally construed as liberally as it has been in modern times, it would have gone far to remedy the evil which it was designed to obviate, and perhaps, as Sir William Blackstone has remarked, *' might effectu- ally have answered all the purposes of a court of equity."* But the act itself was defective in conferring power to issue writs in consimili casu only, and not in entirely new cases ; and the same mental habits in the judges which had caused the original evil, prevented them from giving it a liberal construction. Hence the evil remained unabated, and the jurisdiction of the common-law courts continued to be grossly inadequate to the performance of the function for which they had been originally created — namely, the administration of justice. It is not, however, to be assumed that the law, though thus modi- fied, had undergone any essential change in its nature. Every step in its development had consisted in the application of principles, or sup- posed principles, of natural right to cases actually presented ; and hence, in theory, and, so far as the function of the courts had been well performed, in fact also, the law still continued to be natural right ; for, as already observed, the fact that principles of natural right were recognized by the courts did not in any way alter their essential nature. Hence the sole question as to the nature of the law at this period is, not whether its principles were recognized and rigidly observed, but whether those principles were or were not, in fact, rational and just; and upon this question there is no room to doubt but that an affirmative answer must be given. For though errors and mistakes had occurred, and false principles had thus, to some extent, become established in the law, the work, in the main, had been well done; and though the process of development had been checked by the absurd regard at that time paid to precedent and authority, it was in the main, as far as it went, rational in its character ; and the law, as a whole, fairly justified the assertion of Coke and other lawyers, that " the common law itself is nothing else but reason." For the earlier judges and chancellors, who were generally ecclesi- astics, were all, fortunately for the interests of civilization, more or less familiar with the Roman civil law, and did not hesitate to avail themselves freely of its rational principles; and thus there was rapidly developed a system of law or right, consisting, like the civil law itself — from which it was mainly adopted — in principles of natural right, differing from the popular notions of justice only in being more logic- ally developed and expressed.^ ' 2 Blackstone, Com. 51. "^ Id. ^i. * Mr. Spence is of the opinion that " there is scarcely a principle of the law incor- porated in the treatise of Bracton that has survived to our time which may not be traced to the Roman law" (i Eq. Jur. 131) ; and this he reofards as natural and proper. "To have neglected to take advantage of the assistance which was thus 34 THE LA W OF PRIVA TE RIGHT. It is also to be observed that the law, as then established, had not reached anything like the stage of development at which it has now arrived. For at that time nothing like a complete system ot right had been developed, but the positive law consisted mainly of the re- medial law, or rules prescribing actions; it did not, to any consider- able extent, purport to create or define rights, but assumed their independent existence, and simply provided remedies for their en- forcement. The continued existence of the principles of natural right as part of the law was, therefore, necessarily implied, and without them the law would have been fragmentary and incomplete. Thus the sole remedies of that time for the enforcement of contracts were the actions of debt and of covenant, the former of which lay for the recovery of a debt — that is, a liquidated or a certain sum of money alleged to be due — and the latter for the breach of a contract under seal or specialty.* These actions, though manifestly inadequate, rested upon, and therefore implied, the principle of con- tract ; and that principle, therefore, constituted part of the law, not only to the extent to which it is was actually recognized and enforced by the courts, but in its entirety. For it constituted the reason or ground of the positive rules of the law providing for the establishment and conduct of these actions, and in which, indeed, they originated ; and it is a maxim, as well of the law as of reason, that the law con- sists not in particular precedents, but in the reasons upon which they rest, § 2. Of the Development of Equity Jurisdiction. In considering what the law of England was at this time, moreover, we must not confine our attention to the law as administered by the ordinary courts, for the jurisdiction of those courts was only part of the general jurisdiction to administer justice originally vested in the King ; and there still remained vested in him an extraordinary or pre- rogative jurisdiction, not only to supply the defects in the jurisdiction of the courts, and to administer justice in cases not provided for, but also to relieve against hardship and injustice in the exercise of the jurisdiction delegated to the courts.'' This jurisdiction had from the first existed, and had been exercised by the King either in person or by referring particular cases to his council or the Chancellor ; but in the reign of Edward III., owing to the inadequacy of the ordinary jurisdiction to the complete administration of justice, the cases call- ing for its exercise had become too numerous to be conveniently dis- posed of in this way ; and, probably in consequence of this, a writ of ordinance was issued in the twenty-second year of that reign, confer- ring upon the Chancellor general jurisdiction of all cases calling for extraordinary or equitable relief. " The establishment of the Court of Chancery as a regular court for administering extraordinary jurisdiction is generally considered to have been mainly attributable to this or some similar ordinance," * offered," he justly observes, " would have argued a high degree of presumption or gross and culpable ignorance. Neither is to be imputed to the founders of our system of jurisprudence." ' I Spence, Eq. Jur. 224. * I Spence, Eq. Jur. 326, et scq.: " Adjuvandi, vcl supplendi, vel .corrigendi juris civilis gratia." (Dig. i, i, 7, §1.) ^ i Spence, Eq. Jur. 338. DEVELOPMENT OF JURISDICTION. 35 and the result was that this court became vested with all the jurisdic- tion remaining in the King, which, as we have seen, extended not only to supplying the defects, but also to relieving against the injustice, of the jurisdiction exercised by the common-law courts, and was, there- fore, at once suppletory to and corrective of the ordinary jurisdiction. The jurisdiction of the court of chancery, therefore, while limited in one direction by the jurisdiction delegated to the common-law courts — so far as the same was adequate to the administration of jus- tice — was in other respects unlimited, and extended to the adminis- tration'of justice or right between man and man in all cases where the jurisdiction of the commcn-law courts was inadequate to the purpose. In the exercise of this jurisdiction, the Chancellor was avowedly governed by the principles of natural right. This is indicated by the title of the court — which, as we have said, was called the court of equity — and also by various terms, all expressing the idea of natural right, such as conscience, good faith, honesty, reason, justice, right, and equity, which were habitually used to denote the principles by which his decisions were determined. That this was true of the court as originally organized, and for several centuries afterward, is agreed upon all sides ; and it must, therefore, be taken as an admitted fact that during this period — which may be roughly defined as extending into the reign of Charles II. — justice or right, in the ordinary and familiar sense of the terms, or, in other words, natural justice or right, avowedly constituted the rule by which the decisions of the Chan- cellor were governed, and therefore constituted the law, or jtis^ of England, so far forth as administered in the court presided over by him.' The jurisdiction thus vested in the court of chancery consisted, therefore, in the general power — previously vested in the King — to administer justice, according to the principles of equity or natural right, in all cases where the jurisdiction of the courts of law was inad- equate ; or, as it was more usually expressed, in all cases where there was no remedy at law ; or, in other words, the jurisdiction of the court of chancery was " in reality the residuum of that of the Commune Concilium^ or Aula Regis (or, in other words, of the King), not con- ferred upon other courts, and necessarily exercisable by the crown as a part of its duty and prerogative, to administer justice and equity."* Accordingly, " Equity Jurisprudence " is defined by the eminent au- thority we have cited to be "that portion of remedial justice which is exclusively administered by a court of equity, as contradistinguished from that portion of remedial justice which is exclusively adminis- tered by a court of law ;' and this definition — if we understand the term justice in its proper sense, as denoting what is commonly but tautologically called natural justice — precisely defines the nature of ' I Spence, Eq. Jur. 339, 341, 346, 407, 408 ; i Pomeroy, Eq. Jur. sees. 46, 50, 55 ; 1 Fonbl. Eq., Bk. i, Ch. i, sec. 3 ; i Story, Eq. Jur. sees. 8, 21. ' I Story, Eq. Jur. 49 : "The jurisdietion then may be deemed, in some sort, a resulting jurisdiction in cases not submitted to the decision of other courts by the crown or Parliament as the great fountain of justice." {^Id. 42 ) The words " or Par- liament" should be omitted, as tending to obscure the true conception. " Lord King deduced the jurisdietion of the Court of Chancery from the prerogative of the King to administer justice in his realm, being sworn by his coronation oath to deliver his svib- i&cXs aquam ct rectam justitiam. . . . The method of application was by bills or petitions to the King, sometimes in Parliament and sometimes out of Parliament, commonly directed to him and his council." {/d. 44.) * /d, 525. 36 THE LA W OF FRIVA TE RIGHT. equity as it existed prior to the consolidation of the courts of law and equity. An opinion, indeed, prevails that of late years this has ceased to be a true description of equity, and that its nature has, in fact, become essentially changed. " Equity," it is said, " has nothing to do with the moral law," or, as it is variously called, "the natural law, the law of Nature, the prmciples of right and justice." ' *' The whole question by which the extent of the equity jurisdiction is practically determined is no longer whether the case is omitted by the law, or the legal rule is unjust, or even the legal remedy is inade- quate — although the latter inquiry is sometimes made, and treated as if it were controlling ; the question is rather, whether the circum- stances and relations presented by the particular case are fairly em- braced within any of the settled principles and heads of jurisdiction which are generally acknowledged as constituting the department of equity."^ But this opinion, if well considered, v/ill appear to be with- out foundation, for several reasons : First — It is admitted that, until a comparatively late period, equity or natural right in fact constituted the law of this court, and that the Chancellors were avowedly governed by it. It is also admitted that, in the exercise of this jurisdiction, it was the constant practice of the Chancellors to administer justice in all new cases presented to them ; and, indeed, it was by this exercise of jurisdiction that equity was developed. It would, therefore, seem incumbent upon those who assert that this essential change in the nature of equity has taken place to point out how and when it occurred. Manifestly such a radi- cal revolution could not have been effected otherwise than by legisla- tive enactment, or by a long series of concurring decisions ; but, in fact, neither can be cited, and the opinion is, therefore, without foundation Secondly — It is also opposed to a fundamental principle of political science, and of our own political system. No proposition can be more certain than that it is the function of the State to administer justice between man and man, and it has been expressly asserted in all the fundamental laws of the English race, from Magna Charta down to the latest State Constitution, and nowhere more expressly and em- phatically than in the Constitution of the United States. There must, therefore, be vested in some tribunal the power to administer justice in cases not provided for by the existing law as formally expressed.^ Under the Roman system this jurisdiction was vested in the praetors, the ordinary judges. In our system it is still vested in the court of equity, whose duty (according to the golden rule of Lord Cottenham) it is " to adapt its practice and course of pro- ceedings to the existing state of society, and not, by too strict an adherence to forms and rules established under different circumstances, to decline to administer justice and to enforce rights for which there is no other remedy." The modicum of truth contained in the opinion of Mr. Pomeroy is, that the development of equity jurisprudence has not only been rational and just, but has been so far complete that few cases can ever arise which are not fairly embraced within some of ■ I Pomeroy, Eq. Jur. 63. * Id. 62. ' " That there must be in every scheme of jurisprudence a system of equity to cor- rect the positive law, and supply its deficiencies, all experience shows." (i Spence, Eq. Jur. 715.) DEVELOPMENT OF JURISDICTION. 37 its "settled principles and heads of jurisdiction." It might, there- fore, seem that practically no objection could be urged to the propo- sition that equity jurisdiction is limited to the cases in which it has already been habitually exercised. But it is always objectionable to substitute an accidental for an essential definition, and peculiarly so in the present case ; because to consider equity, or the law, as made up merely of precedents, would be to give an altogether false notion of its essential nature. Of the nature of the development of equity, we have only to repeat here what has already been said as to the development of law in general, and of the old English law in particular. Every step in its progress has avowedly consisted in the application of principles of natural right to actual controversies presented, and has therefore been strictly judicial and not legislative in its character. Hence, precisely to the extent that the function of the judges has been rightly per- formed, equity consists of principles of natural right, and, in fact, is natural right. The fact that its principles, or most of its principles, are, and for a long time have been, recognized and observed by the courts — some of them for ages — we repeat, is not inconsistent with the proposition that they still continue to be principles of natural right, but, on the contrary, constitutes the most conclusive proof of their character as such. For it may be stated as a universal proposition that no prin- ciple can ever endure in the law unless it is a true principle of right. Hence, the jus civile of every system, though often asserted to be immutable except by legislation, is always constantly though slowly changing, and at the end of different stages in the progress of the law is altogether different from what it was in the beginning. " For," as Coke says in a passage already quoted, '* the principles of natural right are perfect and immutable, but the condition of human law is ever changing, and there is nothing in it which can stand forever. Human laws are born, live and die." ' Thus, as we have seen, the old Saxon law, though never formally abrogated, soon became obsolete. So, if we compare the law as it existed in the time of Edward I., or even at a much later period, with the law as it exists in America at the present day, we find that nothing remains of it but those principles of natural right which had then be- come recognized, and that all that was peculiar to the system, and which ran " counter to the jus commune, or common natural rule of right,"* or, in other words, \.\i^ jus civile of that day, has silently and almost spontaneously passed away. Thus the principle — eternal and immutable — that every man has a right to the return of his property which he has intrusted to another, or of which he has been unjustly deprived, is still, and must ever be, a principle of the law; but the inadequate forms of action then provided for the enforcement of the right, after having been gradually supplemented by others, have ' ''Leges naturce perfectissimcS sunt et immutabiles ; humani vera Juris conditio semper in infinitum currit, et nihil est in eo quod perpetuo stare possit j leges humanez nascuntur, vivunt, et tnoriuntur. " (Calvin's case, 7 Co. 12, 13 ) "The principles of natural r\ght {naturalia Jttra), -which, are observed generally among all peoples, being established by a certain divine Providence, remain always firm and immutable; but those which each State has established for itself are often changed, either by the tacit consent of the people, or by some later law." (Inst., I, 2, 6, II.) ' Kaufman's Mackeldey, 121. 38 THE LA W OF FRIVA TE RIGHT. finally been abolished. So the principle that the payment of a debt extinguishes the obligation, is now, as it was then, a principle of the law; but the arbitrary rule that the action upon a sealed instrument could only be extinguished by acquittance or release under seal, no longer survives. So, too, the principles of natural justice determining the right of property in land are the same now as then; but the tech- nical and sometimes absurd rules which grew out of the feudal system, and so long survived as a reproach to the English law, have, in America, by statute or otherwise, all been abolished; and the prin- ciples of our real estate law, though still encumbered by an immense amount of obsolete rubbish, are in the main purely rational, and re- quire only a competent hand to reduce them to the same simplicity of form which characterizes the corresponding portion of the civil law. Hence, though errors have occurred, and false principles have thus become established, they have never endured, but have ultimately been, or will be, eradicated ; and hence jus has constantly approxi- mated to perfection, and as it now stands, is more nearly identical with natural right than ever before ; or, what is the same thing, and may perhaps be more readily admitted, the rights of men are now more fully recognized and protected than at any former time. Nor can there be a greater error than to suppose — as it has become too common to suppose — that the logical and scientific method which has effected such great results has become no longer applicable to the law ; for the expression of the law is still far from being perfect, and we must in the future look to the same method for its perfection, and for the ultimate realization of justice and right. CHAPTER II. HISTORICAL DEVELOPMENT OF THE LAW (aS OPPOSED TO EQUITY). § I. General Remarks on the F)evelopment of the Law, and Division of the Subject. IN tracing the history of the law, it will be necessary to consider sep- arately the development of the doctrine of actions, and that of the theory of rights. The development of the law commences with the former, and, in the earlier period of its history, is almost con- fined to it. For at this period rights, as commonly received in the community, are accepted by the courts without question or inquiry, and the functions of the courts are restricted mainly to devising ac- tions for effectuating them. In this early development of the law, custom and authority have an influence far more controlling than in later times, after the spirit of scientific inquiry has been awakened ; and hence it results — or at least such has been the case in our own and in the Roman law — that the actions first devised — which are called legal actions — become extremely technical, and are not only rigidly defined by precedent so as to include only cases precisely simi- lar to those for which they were originally devised, but are restricted DEVELOPMENT OF JURISDICTION. 39 to such cases only as have previously occurred, and for which prece- dents can be found. Hence, at the end of this its first development, the law in its formal expression has become a collection of rigidly defined formulae ; which are regarded by the mass of lawyers as a complete and final expression of the law, and as unsusceptible of fur- ther addition or development. In the meanwhile, however, with the general growth of intelligence, the systematic investigation of morality, and especially of the theory of rights, has also progressed — and indeed, at this period, to a greater degree than any other branch of knowledge ; for the subject of rights, and the other subjects of moral and political philosophy are naturally the first to attract the attention and interest of the awakening intelli- gence of the people. Hence, on the one hand (speaking still of the end of this early period), we have a freely-growing and progressive philoso- phy, and, on the other, a system of positive law expressed in rigid for- mulas, into which, as into a procrustean bed, it is sought by a certain class of minds to imprison the growing civilization of the age.' But this, fortunately for the interests of civilization, fails. Reason triumphs over authority, and the law is reformed by the introduction of an extraordinary or supplemental jurisdiction designed to supply the defects and correct the errors of the existing expression of the law, and which, on account of its rational and just character, is called Equity ; and by this a more rational system is superadded to and gradually supersedes the old law." Under the latter system actions are no longer molded into rigid formulae, but are left to be determined in their character by the exi- gencies of particular cases as they arise ; and another difference is that rights themselves are systematically investigated, and a rational and scientific doctrine of rights evolved. And from this it results that the old law itself is gradually reformed, and a rational and scientific spirit introduced into its administration. The two systems thus ap- proximate, and are finally welded into one, in which the equitable doc- trine of right supplants and eradicates the technical and irrational part of the old law. Indeed, both in our own and in the Roman law, but more particularly in the latter, the doctrine of rights was from the first rationally treated ; and the interposition of equity was rendered necessary, not from any defect in the theory of rights recognized by the courts, but on account of the inadequacy of actions only, ' Here with unprogressive races the development of the law ceases, and with it comes an absolute arrest of development of civilization generally. Authority triumphs over reason, and the character of the people, as in the case of the Chinese, the Hin- doos, and other races, becomes molded into a fixed and enduring form or type. This, in fact, seems to have been the result with all the races of the world, except the Euro- pean ; with which the development of the law, commenced by the Greeks, was carried to a noble height by the Romans, and is destined, I confidently trust, to be carried to a still higher perfection by the moderns, and especially by the English race. The same fate, however, of arrested development at last also overtook the Romans, under the later, and especially under the Eastern Empire ; and would doubtless over- take us also, were it possible, as is fondly dreamed by some, for the law of a free and progressive people to be cast into a rigid and unchangeable mold. ' Thus far the history of the Roman, and of our own law, was precisely similar ; but there was a diversity with reference to the manner in which equity was introduced. In the former, the equitable jurisdiction was assumed and exercised by the ordinary judges, the praetors ; with us, it was from the first exercised by the King, and was ulti- mately vested in an extraordinary tribunal, the Court of Chancery. This, however, did not affect the essential character of equity, or the character of its development, •which were substantially the same in both systems. 40 THE LA W OF PRIVA TE RIGHT. To this observation, however, one exception with reference to the English law must be made, which is presented by the peculiar, ab- normal, and, we may say, monstrous creation of the old English law of real estate, to which, in the sequel, after considering the develop- ment of actions, our attention will be particularly directed. But even this must not be taken as in conflict with Coke's opinion that the common law is nothing else but reason ; for the common law consists, not only of this technical and irrational system, but also of the equi- table principles applied by the Court of Chancery to counteract it at every stage in its development. The principal evil, therefore, result- ing from the peculiar technicality of the old common law has not been so much in its effect upon the administration of justice as in the profound and corrupting influence which it has exerted upon the minds of the lawyers, with reference to which we may quote the re- mark of Burke that, while the law " is one of the first and noblest of human sciences — a science which does more to quicken and invigorate the understanding than all other kinds of learning put together — . . . it is not apt, except in persons happily born, to open and lib- eralize the mind exactly in the same proportion,"* § 2. Of the Common-Law Actions. The different kinds of common-law actions were originally deter- mined by the original writs, and were generally denominated by the use of some clause from the writ — as, for instance, the action of " For- medon," that of ^^ Quod per??iittat prosternere," etc. These writs, as we have explained, were issued by the Chancellor, who was in early times always an ecclesiastic, and more or less versed in the Roman law. Hence, it naturally happened that the principles of the Roman law of actions were to a large extent imported into our law, and thus became the source of our law of actions. Accordingly, actions are divided by Bracton, as in the Roman law, into Real, Personal, and Mixed." Mixed actions were those in which there was a concurrence in the same suit of a real and of a personal action — as, for instance, in a suit for land with damages for its detention. It will, therefore, simplify the matter to leave them out of consideration, remembering only that where a real and a personal action are included in the same suit, the proceeding is called a mixed action. The real actions, as indeed was the case with the Romans, were used chiefly for recovering real estate ; and from this the true meaning of the definition was lost sight of, and they finally came to be defined by English lawyers as those " whereby a man claims title to lands, tene- ments and hereditaments in fee or for life."' — thus substituting an accidental for an essential definition, and in the end entirely obscuring the true conception of the distinction between the two classes of actions. All other actions were called personal actions, and were defined as ' To this is doubtless to be ascribed at once the high reputation and commanding influence of the leading minds of the profession, and the unsavory, and, I am afraid, well-deserved, reputation which, as a whole, it has always borne in the opinions of the masses ; the sentiments of whom are not badly represented by the proposition of Dick the Butcher " to hang all the lawyers," as an essential preliminary to any real reform. "^ I Spence, Eq. Jur. 223, 224, 234. ^Jacobs, Law Diet., "Action" ; 3 Blackstone, Com. 117. DEVELOPMENT OF THE LAW. 41 " those brought for the specific recovery of goods and chattels, or for damages, or for redress, or breach of contract, or for injuries of what- ever description, the specific recovery of lands, tenements and here- ditaments alone excepted.'" At what period these definitions were invented I do not know, but they are obviously based upon a perversion of the true distinction between real and personal actions, according to which, actions " brought for the specific recovery of goods and chattels " should be classed with real actions. We will, however, in this chapter follow the classi- fication of the English lawyers. The principal real actions may be enumerated as follows : the Writ of Entry, the Writ of Assize, the Writ of Right, the Writ of Formedon, the Assize of Nuisatice, and the Writ Quod Fermittat Frosternere, the Writ of Estrepement and the Writ of Waste, the Writ of Dower, and the Writ of Quare Itnpedit. The Writs of Entry and of Assize were based upon the mere depri- vation of the possession of the plaintiff by the defendant, and were designed to restore the possession of the land of which the plaintiff had been wrongfully deprived. They, therefore, did not involve the title. The Writ of Right lay upon the mere title, and could be brought either concurrently with the possessory actions, or after the right of recovery in them had been lost by the statute of limitations, or other- wise ; the Writ of Formedon lay at the instance of the tenant in tail to recover the entailed premises ; the Assize of Nuisance and the Writ Quod permittat prosternere, for the abatement of a nuisance ; the Writs of Estrepement and Waste, for waste committed on land ; the Writ of Dower, in favor of the widow to recover her dower from the heir ; and the Writ of Quare Lmpedit to enforce the right to the pres- entation of a benefice. " The principal kinds of personal actions originally known to the Common Law," as enumerated by Mr. Spence, ''are the following, viz.: Debt and Covenant — which arise ex contractu — and Detinue and Trespass — which arise ex delicto^ The action of Debt lies where a person claims the recovery of a debt — that is, a liquidated or certain sum of money alleged to be due to him. It is commonly applied to debts due on bonds, or other docu- ments under seal. The action of Covenant lies where a person claims judgment for the breach of the promises made by an instrument under seal, or, in legal language, by speciality. The action of Detinue lies where a party claims the specific recov- ery of goods and chattels. The action of Trespass lies where a party claims judgment for an injury committed with violence against him, and this violence may be expressed or implied. Assault and battery is an instance of actual violence ; a peaceable but wrongful entry upon the plaintiff's land implied violence.' From the above list of actions several have been omitted. The first of these is the action of Replevin. This action is indeed referred to by Mr. Spence, but is omitted from his list, because, he says, " that though it is entertained in the Superior Court, it is not commenced there, but by plaint in the County Court, or Lord's Court." Black- stone also says that this action " is founded upon a distress taken * Stephens on Pleading, 3. ^ I Spence Eq. Jur. 224. 42 THE LAW OF PRIVATE RIGHT. wrongfully, and without sufficient cause," and that "it is confined to cases of that character," ' and the same view is followed by Stephens* and many other writers. But this is now recognized to be a mistake, and it is well settled that, as originally instituted, *' it was an action founded on any taking by the party/" It was anciently brought in the King's Court by original writ ; but, the remedy being found incon- venient and dilatory, it was provided by the Statute of Marlbridge (53 Hen. III., c. 21), that in the case of distress the sheriff might immediately (without the issue of the original writ) upon plaint made to him, proceed to replevin the goods,"* and the remedy thus pro- vided by statute became, on account of its convenience, the ordinary proceeding for replevying goods taken by wrongful distress ; and in England, for other purposes, the action became obsolete. It contin- ued, however, to be used in Ireland and in most of the United States, for the general purpose of recovering any goods wrongfully taken by the defendant. There was also another action of a similar character, or rather a species of the same action, called the Writ De Hoinine Replegiando, which is thus described by Blackstone : ** The Writ De Homitie Replegiando lies to replevin a man out of prison or out of the custody of any private person (in the same man- ner that chattels taken under distress may be replevined . . . ) upon giving security to the sheriff that the man shall be forthcoming to answer any charge against him;"' and it is said by Mr. Jacobs* that "it hath been adjudged that it does not differ from a common replevin" — citing 2 Salk. 381. Another action omitted from the list by Mr. Spence is the Writ of Quo Warranto, which was in the nature of a Writ of Right for the King against him who claims, or usurps, any office, franchise, or liberty." There was also a peculiar application of the action of Trespass, called the action of Ejectment, to which we must refer, not only as interesting in itself, but also as illustrating the use of fictions by the courts for the purpose of enlarging the remedy and the influence of equity upon the law. This was used for the purpose of recovering possession of real estate, and in practice ultimately superseded all the real actions. The writ originally lay only in favor of a tenant who had been dispossessed of land held by him under lease, and sounded in damages only. " But afterwards, when the Courts of Equity began to oblige the ejector to make a specific restitution of the land to the party immediately injured, the courts of law also adopted the same method of doing complete justice, and, in the prosecution of the writ of ejectment introduced a species of remedy not warranted by the original writ, nor prayed by the declaration (which are calculated for damages only, and are silent as to any restitution), viz., a judgment to recover the term, and the right of possession therefor. This method seems to have been settled as early as the reign of Edward IV," ' In order to give the benefit of this action to the owner in fee, the following expedient was invented. It being against the law for a party out of possession to make a lease or other conveyance, the owner in ■ 3 Com. 146, et seq. * Pleading, 19. ' Shannon z/. Shannon, I Sch. andLef. 327. * Jacobs, Law Diet., "Replevin." * 3 Cora. 129. • Law Diet., '^Homitte Replegiando" ' 3 Blackstone, Com. 200, aoi. DEVELOPMENT OF THE LA W, 43 fee would enter upon the land, and, being thus in possession, would make a lease to another, and leave him in possession until he was ousted by the adverse occupant, or till some other person (called the casual ejector), either by accident or by agreement beforehand, should come upon the land and eject him. For this injury the lessee was entitled to his action of ejectment against the occupant, or this casual ejector (whichever it was that ousted him) to recover back his term and damages ; but where the action was brought against such casual ejector, and not against the occupant, the Court would not suffer the latter to lose his possession without an opportunity to defend it, and hence it was a standing rule that recovery could not be had against the casual ejector without notice to the occupant ; which was given in writing by the casual ejector, or by the real plaintiff in his name. But, as much trouble and formality were found to attend the actual making of the lease, entry, and ouster, a new and more easy method of trying titles by ejectment v/as invented by Chief-Justice Rolle, during the exile of Charles II., which depended entirely upon a string of legal fictions. No actual lease was made, no actual entry by the plaintiff, no actual ouster by the defendant ; but all were merely fictitious for the sole purpose of trying the title. To this end the declaration alleged a lease by the owner in fee to some lessee, either real or ficti- tious ; that the lessee entered, and that the defendant, the casual ejector, ousted him. Thereupon the casual ejector, or rather the real plaintiff in his name, would send a written notice to the occupant, in- forming him of the action brought, and transmitting to him a copy of the declaration, with the notice that he, the nominal defendant, had no title and would make no defense, and advising the occupant to appear in court and defend his own title ; that otherwise he, the casual ejector, would suffer judgment to be had against him, and thereby the actual occupant be turned out of possession. On receipt of this friendly caution, if the occupant did not, within the limited time, apply to the court to be admitted as defendant in place of the casual ejector, judgment went against the nominal defendant, and the actual occupant was turned out of possession. But if the occupant applied to be made a defendant, it was allowed to him, upon the condition that he would confess, at the trial of the cause, the lease and the entry of the lessee, and his ouster by the occupant himself ; which requisites being wholly fictitious could not be proven by the plaintiff ; but by such stipulated confession of lease, entry and ouster, the trial pro- ceeded upon the merits of the title only.' Of the above actions it will be observed that the action of Eject- ment, of Detinue, and of Replevin, and also that of De Homine Replegiando, though classed by the English lawyers as personal actions, are all in fact real actions. To the actions originally existing at common law, important addi- tions were made under the Statute of Westminster 2d, 13, Edw. I., c. 24, referred to in the preceding chapter ; and these actions — which come under the generic name of "actions on the case," or of "tres- pass on the case," but which are really quite distinct in their nature from trespass — we will next describe. It will be remembered that an action of trespass lies only for an injury committed with violence against the plaintiff, or as it is gen- erally expressed in the declaration, vi et artnis (with force and arms). ' 3 Blackstone, Com. 201-205. 44 THE LAW OF PRIVATE RIGHT. The first innovation under the Statute of Westminster was to omit this qualification, and to permit an action for any malfeasance, such as slander, libel, etc., though committed without violence. " Thus, in an action against a shoeing-smith for laming a horse, in the 46 Edw. III., the objection was taken that the action was in trespass, and yet those words were omitted ; but it was answered that " the plaintiff's writ was according to his case," and therefore good. " Trespass, therefore, in its ordinary sense, was no longer a necessary ingredient in an action of trespass on the case ; the injuries which were the subject of these actions had the general name of torts, wrongs, or grievances."' " The next step was to extend (the action) to non-feasance, or not doing what the defendant ought to have done."* To this much resistance was made; but finally, "in the 21st of Henry VII., the judges, in the exercise of their praetorian authority, held that an action on the case would lie as well for a non-feasance as for a mal- feasance ; " and hence the origin of the modern action of Assumpsit^ which is now in constant use." The original action of trespass on the case, it will be observed, is ex delicto, but the action of Assutnpsit — though historically so classed, is in fact generally ex contractu. It is now, however, generally considered as a distinct action from trespass on the case. This action, as ultimately developed, would lie for all wrongs for which there was no other peculiar action applying, and thus the principles of equity were to a large extent incorporated into the law. Hence, it was called the *' Equitable Action." There is also another species of the action on the case, which is now considered as a distinct action, namely, trover and cotiversion. This action was, in its origin, an action of trespass on the case for recovery of damages against such person as had found another's goods, and refused to deliver them on demand, but converted them to its own use.^ The allegations of the declaration were, that the plaintiff on a day named was " lawfully possessed as of his own property " of cer- tain goods, etc.; that he afterward " casually lost them out of his pos- session " ; and that the defendant "found them," and refused on demand to redeliver them, and "converted them" to his own use.* The allegations of the loss and finding of the goods are considered immaterial ; and the defendant is not permitted to deny them, the actual issues in the case being merely the plaintiff's title, and the con- version by the defendant. Of the actions enumerated, all the real and mixed actions (accord- ing to the classification of the English lawyers), with the exception of the Writs of Dower and Quare Impedit, became obsolete, and were finally abolished by the Statute 3 and 4 of William IV., c. 27, sec. 36. The Writ of Quare Impedit has never been in use in America since the Revolution, and the Writ of Dower has been superseded entirely by the proceeding in equity for assignment of dower. The Writ De Ho?nine Replegiando also was entirely superseded by the more efficacious Writ of Habeas Corpus. The action of Covenant has also in effect been rendered obsolete under the reformed practice, by the abolishment of the distinction between sealed and unsealed instru- ments, by which it has become merged in the action of assumpsit ; and this, indeed, is also the case with reference to the action of Debt. The remaining actions continue to exist, and, adopting the true dis- ' Spence, Eq. Jur. 242. ^ Id. 242, ' 3 Blackstone, Com. 152, 153. * Stephens on Pleading, pp. 40, 41. DEVELOPMENT OF THE LA W, 45 tinction between actions in rem and actions in fcrsonam may be classed as follows : Actions in rem : Ejectment, Detinue, and Replevin (both of the latter in our system embraced under the denomination of actions to recover personal property), Habeas Corpus and Quo Warranto. Actions in personam : Assumpsit, Trespass, Slander, Libel, and all other actions coming under the denomination of Trespass on the case, and Trover and Conversion. § 3- ^f ^^^^ Conifnon-Law Doctrine of Real Estate. The law of real property, as it exists at the present day, is almost entirely rational in its character, consisting mainly in the application to the subject of the principles of contract. There is no intrinsic diffi- culty in the acquisition of real estate ; and it needs, as we have observed, but a competent hand to reduce the law to the same sim- plicity that characterizes the law of personal property, and the Roman law of property, both real and personal. It has, however, reached this condition only after a tortuous and difficult development from an arti- ficial and technical system established in a rude age ; and its history is that of a long and arduous struggle of eight hundred years' dura- tion, every step of which has been bitterly contested, but by which it has been brought substantially into a rational state. It still retains the scars of the conflict in the technical forms in which the legal part of the doctrine is expressed ; and these have to be mastered in order to learn that the heart of the Common Law (as the old lawyers used to fear) has in fact been eaten out by equity, and that every peculiar rule and principle of the system has thus, or by express statutory en- actment, ceased to be a living principle of the law. The burden is thus imposed upon us of learning the law of real estate through its history, and of thus arriving by a difficult path at a knowledge of it, which, were it well expressed, might be readily attained with a tenth of the labor. Under the old Saxon law, lands were generally held in absolute ownership, or by what is called allodial title (equivalent to the domin- iutn directwn of the Roman Law), and could be transferred by the owners at pleasure, either with or without writing, and with or with- out formal delivery of possession. They could also be disposed of by will, and estates in them could be created to commence in futuro, as well as in prcesenti. In fine, the law of real estate was then very much as it is now, with the exception that now the transfer must be in writ- ing. Upon the Conquest, however, all this was changed. Nearly all the lands in the kingdom were seized by the Conqueror, and by him granted to his followers to be held by feudal tenure ; and even those lands which were left to the native English were converted into feuds, and the allodial titles of the owners into feudal tenures. Thus all the lands in England came to be held by feudal tenure of the King, and subject to the then existing principles of the feudal law ; according to which the title or ownership of the land (the dojftinium directum^ remained in the King, and the tenant had a mere right of user {domin- ium utile), subject to the performance of feudal services to the lord, and to forfeiture for failure to perform them. The grantees, or tenants of the King, in turn made similar grants to others, and they again to others ; and " thus every freeholder of 46 THE LAW OF PRIVATE RIGHT. lands became the permanent feudatory of some superior lord, ascend- ing in regular gradations to the head of the State — each, in addition, being bound by oath of allegiance to the King, to which his duties to his immediate lord were made to bend."' But by the Statute of Quia Empto>-cs, passed early in the reign of Edward I., and the subsequent Statute De Regia Pr(zrogativa, subinfeudations were forbidden, and it was provided that in the case of all conveyances, the grantee should hold immediately of the King. According to the original principles of the feudal law, lands were inalienable by the tenant without the consent of the lord ; and to secure the rights of the lord in this respect, as well as for the sake of notoriety in the transfer, lands could only be conveyed by feoffment — which is defined by Blackstone to be " the gift of any corporeal hered- itament (or land) to another ; "" and of which the formal delivery of possession, or, as it was termed, " livery of seisin " was an essential part ; and though, under the relaxed form of the feudal system as it existed at the time of the Conquest, feuds had becomic alienable with- out the consent of the lord, the rule that lands could be conveyed only by feoffment with livery of seisin was still in force, and became a fundamental principle of the English law. From this rule it followed that lands could not be disposed of by will,' and also that a freehold estate (/. e., an estate for life, or in fee) could not be created to com- mence in futuro^ The latter rule was, however, to some extent evaded or relaxed by the invention of the doctrine of remainders. According to this all pos- sible interests in land from any given time to the end of the world were regarded as constituting one estate, of which all lesser estates or interests that might be created formed parts ; and it was held that, if an immediate estate for a limited period was granted with livery of seisin, other estates, to commence in futuro (called remainders) might at the same time be created without further livery. The immediate estate thus created was called " the particular estate, as being but a small part or particiila of the inheritance ; the residue or remainder of which is granted over to another."' It was not necessary to the validity of a remainder that the particular estate should be a freehold ; but, if a leasehold, livery of seisin was necessary to support the re- mainder, though not otherwise required. By this method, it was held, the rule forbidding the creation of estates in futuro was satisfied, be- cause it was considered that the livery of seisin to the tenant of the particular estate, whether leasehold or freehold, was not to himself alone, but to all parties in interest ; and that thereby the whole estate passed out of the grantor, and became simultaneously vested in the tenant of the particular estate, and the remainder-men designated in the grant.' By this method the rigidness of the old law was somewhat relaxed. But otherwise the rule that lands could only be conveyed by feoffment with livery of seisin, and the resulting rules that lands could not be dis- posed of by will, and that estates, otherwise than as above stated, could not be created to commence /'« /«/«rorough. -Tlie Value of 'V\'itness to the Mirac- ulous.— By. Prof. Thomas H. Huxley. -Agnosticism and Christianity. — By Prof. Thomas H. Huxlev. -"Cowardly Agnosticism." — A Word with Prof. HuxLEY.-ByW.H. Mallock. - The New Reformation. — By Mrs. Humphry Ward. No. 115 and No. 116. Two double numbers, 30 cents each. DARWINISM: AN EXPOSITION OF THE THEORY OF NATURAL SELECTION, with some of its applications. — By Alfred Russel Wallace, LL.D., F.L.S., &c.— With Portrait of the Author, Colored Map, and numerous illustrations. contents. Chapter L — 'What are "Species," and what is meant by their "Origin." Chapter II. — The Struggle for Existence. Chapter IH. — The Variability of Species in a State of Nature. Chapter IV. — Variation of Domesticated Animals and Cultivated Plants. Chapter V. — Natural Selection by Variation and Survival of the Fittest. Chapter VT. — Difficulties and Objections. Chapter 'VII. — On the Infertility of Crosses be- tween Distinct Species, and the usual Sterility of their Hybrid Oflfspiing. Chapter VIII.— The Origin and Uses of Color in Animals. Chapter IX. — Warning Coloration and Mimicry. Chapter X. — Colors and Ornaments character- istic of Sex. Chapter XI. — The Special Colors of Plants. — Their Origin and Purpose. Chapter XII. — The Geogi'aphical Distribution of Organisms. Chapter XIH. — The Geological Evidences of Evo- lution. Chapter XTV. — Fundamental Problems in Rela- tion to Variation and Heredity. Chapter XA''. — Darwinism applied to Man. The present work treats the problem of the Origin of Species on the same general lines as were adopted by Darwin: but from the standpoint reached after nearlv thirty years of discussion with an abundance of new facts and the advocacy of many new or old theories. While not attempting to deal, even in outline, with the vast subject of evolution in general, an endeavor has been made to give such an account of the theory of Natural Selection as may enable any intelligent reader to obtain a clear conception of Darwin's work, and to understand something of the power and range of his great principle. — Extract from the Preface. THE HUMBOLDT PUBLISHIXG CO., 28 Lafayette Place, New York. THE HUMBOLDT LIBRARY No. 117. [Double number, 30 cents. MODERN SCIENCE AND MODERN THOUGHT.-A Clear and Concise View of the Principal Results of Modern Science, and of the Revolution which they have effected in Modern Thought.— By S. Laing. Part I. MODERN SCIENCE. CONT Chapter I. — Space. Primitive Ideas— Natural Standards— Dimensions of tlie Earth— Of Sun and Solar System— Distance of Fixed Stars— Their Order and Size— Nebula- and Other Universes— The Telescope and the Infinitely Great— The Microscope and the Infinitely Small— Uniformity of Law— Law of Gravity— Acts through all Space— Double Stars, Comets, and Meteors — Has acted through all time. Chapter II.— Time. Evidence of Geology— Stratification— Denudation-Strata identified by Superposition— By Kossila — Geological Kecord shown by Upturned Strata— General Kesult — Palieozoic and Primary Periods — Secondary — Tertiary— Time required — Coal Formation— Chalk— Elevations and Depressions of Land — Internal Heat of the Earth — Earthquakes and Volcanoes- Changes of Fauna and Flora— Astronomical Time— Tides and the Moon— Sun's Kadiation— Earth's Cooling— Geology and Astronomy— Bearings on Modern Thought. Chapter III. — Matter. Ether and Light— Color and Heat— Matter and its Elements — Molecules and Atoms — Spectroscope — Uniformity of Matter throughout the Universe— Force and Motion — Conservation of Energy- Electricity, Magnetism, and Chemical Action— ''^ • • 1 of Heat— Birth and Death of Worlds. Chapter IV.— Life. Essence of Life— Simplest form. Protoplasm — Monera and Protista— Animal and \ egetable Life— Spontaneous Genera- tion — Development of Species from Primitive Cells — Super- natural Theory— Zoological Provinces— Separate Creations- Law or Miracle— Darwniian Theory— Struggle for Life— Sur- vival of the Fittest— Development and Design— The Hand- Proof required to establish Darwin*s Theory as a Law — Species — Hybrids — Man subject to Law. E N T S. Chapter V. — Antiquity of Man. Belief in Man's Recent Origin — Boucher de Perthes' Dis- coveries— Confirmed by I'restwich— Nature of Implements- Celts, Scrapers, and Flakes— Human Itemains in Kiver Drifts —Great Antiquity— Implements from Drift at Bournemouth Bone-caves— Kent's Cavern— Victoria,Gower,and other Caves —Caves of France and Belgium— Ages of Cave Bear, Mam- moth,and Keindeer— Artistic Eace-l)rawings of Mammoth. ■Sec— Human Types — Neanderthal, Cro-Magnon, Furfooz, &c. — Attempts to h.x Dates — History — Bronze Age— Neolithic- Danish Kitchen-middens— Swiss Lake-dwellings- Glacial Pe- riod—Traces of Ice— Causes of Glaciers— Croll's Theory— Gulf Stream- Dates of Glacial Period— Rise and Submergence of Land — Tertiary Man— Eocene Period— Miocene— Evidence for Pliocene and Miocene Man— Conclusions as to Antiquity. Chapter VI. — Man's Place in Nature. Origin of Man from an Egg— Like other Mammals— Devel- opment of the Embryo— Backbone— Eye and other Organs of Sense— Fish, Reptile, and Mammalian Stages— Comparison with Apes and Monkeys- Germs of Human Faculties in An- imals— The Dog— Insects— Helplessness of Human Infant- Instinct — Heredity and Evolution — The Missing Link— Races of Men — Leading Xypes and Varieties — Common Origin Dis- tant — Language — How Formed— Grammar— Chinese, Aryan. Semitic, &c.— Conclusions from Language— Evoliftion and Antiquity — Religions of Savage Races— Ghosts and Spirits- Anthropomorphic Deities — Traces in Neolithic and Paleo- lithic Times — Development by Evolution — Primitive Arts — Tools and Weapons — Fire — Flint Implements — Progress from Palaeolithic to Neolithic Times— Domestic Animals— Clothing —Ornaments— Conclusion, Man a Product of Evolution. No. 118. [Single number, 16 cents. MODERN SCIENCE AND MODERN THOUGHT.-With a Sup- plemental Chapter on Gladstone's "Dawn of Creation" and "Proem to Genesis," and on Drummond's "Natural Law in the Spiritual World."- By s. Laing. Part II. MODERN THOUGHT. Chapter VU.— Modem Thought. CONT Lines from Tennyson— The Gospel of Modem Thought — Change exemplified by Carlyle, Kenan, and George Eliot- Science becoming universal — Attitude of Orthodox Writers — Origin of Evil— first Cause unknowable — New Philosophies and Religions— Herbert Spencer and Agnostici^n- Comte and Positivism — Pessimism — Mormonism — Spiritualism — Dreams and Visions — Somnambulism— Mesmerism— Great Modern Thinkers— Carlyle— Hero-worship. Chapter VIII. — Miracles. Origin of Belief in the Supernatural— Thunder— Belief in Miracles formerly Universal— St. Paul's Testimony— Now In- credible—Christian Miracles— Apparent Miracles— Real Mir- acles — Absurd Miracles— Worthy Miracles— The Resurrection and Ascension— Nature of Evidence required— Inspiration — Prophecy— Direct Evidence— St. Paul— The Gospels— What is Known of Them— The Synoptic Gospels— Resemblances and Differences- Their Origin— Papias— Gospel of St. John- Evidence rests on Matthew, Mark, and Luke — What each states— Compared with one another and with St. John— Hopelessly Contradictory — Miracle of the Ascension — Silence of Mark— Probable Early Date of Gospels— But not in their Present Form. ENTS. Chapter IX. — Christianity Without Miracles. Practical and Theoretical Christianity — E.xample and Teaching of Christ — Christian Dogma— Moral Objections— In- consistent with Facts— Must be accepted as Parables— Pall and Redemption — Old Creeds must be Transformed or Die- Mohammedanism — Decay of Faith — Balance of Advantages — Religious Wars and Persecutions— Intolerance — Sacrifice- Prayer— Absence of Theology in Synoptic Gospels— Opposite Pole to Christianity — Courage and Self-reliance — Belief in God and a Future Life— Based Mainly on Christianity— Sci- ence gives no Answer— Nor Metaphysics— So-called Institu- tions—Development of Idea of God— Best Proof afforded by Christianity— Evolution is Transforming it — Reconciliation of Religion and Science. Chapter X. — Practical Life. Conscience — Right is Right — Self-rev»rence — Courage- Respectability — Influence oi Press — Respect for Women — Self-respect of Nations — Democracy and Imperialism— Self- knowledge— Conceit — Luck — Speculation— Money-making— Practical Aims of Life— Self-control— Conflict of Reason and Instinct— Temper— Manners— Good Habits in Youth— Suc- cess in Practical Life— Education — Stoicism— Conclusion. Supplemental Chapter. — Gladstone's "Dawn of Creation" and "Proem to Genesis."— Drum- mond's "Natural Law in the Spiritual World." Published semi-montmy.— $3 a year.— Single numbers, 15 cents. OF POPULAR SCIENCE. No. 119. THE ELECTRIC LIGHT.- How the Electric Current is Produced. How the Electric Current is made to yield the Electric Light. By Gekald Molloy, D.D., D.Sc, Fellow of the Royal University. — With numerous illustrations. CONTENTS. I. — How the Electric Current is Produced. First Discovery of Induced Currents — Faradny's Exper- iments described and repeated — First niacliiues founded on Faraday's discovery — Pixii. .Saxton, Clarlie — New form of Armature invented by Siemens— Macliines of tlie Alliance <_'ompany iu France and of iliiinies in England — Wilde's niacliin^— A new principle discovered — Laud's machine — The machines of Gramme and Siemens-— Ideal skeleton of liramme's machine— The principle of its action explained— Details of construction — The Volta Prize awarded to Gramme for his invention— The machine of Siemens, how it differs from that of Gramme— Most other machines constructed on one or other of these two types— The dynamo does not create energj', but converts mechanical energy into electrical energy. II.— How the Electric Current is made to yield the Electric Light. Simplest form of Electric Light— Prijiciple of the Electric Li^ht — Sir Humphry Davy's exiieriment- 'fwo types of Elec- tric Liglit— The Arc Light— Duboscq's Lamp— New forms of Arc Lamp — The.JablochkortCandle— The Incandescent Light —Platinum Spiral— Why Carbon is preferred to Platinum — A perfect vacuum — Elements of Incandescent Lamp — Prep- aration of the filament- Edison's process — Swan's process — Carbonization of the filament — Exhaustion of the gtaas globe —Light witliout heat — The Arc Light and the Incandescent Light compared — Comparison with other kinds of light— How far the Electric Light is now available for use — Transforma- tions of Energy illustrated by the Electric Light. TO WHICH IS ADDED THE STORING OF ELECTRICAL ENERGY.-The Recent Progress and Development of the Storage Battery.— By the same author. — With numerous illustrations. CONTENTS. A "marvelous box of electricity"— What is meant by the storing of energy— Examples of energy stored up— A sus- pended weight — A watcbspring wound up — A stretched cross- bow—A flywheel — Energy stored up in clouds and rivers- Energy stored up in a coal-mine — Energy stored up in sep- arated gases— Storing of electrical energy not a new idea- Energy stored up in a Leyden jar— In a thunder-cloud — In a voltaic battery — Principle of the storage battery — Fi.xperiment showing production of secondary current — Gradual develop- ment of the principle — Bitter's secondary pile— Grove's gas- batterv— Experiments of Gaston Plante— The Plante second- ary cell— Faure's improvement— What a storage battery can do — Practical illustrations — Convenience of the storage bat- tery for the production of the electric light — 'I'he storage bat- tery as a motive jjower- Application of the storage battery t" tram-cars and private carriages — The storage batter}' on its trial. RECENT PROGRESS AND DEVELOPMENT OF THE STORAGE BATTERY. Unexpected difficulties — Modifications of the Faure cell — Internal resistance diminished — New mode of preparing the plates- An alloy substituted for pure lead— The paste of lead o.xide —Improved method of maintaining in5nlati(ui of the plates— Newest form of cell— Buckling of the plates— The available energy of a cell— Kate at which the energy can be drawn off— Application to tram-cars and to electric lighting. THE MODERN THEORY OF HEAT, as Illustrated by the Phe- nomena of the Latent Heat of Liquids and of Vapors.— By Gerald Molloy, D.I)., D.Sc, Fellow of the Eoyal University.— With nu- merous illustrations. I. — The Latent He.it of Liquids. CONTENTS. Modern theory of heat— Heat a form of Energy— Familiar illustrations — Count Itumford's experiment — Argument founded on the experiment— Heat produced by expenditure of Electrical Energy— Latent Heat— Black's experiments- Heat disappears when ice is melted — E.xplanation of this fart according to the old theory— Explanation offered by the mod- ern theory— Latent Heat varies tor different liquids— Freezing mixtures — Heat develi»ped when a liquid becomes solid — Water heated in freezing — E.xperiment with solution of sul- phate of soda — Latent Heat in the economy of Nature. II. — The Latent Heat of Vapors. Heat expended when water is boiled— This fact considered hi the light of the modern theory— Method of measuring the quantity of heat so expended— Heat developed when steam is condensed— Experimental illustration- Heating of buildings by steam— Heat expended iu evaponitioii— Various illustra' tions — Cold produced by evaporation of ether— Water frozen by evapt^ration — Leslie's experiment— Carre's apparatus — Pro- duction of solid carbonic acid — Freezing of mercury — Latent Heat of clouds— Effect ill the economy of Nature— Summary. TO WHICH IS ADDED THE SUN AS A STOREHOUSE OF ENERGY.- Immensity of the Sun's Energy.— Source of the Sun's Energy.— By the same author. — With numerous illustrations. I.— Immensity of the Sun's Energy. Ni'arly all the energj- available to man is derived from the sun —Water-power— Wind-power — Steam-power — Muscular power- Electrical power- Tidal power an exception— Energy of the tides derived from rotation of the earth on its axis- Only a small fraction of the energy which the earth derives from the sun is used by man— .\iid the energy which the earth receives is only a small fraction of what tlie sun S"nds forth — Measurement of energy sent out by the sun— Exper- iments of Pouillet and Her.iichel — Apparatus employed — Method of adjustment— Observations made— Corrections- Practical estimate of the energy sent out by the sun — What a wonderful storehouse of energy the sun must be — How is this storehouse supphed? ENTS. II. — Source of the Sun's Energy. The sun is not a great fire— Such a fire would be choked by the products of combustion — And besides it would be bunied out in course of time— Difference between incandescence and combustion— Practical illustrations — How the sun is main- tained in a state of incandescence — Theory of Sir William ThoiiLson— Meteors or Falling Stars— Heat developed when such bodies fall into the sun— Illustration from a bullet strik- ing a target— This theory now abandoned— Theory of Helm- holtz— Heat of the sun produced by compression of^liis mass- Heat lost by radiation is restored by further compression- This theory probable and sufficient— Bearing of the Nebular Hypothesis— The past energy of the sun — Summary. THE HUMBOLDT PUBLISHING CO., 28 Lafayette Place, New York. THE HUMBOLDT LIBRARY Xn. Ul. UTILITARIANISM.— By John Stuart Mill, authar of "A System of Logic," "Principles of Political Economy," "On Liberty," &c. CONTENTS. Chapter I. — General Remarks. Chapter II. — What Utilitarianism is. Chapter III. — Of the Ultimate Sanction of the Principle of Utility. Chapter TV. — Of what sort of Proof the Principle of Utility is susceptible. Chapter V. — Of the Connection between Justice and Utility. No. 122 and No. 123. [No. 122 is a double number, 30 cents. UPON THE ORIGIN OF ALPINE AND ITALIAN LAKES; AND UPON GLACIAL EROSION— By Sir a. C. Eamsay, F.R.S., President of the Geological Society. — John Ball, M.R.I. A., F.L.S.,&c. — Sir Roderick I. MURCHISON, F.R.S., D.C.L., President of the Royal Geographical Society. — Prof. B. Studer, of Berne. — Prof. A. Favre, of Geneva. — Edward Whymper. — With an Introduction and Notes npon the Origin and History of the Great Lakes of North America, by Prof. J. ,W. Spencer, State Geologist of Georgia. CONTENTS. Introduction, with Notes upon the Origin and History of the Great Lakes of North America. — By J.W. Spencer, Ph.D.. F.G.S.. State Geologist of Georgia I. — On the Glacial Origin of Certain Lakes in Switzerland, the Black Forest, Great Britain, Sweden. North America, and Elsewhere. — By Sir A. C. Ramsay. F.R.S.. Pre.sident of the Geological Society. II. — On the Formation of Alpine Valleys and Alpine Lakes. — By John Ball, M.R.I. A., F.L.S., &c. III. — Glaciers of the Himalayan Mountains and New Zealand compared with those of Europe. — On the Powers of Glaciers in Modifying the Sur- face of the Earth, and in the agency of Floating Icebergs. — By Sir Roderick I. Murchison, K.C.B.. D.C.L., F.R.S.. &c. IV. — On the Origin of the Swiss Lakes. — By Prof. B. Studer, of Berne. V. — On the Origin of the Alpine Lakes and Valleys. A letter addressed to .Sir Roderick I. Murchison, K.C.B., D.C.L., &c., by M. Alphonse Favre, Professor of Geology in the Academy of Geneva, author of the Geological Maj) of Savoy, VI. — The Aiieient Glaciers of Aosta. — By Ed- ward Whymper. VII. — Glacial Erosion in Norway and in High Latitudes. — By Professor J. W. Spencer, Ph.D., F.G.S., State Geologist of Georgia. No. 124. THE QUINTESSENCE OF SOCIALISM.-By Dr. a. ScHAFFLE.-Trans- lated from the eighth German edition under the supervision of Bernard Bosan- quet, M.A., formerly Fellovr of University College, Oxford. CONTENTS. Chapter I.— First Outlines of the Funda- mental Idea or Socialism. Chapter II.— The Means of Agitation. The Socialistic criticism of capital. — Profit as "appropriation of surplus value." — Property as theft. — False interpretations of these allegations refuted. — Ultimate buyicg-out of the modern plutocrats. Chapter III. — Proposed Transformation of THE several Fundamental Institutions of Modern National Economy. Determination of demand. — Freedom of demand. Organization of laVior and capital into a system of collective production. — False interpretations re- futed. — The doctrine of value as depending on sheer labor-cost useless for a practical organiza- tion of labor and capital. Chapter IV. — Transformation of Institu- tions (continued). Abolition of all loan-capital, of credit, of lease, of hire, and of the exchange. Chapter V. — Transformation of Institu- tions {continued). Abolition of trade in "commodities," and of the market for them, and of the system of advertise- ment and of display of wares. Chapter VI. — Transformation of Institu- tions (continued.) Abolition of metallic money as the medium of exchange, and its replacement as "standard of value" by units of "Hocial labor-time" ("labor- money"). The value-estimate of the Socialistic State compared with the present market-price. Chapter VII.— Transformation of Institu- tions (continued.) The Socialistic determination of value in ex- change, and freedom of labor in the Socialistic State. Chapter VIII.— Transformation of Institu- tions (continued). Income, and the use of income in the formation of property, and in consumption. — Private prop- erty and the law affecting it. — Family life and marriiise. — Savings-banks and insurance system. Expenditure on charit able. hum;initai'ian, religious, and otlier ideal purposes. Chapter IX.— CONCLUSION. Summary of criticisms. Published semi-montMy.— $3 a year.— Single numbers, 15 cents. OF POPULAR SCIENCE. No. VSk DARWINISM AND POLITICS.- Tutor of Jesus College, Oxford. ■By David G. Ritchie, M.A., Fellow and CO NT "The Struggle for Existence "in Malthus and Darwin. — How the idea is applied to polities.— Is the struggle "beneficent"? The Evolution Theory as applied to Human So- ciety by Darwin, Strauss. Spencer, Maine, Clodd. Ambiguity of the phrase "Survival of the Fit- test." — Complexity of Social Evolution. Does the Doctrine of Heredity support Aristoc- racy ? Does the Evolution Theory justify iai««e^ /aire i" Struggle between ideas for survival. — Conscious- ness as a factor in Evolution. — Testimony of Prof. TO WHICH IS ADDED ADMINISTRATIVE NIHILISM.-By Prof. Thomas Henry Huxley, F.E.S. No. 126 and No. 127. [Two double nttmbers, 30 cents each. PHYSIOGNOMY AND EXPRESSION.-By Paolo Mantegazza, Senator; Director of the National Museum of Anthropology, Florence; President of the Italian Society of Anthropology. E N T S. Huxley and Strauss. — Ambiguity of "N.ature.''— Conscious "Variations." Why fix ideas in institutions? — Custom: its use and abuse. — Institutions and "the social factor" generally are neglected in the popular acceptation of the doctrine of Heredity. — Mr. Galton's views considered. — Darwin's own opinion. Are the Biological Formulas adequate to express Social Evolution ? Applications — (1) The Labor Question. — (2) The Position of Women. — (3) The Population Question. Part I. contents. •The Human Countenance. Chapter I. — Historical Sketch of the Science of Physiognomy and of Human Expression. Chapter II.— The Human Face. Chapter III.— The Features of the Human Face. Chapter R^.— The Hair and the Beard.— Moles. Wrinkles. Chapter V. — Comparative Morphology of the Human Face. Part II. — The Expression of Emotions. Chapter VI.— The Alphabet of Expression. Chapter \TI.— The Darwinian Laws of Expression Chapter VIII. — Classification of Expressions. — General View of all Phenomena of Expression. Chapter IX. — The Expression of Pleasure. Chapter X. — The Expression of Pain. Chapter XI. — Expression of Love and of Benev- olence. Chapter XII. — Expression of Devotion, of Ven- eration, and of Religious Feeling. Chapter XIII.— Expression of Hatred, of Cruelty, and of Passion. Chapter XIV. — The Expression of Pride, Vanity, Haughtiness, Modesty, and Hu- miliation. Chapter XV. — Expression of Personal Feelings. Fear, Distrust. — Description of Timidity, according to the old Phvsiognomists. Chapter XVI. — The Expression of Thought. Chapter XVII. — General Expressions. — Repose and Action, Disquietude. Im- patience, Expectation, Desire. Chapter XVIII.— Racial and Professional Ex- pression. Chapter XIX. — The Moderaters and Disturbers of Expression. Chapter XX. — Criteria for the Determination of the Strength of an Emotion by the degree of the Expression Chapter XXI. — The Five Verdicts on the Human Face. Chapter XXII. — Criteria for Judging the Moral Worth of a Physiognomy. Chapter XXIII. — Criteria for Judging the Intel- lectual Value of a Face. Chapter XXTV. — The Physiognomy of Gestures and the Expression of Clothes. Appendix. — The Eyes, Hair, and Beard, in the Italian Races. This work, by Professor Mantegazza, a brilliant and versatile author, and the leading Italian anthro- pologist, has already been translated into several European languages. Professor Mantegazza, whose name is well known to readers of Darwin, has cooperated in the present English edition of his work by writing a new chapter specially for it. THE HUMBOLDT PUBLISHING CO., 28 Lafayette Place, New York. THE HUMBOLDT LIBRARY No. 128 and No. 129. [Two double numbers, 30 cents each. THE INDUSTRIAL REVOLUTION OF THE EIGHTEENTH CENTURY IN ENGLAND.— Popular Addresses, Notes, and otlier Frag- ments. — By tlie late Arnold Toynbee, Tutor of Balliol College, Oxford. — Together with a short memoir by B. Jowett, Master of Balliol College, Oxford. CONTENTS. RiCARDO AND THE OLD POLITICAL ECONOMY. The change that has come over Political Econ- omy. — Ricardo responsiVjle for the form of that Science. — The causes of his great influence. — Tlie economic assumptions of his treatise. — Ricardo ignorant of tlie nature of his own method. — Malthus's protest. — Limitations of Ricardo's doc- trine recognized by Mill and Senior. — Observation discouraged by the Deductive Method. — The effect of the Labor Movement on Economies. — Modifica- tions of the Science by recent writers. — The new method of economic investigation. II. The philosophic assumptions of Ricardo. — They are derived from Adam Smith. — The worship of individual liberty. — It involves fi'eedom of com- petition and removal of industrial restrictions. — The flaw in this theory. — It is confirmed by the doctrine of the identity of individual and social interests. — Criticism of this doctrine. — The idea of invariable law. — True nature of economic laws. Laws and Precepts. — The great charge brought against Political Economy. — Its truth and its falsehood. The INDU.STRIAL Revolution. I. — Introductoiy. II.— England in 1760.- IIL— England in 17G0.- IV.— England in 1760.- V.— England in 1760.- Yeomanry. VI.— England in 1760.- The Condition of the Wage-earners. - Population. - Agriculture. [ Trade. - Manufactures and -The Decay of the VII, — The Mercantile System and Adam Smith. Vin.— The Chief Features of the Revolution. IX. — The Growth of Pauperism. X. — Malthus and the Law of Population. XI.— The Wage-fund Theory. XII. — Ricardo and the Growth of Rent. XIII. — Two Theories of Economic Progress. XrV^- The Future of the Working Classes. Popular Addresses. 1. Wages and Natural Law. 2. Industry and Democracy. 3. Are Radicals Socialists? The Education of Co-operators. The Ideal Relation of Church and State. Notes and Jottings. No. 130 and No. 131. [Two dottble numbers, 30 cents each. THE ORIGIN OF THE ARYANS.- An Account Of the Prehistoric Ethnology and Civilization of Europe. ^ — By Isaac Taylor, M.A., Litt. D., Hon. LL.D.— Ilhistrated. CONTENTS. Chapter I. — The Aryan Controversy. Chapter II. — The Prehistoric Races of Europe. 1. The Neolithic Age. 4. The Celts. 2. Tlie Methods of An- 5. The Iberians. thropology. 6. Tlie ScandiiiiUaans. 3. The Races of Britain. 7. The Ligurians. Chapter III.— The Neolithic Culture. 1. The Continuity of De- 7. Dress. velopment. 8. Habitations. 2. Metals. 9. The Boat. 3. Weapons. 10. The Ox-Wagon. 4. Cattle. 11. Trades. 5. Husbandry. 12. Social Life. 6. Pood. 13. Relative Progress. Chapter IV. — The Aryan Race. 1. The Permanence of Race. 2. Tlie Mutability of Language. 3. The Finnic Hypothesis. 4. The Basques. 5. The Northern Races. Chapter V. — The Evolution of Aryan Speech. 1. The Aryan Languages. 2. Dialect and Language. 3. The Lost Aryan Languages. 4. The Wave-Theory, .'i. Language and Race. 6. The Genesis of Aryan Speech. Chapter VI.— The Aryan Mythology. The last ten years have seen a revolution in the opinion of scholars as to the region in which the Aryan race originated, and theories which not long ago were universally accepted as the well- established conclusions of science now hardly find a defender. The theory of migration from Asia has been displaced by a new theory of origin in Northern Europe. In Germany several works have been devoted to the .subject ; but this is the first English work which has yet appeared embodying the results recently arrived at by philologists, archaeologists, and antliropologists. Tliis volume affords a fresh and highly interesting account of the present state of speculation on a highly interesting sulijeet. Published semi-montlily,— $3 a year.— Single numbers, 15 cents. OF POPULAR SCIENCE. No. 132 and Xo. 133. [Two double numbers, 30 cents ea«h. THE EVOLUTION OF SEX.— By Prof. Patrick Geddes and J. Arthur Thomson. — Witli 104 illusti-ations. Chapter CONTENTS. Book I.— Male and Female. I.— The Sexes and Sexual Selection Chapter II.— The Sexes, and CriticLsm of Sexual Selection. Chapter III.— The Determination of Sex (Hy- potheses and Observations. Chapter IV. — The Determination of Sex (Con- structive Treatment). Book II. — Analysis of Sex.— Organs, Tissues, Cells. Chapter VIII.— The Egg-cell or Ovum. Chapter IX. — Tlie Male-cell or Sperm. Chapter X. — Theoi-y of Sex: Its Nature and Origin. Chapter V. — Sexual Organs and Tissues. Chapter VI. — Hermapliroditism. Chapter VII. — The Sex-elements (General and Historical. Chapter XI. — Sexual Reproduction. Chapter XII. — Theory of Fertilization. Chapter XIII. — Degenerate Sexual Reproduction or Parthenogenesis. Book III.— Processes of Eeproduction. Chapter XTV. — Asexual Reproduction. Chapter XV. — Alternation of Generations. Book IV. — Theory op Reproduction. Chapter XVI. — Growth and Reproduction. Chapter XVII.— Theory of Reproduction (con- tinued). Chapter XVIII. — Special Physiologj' of Sex and Reproduction. Chapter XIX. — Psychological and Ethical A« pects. XX. — Laws of Multiplication. Chapter Chapter XXI. — The Reproductive Factor in Evolution. A work which, for range and grace, mastery of material, originality, and incisiveness of style and treatment, is not readily to be matched in the long list of books designed more or less to popularize science. — Scottish Leader. A model of scientific exposition. — Scotsman. No. 134. [Double number, 30 cents. THE LAW OF PRIVATE R I Q H T.- By George H. Smith, author of "Elements of Right, and of the Law,'' and of Essays on "The Certainty of the Law, and the Uncertainty of Judicial Decisions," "The True Metliod of Legal Education," &c., &c. CONTENTS. Introduction. I. — Explanation of the Design and Scope of the Work. II. III. -Of the Definition of the Law. ■Of the Division of the Law. Part I. Of the Nature of the Law of Private Right. Chapter I. Analytical Outline of the Law of Private Right. Chapter II. Of the Nature of Right, and of the Law of Private Right, and their Relation to Each Other. Part II. Of the Law of Private Right as Histor- ically Developed. Chapter I. Of the Historical Development of Jurisdiction. Chapter II. Historical Development of the Law (as opposed to Equity). Chapter III. Historical Development of Equity. Part III. Of the Nature and of the Method and Principles of Right. Chapter I. Definition of Rights. Chapter II. The Same Sub.iect Continued, and herein, of the Standard of Right and Wrong. Chapter III. Of the Method and First Principles of Right. Cliapter IV. Of the Limit to the Liberty of the Individu.-il. Imposed by the Rights of the State. Chapter V. Natural Rights Demonstrated from the Above Principles. THE HUMBOLDT PUBLISHING CO., 28 Lafayette Place, New York. THE HUMBOLDT LIBRARY Nos. 135. 136, 137, 138. [Four double numbers, 30 cents each. 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Lecture IL LIGHTNING-CONDUCTORS Destructive Effects of Lightning— Destruction of Buildings — Destruction of Ships at Sea — De- struction of Powder Magazines — Experimental Illustrations— Destruction of Life by Lightning- Tlie Retuni Shock— Franklin's Lightning-rods- Introduction of Lightning-rods into England — The Battle of Balls and Points — Functions of a Light- ning-conductor — Conditions of a Lightning-con- ductor — Mischief Done by Bad Conductors — Evil Effects of a Bad Earth Contact — Danger from Rival Conductors — Insulation of Lightning-conductors — Personal Safety in a Thunder-storm — Practical Rules — Security afforded by Lightning-rods. 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