INDEX

[1]. See on this subject Reid’s Philosophical Works, Essay on the Active Powers, V. 3. (Of systems of natural jurisprudence.) Also Dugald Stewart’s Works, VII. 256 (Hamilton’s ed.).

[2]. The term civil law, though once in common use to indicate the law of the land, has been partly superseded in recent times by the improper substitute, positive law. Jus positivum was a title invented by medieval jurists to denote law made or established (positum) by human authority, as opposed to that jus naturale which was uncreated and immutable. It is from this contrast that the term derives all its point and significance. It is not permissible, therefore, to confine positive law to the law of the land. All is positive which is not natural. International and canon law, for example, are kinds of jus positivum no less than the civil law itself. See Aquinas, Summa, 2. 2. q. 57 (De Jure) art. 2. Utrum jus convenienter dividatur in jus naturale et jus positivum. See also Suarez, De Legibus, I. 3. 13: (Lex) positiva dicta est, quasi addita naturali legi.

The term civil law possesses several other meanings, which are not likely, however, to create any confusion. It often means the law of Rome (corpus juris civilis) as opposed more especially to the canon law (corpus juris canonici), these being the two great systems by which, in the Middle Ages, State and Church were respectively governed. At other times it is used to signify not the whole law of the land, but only the residue of it after deducting some particular portion having a special title of its own. Thus civil is opposed to criminal law, to ecclesiastical law, to military law, and so on.

The term civil law is derived from the jus civile of the Romans. Quod quisque populus ipse sibi jus constituit, id ipsius proprium civitatis est vocaturque jus civile, quasi jus proprium ipsius civitatis. Just. Inst. I. 2. 1.

[3]. It will be understood that this list is not intended as an exhaustive statement of the proper contents of a work of abstract jurisprudence, but merely as illustrative of the kinds of matters with which this branch of legal learning justly concerns itself.

[4]. Austin, p. 1077.

[5]. Arndts, Juristische Encyklopädie und Methodologie, p. 5. 9th ed. 1895. See also Puchta’s Encyklopädie, being the introductory portion of his Cursus der Institutionen, translated by Hastie (Outlines of Jurisprudence, 1887). The term general jurisprudence (allgemeine Rechtslehre) is occasionally applied to this form of literature. See Holtzendorff’s Encyklopädie der Rechtswissenschaft, 5th ed. 1890. (Elemente der allgemeinen Rechtslehre, by Merkel.)

[6]. Jurisprudentia universalis or generalis was originally merely a synonym for jurisprudentia naturalis.

[7]. The term jurisprudence is used by French lawyers as the equivalent of that which English lawyers call case-law—the development of the law by judicial decisions. “Jurisprudence—la manière dont un tribunal juge habituellement telle ou telle question” (Littré). Jurisprudence in this sense is contrasted with doctrine, i.e., extrajudicial legal literature.

[8]. On the distinction between law in the concrete and law in the abstract senses, see Pollock’s Jurisprudence, pp. 15–19, and Bentham’s Principles, p. 324, n. (Works I. 148 n.)

[9]. Tractatus Politicus, I. 5.

[10]. The term sanction is derived from Roman law. The sanctio was originally that part of a statute which established a penalty, or made other provision in respect of the disregard of its injunctions. D. 48. 19. 41. By an easy transition it has come to mean the penalty itself.

[11]. It is to be noted, therefore, that the distinction between law and fact depends not on the person by whom, but on the manner in which, the matter is determined. Yet, although this is so, an illogical and careless usage of speech sometimes classes as questions of law all those which are for the decision of judges, irrespective of the existence or non-existence of legal principles for their determination.

It is worth notice that questions of fact, left to the determination of judges, tend to be transformed into questions of law, by the operation of judicial precedent. In the hands of judges decisions of fact beget principles of law, while the decisions of juries have no such law-creating efficacy. This is a matter which we shall consider at length in connection with the theory of precedent.

The distinction between law and fact, with special reference to trial by jury, is very fully considered by Thayer in his Preliminary Treatise on the Law of Evidence, pp. 183–262. See also Terry’s Leading Principles of Anglo-American Law, pp. 53–62.

[12]. Ductor Dubitantium (Works XII. 209. Heber’s ed.).

[13]. Treatise of Government, II. 11. 136.

[14]. Pro Cluentio, 53. 146.

[15]. Ecclesiastical Polity, I. 10. 7.

[16]. Rhetoric, I. 15. See also Bacon, De Augmentis, Lib. 8, Aph. 58: Neminem oportere legibus esse sapientiorem.

[17]. Bacon, De Augmentis, Lib. 8, Aph. 46; Aristotle’s Rhetoric, I. 1.

[18]. Edie v. East India Co., 2 Burr 1226; Barnet v. Brandao, 6 M. & G. at p. 665; Moult v. Halliday, (1898) 1 Q. B. 125; Ex parte Turquand, 14 Q. B. D. 636; Edelstein v. Schuler, (1902) 2 K. B. 144.

[19]. By the Interpretation Act, 1889, s. 9, it is provided that “Every Act passed after the year 1850 ... shall be a public Act, and shall be judicially noticed as such, unless the contrary is expressly provided by the Act.”

[20]. As to equity, see the next section.

[21]. The term jus commune is found in the civil law also, but in senses unconnected with that which here concerns us. It sometimes signifies jus naturale as opposed to jus civile (D. 1. 1. 6. pr.), while at other times it is contrasted with jus singulare, that is to say, anomalous rules of law inconsistent with general legal principles, but established utilitatis causa to serve some special need or occasion. D. 28. 6. 15. D. 1. 3. 16.

[22]. Y. B. 20 & 21 Ed. I. 329. See Pollock and Maitland’s History of English Law, I. 155.

[23]. Y. B. 21 & 22 Ed. I. 213.

[24]. Y. B. 21 & 22 Ed. I. 458.

[25]. Y. B. 21 & 22 Ed. I. 55.

[26]. Bracton, 48 b.

[27]. Nic. Ethics V. 10. 3. The Greeks knew equity under the name epieikeia.

[28]. Rhet. I. 13. 19.

[29]. De Officiis I. 10. 33. See also Pro Caecina 23. 65: Ex aequo et bono, non ex callido versutoque jure rem judicari oportere. De Oratore I. 56. 240: Multa pro aequitate contra jus dicere. De Officiis III. 16. 67.

[30]. In omnibus quidem, maxime tamen in jure, aequitas spectanda est. D. 50. 17. 90. Placuit in omnibus rebus praecipuam esse justitiae aequitatisque, quam stricti juris rationem. C. 3. 1. 8. Haec aequitas suggerit, etsi jure deficiamur. D. 39. 3. 2. 5. A constitution of Constantine inserted in Justinian’s Code, however, prohibits all inferior courts from substituting equity for strict law, and claims for the emperor alone the right of thus departing from the rigour of the jus scriptum: Inter aequitatem jusque interpositam interpretationem nobis solis et oportet et licet inspicere. C. 1. 14. 1.

[31]. Summa Theologiae 2. 2. q. 120. art. 1. De epieikeia seu aequitate:—In his ergo et similibus casibus malum est sequi legem positam; bonum autem est praetermissis verbis legis, sequi id quod poscit justitiae ratio et communis utilitas. Et ad hoc ordinatur epieikeia, quae apud nos dicitur aequitas.

[32]. Pollock and Maitland, History of English Law, I. 168; Glanville VII. 1.: Aliquando tamen super hoc ultimo casu in curia domini Regis de consilio curiao ita ex aequitate consideratum est. Bracton in discussing the various meanings of jus says (f. 3. a.):—Quandoque pro rigore juris, ut cum dividitur inter jus et aequitatem. Following Azo, who follows Cicero (Topica IV. 23), he says:—Aequitas autem est rerum convenientia, quae in paribus causis paria desiderat jura (f. 3. a). See also f. 12. b. and f. 23. b. Aequitas tamen sibi locum vindicat in hac parte. See also Y. B. 30 and 31 Ed. I. 121:—Et hoc plus de rigore quam de aequitate.

[33]. Cited in Spence’s Equitable Jurisdiction of the Court of Chancery, I. 408, note (a).

[34]. D. 1. 1. 7. 1.

[35]. A special application by English lawyers of the term equity in its original sense, as opposed to strictum jus is to be seen in the phrase, the equity of a statute. By this is meant the spirit of a law as opposed to its letter. A matter is said to fall within the equity of a statute, when it is covered by the reason of the statute, although through defective draftsmanship it is not within its actual terms. “Valeat aequitas,” says Cicero, “quae paribus in causis paria jura desiderat.” Topica IV. 23.

[36]. Ecc. Pol. I. 3. 1.

[37]. Comm. I. 38.

[38]. Proverbs, 8. 29.

[39]. Job, 28. 26.

[40]. Summa, 1. 2. q. 91. art. 1.

[41]. Summa, 1. 2. q. 93. art. 1.

[42]. Natural law, lex naturae, is either (1) the law of human nature, i.e., the moral law, or (2) the law of nature in the sense of the universe, i.e., physical law.

[43]. Ecc. Pol. I. 3. 2.

[44]. Ecc. Pol. I. 16. 8.

[45]. Rhet. I. 10.

[46]. Rhet. I. 13.

[47]. De Rep. III. 22. 23.

[48]. Works, III. 516 (Bohn’s Ecc. Library). On the Virtuous being also Free.

[49]. Institutes, I. 1.

[50]. Institutes, I. 2. 11.

[51]. Ecc. Pol. I. 1. 10. 1.

[52]. Inst. Jurisp. Div. I. 2. 97.

[53]. See Nettleship, Contributions to Latin Lexicography, sub. voc. jus gentium; Burle, Essai historique sur le développement de la notion du droit naturel dans l’antiquité grecque; Phillipson, The International Law and Custom of Ancient Greece and Rome, vol. I. ch. 3; Bryce, Studies in History and Jurisprudence, I. pp. 112–171; Pollock, Journ. Compar. Legisl. 1900, p. 418; 1901, p. 204; Clark, Practical Jurisprudence, ch. 13.

[54]. De Officio Hominis et Civis, I. 2. 2.

[55]. I. 96.

[56]. “The moral law is the declaration of the will of God to mankind, directing and binding every one to ... obedience thereunto ... in performance of all those duties of holiness and righteousness which he oweth to God and man: promising life upon the fulfilling, and threatening death upon the breach of it.” Larger Catechism of the Westminster Assembly of Divines, Quest. 93.

[57]. “The laws that men generally refer their actions to, to judge of their rectitude or obliquity, seem to me to be these three: 1. The divine law; 2. The civil law; 3. The law of opinion or reputation, if I may so call it. By the relation they bear to the first of these, men judge whether their actions are sins or duties; by the second, whether they be criminal or innocent; and by the third, whether they be virtues or vices.” Locke on the Human Understanding, Bk. II. ch. 28, § 7.

[58]. Eng. Wks. II. 185.

[59]. Principles of Morals and Legislation, p. 330 (Cl. Press ed.), Works, I. 151.

[60]. I. 86.

[61]. Leviathan, ch. 46.

[62]. See, for example, Bryce’s Studies in History and Jurisprudence, vol. ii. pp. 44 and 249: “Broadly speaking, there are in every community two authorities which can make law: the State, i.e., the ruling and directing power, whatever it may be, in which the government of the community resides, and the People, that is, the whole body of the community, regarded not as incorporated in the state, but as being merely so many persons who have commercial and social relations with one another.... Law cannot be always and everywhere the creation of the state, because instances can be adduced where law existed in a community before there was any state.” See also Pollock’s First Book of Jurisprudence, p. 24: “That imperative character of law, which in our modern experience is its constant attribute, is found to be wanting in societies which it would be rash to call barbarous, and false to call lawless.... Not only law, but law with a good deal of formality, has existed before the State had any adequate means of compelling its observance, and indeed before there was any regular process of enforcement at all.” See also Maine’s Early History of Institutions, Lect. 12, p. 364, and Lect. 13, p. 380; Walker’s Science of International Law, pp. 11–21.

[63]. Commentaries, I. 44.

[64]. See, for example, Bentham’s Principles, p. 330 (Works I. 151); Ihering, Zweck im Recht, I. p. 334 (3rd ed.).

[65]. That part of the civil law which has its source in agreement is itself called conventional law. See ante, § 11, and post, § 46. This use of the term must be distinguished from that which is here adopted. Conventional law in the present sense is not a part of the civil law, but a different kind of law.

[66]. Notice that the term customary law is ambiguous in the same manner as the term conventional law. It means either (1) the kind of law described in the text, or (2) that part of the civil law which has its source in custom. See § 56.

[67]. They are the expression of what Kant and other moralists have termed hypothetical imperatives, as opposed to the categorical imperative of the moral law.

[68]. L. Q. R. XII. p. 313. Adopted by Lord Alverstone, C. J., in West Rand Gold Mining Co. v. Rex, (1905) 2 K. B. at p. 407.

[69]. Reg. v. Keyn, 2 Ex. D. p. 63.

[70]. Reg. v. Keyn, 2 Ex. D. p. 131.

[71]. Reg. v. Keyn, 2 Ex. D. p. 202.

[72]. De Corpore Politico, Eng. Wks. IV. 228.

[73]. Fundamenta Juris Nat. et Gent. I. 5. 67.

[74]. De Jure Nat. et Gent. II. 3. 23.

[75]. Principes du droit de la nature et des gens, vol. iv. p. 16, ed. 1820.

[76]. It is maintained by such writers as Hall, Rivier, Bluntschli, Nys, Sidgwick, Westlake, Walker, Lawrence, and Oppenheim.

[77]. “The sole source of (international) law,” says Dr. Walker in his History of International Law, vol. i. p. 21, “is actual observance.” This law, he adds, p. 31, is “the embodiment of state practice.” It is not easy to make a list of the genuine adherents of this opinion, because so many writers introduce vagueness and uncertainty into their exposition by speaking of international consent as well as of international practice as a source of law; and they fail to make it clear whether such practice is operative per se, or only as evidence of underlying consent. Moreover, the word consent is itself used ambiguously and vaguely, and it is often difficult to know whether it means international agreement, or international opinion, or the harmonious practice of states.

[78]. I. p. 187.

[79]. See Westlake, International Law, p. 7; Chapters on the Prls. of Int. Law, p. 2; Hall, Int. Law, p. 1; Sidgwick, Elements of Politics, Ch. 17. pp. 274 sqq. 1st ed.; Oppenheim, International Law, I. § 5.

[80]. Jeremy Taylor’s Works, XIII. 306, Heber’s ed.

[81]. Hobbes’ Leviathan, ch. 13: “Hereby it is manifest that during the time men live without a common power to keep them all in awe, they are in that condition which is called war; and such a war as is of every man against every man.... Whatsoever therefore is consequent to a time of war, where every man is enemy to every man, the same is consequent to the time wherein men live without other security than what their own strength and their own invention shall furnish them withal. In such condition there is no place for industry ... no arts, no letters, no society, and, which is worst of all, continual fear and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short.”

[82]. Treatise on Government, II. ch. 2.

[83]. In the year 1818 in a private prosecution for murder (an appeal of murder) the accused demanded to be tried by battle, and the claim was allowed by the Court of King’s Bench. The prosecutor was not prepared to face the risks of this mode of litigation, and the accused was discharged: Ashford v. Thornton, 1 Barn. & Ald. 405. This case led to the abolition of appeals of felony and of trial by battle by the statute 59 Geo. III. c. 46.

[84]. Laws of King Alfred, 42. (Thorpe’s Ancient Laws and Institutes of England, I. 91): “We also command that he who knows his foe to be at home fight not before he demand justice of him. If he have such power that he can beset his foe and besiege him, let him keep him within for seven days, and attack him not, if he will remain within.... But if he have not sufficient power to besiege him, let him ride to the ealdorman, and beg aid of him. If he will not aid him, let him ride to the king before he fights.”

[85]. As late as the closing years of Henry III. it was found necessary to resort to special statutory enactments against a lawless recurrence to the older system. The statute of Marlborough (52 Hen. III. c. 1) recites that “At the time of a commotion late stirred up within this realm, and also since, many great men and divers other have disdained to accept justice from the King and his Court, like as they ought and were wont in time of the King’s noble progenitors, and also in his time, but took great revenges and distresses of their neighbours and of others, until they had amends and fines at their own pleasure.” The statute thereupon provides that “All persons, as well of high as of low estate, shall receive justice in the King’s Court, and none from henceforth shall take any such revenge or distress of his own authority without award of our Court.” Long after the strength of the law of England had succeeded in suppressing the practice, the right of private war continued to be recognised and regulated by law in the more feebly governed states of the Continent. An interesting account of the matter is given by M. Nys in his Origines du Droit International (1894), ch. 5. A reminiscence of the older doctrine and practice may be seen to this day in England in that “peace of our Lord the King” which every criminal is formally charged in his indictment with having broken. The King of England made good at an early date his monopoly of war, and all private war or violence was and is a violation of his peace. As to the King’s peace, see Sir F. Pollock’s Oxford Lectures, pp. 65–90; Select Essays in Anglo-American Legal History, II. pp. 403–417. An interesting picture of the relations between law and private force in the primitive community of Iceland is to be found in the Saga of Burnt Njal (Dasent’s translation).

[86]. Commentaries, III. 2.

[87]. Austin’s theory of the distinction is somewhat different from Blackstone’s, for he makes the distinction between public and private wrongs, and therefore between criminal and civil wrongs, turn not on the public or private nature of the right violated, but solely on the public or private nature of the proceeding taken in respect of its violation. “Where the wrong,” he says (p. 502), “is a civil injury, the sanction is enforced at the discretion of the party whose right has been violated. Where the wrong is a crime, the sanction is enforced at the discretion of the sovereign.” This theory, however, is exposed to the same objections as those which may be made to Blackstone’s, and it need not be separately considered.

[88]. Numbers, xxxv. 31.

[89]. Diogenes Laertius tells us that when Solon was asked how men might most effectually be restrained from committing injustice, he answered: “If those who are not injured feel as much indignation as those who are.”

[90]. Kant’s Rechtslehre (Hastie’s trans. p. 195). The like opinion is expressed in Woolsey’s Political Science, I. p. 334: “The theory that in punishing an evildoer the state renders to him his deserts, is the only one that seems to have a solid foundation.... It is fit and right that evil, physical or mental, suffering or shame, should be incurred by the wrongdoer.” See also Fry, Studies by the Way (The Theory of Punishment), pp. 43–71.

[91]. Deuteronomy, xix. 21.

[92]. Lilley, Right and Wrong, p. 128.

[93]. It is worth notice that an action may be purely penal even though the penalty is payable to the person injured. It is enough in such a case that the receipt of the penalty should not be reckoned as or towards the compensation of the recipient. A good example of this is the Roman actio furti by which the owner of stolen goods could recover twice their value from the thief by way of penalty, without prejudice nevertheless to a further action for the recovery of the goods themselves or their value.

[94]. I. Samuel, viii. 20.

[95]. English Works, II. 76: “Both swords, therefore, as well this of war as that of justice, ... essentially do belong to the chief command.”

[96]. “The primary function of the state,” says Herbert Spencer (Principles of Ethics II. 204. 208. 214) “or of that agency in which the powers of the state are centralised, is the function of directing the combined actions of the incorporated individuals in war. The first duty of the ruling agency is national defence. What we may consider as measures to maintain inter-tribal justice, are more imperative, and come earlier, than measures to maintain justice among individuals.... Once established, this secondary function of the state goes on developing; and becomes a function next in importance to the function of protecting against external enemies.... With the progress of civilisation the administration of justice continues to extend and to become more efficient.... Between these essential functions and all other functions there is a division, which, though it cannot in all cases be drawn with precision, is yet broadly marked.”

[97]. It is to be noted that the term war is commonly applied only to the more extreme forms of extrajudicial force. Rioting would not be termed civil war, although the difference between them is merely one of degree. Nor would the punitive expedition of an armed cruiser against a village in the South Sea Islands be dignified with the name of war, though it differs only in degree from the blockade or bombardment of the ports of a civilised state. To be perfectly accurate, therefore, we should oppose the administration of justice not to war, but to the extrajudicial use of force, counting war as the most important species of the latter. War, however, so greatly overshadows in importance all other forms of such force, that it is more convenient to take it as representing the genus, and to disregard the others.

[98]. The prohibition of the use of extrajudicial force by the King against his subjects is one of the main provisions of Magna Carta (sec. 39): “No free man shall be taken or imprisoned or disseized or outlawed or exiled or anyways destroyed, nor will we go against him, nor will we send against him, save by the lawful judgment of his peers, or by the law of the land.” It is submitted that, subject only to the jus necessitatis, this is still the law of England, notwithstanding the doctrine of military absolutism laid down by Lord Halsbury, in the name of the Privy Council, in the case of Ex parte Marais, (1902) A. C, 109.

[99]. On the original identity and gradual differentiation of the two functions of the state, see Spencer’s Sociology, II. pp. 493 sqq. “The sword of justice,” he says at p. 494, “is a phrase sufficiently indicating the truth that action against the public enemy and action against the private enemy are in the last resort the same.”

[100]. Speaking generally, we may say that the terms subject and citizen are synonymous. Subjects and citizens are alike those whose relation to the state is personal and not merely territorial, permanent and not merely temporary. This equivalence, however, is not absolute. For in the first place, the term subject is commonly limited to monarchical forms of government, while the term citizen is more specially applicable in the case of republics. A British subject becomes by naturalisation a citizen of the United States of America or of France. In the second place, the term citizen brings into prominence the rights and privileges of the status, rather than its correlative obligations, while the reverse is the case with the term subject. Finally it is to be noticed that the term subject is capable of a different and wider application, in which it includes all members of the body politic, whether they are citizens (i.e. subjects stricto sensu) or resident aliens. All such persons are subjects, as being subject to the power of the state and to its jurisdiction, and as owing to it, at least temporarily, fidelity and obedience. Thus it has been said that: “Every alien coming into a British colony becomes temporarily a subject of the Crown—bound by, subject to, and entitled to the benefit of the laws which affect all British subjects.” Low v. Routledge, 1 Ch. App. at p. 47. See also Jeffreys v. Boosey, 4 H. L. C. 815. So in Hale’s Pleas of the Crown, I. 542, it is said: “Though the statute speaks of the king’s subjects, it extends to aliens, ... for though they are not the king’s natural born subjects, they are the king’s subjects when in England by a local allegiance.”

[101]. The possession of political rights is so characteristic and important a feature of citizenship, that some may be tempted to regard it as the essence of the matter. This, however, is not so. Women have no political rights, yet a wife is as much a British subject as her husband is. The distinction between subject and alien may exist under a despotic government, neither class possessing any political rights at all.

[102]. British nationality is acquired in the following ways:—

(a) By birth in British dominions.

(b) By descent from a father or a father’s father born in British dominions.

(c) By the marriage of an alien woman to a British subject.

(d) By naturalisation.

(e) By continued residence in a territory after it has been conquered or otherwise acquired by the British Crown.

[103]. On this transition from the national to the territorial idea of the state, see Maine, Early History of Institutions, pp. 72–76. As to the history of the conception and law of citizenship, see Salmond on Citizenship and Allegiance, L. Q. R. xvii. 270, and xviii. 49.

[104]. Although states are established for the protection of their members, it is not necessary that this protection should be absolutely limited to members. In exceptional cases and to a limited extent the state will use its powers for the defence and benefit of outsiders. War way be waged on behalf of an oppressed nation, and the state may intervene, in the interests of justice, in a quarrel not its own. Nor will it necessarily refuse to administer justice in its courts even to non-resident aliens. But such external protection is exceptional and accidental, and does not pertain to the essence of government. A state is established, not for the defence of all mankind, and not for the maintenance of right throughout all the earth, but solely for the security of its own members, and the administration of its own territory. A state which absolutely refused its protection to all outsiders would none the less adequately fulfil the essential purposes of a political society.

[105]. The conception of sovereignty is made by many writers the central point in their theory of the state. They lay down certain fundamental propositions with respect to the nature of this power: namely, (1) that its existence is essential in every state; (2) that it is indivisible, and incapable of being shared between two or more different authorities; and (3) that it is necessarily absolute and unlimited in law, that is to say, its sphere of action is legally indeterminate. A discussion of this difficult and important branch of political theory will be found in an Appendix.

[106]. In international law, therefore, the word state commonly means an independent state. This is a convenient place in which to call attention to the variety of allied meanings possessed by the term state. They are the following:

(a) A political society dependent or independent. (b) An independent political society. (c) The government of a political society. (d) The territory of a political society.

Except where the context shows that it is not so, we shall use the term in the first of these senses.

[107]. A composite state may be of a mixed nature, being partly imperial and partly federal. A federal state may have dependencies, over which it exercises an imperial government—the foreign conquests, for example, of the United States of America. So an imperial state may have dependencies, which are themselves federal states. The Commonwealth of Australia is a federal union which is a dependency under imperial government.

[108]. D. 50. 17. 207.

[109]. In addition to the formal, historical, and legal sources of the law, it is necessary to note and distinguish what may be termed its literary sources, though this is a Continental, rather than an English use of the term source. The literary sources are the sources of our knowledge of the law, or rather the original and authoritative sources of such knowledge, as opposed to later commentary or literature. The sources of Roman law are in this sense the compilations of the Emperor Justinian, as contrasted with the works of commentators. So the sources of English law are the statute-book, the reports, and the older and authoritative text-books, such as Littleton. The literature, as opposed to the sources of our law, comprises all modern text-books and commentaries.

[110]. In the succeeding chapters we shall consider more particularly three of the legal sources which have been already mentioned, namely legislation, custom, and precedent. Professional opinion as a source of law pertains to the Roman, rather than to the English system, and does not call for special examination here. For an account of it see Bryce, Studies in History and Jurisprudence, II. pp. 255–269. Agreement will be considered later, in its aspect as a title of rights, instead of here as a source of law.

[111]. Austin, p. 538.

[112]. Austin, p. 531.

[113]. Constat autem jus nostrum aut ex scripto aut ex non scripto.... Ex non scripto jus venit, quod usus comprobavit. Just. Inst. 1. 2. 3.; 1. 2. 9.

“The municipal law of England may with sufficient propriety be divided into two kinds: the lex non scripta, the unwritten or common law; and the lex scripta, the written or statute law.” Blackstone, I. 63.

[114]. Blackstone, I. 161.

[115]. The mere fact that a person who becomes a shareholder must be taken to have impliedly agreed to be bound not only by the articles as they stand, but by any subsequent modification of them, does not render subsequent modifications conventional instead of legislative in their nature. The immediate source of the new rules is not agreement, but imposition by superior authority.

[116]. Plato’s Laws, 624. Spencer’s Sociology, II. pp. 515 et seq.

[117]. On this and other grounds “judge-made law,” as he called it, was the object of constant denunciation by Bentham. “It is the judges,” he says in his vigorous way (Works, V. 235), “that make the common law. Do you know how they make it? Just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait till he does it and then beat him. This is the way you make laws for your dog, and this is the way the judges make laws for you and me.”

[118]. D. 1. 3. 17.

[119]. Strict interpretation is an equivocal expression, for it means either literal or narrow. When a provision is ambiguous, one of its meanings may be wider than the other, and the strict (i.e. narrow) sense is not necessarily the strict (i.e. literal) sense. When the equitable interpretation of a law is wider than the literal, it is called extensive; when narrower, it is called restrictive.

[120]. In the interpretation of contracts, no less than in that of statutes, there is to be noticed this distinction between the real and the latent intention of the parties. The difficulty of construing a contract arises more often from the fact that the parties had no clear intention at all as to the particular point, than from the fact that they failed to express an intention which they actually had.

[121]. Hale’s History of the Common Law, chap. ii.

[122]. Blackstone, I. 63.

[123]. Co. Litt. 141 a; The Case of Tanistry, Dav. Rep. 32; Blackstone, I. 77.

[124]. “If any general custom were directly against the law of God, or if any statute were made directly against it, ... the custom and statute were void.” Doctor and Student, Dial. I. ch. 6. See also Bonham’s Case, 8 Co. Rep. 118a; Coke’s 2nd Inst. 587; Hobart, 87; Blackstone, I. 91; Pollock and Maitland, History of English Law, I. 491; Pollock, Jurisprudence, pp. 262–267.

[125]. Dernburg, Pandekten, I. sect. 27. 3.

[126]. Blackstone, I. 78. Suarez, de Legibus, VII. 14. 7: Ad consuetudinem necessarium esse, ut eo animo et intentione servetur, ut jus in posterum fiat.

[127]. Blackstone, I. 76. Co. Litt. 113 a.

[128]. Quare rectissime etiam illud receptum est, ut leges non solum suffragio legislatoris. sed etiam tacito consensu omnium per desuetudinem abrogentur. D. 1. 3. 32. 1. Considerable doubt, however, exists as to the true relation between custom and statute in Roman law, owing to a passage in the Code (C. 8. 53. 2.) which, if read literally, conflicts with the doctrine expressed in the Digest, and declares custom to be destitute of legal effect if contrary to statute law. The ingenuity of German jurists has suggested numerous solutions of the apparent inconsistency, but with no convincing result. See Savigny’s System, vol. i. Appendix II. Vangerow, Pandekten, I. sect. 16. Dernburg, Pandekten, I. sect. 28.

[129]. System, sect. 18.

[130]. Vol. i. sect. 18.

[131]. For the similar doctrine of Scottish law, see Erskine’s Institutes, I. 19.

[132]. It is to be noticed that the term custom is often used to mean particular custom exclusively. Custom (meaning local usage having legal validity) is opposed to law (meaning the common law of the land). When we find in the books any proposition laid down as to the legal efficacy or requirements of custom, it must be carefully ascertained from the context whether the term does or does not extend to general customs.

[133]. Both in English and foreign law, however, the time of memory was extended by the allowance of tradition within defined limits. A witness might testify not only to that which he had himself seen, but to that which he had been told by others who spoke of their own knowledge. D. 22. 3. 28. Bracton f. 373 a. 318 b. By French law time of memory was held to extend for one hundred years. Pothier, De la Prescription, sects. 278–288.

[134]. The statute of Westminster I. c. 39, imposed a limitation upon actions for the recovery of land. It provided that no such action should lie, unless the claimant or his predecessor in title had had possession of the land claimed at some time subsequent to the accession of Richard I. The previous common law rule of limitation for such actions was no other than the rule as to time immemorial. At common law the claimant had to prove his title and his seisin by the testimony of living men; therefore he or his predecessors must have been in possession within time of human memory. The enactment in question was accordingly construed as laying down a statutory definition of the term time of memory, and this supposed statutory definition was accepted by the courts as valid in all departments of the law in which the idea of time immemorial was relevant. See Blackstone, II. 31; Littleton, sect. 170.

[135]. R. v. Joliffe, 2 B. & C. 54; Bryant v. Foot, L. R. 3 Q. B. 497; Lawrence v. Hitch, L. R. 3 Q. B. 521; Simpson v. Wells, L. R. 7 Q. B. 214.

[136]. In limiting the requirement of immemorial antiquity to local customs, we have, for the sake of simplicity, spoken somewhat more absolutely than the present state of the authorities warrants. The more common, and, it is believed, the better opinion is that the law is as stated in the text. There is, however, some authority for saying that the same requirement exists in the case of certain general customs also. In Crouch v. Crédit Foncier, L. R. 8 Q. B. 374, it was held that modern mercantile custom was powerless to render an English instrument negotiable, although it is well settled that foreign instruments, such as the bonds of foreign governments, may be made negotiable in this way. Gorgier v. Mieville, 27 R. R. 290. The authority, however, of the case in question is exceedingly doubtful. See Goodwin v. Robarts, L. R. 10 Ex. 337; Bechuanaland Exploration Co. v. London Trading Bank, (1898) 2 Q. B. 658; Edelstein v. Schuler, (1902) 2 K. B. 144; L. Q. R. XV. 130 and 245. There is no doubt that a great part of our mercantile law has been derived from modern mercantile custom, and we may assume with some confidence that such custom still retains the law-creating efficacy which it formerly possessed.

[137]. Decretals, I. 4. 8. Gloss. (Ed. of 1671. Vol. ii. p. 92). Secundum jus canonicum non valet consuetudo, nisi praescripta sit et rationabilis. Decretum, Dist. I. 4. Gloss. (Vol. i. p. 3). Ad hoc ergo ut consuetudo juri communi praejudicet, requiritur primo quod rationabilis sit, et quod sit praescripta. Decretals, I. 4. 11. 8. Gloss. (Vol. ii. p. 96).

[138]. Suarez, De Legibus, VII. 15. 5.

[139]. Novel. 131. ch. 6.

[140]. Decretals, I. 4. 11. Gloss. (Vol. ii. p. 96). Illa consuetudo praejudicat juri, quae excedit hominum memoriam. Decretum, Dist. VIII. c. 7. Gloss. (Vol. i. p. 25).

[141]. D. 43. 20. 3. 4. Fossam jure factam aut cuius memoria non exstat. D. 39. 3. 2. 7.

[142]. Pothier, De la Prescription, sects. 278–288; Baudry-Lacantinerie, De la Prescription, sects. 12, 21; Windscheid, I. sect. 113.

[143]. Suarez, De Legibus, VII. 15. 2. Aliqui enim antiqui immemoriale tempus postulabant, tamen sine fundamento, et ita relicta et antiquata est illa sententia.

[144]. Y. B. 20 and 21 Ed. I. 136. As to the history of immemorial prescription see Die Lehre von der unvordenklichen Zeit, by Friedländer, 1843.

[145]. Littleton (sect. 169) tells us that: Consuetudo ex certa causa rationabili usitata privat communen legem. And to this Coke (113 a) adds by way of commentary the canonical maxim: Consuetudo praescripta et legitima vincit legem. In Goodwin v. Robarts, L. R. 10 Ex. at p. 357, it is said: “We must by no means be understood as saying that mercantile usage, however extensive, should be allowed to prevail if contrary to positive law, including in the latter such usages as having been made the subject of legal decision, and having been sanctioned and adopted by the courts, have become, by such adoption, part of the common law. To give effect to a usage which involves a defiance or disregard of the law would be obviously contrary to a fundamental principle. And we quite agree that this would apply quite as strongly to an attempt to set up a new usage against one which has become settled and adopted by the common law as to one in conflict with the more ancient rules of the common law itself.” See also to the same effect Edie v. East India Company, 2 Burr. 1216.

[146]. Pothier on Obligations, sect. 95.

[147]. Encyklopädie, sect. 20.

[148]. Pandektenrecht, I. sect. 15.

[149]. Austin, p. 538. An able and forcible defence of the Austinian position will be found in Professor W. J. Brown’s Austinian Theory of Law, Excursus D.—“Customary Law in Modern England.”

[150]. Co. Litt. 113 b.

[151]. The importance of reported decisions has, however, been increasing in both France and Germany for some time, and Continental law shows a distinct tendency to follow the example of English in this matter.

[152]. Hale’s History of the Common Law, p. 89 (ed. of 1820).

[153]. Hale’s History of the Common Law, p. 88.

[154]. In re Hallett, 13 Ch. D. at p. 710.

[155]. Castro v. R., 6 A. C. p. 249; Scaramanga v. Stamp, 5 C. P. D. p. 303.

[156]. In re Parsons, 45 Ch. D. 62: “Decisions of the Irish Courts, though entitled to the highest respect, are not binding on English judges.”

[157]. In Leask v. Scott, 2 Q. B. D. 376, at p. 380, it is said by the Court of Appeal, speaking of such a decision: “We are not bound by its authority, but we need hardly say that we should treat any decision of that tribunal with the greatest respect, and rejoice if we could agree with it.”

[158]. Persuasive efficacy, similar in kind though much less in degree, is attributed by our courts to the civil law and to the opinions of the commentators upon it; also to English and American text-books of the better sort.

[159]. London Street Tramways Company v. London County Council, (1898) A. C. 375, at p. 379. This is said to be so even when the House of Lords is equally divided in opinion, so that the judgment appealed from stands unreversed and so authoritative. Beamish v. Beamish, 9 H. L. C. p. 338; Att.-Gen. v. Dean of Windsor, 8 H. L. C. p. 392. As to the equal division of other courts, see The Vera Cruz, 9 P. D. p. 98.

[160]. Pledge v. Carr, (1895) 1 Ch. 51; Lavy v. London County Council, (1895) 2 Q. B. at p. 581, per Lindley, L.J. See, however, Mills v. Jennings, 13 C. D. p. 648.

[161]. It is to be remembered that the overruling of a precedent has a retrospective operation. In this respect it is very different from the repeal or alteration of a statute.

[162]. Sheddon v. Goodrich, 8 Ves. 497.

[163]. Pugh v. Golden Valley Railway Company, 15 Ch. D. at p. 334.

[164]. Smith v. Keal, 9 Q. B. D. at p. 352. See also In re Wallis, 25 Q. B. D. 180; Queen v. Edwards, 13 Q. B. D. 590; Ridsdale v. Clifton, 2 P. D. 306; Fookes v. Beer, 9 A. C. at p. 630: “We find the law to have been accepted as stated for a great length of time, and I apprehend that it is not now within our province to overturn it.”

[165]. In re Hallett, 13 Ch. D. at p. 712.

[166]. Osborne v. Rowlett, 13 Ch. D. at p. 785.

[167]. It is clearly somewhat awkward to contrast in this way the terms authority and principle. It is odd to speak of deciding a case on principle because there is no legal principle on which it can be decided. To avoid misapprehension, it may be advisable to point out that decisions as to the meaning of statutes are always general, and therefore establish precedents and make law. For such interpretative decisions are necessarily as general as the statutory provisions interpreted. A question of statutory interpretation is one of fact to begin with, and is decided on principle; therefore it becomes one of law, and is for the future decided on authority.

[168]. Holmes, The Common Law, p. 35.

[169]. On the decision by judges of questions of fact under the guise of questions of law, see Thayer’s Preliminary Treatise on the Law of Evidence, pp. 202, 230, 249.

[170]. This statement, to be strictly correct, must be qualified by a reference to the interests of the lower animals. It is unnecessary, however, to complicate the discussion at this stage by any such consideration. The interests and rights of beasts are moral, not legal.

[171]. Pandekt. I. sect. 37.

[172]. Geist d. r. R. III. p. 339, 4th ed.

[173]. Theory of Legislation, pp. 82–84. See also Works, III. 217.

[174]. Principles of Ethics, II. p. 63.

[175]. The denial of natural rights is not rendered any more defensible by the recognition of other positive rights in addition to the strictly legal rights which are created by the state; for example, rights created by international law, or by the so-called law of public opinion.

[176]. See Austin, Lect. 17.

[177]. The terms subject and object are used by different writers in a somewhat confusing variety of senses:—

(a) The subject of a right means the owner of it; the object of a right means the thing in respect of which it exists. This is the usage which has been here adopted: Windscheid, I. sect. 49.

(b) The subject of a right means its subject-matter (that is to say, its object in the previous sense). The object of a right means the act or omission to which the other party is bound (that is to say, its content): Austin, pp. 47, 712.

(c) Some writers distinguish between two kinds of subjects—active and passive. The active subject is the person entitled; the passive subject is the person bound: Baudry-Lacantinerie, Des Biens, sect. 4.

[178]. As to ownerless rights, see Windscheid, I. sect. 49, n. 3. Dernburg, Pandekten, I. sect. 49.

[179]. See as to rights to rights, Windscheid, I. sect. 48 a (Rechte an Rechten).

[180]. Musgrove v. Toy, (1891) A. C. 272.

[181]. On the distinction between liberties and rights, see Bentham’s Works, III. p. 217; Starey v. Graham, (1899) 1 Q. B. at p. 411, per Channell, J.; Allen v. Flood, (1898) A. C. at p. 29, per Cave, J.; Terry, p. 90; Brown’s Austinian Theory of Law, p. 180.

[182]. A power is usually combined with a liberty to exercise it; that is to say, the exercise of it is not merely effectual but rightful. This, however, is not necessarily the case. It may be effectual and yet wrongful; as when, in breach of my agreement, I revoke a licence given by me to enter upon my land. Such revocation is perfectly effectual, but it is a wrongful act, for which I am liable to the licensee in damages. I had a right (in the sense of power) to revoke the licence, but I had no right (in the sense of liberty) to do so: Wood v. Leadbitter, 13 M. & W. 838; Kerrison v. Smith, (1897) 2 Q. B. 445.

[183]. On the distinction between powers and other kinds of rights, see Windscheid, I. sect. 37; Terry, p. 100.

[184]. This division of rights into rights (stricto sensu), liberties, and powers, is not intended to be exhaustive. These are the most important kinds of advantages conferred by the law, but they are not the only kinds. Thus, the term right is sometimes used to mean an immunity from the legal power of some other person. The right of a peer to be tried by his peers, for example, is neither a right in the strict sense, nor a liberty, nor a power. It is an exemption from trial by jury—an immunity from the power of the ordinary criminal courts.

[185]. A very thorough examination of the conception of a legal right is to be found in Terry’s Principles of Anglo-American Law (Philadelphia, 1884), a work of theoretical jurisprudence too little known in England, and characterised by much subtle analysis of legal conceptions. Rights are there divided (ch. 6, pp. 84–138) into four kinds, which the author distinguishes as (1) permissive rights (which we have here termed liberties), (2) facultative rights (which we have here termed powers), (3) correspondent rights (which are so called because they correspond to duties, and which we have here termed rights in the strict sense), and (4) protected rights. These last we have not recognised as being in truth a class of rights at all. They are, if I understand Mr. Terry correctly, not rights but the objects of rights stricto sensu; for example, life, reputation, liberty, property, domestic relations, &c. That is to say, they are the things in which a person has an interest, and to which, therefore, he has a right, so soon as, but not until, the law protects that interest by imposing duties in respect of it upon other persons. There is no right to reputation apart from and independent of the right that other persons shall not publish defamatory statements.

[186]. The distinction here drawn between duty and liability may seem to conflict with the common usage, by which certain kinds of duties are apparently spoken of as liabilities. Thus we say that a man is liable for his debts. This, however, may be construed as meaning that he is liable to be sued for them. We certainly cannot regard liability as a generic term including all kinds of duty. We do not say that a man is liable not to commit murder, or not to defraud other persons.

[187]. Of the three classes of rights or legal interests which we have considered, the first, consisting of those which are the correlative of duties, are by far the most important. So predominant are they, indeed, that we may regard them as constituting the principal subject-matter of the law, while the others are merely accessory. In future, therefore, we shall use the term right in this narrow and specific sense, except when the context indicates a different usage; and we shall commonly speak of the other forms of rights by their specific designations.

[188]. The term enforcement is here used in a wide sense to include the maintenance of a right or duty by any form of compulsory legal process, whether civil or criminal. There is a narrower use of the term, in which it includes only the case of civil proceedings. It is in this sense that we have already defined civil justice as being concerned with the enforcement of rights, and criminal justice as being concerned with the punishment of wrongs. As to the distinction between recognising and enforcing a right, see Dicey, Conflict of Laws, p. 31, 2nd ed.

[189]. There is another use of the term imperfect duty which pertains to ethics rather than to jurisprudence, and must be distinguished from that adopted in the text. According to many writers, an imperfect duty is one of such a nature that it is not fit for enforcement, but ought properly to be left to the free will of him whose duty it is. A perfect duty, on the other hand, is one which a man not merely ought to perform, but may be justly compelled to perform. The duty to give alms to the poor is imperfect; that of paying one’s debts is perfect. Perfect duties pertain to the sphere of justice; imperfect to that of benevolence. The distinction is not equivalent to that between legal duties and those which are merely moral. A duty may be a perfect duty of justice, although the actual legal system takes no notice of it; and conversely an imperfect duty of benevolence may be unjustly made by law the subject of compulsion. It does not seem possible, however, so to divide the sphere of duty by a hard and fast line. One of the most noteworthy attempts to do so is to be seen in Spencer’s Principles of Ethics.

[190]. Ex parte Sheil, 4 Ch. D. 789. London & Midland Bank v. Mitchell, (1899) 2 Ch. 161.

[191]. As to rights against the state see Brown’s Austinian Theory of Law, p. 194.

[192]. Some writers treat jus in personam and jus ad rem as synonymous terms. It seems better, however, to use the latter in a narrower sense, as including merely one species, although the most important species, of jura in personam. Savigny, System, sect. 56, n. b.

[193]. Gaius, IV. 2.

[194]. A personal as opposed to a proprietary right is not to be confounded with a personal as opposed to a real right. It is a misfortune of our legal nomenclature that it is necessary to use the word personal in several different senses. The context, however, should in all cases be sufficient to indicate the particular signification intended. The more flexible language of the Germans enables them to distinguish between personliche Rechte (as opposed to dingliche Rechte or real rights) and Personenrechte (as opposed to Vermögensrechte or proprietary rights). See Dernburg, Pandekten, I. sect. 22, note 7.

[195]. Ahrens, sect. 55: Tous les biens, soit matériels en eux-mêmes, soit susceptibles d’être estimés en argent comme équivalent (par aestimatio et condemnatio pecuniaria) appartenant à une personne, forment son avoir ou son patrimoine.

Baudry-Lacantinerie, Des Biens, sect. 2. Le patrimoine est un ensemble de droits et de charges appréciables en argent.

Dernburg, Pandekten, I. sect. 22. Vermögen ist die Gesammtheit der geldwerthen Rechte einer Person.

Windscheid, I. sect. 42, note: Vermögensrechte sind die Rechte von wirthschaftlichem Werth.

See also to the same effect Savigny, System, sect. 56, and Puchta, Institutionen, II. sect. 193.

[196]. The words status and estate are in their origin the same. As to the process of their differentiation in legal meaning, see Pollock and Maitland, History of English Law, II. pp. 10 and 78 (1st ed.). The other uses of the term property will be considered by us later, in chapter xx.

[197]. See Dicey, Conflict of Laws, p. 458, 2nd ed.

[198]. See Maine’s Ancient Law, Ch. 5 ad fin.; Markby’s Elements of Law, § 178; Hunter’s Roman Law, p. 138, 3rd ed.

[199]. See Savigny, System, § 59; Moyle, Inst. Just. pp. 86–94, 183–193.

[200]. The Romans termed them servitutes, but the English term servitude is used to include one class of jura in re aliena only, namely the servitutes praediorum of Roman Law.

[201]. The owner of an encumbrance may be termed the encumbrancer of the servient right or property over which it exists.

[202]. In addition to the distinctions between different kinds of rights considered in this chapter, there must be borne in mind the important distinction between Primary and Sanctioning Rights, but this has already been sufficiently dealt with in the chapter on the Administration of Justice.

[203]. Pollock, Jurisprudence, p. 175: “Ownership may be described as the entirety of the powers of use and disposal allowed by law.... The owner of a thing is not necessarily the person who at a given time has the whole power of use and disposal; very often there is no such person. We must look for the person having the residue of all such power when we have accounted for every detached and limited portion of it; and he will be the owner even if the immediate power of control and use is elsewhere.”

[204]. The figurative identification of a right with its object is not absolutely limited to the case of material things, though this is by far the most important instance. Similar reasons of convenience of speech and ease of thought lead to a similar metonymy in other cases, when the object of a jus in re propria has a recognised name. We speak, for example, of the ownership of a trade-mark, or of that of the good-will of a business; meaning thereby the ownership of a jus in re propria in respect of these things.

[205]. A similar explanation of the distinction between corporeal and incorporeal ownership is given by the following writers:—

Windscheid I. sect. 42: “A very common form of speech ... substitutes for the right of ownership (Eigenthumsrecht) the thing in respect of which it exists.”

Baudry-Lacantinerie, Des Biens, sect. 9: “This confusion finds its excuse, if not its justification, in the consideration that the right of ownership, being the most complete right which can exist in respect of a thing, since it is absolute and exclusive, is identified with the thing itself.”

Bruns, Das Recht des Besitzes, p. 477.

Girard, Droit Romain, p. 244.

[206]. Austin, p. 358. German Civil Code, sect. 90: Sachen im Sinne des Gesetzes sind nur körperliche Gegenstände.

[207]. Vide supra, § 73.

[208]. This use of the term thing (res) and the distinction between res corporalis and res incorporalis are derived from Roman Law. Just. Inst. II. 2:—Quaedam praeterea res corporales sunt, quaedam incorporales. Corporales eae sunt, quae sui natura tangi possunt: veluti fundus, homo, vestis, aurum, argentum, et denique aliae res innumerables. Incorporales autem sunt, quae tangi non possunt. Qualia sunt ea, quae in jure consistunt: sicut hereditas, usufructus, obligationes quoque modo contractae.

[209]. The same explanation is applicable to the distinction between corporeal and incorporeal property. A person’s property consists sometimes of material objects and sometimes of rights. As to the different uses of the term property, see infra, ch. xx.

[210]. He who owns property for his own use and benefit, without the intervention of any trustee, may be termed the direct owner of it, as opposed to a mere trustee on the one hand, and to a beneficial owner or beneficiary on the other. Thus if A. owns land, and makes a declaration of trust in favour of B., the direct ownership of A. is thereby changed into trust-ownership, and a correlative beneficial ownership is acquired by B. If A. then conveys the land to B., the ownership of B. ceases to be merely beneficial, and becomes direct.

[211]. On the nature of trusts see Law Quarterly Review, vol. 28, p. 290 (The Place of Trust in Jurisprudence, by W. G. Hart).

[212]. Vide supra, § 85.

[213]. On investitive and divestitive facts, see chapter xvi., § 120.

[214]. On vested and contingent ownership, see Windscheid, I. sects. 86–95; Dernburg, Pandekten, I. 82. 105–112; Austin, Lecture 53.

[215]. Possession in law is sometimes used in a narrow sense to denote possession which is such in law only and not both in law and in fact—that is to say, to denote constructive possession (possessio fictitia). In the wider sense it denotes all possession which is recognised by the law, whether it does or does not at the same time exist in fact.

[216]. See, as to the idea of seisin and the consequences attributed to its presence or absence, a series of interesting articles by Maitland in the L. Q. R., I. 324, II. 481. IV. 24, 286. See also Lightwood, Possession of Land, pp. 4–8.

[217]. Possessio is the de facto relation between the possessor and the thing possessed. Jus possessionis is the right (if any) of which possession is the source or title. Jus possidendi is the right (if any) which a man has to acquire or to retain possession.

[218]. D. 41. 2. 3. 1.

[219]. It must be remembered that we are speaking of possession in fact. Whether possession in law and the various advantages conferred by it are to be attributed to all possessors in fact or only to some of them is a different question with which we are not here concerned. Roman Law, save in exceptional cases, allowed possessio corporis only to those who possessed as owners and on their own behalf. In English law, on the other hand, there is no such limitation of legal possession; though even here the possession of a servant sometimes fails to obtain legal recognition.

[220]. R. v. Mucklow, 1 Moody C. C. 160.

[221]. Merry v. Green, 7 M. & W. 623.

[222]. Pollock and Wright, Possession in the Common Law, p. 14.

[223]. “Absolute security for the future,” says Dernburg, Pandekten, I. sect. 169, “is not requisite. For it is not to be had.... All that is necessary is that according to the ordinary course of affairs one is able to count on the continuing enjoyment of the thing.” See also I. sect. 178. See also Pollock and Wright, Possession, p. 13: “That occupation is effective which is sufficient as a rule and for practical purposes to exclude strangers from interfering with the occupier’s use and enjoyment.”

[224]. Pollock and Wright, Possession, p. 15: “Physical or de facto possession readily follows the reputation of title.”

[225]. In the words of Ihering: “The visibility of possession is of decisive importance for its security.” Grund des Besitzesschutzes, p. 190.

[226]. 21 L. J. Q.B. 75.

[227]. L. & C. 1.

[228]. 7 M. & W. 623.

[229]. 8 Ves. 405. 7 R. R. 99.

[230]. 1 Moody C. C. 160.

[231]. 33 Ch. D. 562.

[232]. (1896) 2 Q. B. 44.

[233]. 1 Smith L. C, 10th ed. 343; 1 Strange 504.

[234]. See for a criticism of the ratio decidendi of this case Clerk and Lindsell’s Law of Torts, Appendix.

[235]. 33 Ch. D. 562 at p. 568.

[236]. The explicit recognition of mediate possession (mittelbarer Besitz) in its fullest extent is a characteristic feature of the German Civil Code (sects. 868–871): “If any one possesses a thing as usufructuary, pledgee, tenant, borrower, or depositee, or in any similar capacity by virtue of which he is entitled or bound with respect to some other person to keep possession of the thing for a limited time, then that other person has possession of it also (mediate possession).” See Dernburg, Das bürgerliche Recht, III. sect. 13. Windscheid, I. pp. 697–701.

[237]. In Ancona v. Rogers (1 Ex. D. at p. 292) it is said in the judgment of the Exchequer Chamber: “There is no doubt that a bailor who has delivered goods to a bailee to keep them on account of the bailor, may still treat the goods as being in his own possession, and can maintain trespass against a wrongdoer who interferes with them. It was argued, however, that this was a mere legal or constructive possession of the goods.... We do not agree with this argument. It seems to us that goods which have been delivered to a bailee to keep for the bailor, such as a gentleman’s plate delivered to his banker, or his furniture warehoused at the Pantechnicon, would in a popular sense as well as in a legal sense be said to be still in his possession.”

[238]. (1893) 2 Q. B. 30, 31.

[239]. 1 Taunt. 458; 10 R. R. 578.

[240]. 6 El. & B. 726.

[241]. At p. 735.

[242]. D. 41. 2. 3. 5.

[243]. These terms, however, are not strictly accurate, inasmuch as the so-called constructive delivery is a perfectly real transfer of possession, and involves no element of fiction whatever.

[244]. For examples of traditio brevi manu, see Winter v. Winter, 4 L. T. (N.S.) 639; Cain v. Moon, (1896) 2 Q. B. 283; Richer v. Voyer, L. R. 5 P. C. 461.

[245]. For examples of constitutum possessorium, see Elmore v. Stone, 1 Taunt. 458; 10 R. R. 578; Marvin v. Wallace, 6 El. & Bl. 726. See supra § 101.

[246]. Constitutum possessorium, also, may be termed attornment in a wide sense.

[247]. Delivery by attornment is provided for by the Sale of Goods Act, 1893, sect. 29 (3): “Where the goods at the time of sale are in the possession of a third person, there is no delivery by seller to buyer unless and until such third person acknowledges to the buyer that he holds the goods on his behalf.”

[248]. The theory here considered is that which has been made familiar by Savigny’s celebrated treatise on Possession (Recht des Besitzes, 1803). The influence of this work was long predominant on the Continent and considerable in England, and it still finds no small amount of acceptance. A forcible statement of the objections to Savigny’s doctrine is contained in Ihering’s Grund des Besitzesschutzes, pp. 160–193.

[249]. Bruns rejects the definition of possession as consisting in the continuing exercise of a right, and defines it as the continuous possibility of exercising a right at will. “Just as corporeal possession,” he says (Recht des Besitzes, p. 475) “consists not in actual dealing with the thing, but only in the power of dealing with it at will, so incorporeal possession consists not in the actual exercise of a right, but in the power of exercising it at will; and it is only because the existence of this power does not become visible as an objective fact until actual exercise of the right has taken place, that such actual exercise is recognised as an essential condition of the commencement of possession.” This however seems incorrect. Possession consists not in the power of exercising a claim in the future, but in the power of continuing to exercise it from now onwards.

[250]. Thus in the Civil Code of France it is said (sect. 2228): La possession est la détention ou la jouissance d’une chose ou d’un droit que nous tenons ou que nous exerçons par nous-mêmes ou par un autre qui la tient ou qui l’exerce en notre nom.

The definition of the Italian Civil Code is similar (sect. 685): “Possession is the detention of a thing or the enjoyment of a right by any person either personally or through another who detains the thing or exercises the right in his name.”

A good analysis of the generic conception of possession, and of the relation between its two varieties, is to be found in Baudry-Lacantinerie’s Traité de Droit Civil (De la Prescription, sect. 199): “Possession is nothing else than the exercise or enjoyment, whether by ourselves or through the agency of another, of a real right which we have or claim to have over a thing. It makes no difference whether this right is one of ownership or one of some other description, such as ususfructus, usus, habitatio, or servitus. The old distinction between possession and quasi-possession, which was recognised by Roman law and is still to be found in the doctrine of Pothier, has been rejected, and rightly so. It was in our opinion nothing more than a result of that confusion between the right of ownership and the object of that right, which has been at all times prevalent. Possession is merely the exercise of a right; in reality it is not the thing which we possess, but the right which we have or claim to have over the thing. This is as true of the right of ownership as of the right of servitude and usufruct; and consequently the distinction between the possession of a thing and the quasi-possession of a right is destitute of foundation.

See to the same effect Ihering, Grund des Besitz, p. 159: “Both forms of possession consist in the exercise of a right (die Ausübung eines Rechts).” Bruns, also, recognises the figure of speech on which the distinction between corporeal and incorporeal possession is based. Recht des Besitzes, p. 477.

[251]. Grund des Besitz, p. 179: Der Besitz die Thatsächlichkeit des Eigenthums. See also at p. 192: Der Besitz ist die Thatsächlichkeit des Rechts.

[252]. In saying that possession is the de facto counterpart of ownership, it is to be remembered that we use both terms in their widest sense, as including both the corporeal and incorporeal forms. If we confine our attention to corporeal ownership and possession, the correspondence between them is incomplete. Many claims constitute corporeal possession if exercised de facto, but incorporeal ownership if recognised de jure. Thus tenants, bailees, and pledgees have corporeal possession but incorporeal ownership. They possess the land or the chattel, but own merely an encumbrance over it. The ownership of a book means the ownership of the general or residuary right to it; but the possession of a book means merely the possession of an exclusive right to it for the time being. That is to say, the figurative usage of speech is not the same in possession as in ownership, therefore much corporeal possession is the counterpart of incorporeal ownership.

[253]. Windscheid II. sect. 464: “If we ask what other rights, in addition to real rights, admit of possession, the answer is that in principle no right is incapable of possession, which is capable of continuing exercise (dauernde Ausübung).”

So Ihering, Grund des Besitz, p. 158: “The conception of possession is applicable to all rights which admit of realisation (Thatsächlichkeit), that is to say, which admit of a continuing visible exercise.” Ihering defines possession generally (p. 160) as “Thatsächlichkeit der mit dauernder Ausübung verbundenen Rechte.” See also Bruns, Recht des Besitzes, pp. 479, 481.

[254]. See for example the German Civil Code, sects. 858, 861, 864, and the Italian Civil Code, sects. 694–697.

[255]. Asher v. Whitlock, L. R. 1 Q. B. 1. Armorie v. Delamirie, 1 Stra. 504. 1 Sm. L. C. 10th ed. 343. Bridges v. Hawkesworth, 21 L. J. Q. B. 75.

[256]. Legal persons are also termed fictitious, juristic, artificial, or moral.

[257]. Exodus xxi. 28. To the same effect see Plato’s Laws, 873.

[258]. Ellis v. Loftus Iron Company, L. R. 10 C. P. at p. 13: “In the case of animals trespassing on land the mere act of the animal belonging to a man which he could not foresee, or which he took all reasonable means of preventing, may be a trespass, inasmuch as the same act if done by himself would have been a trespass.” Cf. Just. Inst. iv. 9.

[259]. D. 1. 5. 2.

[260]. In re Dean, 41 Ch. D. 552.

[261]. Ibid. p. 557.

[262]. Hereditas personae vice fungitur. D. 46. 1. 22. Creditum est hereditatem dominam esse, defuncti locum obtinere. D. 28. 5. 31. 1.

[263]. Williams v. Williams, 20 Ch. D. 659.

[264]. R. v. Raynes, 2 East P. C. 652.

[265]. Foster v. Dodd, L. R. 3 Q. B. at p. 77: “Whether in ground consecrated or unconsecrated indignities offered to human remains in improperly and indecently disinterring them, are the ground of an indictment.”

[266]. R. v. Stewart, 12 Ad. and El. 777. As to the lawfulness of cremation see Reg. v. Price, 12 Q. B. D. 247.

[267]. Williams v. Williams, 20 Ch. D. 659.

[268]. 2 & 3 Wm. IV. c. 75, sect. 7.

[269]. In re Vaughan, 33 Ch. D. 187; Hoare v. Osborne, 1 Eq. 587.

[270]. In re Dean, 41 Ch. D. 557.

[271]. 5 Co. Rep 125 a: R. v. Labouchere, 12 Q. B. D. 320; Stephen’s Digest of Criminal Law, sect. 291. 5th ed.

[272]. 7 Co. Rep. 8 b. Compare D. 1. 5. 26: Qui in utero sunt in toto paene jure civili intelleguntur in rerum natura esse.

[273]. The George and Richard, L. R. 3 Ad. and Ecc. 466.

[274]. R. v. Senior, 1 Moody, C. C. 344; R. v. West, 2 Car. and Kir. 784.

[275]. Walker v. Great Northern Ry. Co. of Ireland, 28 L. R. Ir. 69.

[276]. The maxim of the law is: Quum duo jura in una persona concurrunt, aequum est ac si essent in duobus. Calvin’s Case, 2 State Trials 584. Coppin v. Coppin, 2 P. W. 295.

[277]. D. 8. 2. 26.

[278]. German writers term it the substratum or Unterlage of the fictitious person. Windscheid, I. sect. 57. Vangerow, I. sect. 53. Puchta, II. 192.

[279]. Co. Litt. 2. a.

[280]. 8 Ed. VII. c. 48, s. 33.

[281]. 39 & 40 Vict. c. 18, s. 1.

[282]. 18 & 19 Vict. c. 117, s. 2.

[283]. Corporations sole are not a peculiarity of English law. The distinction between the two forms of incorporation is well known to foreign jurists. See Windscheid, I. sect. 57. Vangerow, I. sect. 53. The English law as to corporations sole is extremely imperfect and undeveloped, but the conception itself is perfectly logical, and is capable of serious and profitable uses. Maitland has traced the history of this branch of the law in two articles in the L. Q. R. XVI. p. 335. and XVII. p. 131.

[284]. Savigny, System, sect. 90: “The aggregate of the members who compose a corporation differs essentially from the corporation itself.” The Great Eastern Ry. Co. v. Turner, L. R. 8 Ch. at p. 152: “The Company is a mere abstraction of law.” Flitcroft’s Case, 21 Ch. D. at p. 536: “The corporation is not a mere aggregate of shareholders.” Salomon v. Salomon & Co. (1897) A. C. at p. 51: “The company is at law a different person altogether from the subscribers to the memorandum.”

[285]. D. 3. 4. 7. 2. Cum jus omnium in unum reciderit, et stet nomen universitatis. Universitas is the generic title of a corporation in Roman law, a title retained to this day in the case of that particular form of corporation which we know as a university.

[286]. Blackstone, I. 485.

[287]. Lindley on Companies, II. p. 822 (6th ed.): “A company which is incorporated by act of parliament can be dissolved only as therein provided, or by another act of parliament.”

[288]. That a corporation may survive the last of its members is admitted by Savigny (System, sect. 89), and Windscheid (I. sect. 61).

[289]. The leading advocate of this realistic theory is Gierke (Die Genossenschaftstheorie, 1887. Deutsches Privatrecht, 1895). See also Dernburg, Pandekten, I. sect. 59, and Mestre, Les Personnes Morales, 1899. In England it has received sympathetic exposition, if not express support, from Maitland in the Introduction to his translation of part of Gierke’s Genossenschaftsrecht (Political Theories of the Middle Ages, 1900). See also, to the same effect, Pollock, Jurisprudence, p. 113, and L. Q. R. vol. 27, p. 219; Brown, Austinian Theory of Law, Excursus A; 22 L. Q. R. 178, The Legal Personality of a Foreign Corporation, by E. H. Young. Savigny and Windscheid are representative adherents of the older doctrine. For further discussions of this question see Harvard Law Review, vol. xxiv. pp. 253, 347 (Corporate Personality, by A. W. Machen); Law Quarterly Review, vol. xxvii. p. 90 (Legal Personality, by Prof. W. M. Geldart); Gray’s Nature and Sources of the Law, ch. 2; Saleilles, De la personnalité juridique.

[290]. The relation between a corporation and its beneficiaries may or may not amount to a trust in the proper sense of the term. A share in a company is not the beneficial ownership of a certain proportion of the company’s property, but the benefit of a contract made by the shareholder with the company, under which he is entitled to be paid a share of the profits made by the company, and of the surplus assets on its dissolution. A share is a chose in action—an obligation between the company and the shareholder. Colonial Bank v. Whinney, 11 A. C. 426.

[291]. Cornford v. Carlton Bank, (1899) 1 Q. B. 392; (1900) 1 Q. B. 22.

[292]. Reg. v. Birmingham and Gloucester Ry. Coy., 3 Q. B. 223; Reg. v. Great North of England Ry. Coy., 9 Q. B. 315.

[293]. As to the liability of corporations, see Salmond’s Law of Torts, § 18; Pollock’s Law of Torts, p. 60, 8th ed.; Cornford v. Carlton Bank, (1899) 1 Q. B. 392; Citizens’ Life Assurance Co. v. Brown, (1904) A. C. 423; Green v. London General Omnibus Coy., 7 C. B. (N. S.) 290; Abrath v. North Eastern Railway Co., 11 A. C. 247, per Baron Bramwell; Dernburg, Pandekten, I. sect. 66; Windscheid, I. sect. 59; Savigny, System, sects. 94, 95; D. 4. 3. 15. 1.

[294]. D. 3. 4. 7. 1.

[295]. It is a somewhat curious circumstance that the legal persons created by one system of law receive full recognition from other systems. This form of legal fiction has acquired extraterritorial and international validity. A French corporation can sue and be sued in an English court of justice as if it were a real person. The Dutch West India Co. v. Van Moses, 1 Str. 611; Newby v. Van Oppen, L. R. 7 Q. B. 293.

[296]. Calvin’s Case, 2 State Trials, at p. 624: “The King hath two capacities in him: one a natural body, being descended of the blood royal of the realm; and this body is of the creation of Almighty God, and is subject to death, infirmity, and such like: the other is a politick body or capacity, so called because it is framed by the policy of man; and in this capacity the King is esteemed to be immortal, invisible, not subject to death, infirmity, infancy.” As to the history of this idea see Holdsworth’s History of English Law, III. pp. 357–362.

[297]. Sloman v. Government of New Zealand, 1 C. P. D. 563. This was an action brought in England against the “Governor and Government of the Colony of New Zealand.” It failed because there was no such person or body corporate known to the law.

[298]. See Williams v. Howarth, (1905) A. C. 551.

[299]. The Commonwealth of Australia, for example, and also the constituent Australian states are now to be deemed for certain purposes bodies politic and corporate. For by virtue of Australian legislation they can now sue and be sued in their own names, and possess other attributes of personality; thus an action will now lie at the suit of the State of Victoria against the State of New South Wales. The corporate character thus bestowed upon these states, however, is concurrent with, and not exclusive of the old common law principle which identifies the state with the King. Public lands in Australia, for example, are still the lands of the Crown, except so far as they may be expressly vested in the corporate state by statute.

[300]. Supra, § 112.

[301]. It has been expressly recognised by the High Court of Australia, so far as regards the Commonwealth of Australia and the constituent states: Municipal Council of Sydney v. The Commonwealth, 1 Commonwealth L. R. at p. 231, per Griffith, C. J.: “It is manifest from the whole scope of the Constitution that just as the Commonwealth and State are regarded as distinct and separate sovereign bodies,...so the Crown as representing those several bodies is to be regarded not as one, but as several juristic persons.”

[302]. Title meant originally a mark, sign, or inscription; e.g., the title of a book; titulus sepulchri, an epitaph. “Pilate wrote a title and put it on the cross.” John xix. 19. Thence more specifically it came to mean signs or evidence of right or ownership; e.g., titulus, a boundary-stone; titulus, a title-deed (Ducange). Thence the ground of right or ownership, viz., an investitive fact.

[303]. Bentham calls such facts dispositive.

[304]. We may term them, with Bentham, translative facts.

[305]. We here use the term transfer in its generic sense, as including both voluntary and involuntary changes of ownership. It has also a specific sense in which it includes only the former. Succession ab intestato, for example, is a transfer of rights in the wide sense, but not in the narrow.

[306]. This nomenclature has been suggested and adopted by Sir Frederick Pollock (Jurisprudence, p. 142). Other writers prefer to indicate acts in the law by the term juristic acts. The Germans call them Rechtsgeschäfte.

[307]. The use of the terms agreement and contract is curiously unsettled.

a. Agreement and contract are often used as synonyms, to mean a bilateral act in the law directed to the creation of an obligation, that is to say a right in personam. The objection to this usage is that we cannot afford so to waste one of these terms.

b. Contract is sometimes used to mean an agreement (in the preceding sense) enforceable by law. Pollock, Principles of Contract, p. 8. Indian Contract Act, sect. 2 (h). This, also, seems the sacrifice of a useful term to an inadequate purpose. Moreover the distinction does not conform to established usage. We habitually and conveniently speak of void, invalid, or illegal contracts.

c. Contract is sometimes used in the wide sense of any bilateral act in the law. Holland, pp. 225, 226. This, however, is very unusual, and it is certainly better to use agreement in this sense. Contract, being derived from contrahere, involves the idea of binding two persons together by the vinculum juris of an obligation. An assignment is not a contract, and a release is the very reverse of a contract.

d. There remains the usage suggested and adopted in the text. An agreement is a bilateral act in the law. Est pactio duorum pluriumve in idem placitum et consensus. D. 2. 14. 1. 2. A contract, on the other hand, is that particular kind of agreement which is intended to create a right in personam between the parties. This is the distinction adopted by Sir W. Anson in his work on Contracts, p. 2: “Contract is that form of agreement which directly contemplates and creates an obligation.” So Pothier, Traité des Obligations, sect. 3; L’espèce de convention qui a pour objet de former quelque engagement est celle qu’on appelle contrat. Cf. French Civil Code, Art. 1101. The Germans use Vertrag as equivalent to agreement in this sense; while a contract is obligatorischer Vertrag, or Vertrag in a narrower sense. Savigny, System, sect. 141. Puchta, sect. 271. Dernburg, Pandekten, I. sect. 92.

[308]. Middleton v. Pollock, 2 Ch. D. 104; Sharp v. Jackson, (1899) A. C. 419.

[309]. The terms unilateral and bilateral possess another signification distinct from that which is attributed to them in the text. In the sense there adopted all agreements are bilateral, but there is another sense in which some of them are bilateral and others unilateral. An agreement is bilateral, in this latter signification, if there is something to be done by each party to it, while it is unilateral if one party is purely passive and free from legal obligation, all the activity and obligation being on the other side. An agreement to lend money is bilateral, while an agreement to give money is unilateral.

[310]. D. 50, 17. 69.

[311]. Summa, 2. 2. q. 57. art. 2.

[312]. In respect of the efficacy of contracts, there is a special case which requires a word of notice. A contract may be neither void nor voidable, but yet unenforceable. That is to say, no action will lie for the enforcement of it. The obligation created by it is imperfect. See ante, § 78. An example is a verbal contract which ought to be in writing under the Statute of Frauds.

[313]. D. 50. 17. 45. 1.

[314]. Cundy v. Lindsay, 3 A.C. 459; Raffles v. Wichelhaus, 2 H. & C. 906.

[315]. King v. Smith, (1900) 2 Ch. 425.

[316]. Smith v. Hughes, L. R. 6 Q. B. 597.

[317]. In addition to the ease of misrepresentation, unessential error affects any agreement which has been expressly or impliedly made conditional on the existence of the fact erroneously supposed to exist. A contract of sale, for example, is conditional on the present existence of the thing sold; if it is already destroyed, the contract for the purchase of it is void.

[318]. With the exception of contracts under seal and contracts of record, to which the doctrine of consideration is inapplicable.

[319]. Cf. D. 44. 4. 2. 3. Si quis sine causa ab aliquo fuerit stipulatus, deinde ex ea stipulatione experiatur, exceptio utique doli mali ei nocebit. See also D. 12. 7. 1. pr.

[320]. Salmond, Essays in Jurisprudence and Legal History, p. 219.

[321]. The French law as to the cause or consideration of a contract will be found in Pothier, Obligations, sects. 42–46, and Baudry-Lacantinerie, Obligations, sects. 295–327. Whether the English doctrine of consideration is historically connected with the causa of the civil law in a matter of dispute, and there is much to be said on both sides.

[322]. We have already seen that the term liability has also a wider sense, in which it is the correlative of any legal power or liberty, and not merely of the right of action or prosecution vested in a person wronged. Supra, § 77.

[323]. Supra, § 27.

[324]. Supra, § 34.

[325]. Supra, § 78.

[326]. Gaius, III. 211.

[327]. The distinction between material and formal wrongdoing has long been familiar in moral philosophy. The material badness of an act depends on the actual nature, circumstances, and consequences of it. Its formal badness depends on the state of mind or will of the actor. The madman who kills his keeper offends materially but not formally; so also with him who in invincible ignorance breaks the rule of right. Material without formal wrongdoing is no ground of culpability.

[328]. Holmes, Common Law, p. 91. So Austin, p. 419: “The bodily movements which immediately follow our desires of them are the only human acts, strictly and properly so called.”

[329]. It is unfortunate that there is no recognised name for the origin or initial stage of the act, as contrasted with the totality of it. Bentham calls the former the act and the latter the action. Principles, ch. 8, sect. 2. Works, I. p. 40. But in common usage these two terms are synonymous, and to use them in this special sense would only lead to confusion.

[330]. See Salmond on Torts, p. 165, 3rd ed.

[331]. Reg. v. Coombes, 1 Lea. Cr. C. 388.

[332]. United States v. Davis, 2 Sumner, 482.

[333]. Reg. v. Armstrong, 13 Cox, C. C. 184; Reg. v. Keyn, 2 Ex. D. 63.

[334]. Cowan v. O’Connor, 20 Q. B. D. 640.

[335]. Muller & Co’s Margarine, Limited v. Inland Revenue Commissioners, (1900) 1 Q. B. 310; (1901) A. C. 217.

[336]. Reg. v. Ellis, (1899) 1 Q. B. 230.

[337]. The question is fully discussed in the case of Reg. v. Keyn, 2 Ex. D. 63, in which the captain of a German steamer was tried in England for manslaughter by negligently sinking an English ship in the Channel and drowning one of the passengers. One of the minor questions in the case was that of the place in which the offence was committed. Was it on board the English ship, or on board the German steamer, or on board neither of them? Four of the judges of the Court for Crown Cases Reserved, namely, Denman, J., Bramwell, B., Coleridge, C.J., and Cockburn, C.J., agreed that if the offence had been wilful homicide it would have been committed on the English ship. Denman, J., and Coleridge, C.J., applied the same rule to negligent homicide. Cockburn, C.J., doubted as to negligent homicide. Bramwell, B., said (p. 150): “If the act was wilful, it is done where the will intends it should take effect; aliter when it is negligent.” For a further discussion of the matter, see Stephen’s History of Criminal Law, II. pp. 9–12, and Oppenhoff’s annotated edition of the German Criminal Code (13th ed. 1896), p. 28. The German doctrine is that an act is committed in the place where it is begun. See also Terry, Principles of Anglo-American Law, pp. 598–606, and Edmundson v. Render, (1905) 2 Ch. 320.

[338]. Northey Stone Co. v. Gidney, (1894) 1 Q. B. 99.

[339]. If the law dates the commission of a wrong from the completion of it, it follows that there are cases in which a man may commit a wrong after his death. If A. excavates his own land so as to cause, after an interval, the subsidence of the adjoining land of B., there is no wrong done until the subsidence happens; Backhouse v. Bonomi, 9 H. L. C. 503; Darley Main Colliery Co. v. Mitchell, 11 A. C. 127. What shall be said, then, if A. is dead in the meantime? The wrong, it seems, is not done by his successors in title: Hall v. Duke of Norfolk, (1900) 2 Ch. 493; Greenwell v. Low Beechburn Colliery, (1897) 2 Q. B. 165. The law, therefore, must hold either that there is no wrong at all, or that it is committed by a man who is dead at the date of its commission.

[340]. Holmes, Common Law, p. 53: “Intent will be found to resolve itself into two things; foresight that certain consequences will follow from an act, and the wish for those consequences working as a motive which induces the act.”

[341]. It is to be noticed, however, that the part which was intended may constitute in itself an independent intentional wrong included in the larger and unintentional wrong of which it forms a part. Intentionally to discharge firearms in a public street is a wilful wrong, if such an act is prohibited by law. But accidentally to kill a person by the intentional discharge of firearms in a public street is a wrong of negligence.

[342]. See however § 143, infra, as to constructive intent. Wrongful intent is sometimes imputed in law when there is none in fact.

[343]. For a discussion of this matter, see Ex parte Hill, 23 Ch. D. 695, per Bowen, L. J., at p. 704; also Ex parte Taylor, 18 Q. B. D. 295.

[344]. See for example D. 4. 3. 1. pr.

[345]. It is to malice in one only of these two uses that the well-known definition given in Bromage v. Prosser (4 Barn & C. 247; 28 R. R. 241) is applicable: “Malice in common acceptation means ill-will against a person; but in its legal sense it means a wrongful act done intentionally, without just cause or excuse.” See, to the same effect, Mogul Steamship Co. v. McGregor Gow & Co., 23 Q. B. D. at p. 612, per Bowen, L. J.; and Allen v. Flood, (1898) A. C. at p. 94, per Lord Watson.

[346]. D. 4. 3. 1. 2.

[347]. Allen v. Flood, (1898) A. C. at p. 123.

[348]. Corporation of Bradford v. Pickles, (1895) A. C. 587 at p. 598.

[349]. Allen v. Flood, (1898) A. C. 92 at p. 152.

[350]. The Roman law as to the rights of adjoining proprietors was different. Harm done animo nocendi, that is to say, with a malicious motive, was actionable. D. 39. 3. 1. 12. The German Civil Code, sect. 226, provides quite generally that the exercise of a right is unlawful when its only motive is to harm another person.

[351]. Art. 50, 5th ed.

[352]. Strafgesetzbuch, sect. 43. Cf. the French Code Pénal, Art. 2.

[353]. Roberts’ Case, Dearsly C. C. 539. Per Parke, B., at p. 551: “An attempt at committing a misdemeanour is not an indictable attempt unless it is an act directly approximating to the commission of an offence, and I think this act is a sufficient approximation. I do not see for what lawful purpose the dies of a foreign coin can be used in England, or for what purpose they could have been procured except to use them for coining.” Per Wightman, J., at p. 551: “It is an act immediately connected with the commission of the offence, and in truth the prisoner could have no other object than to commit the offence.” Per Jervis, C. J., at p. 550: “The prisoner was in possession of machinery necessarily connected with the offence, for the express purpose of committing it, and which was obtained and could be used for no other purpose.”

[354]. Reg. v. Collins, L. & C. 471.

[355]. Reg. v. Ring, 61 L. J. M. C. 116; Reg. v. Brown, 24 Q. B. D. 357.

[356]. Leviathan, ch. 27. Eng. Works III. 288.

[357]. Reg. v. Dudley 14 Q. B. D. 273. The law as to compulsion and necessity is discussed in Stephen’s History of the Criminal Law, vol. ii. ch. 18, and in an Article on Homicide by Necessity, in L. Q. R. I. 51. See also the German Criminal Code, sect. 54, in which the jus necessitatis receives express recognition.

[358]. In Roman law negligence is signified by the terms culpa and negligentia, as contrasted with dolus or wrongful intention. Care, or the absence of negligentia, is diligentia. The use of the word diligence in this sense is obsolete in modern English, though it is still retained as an archaism of legal diction. In ordinary usage, diligence is opposed to idleness, not to carelessness.

[359]. Grill v. General Iron Screw Colliery Co., L. R. 1 C. P. at p. 612.

[360]. Kettlewell v. Watson, 21 Ch. D. at p. 706: “Fraud imports design and purpose; negligence imports that you are acting carelessly and without that design.”

[361]. An excellent analysis of the conception of negligence is to be found in Merkel’s Lehrbuch des deutschen Strafrechts, sects. 32 and 33. See especially sect. 32 (1): “negligent wrongdoing is that which is not intentional, but results from culpable inadvertence (Unaufmerksamkeit) or indifference (Gleichgultigkeit). The mental attitude of the wrongdoer consists not in any desire to do harm, but in the absence of a sufficient desire to avoid it. The law is not satisfied with the mere absence of any intention to inflict injury, but demands a positive direction of the will towards the avoidance of it.”

[362]. The distinction between these two forms of negligence is well explained by Merkel, Strafrecht, sect. 33 (3).

[363]. Inst. Just. 4. 3. 7.

[364]. Derry v. Peek, 14 A. C. 337; Le Lievre v. Gould, (1893) 1 Q. B. 491.

[365]. Macarthy v. Young, 6 H. & N. 329; Coughlin v. Gillison, (1899) 1 Q. B. 145. For the same reason the occupier of dangerous premises owes a duty of care to him who comes there on business, but none towards a bare licensee. Gautret v. Egerton, L. R. 2 C. P. 371. Similarly an arbitrator is liable for fraud, but not for negligence or want of skill. Tharsis Sulphur and Copper Co. v. Loftus, L. R. 8 C. P. 1.

[366]. Tillett v. Ward, 10 Q. B. D. 17.

[367]. Hammack v. White, 11 C. B. N. S. 588.

[368]. Metropolitan R. Co. v. Jackson, 3 A. C. 193.

[369]. These negative rules as to negligence commonly assume the form of rules of evidence to the effect that there is no evidence of negligence to go to the jury. But to withdraw a case from the jury on this ground is clearly equivalent to the establishment of a rule of substantive law that the facts proved do not amount to negligence.

[370]. Pluckwell v. Wilson, 5 C. & P. 375.

[371]. As to negligence in law, see Holmes, Common Law, p. 111 sqq.

[372]. See. for example, Smith’s Leading Cases I. 228, 10th ed. (Notes to Coggs v. Bernard.)

[373]. See Hinton v. Dibbin, 2 Q. B. at p. 661, per Denman, C. J.: “It may well be doubted whether between gross negligence and negligence merely any intelligible distinction exists.” Wilson v. Brett, 11 M. & W. at p. 113, per Rolfe, B.: “I said I could see no difference between negligence and gross negligence, that it was the same thing with the addition of a vituperative epithet.” Grill v. General Iron Screw Colliery Co., L. R. 1 C. P. at p. 612, per Willes, J.: “No information has been given us as to the meaning to be attached to gross negligence in this case, and I quite agree with the dictum of Lord Cranworth in Wilson v. Brett that gross negligence is ordinary negligence with a vituperative epithet, a view held by the Exchequer Chamber in Beal v. South Devon Ry. Co.” Doorman v. Jenkins, 2 Ad. and El. at p. 265, per Denman, C. J.: “I thought and I still think it impossible for a judge to take upon himself to say whether negligence is gross or not.” Pollock’s Torts, p. 441, 8th ed. Street’s Foundation of Legal Liability, I. p. 28. See, however, for a full discussion of the matter, and an expression of the contrary opinion, Beven on Negligence, Book I. ch. II.

[374]. D. 50. 16. 226. See also D. 17. 1. 29. pr. D. 47. 4. 1. 2. D. 11. 6. 1. 1.; Lata culpa plane dolo comparabitur.

[375]. R. v. Harvey, 2 B. & C. at p. 264, 26 R. R. at p. 343: “A party must be considered in point of law to intend that which is the necessary or natural consequence of that which he does.” Cf. Freeman v. Pope, 5 Ch. Ap. at p. 540; Ex parte Mercer, 17 Q. B. D. at p. 298.

[376]. In Le Lievre v. Gould, (1893) 1 Q. B. at p. 500, it is said by Lord Justice Bowen: “If the case had been tried with a jury, the judge would have pointed out to them that gross negligence might amount to evidence of fraud, if it were so gross as to be incompatible with the idea of honesty, but that even gross negligence, in the absence of dishonesty, did not of itself amount to fraud.” Literally read, this implies that, though gross negligence cannot be fraud, it may be evidence of it, but this of course is impossible. If two things are inconsistent with each other, one of them cannot be evidence of the other. The true meaning is that alleged or admitted negligence may be so gross as to be a ground for the inference that it is in reality fraud and not negligence at all; see also Kettlewell v. Watson, 21 Ch. D. at p. 706 per Fry, J.

[377]. Stephen, Digest of the Criminal Law, Art. 244, 5th ed.

[378]. Austin, Lecture XX.; Birkmeyer, Strafrecht, sect. 17; Clark, Analysis of Criminal Liability, ch. 9.

[379]. Clerk and Lindsell, Torts, p. 457, 4th ed.: “Negligence is the omission to take such care as under the circumstances it is the legal duty of a person to take. It is in no sense a positive idea, and has nothing to do with a state of mind.” Cf. Pollock, Torts, pp. 437–439, 8th ed.

[380]. The question is discussed in Holmes’s Common Law, pp. 81–96 and in Pollock’s Law of Torts, pp. 136–148, 8th ed.

[381]. As to mens rea in criminal responsibility see Reg. v. Tolson, 23 Q. B. D. 168; Reg. v. Prince, L. R. 2 C. C. 154; Chisholm v. Doulton, 22 Q. B. D. 736.

[382]. The rule is not limited to civil and criminal liability, but extends to all other departments of the law. It prevents, for example, the recovery of money paid under a mistake of law, though that which is paid under a mistake of fact may be reclaimed.

[383]. Regula est juris quidem ignorantiam cuique nocere, facti vero ignorantiam non nocere. D. 22. 6. 9. pr.

[384]. Hollins v. Fowler, L. R. 7 H. L. 757; Consolidated Coy. v. Curtis, (1892) 1 Q. B. 495.

[385]. Reg. v. Prince, L. R. 2 C. C. 154.

[386]. Y. B. 17 Edw. IV. 2.

[387]. Filburn v. Aquarium Co., 25 Q. B. D. 258.

[388]. Black v. Christchurch Finance Co., (1894) A. C. 48.

[389]. Rylands v. Fletcher, L. R. 3 H. L. 330.

[390]. Pickard v. Smith, 10 C. B. N. S. 470.

[391]. Ellis v. Loftus Iron Co., L. R. 10 C. P. 10.

[392]. Exodus xxi. 28.

[393]. Laws, 873.

[394]. Thorpe, Ancient Laws and Institutes of England, I. p. 71, sect. 13.

[395]. 9 & 10 Vict. c. 62; Blackstone, I. 300.

[396]. Inst. Just. 4. 8. and 4. 9.

[397]. Chisholm v. Doulton, 22 Q. B. D. 736. Parker v. Alder, (1899) 1 Q. B. 20.

[398]. Deut. xxiv. 16.

[399]. Laws, 856. On the vicarious responsibility of the kindred in early law, see Lea, Superstition and Force, pp. 13–20, 4th ed., and Tarde, La Philosophie Pénale, pp. 136–140.

[400]. Salmond, Essays in Jurisprudence and Legal History, pp. 161–163; Wigmore, Responsibility for Tortious Acts, Select Essays in Anglo-American Legal History, III. pp. 520–537; Street, Foundations of Legal Liability, II. ch. 41–43.

[401]. Substantive law, as opposed to the law of procedure; civil law, as opposed to criminal.

[402]. Blackstone III. 143. “The child hath no property in his father or guardian as they have in him.” Ibid.

[403]. Leviathan, ch. xxx.; Eng. Wks. III. 329.

[404]. Treatise on Civil Government, II. ch. v. sect. 27.

[405]. Ibid. ch. vii. sect. 87.

[406]. D. 9. 2. 13. pr.

[407]. Droit Naturel, II. sect. 55.

[408]. Principles, p. 231; Works, I. 108. So Puchta, sect. 231: Nur an ... körperlichen Gegenständen ist Eigenthum möglich.

[409]. Supra, § 87.

[410]. The full power of alienation and disposition is an almost invariable element in the right of ownership, but cannot be regarded as essential, or included in the definition of it. A married woman subject to a restraint on anticipation is none the less the owner of her property, though she cannot alienate or encumber it.

Austin (II. p. 790) defines the right of ownership as a “right indefinite in point of user, unrestricted in point of disposition, and unlimited in point of duration, over a determinate thing.”

[411]. Co. Litt. 4 a.

[412]. On this question see Pollock’s Torts, p. 347, 8th ed.; Clerk & Lindsell’s Torts, pp. 337–339, 4th ed.; Salmond’s Torts, § 53 (9); Hazeltine’s Law of the Air; Pickering v. Rudd, 4 Camp. 219; 16 R. R. 777; Fay v. Prentice, 1 C. B. 828; Wandsworth Board of Works v. United Telegraph Coy., 13 Q. B. D. 904; Ellis v. Loftus Iron Coy., L. R. 10 C. P. 10.

[413]. Art. 905.

[414]. Inst. Just. 2. 1. 29. See also Gaius 2. 73: Superficies solo cedit.

[415]. Monti v. Barnes, (1901) 1 K. B. 205.

[416]. It is only by slow degrees and with imperfect consistency that our law has worked out an intelligible principle on this matter. The older law seems to have recognised mere physical attachment as necessary and sufficient, subject to exceptions so numerous and important, as to deprive the principle itself of any rational basis. See, for the modern law on the point, Holland v. Hodgson, L. R. 7 C. P. 328; Monti v. Barnes, (1901) 1 K. B. 205; In re De Falbe, (1901) 1 Ch. 523; (1902) A. C. 157; Elwes v. Brigg Gas Coy., 33 Ch. D. 502. Similar law is contained in Article 95 of the German Civil Code: “Things are not part of the land which are attached to it simply for a temporary purpose.” The case of Reynolds v. Ashby & Son, (1904) A. C. 466, shows, however, that English law has not yet succeeded in adopting with consistency any single and intelligible rule.

[417]. Unlike a chattel, a piece of land has no natural boundaries. Its separation from the adjoining land is purely arbitrary and artificial, and it is capable of subdivision and separate ownership to any extent that may be desired. The lines of subdivision are usually vertical, but may be horizontal. The surface of land, for example, may belong to one man and the substrata to another. Each story of a house may have a different owner. In The Midland Railway Coy. v. Wright, (1901) 1 Ch. 738, it was held that a right had been acquired by prescription to the surface of land belonging to a railway company, although a tunnel beneath the surface remained the property of the company as having been continuously in its occupation.

[418]. Baudry-Lacantinerie, Des Biens, sect. 123: “We know that rights, regarded as incorporeal things, are properly speaking neither movables nor immovables. But by a fiction the law classes them as one or the other according to the nature of their subject-matter.” See also Dernburg’s Pandekten, I. sect. 74.

[419]. For example, the jurisdiction of English courts in the administration of deceased persons’ estates depends on the deceased having left property in England. Portions of revenue law and of private international law are also based on the assumption that all proprietary rights possess a local situation.

[420]. Inland Revenue Commissioners v. Muller & Co.’s Margarine, Limited, (1901) A. C. at p. 230.

[421]. Ibid.

[422]. Dicey, Conflict of Laws, p. 310, 2nd ed.

[423]. There are certain cases, however, which have been decided on the assumption that incorporeal property possesses no local situation at all. For this reason it was held in The Smelting Company of Australia v. Commissioners of Inland Revenue, (1897) 1 Q. B. 172, that a share of a New South Wales patent, together with the exclusive right of using it within a certain district of that colony, was not property “locally situated out of the United Kingdom” within the meaning of sect. 59, sub-sect. 1, of the Stamp Act, 1891. “I do not see,” says Lopes, L.J., at p. 181, “how a share in a patent, or a licence to use a patent, which is not a visible or tangible thing, can be said to be locally situate anywhere.” See, however, as to this case, the observations of Vaughan Williams, L.J., in Muller & Co.’s Margarine, Limited, v. Inland Revenue Commissioners, (1900) 1 Q. B. at p. 322, and of Lord Lindley on appeal in the House of Lords, (1901) A. C. at p. 237. See further, as to the local situation of incorporeal property. Danubian Sugar Factories v. Commissioners of Inland Revenue, (1901) 1 K.B. 545; Commissioner of Stamps v. Hope, (1891) A. C. 476; Att.-Gen. v. Dimond, 1 C. & J. 356; 35 R. R. 732; In re Clark, (1904) 1 Ch. 294; Dicey, Conflict of Laws, pp. 309–314, 2nd ed.

[424]. The matter has been well discussed by Mr. T. C. Williams in L. Q. R. IV. 394.

[425]. Under the head of material things we must class the qualities of matter, so far as they are capable in law of being in themselves the objects of rights. The qualities which thus admit of separate legal appropriation are two in number, namely force and space. Electricity is in law a chattel, which can be owned, sold, stolen, and otherwise rightfully and wrongfully dealt with. 45 & 46 Vict. c. 56, s. 23. Definite portions of empty space are capable of appropriation and ownership, no less than the material objects with which other portions of space are filled. The interior of my house is as much mine as are the walls and the roof. It is commonly said that the owner of land owns also the space above the surface usque ad coelum. Whether this is truly so is a doubtful point as the law stands, but there is no theoretical difficulty in allowing the validity of such a claim to the ownership of empty space.

[426]. The distinction formerly noticed by us (§ 88) between corporeal and incorporeal things must not be confounded with the present distinction between material and immaterial things. The latter is a logical distinction, but the former is a mere artifice of speech. An incorporeal thing is a kind of right, namely any right which is not identified with some material thing which is its subject-matter. An immaterial thing is not a right but the subject-matter of one. It is any subject-matter of a right except a material object.

[427]. Supra § 83.

[428]. Supra § 90.

[429]. Encumbrances are not confined to the law of property, but pertain to the law of obligations also. Choses in action may be mortgaged, settled in trust, or otherwise made the subject-matter of jura in re aliena, no less than land and chattels. Much, therefore, of what is to be said here touching the nature of the different forms of encumbrance is equally applicable to the law of rights in personam.

[430]. Possession by way of security only, e.g., a pledge, is differentiated by its purpose, however, and falls within the class of securities, not within that of leases.

[431]. Beardman v. Wilson, L. R. 4 C. P. 57.

[432]. An example of a lease in perpetuity is the emphyteusis of Roman law. In consequence of its perpetuity the Roman lawyers were divided in opinion as to the true position of the tenant or emphyteuta, some regarding him as an owner and others as an encumbrancer. The law was finally settled in the latter sense. Just. Inst. III. 24. 3.

[433]. The term servitude (servitus) is derived from Roman law, and has scarcely succeeded in obtaining recognition as a technical term of English law. It is better, however, than the English easement, inasmuch as easements are in the strict sense only one class of servitudes as above defined.

[434]. It is only over land that servitudes can exist. Land is of such a nature as to admit readily of non-possessory uses, whereas the use of a chattel usually involves the possession of it for the time being, however brief that time may be. The non-possessory use of chattels, even when it exists, is not recognised by the law as an encumbrance of the ownership, so as to run with it into the hands of assignees.

[435]. An easement, in the strictest sense, means a particular kind of servitude, namely a private and appurtenant servitude which is not a right to take any profit from the servient land. A right of way or of light or of support is an easement; but a right to pasture cattle or to dig for minerals is in English law a distinct form of servitude known as a profit. This distinction is unknown in other systems, and it has no significance in juridical theory. Its practical importance lies in the rule that an easement must (it seems) be appurtenant, while a profit may be either appurtenant or in gross.

[436]. The term security is also used in a wider sense to include not only securities over property, but also the contract of suretyship or guarantee—a mode of ensuring the payment of a debt by the addition of a second and accessory debtor, from whom payment may be obtained on default of the principal debtor. With this form of security we are not here concerned, since it pertains not to the law of property, but to that of obligations.

[437]. The word lien has not succeeded in attaining any fixed application as a technical term of English law. Its use is capricious and uncertain, and we are at liberty, therefore, to appropriate it for the purpose mentioned in the text, i.e., to include all forms of security except mortgages.

[438]. As we shall see, a mortgage by way of transfer is none the less an encumbrance also—an encumbrance, that is to say, of the beneficial ownership which remains vested in the mortgagor.

[439]. It is not essential to a mortgage that the right vested in the mortgagee should in actual fact survive the right secured by it, so as to remain outstanding and redeemable. It is sufficient that in its nature it should be capable of doing so, and therefore requires to be artificially restricted by an obligation or condition of re-assignment or surrender. This re-assignment or surrender may be effected by act of the law, no less than by the act of the mortgagee. The conveyance of the fee simple of land by way of security is necessarily a mortgage and not a lien, whether it revests in the mortgagor ipso jure on the payment of the debt, or does not revest until the mortgagee has executed a deed of reconveyance.

[440]. This is one of the reforms effected by the Torrens system of real property law in force in the Australasian colonies. The so-called mortgages of land under that system are in reality merely liens.

[441]. Applications of the rule of possessory ownership may be seen in the cases of Armory v. Delamirie, 1 Str. 504; 1 Smith, L. C. 343; Asher v. Whitlock, L. R. 1 Q. B. 1; and Perry v. Clissold, (1907) A. C. 73.

[442]. The term prescription (praescriptio) has its origin in Roman law. It meant originally a particular part of the formula or written pleadings in a law suit—that portion, namely, which was written first (praescriptum) by way of a preliminary objection on the part of the defendant. Praescriptio fori, for example, meant a preliminary plea to the jurisdiction of the court. So praescriptio longi temporis was a plea that the claim of the plaintiff was barred by lapse of time. Hence, by way of abbreviation and metonymy (other forms of prescription being forgotten) prescription in the modern sense.

[443]. It is clear, however, that until a debt or other obligation is actually due and enforceable, no presumption against its validity can arise through the lapse of time. Therefore prescription runs, not from the day on which the obligation first arises, but from that on which it first becomes enforceable. Agere non valenti non currit praescriptio.

[444]. C. 2. 3. 20.

[445]. Stat. 8 & 9 Vict. c. 106, s. 2.

[446]. Cochrane v. Moore, 25 Q. B. D. 57.

[447]. D. 50. 17. 54.

[448]. The Factors Act, 1889.

[449]. Continental systems carry much further than our own the doctrine that the possessor of a chattel may confer a good title to it. Article 2279 of the French Civil Code lays down the general principle that En fait de meubles la possession vaut titre. In other words the ownership of a chattel involves no droit de suite or jus sequelae, no right of following the thing into the hands of third persons who have obtained it in good faith. The rule, however, is subject to important exceptions, for it does not apply either to chattels stolen or to chattels lost. Speaking generally, therefore, it is applicable only where an owner has voluntarily entrusted the possession of the thing to some one else, as a pledgee, borrower, depositee, or agent, who has wrongfully disposed of it to some third person. Baudry-Lacantinerie, De la Prescription, ch. 20. See also, for very similar law, the German Civil Code, sects. 932–935, and the Italian Civil Code, sects. 707–708.

[450]. Hereditas ... personam ... defuncti sustinet. D. 41. 1. 34. See Holmes, Common Law, pp. 341–353. Maine, Ancient Law, pp. 181–182.

[451]. Brown v. Burdett, 21 Ch. D. 667.

[452]. Obligatio est juris vinculum, quo necessitate adstringimur alicuius solvendae rei, secundum nostrae civitatis jura. Inst. 3. 13. pr.

[453]. Jacob’s Law Dictionary, cited by Mr. Sweet in L.Q.R. X. at p. 308 n.

[454]. As to the nature of choses in action, see Blackstone, II. 396; Colonial Bank v. Whinney, 30 Ch. D. 261 and 11 A. C. 426; and a series of articles by different writers in the L.Q.R.: IX. 311, by Sir Howard Elphinstone; X. 143. by T. C. Williams; X. 303. by C. Sweet; XI. 64. by S. Brodhurst; XI. 223, by T. C. Williams; XI. 238. by C. Sweet.

[455]. As we shall see, the creditor is not always entitled to sue one alone of the debtors; but when he has obtained judgment against all, he can always, by way of execution, obtain payment of the whole from any one.

[456]. Ward v. The National Bank, 8 A. C. 755.

[457]. (1899) 1 Q. B. 840.

[458]. At p. 845.

[459]. For another illustration, see Sadler v. Great Western Ry. Coy., (1896) A. C. 450.

[460]. Morris v. Robinson, 3 B. & C. 196; 27 R. R. 322.

[461]. Supra, § 123.

[462]. It is advisable to point out that the obligation to pay damages for a breach of contract is itself to be classed as contractual, no less than the original obligation to perform the contract.

[463]. A similar relation exists between breaches of contract and crimes. Breach of contract is not in itself a crime, any more than it is in itself a tort; yet by undertaking a contractual duty, a man may often put himself in such a position, that he cannot break the duty without causing such damage to third persons, as will create criminal liability. For example, a signalman’s breach of his contractual duty to attend to the signals may amount to the crime of manslaughter if a fatal accident results from it.

[464]. Salmond’s Law of Torts, p. 5.

[465]. Grant v. Easton, 13 Q. B. D. 302.

[466]. Commentaries II. 443.

[467]. Ibid. III. 159.

[468]. Ibid. III. 162.

[469]. Commentaries III. 160. “A cause of action of contract arises not merely where one party has broken a legally binding agreement with the other, but where two parties stand in such a mutual relation that a sum of money is legally due from the one to the other, in which case the law is said to imply a contract to pay the money.” Clerk and Lindsell, Law of Torts, p. 1.

[470]. Grant v. Easton, 13 Q.B.D. at p. 303.

[471]. Moses v. Macferlan, 2 Burr. 1005 at p. 1009.

[472]. Exall v. Partridge, 8 T. R. 308; 4 R. R. 656.

[473]. Smith v. Baker, L.R. 8 C. P. 350. See further as to the waiver of torts, Lightly v. Clouston, 9 R.R. 713; 1 Taunt. 112; Phillips v. Homfray, 24 Ch. D. at p. 461; Salmond, Law of Torts, § 44.

[474]. County Courts Act, 1888, s. 116. This classification of actions is discussed by Maitland in an appendix to Sir F. Pollock’s Law of Torts.

[475]. Contracts which have no specific name are called by the civilians contractus innomnati.

[476]. A conclusive presumption is sometimes called a presumptio juris et de jure, while a rebuttable presumption is distinguished as a presumptio juris. I am not aware of the origin or ground of this nomenclature. The so-called presumptio facti is not a legal presumption at all, but a mere provisional inference drawn by the court in the exercise of its unfettered judgment from the evidence before it.

[477]. See Bentham, Works, VII. pp. 445–463, and Dumont, Treatise on Judicial Evidence, Book VII. ch. 11: “If all the criminals of every class had assembled, and framed a system after their own wishes, is not this rule the very first which they would have established for their security?... One could be tempted to believe that those notions had been taken from the laws of honour which regulate private combats.”

[478]. Leviathan, ch. 14. Eng. Works III. p. 129.

[479]. On the history of oaths, see Lea, Superstition and Force, Part I. ch. 2–8; Encyclopædia Britannica, sub voc. Oath; Hirzel, Der Eid (1902). As to their utility, see Bentham’s Works, VI. 308–325.

[480]. Vide supra, § 10.

[481]. Supra, § 5.

[482]. Thorpe, Ancient Laws and Institutes of England, i. 159; Laws of King Edward, pr.

[483]. Ibid. i. 171; Laws of Edward and Guthrum, 6.

[484]. Ibid. i. 181; Oaths, 3.

[485]. See e.g. Mirror of Justices (Selden Society’s Publications, vol. vii.), passim.

[486]. D. 1. 1. 11.

[487]. Jus is also used in various other derivative senses of less importance: e.g., a law court (in jus vocare), legal or rightful power or authority (sui juris esse: jus et imperium), legal decision, judgment (jura dicere). See Nettleship, Contributions to Latin Lexicography, sub voc. Jus.

[488]. See Clark, Practical Jurisprudence, p. 18. We owe to Professor Clark a very careful and scholarly investigation of the whole subject-matter of this inquiry. See also Skeat’s Etymological English Dictionary, sub voc. just; Manuel des Antiquités Romaines, vol. 6, part i. p. 352, note 4: Miller’s Data of Jurisprudence, p. 33.

[489]. Nettleship, Contributions to Latin Lexicography, sub voc. Mos.

[490]. Practical Jurisprudence, p. 51.

[491]. Dike is said to be derived from DIK, to show, point out, make known, this being itself a form of DA, to know; hence, practical knowledge, skill, the way a thing is done, custom. This suggestion might be considered ingenious, rather than convincing, were it not for the singular fact that the Teutonic languages exhibit a precisely similar process of thought. The English substantive wise means way or manner, and is yet the same word as wise, the adjective, and is derived from the root WID, to know. See also with the German Weise (way), weisen(to point out, direct), weise (wise). See Curtius, Grundzüge der Griechischen Etymologie, sub voc. dike. Skeat, sub voc. Wise, and list of Aryan Roots, 145 and 372.

[492]. Skeat, Aryan Roots, 162.

[493]. On the whole matter see Maine, Ancient Law, ch. 1; Clark, Practical Jurisprudence, p. 42; Liddell and Scott, sub voc. themis; Hirzel, Themis Dike und Verwandtes (1907).

[494]. Manuel des Antiquités Romaines, vol. 6, part i. p. 351; Nettleship, sub voc. Lex.

[495]. Cited by Nettleship, sub voc. Lex.

[496]. Just. Inst. i. 2. 4.

[497]. See Ducange, sub voc. Lex.

[498]. See Ducange, sub voc. Lex.

[499]. Ibid.

[500]. Ibid.

[501]. See Murray’s New English Dictionary, sub voc. Doom.

[502]. Thorpe, Ancient Laws and Institutes of England, vol. i. p. 55; Laws of King Alfred, sect. 49.

[503]. Ibid. sect. 43.

[504]. Ibid. vol. i. p. 273; Laws of King Edgar, Supplement, sect. 2. In Scottish legal procedure the word doom is still used in the sense of judgment; the death sentence is “pronounced for doom”: Miller’s Data of Jurisprudence, p. 292.

[505]. Manuel des Antiquités Romaines, vol. 6, pt. i., p. 351, n.

[506]. See Smith’s Latin Dictionary, sub voc. lego.

[507]. Nettleship, sub voc. Lex.

[508]. Clark, p. 31.

[509]. Muirhead, Historical Introduction to the Private Law of Rome, p. 19.

[510]. Skeat, sub voc. Law; Clark, p. 68.

[511]. Much information as to the etymology and early meanings of legal terms is to be found in Miller’s Data of Jurisprudence, passim. See also Walker’s Science of International Law, pp. 21–25.

[512]. Supra, § 41.

[513]. As to the severance of legislative and executive sovereignty in the British constitution, see Anson, Law and Custom of the Constitution, Part I. pp. 39–41, 3rd ed.

[514]. As to the divisibility of sovereign power, see Bryce’s Studies in History and Jurisprudence, II., p. 70: “Legal sovereignty is divisible, i.e., different branches of it may be concurrently vested in different persons or bodies, co-ordinate altogether, or co-ordinate partially only, though acting in different spheres.” For a statement of the contrary opinion see Brown, Austinian Theory of Law, p. 174.

[515]. Leviathan, ch. 20. Eng. Works, III. 194.

[516]. I. 263.

[517]. The distinction between de jure or legal and de facto or practical sovereignty—sovereign power in law and sovereign power in fact—is admirably expressed and analysed in Bryce’s Studies in History and Jurisprudence II., pp. 49–73.

[518]. Fragment on Government, ch. 4. sects. 35, 36.

[519]. We have already seen that the state may and does owe legal duties to its subjects, but that these duties are necessarily imperfect and unenforceable. Supra, § 79.

[520]. For authorities, see § 57.

[521]. As to the possibility of legal limitations of sovereign power, see Jellinek, Das Recht des modernen Staates, I. pp. 432–441; Pollock, Jurisprudence, pp. 270–273; Sidgwick, Elements of Politics, pp. 23–29; 623–638; Bryce, Studies in History and Jurisprudence, II. 71. “Legal sovereignty,” says Dr. Bryce, “may be limited, i.e. the law of any given state may not have allotted to any one person or body, or to all the persons or bodies taken together, who enjoys or enjoy supreme legislative or executive power, the right to legislate or to issue special orders on every subject whatever.” Brown, Austinian Theory of Law, pp. 158–164. “The Austinian position,” says Professor Brown, “that a supreme legislature is incapable of legal limitation, is a position which does not rest, as Austin supposes, upon logical necessities, but upon the humbler ground of expediency.”

[522]. No small part of this branch of the law of status, however, may be conveniently dealt with in connexion with various departments of the law of property and obligations. It may be best, for example, to discuss the contractual capacity of different classes of persons in the law of contracts, instead of in the law of the personal status of these persons.

[523]. Blackstone, however, is sufficiently scrupulous in respect of logical arrangement to include them in this department of the law.

TRANSCRIBER’S NOTES

  1. P. [468], changed “In all cases, therefore, sovereign power is necessarily present somewhere, but it is not in a  cases to be found in its entirety within the borders of the state itself” to “In all cases, therefore, sovereign power is necessarily present somewhere, but it is not in all cases to be found in its entirety within the borders of the state itself”.
  2. P. [471], changed “In this view, law and legal obligation are co-extensive, and the legal limitation of supreme power appears to involve the subjection of the possessor of it to legal obligations in respect to the exercise of   .” to “In this view, law and legal obligation are co-extensive, and the legal limitation of supreme power appears to involve the subjection of the possessor of it to legal obligations in respect to the exercise of it.”
  3. Silently corrected obvious typographical errors and variations in spelling.
  4. Retained archaic, non-standard, and uncertain spellings as printed.