JURISPRUDENCE

T.

8 65

7^

E.

HOLLAND

THE

ELEMENTS
OF

JURISPRUDENCE
BY

THOMAS ERSKINE HOLLAND,

K.C.

BBNCHBR OF LINCOLN'S INN

SOMETIME CHICHELE PROFESSOR OF INTERNATIONAL LAW AND DIPLOMACY
FELLOW OF ALL SOULS COLLEGE
D.C.L., HON. LL.D. OF THE UNIVERSITIES
OP BOLOGNA, GLASGOW, DUBLIN AND BRUSSELS
P.B.A., ASSOCLATB.DF THE ROYAL ACADEMIES OF BELGIUM, BOLOGNA AND PADUA
HON. PROFES.SOR IN THE UNIVERSITY OF PERUGIA
HON. MEMBER OF THE UNIVERSITY OF ST. PETERSBURG, OF THE
AMERICAN SOCIETY OF INTERNATIONAL LAW, AND OF
ITkMtseH,

THE JURIDICAL SOCIETY OF BERLIN

LATE PRESIDENT, OF THE IN9TITUT DE DROIT INTERHATIOMAI,

TWELFTH EDITION

OXFORD UNIVERSITY PRESS

AMERICAN BRANCH

NEW YORK

London

2935
:

WEST 32nd STREET

Humphrey Milford
1917

J5

6A^

Ampllssimum

luris

Oceanum

fontes limpidos rectae rationis.

ad

paucos

revocare

Leibnitz, Ep. ad Magi.,

xxvii.

Das bedarf heutzutage keiner Bemerkung,

dass das

System, ebensowenig beim Recht wie bei jedem andern

Gegenstande, keine Ordnung sein

Saclie

hineinbringt, sondern

herausliolt.

soil,

eine

Jhering, Geist des R.

*..*

'

icpijxWiMY J?n

BY
* '

rfMEfiCSAN "BltAif CH*

die

man

solehe,
i?.,

i.

in

die
p. 36.

die

man

JfHy

V
'-

v..

PREFACE
TO THE FIRST
The legal systems of
common derivation from

EDITIOI^.
owe to their
Kome, not only

the continent
the law of

a uniform legal nomenclatui'e, but also a generally

accepted method, which at once assigns any newly

developed principle to

its

proper place, and has greatly

facilitated the orderly exposition of those

systems

in

the form of codes.

In England, on the other hand, legal nomenclature

is

a mosaic of

many

languages, and the law

itself,

as

expounded by Coke and Blackstone, except so far as

it has been deduced with much logical punctiliousness
from the theory of feudal tenure, is little more than
a collection of isolated rules, strung together,

if

at

by some slender thread of analogy. The

practitioner has been content to find his way through
it, as best he might, by the help of the indices of
all,

onl}^

i'REFACE TO THE FIRST EDITION.

VI

means

text-books, or by

of 'Abridgments,' or so-called

'Digests,' arranged mider alphabetical

titles.

a step in advance when it occurred to Mr.

Smith to publish a series of Leading Cases,'
selected almost at random, and to groui3 I'ound each
a collection of subordinate decisions, in which the
It

J.

was

W.

rule

'

recognised

tracked in

in

the principal case

Of

various applications.

its

similar nature

Dr. Broom's

is

'

is

deviously

somewhat

Selection of Legal

Maxims,' which explains the workings in different

departments of law of a string of principles, such as
those which are collected in the
'

de Kegulis

principles to

luris.'

be remarked that the

which reference

'Leading Cases' and

Bacon would

may

It

call

'

of the Digest

title

is

made,

alike in the

'Maxims,' are but what

in the

media axiomata,' which neither work

attempts to exhibit in their mutual relations, or to

deduce from the higher

princijiles of

which they are

corollaries; also that the search for these principles is

an enquiry into the ethical reasons by which English

law ought to be moulded, not an analysis and

classi-

fication of legal categories.

There have been of

in the

late

years signs of a change

mental habit of English lawyers.

Distaste for

comprehensive views, and indifference to foreign modes

of thought, can

The change

characteristics.

of the study of

no longer be said

Roman

is

to

be national

due partly to a revival

growing famili-

law, partly to a

arity with continental life

and

investigations as those of Sir

literature, partly to

H. Maine

into the origin

of legal ideas, but chiefly to the writings of

and Austin.

To

the latter especially

such

Bentham

most Englishmen

PREFACE TO THE FIRST EDITION.

vii

are indebted for such ideas as they possess of legal

The

method.
mined,'

Province of Jurisprudence Deter-

'

indeed a book which no one can read

is

without improvement.

It presents the spectacle of a

powerful and conscientious mind struggling with an

and rarely handled mateiial, while those

distinctions upon which Austin after his somewhat

intractable

superfluously careful

put

manner bestows most labour are

in so clear a light that

they can hardly again be

lost sight of.

The

defects of the

recognised than
mentary.

The

its

work

merits.

writer

It

is

apt to recur with painful

is

iteration to certain topics

of his

more widely
avowedly frag-

are even

and he leaves large

subject wholly unexplored, while

much space

tracts

devoting

upon questions, such as the

psychology of the will, codification, and utilitarianism,
which have no necessary connection with his main
argument.

to digressions

It

may be

asserted, without injustice either

Bentham or to Austin,
by Enghsh writers have

to

that

works upon

legal s^^stem

hitherto been singularly un-

systematic.
It is

long since the author formed the hope of

attempting to write a treatise upon legal ideas which

should at least be free from this particular fault, and
the objects which he proposed to himself differed so

considerably from

those

Markby's 'Elements of
that very valuable

Law'

at

in

Mr. Justice

that the appearance of

work did not dissuade him from the

prosecution of his design.

not gained so

aimed

much

In carrying

it

out he has

assistance as he expected from the

legal literature of the continent.

He

soon discovered

PREFACE TO THE FIRST EDITION.

viii

name

was unknown in
had been written in that
comitry with a direct bearing upon analytical jurispru-

not only that the

Germany, but that very

dence.

The

of Austin

Httle

latter fact is not so surprising as

it

may

be remembered that the continental jurists

appear,

if it

find in

Roman law

a ready-made terminology and a

upon which they are little inclined to

From treatises upon I^aturrecht,' which

typical method,

innovate.

may

'

be described as

'

Jurisprudence in the

derived next to nothing

padie and Methodologie

'

much

too

'

air,'

he has

and works upon Encyclo'

'

are generally too brief, and

infected with a priori conceptions, to have

been consulted with much

pi-ofit.

found, where

at first

it

might not

More help has been

be looked

for, in the

numerous works, usually entitled Pandekten,' in which

the Germans have set forth the Roman law as it has
been modified with a view to modern convenience. Foremost among these must be mentioned von Savigny's
System des heutigen Romischen Rechts.'
Still less has been derived from the other modern
literatures; and after a general survey of the subject
the author set to work to think it out for himself,
resolving to traverse the whole of it, and to hold a
'

'

straight course through

hand nor
ing.

to the left into

it,

turning neither to the right

any digression however tempt-

He now offers the result of his labours, which

has

been much delayed by other and more pressing engagements, to the indulgence of those

who

best

know

the

extent and difficulty of the topic of which he has

attempted to give a complete and consistent view.

T. E. H.
Oxford, March

20, 1880.

PREFACE TO THE THIRD EDITION.

IX

PREFACE TO THE SECOND EDITION.

This edition has been carefully revised, and contains a
good deal of new matter. The author has to thank several
of his reviewers, whose articles form in themselves valuable
contributions to the literature of the subject, especially
Mr. A. V. Dicey and Mr. F. Pollock. He is also indebted to
previously unknown correspondents, such as Mr. R. Foster
of the New York Bar, who have been good enough to favour
him with private communications upon points suggested by
He takes this opportunity of
their reading of the book.
explaining, with particular reference to an able article by
Mr. A. Tilley, that the method which he has followed, as best
exhibiting the scientific order of legal ideas, is not, in his
opinion, necessarily that which would be found most conHe has elsewhere
venient for the arrangement of a Code.
pointed out that logical division should be to the codifier what
anatomy is to the painter. Without obtruding itself upon
the surface, it should underlie and determine the main features
of every systematic exposition of law.
T. E. H.

Oxford, August

25,

1882.

PREFACE TO THE THIRD EDITION.

In preparing this edition for the press, the author has
throughout taken account of the development both of positive
law and of legal theory, in this and other countries, during
the last three years, so far as he has been able to follow it.
He has also worked out in greater detail than before, though
it is hoped without detriment to the general proportions of
the book, the difficult topics dealt with in Chapter VIII, and
what he ventures to think the important question, raised in
Chapter XII, as to the necessity of agreement in contract.
Upon many points he has found help in the elaborate
reports upon foreign law which some of the governments of
the continent are careful to have drawn up before proposing
serious legislative changes. No one can consult these reports
without wishing that something of the kind were more usual
in this country, where a legal principle which has elsewhere
long been discussed from every point of view, is not unfrequently treated in Parliament, and even by the Courts, as
a novelty.
T. E. H.
Oxford, January 31, 1886.

PREFACE TO THE EIGHTH EDITION.

PREFACE TO THE FOURTH EDITION.

In revising

has been taken to introduce

from recent English cases,
in which one seems to remark a growing tendency towards
scientific generalisation. The author has reason to be more
than ever convinced of the truth of what may perhaps be
described as the 'objective' theory of Contract, maintained in Chapter XII. He has seen with pleasure that the
method of this work has been followed as the most logical
and most exact/ by Mr. Stimson in compiling his American
as

much

this edition, care

illustration as possible

'

Statute Law: an Analytical and Compared Digest of the

Constitutions and civil public Statutes of all the States and
Territories, relating to persons and property; and that much
of its terminology has been adopted in the able treatise of
Professor Terry, of Tokio, Some Leading Principles of

Anglo-American Law, expounded with a view

ment and Codification.

to its

Arrange-

T. E. H.
Oxford, December

i,

1887.

PREFACE TO THE EIGHTH EDITION.

No pains have been spared to make this edition an improvement upon its predecessors. The Prefaces to the editions of 1890, 1893, and 1895 have not been reprinted, but
it may be worth while to repeat the statement, made in
1893, that 'in compliance with a wish expressed in many
quarters, especially by Oriental students, the author has
translated the German and Greek definitions which occur
in the earlier chapters, though well aware how much of the
meaning of the former at any rate must perish in the process.' Many references have now been made to the new
Civil Code for Germany, which became law last month.
This great work, the result of twenty years of well-directed
labour, differs materially from the draft Code, to which
allusions will be found in the sixth and seventh editions.
Few more interesting tasks could be undertaken than a
comparison in detail of this finished product of Teutonic
legal science with the Code Civil, which has so profoundly
affected the legislation of all the Latin Races.

T. E. H.
Oxford, September

15, 1896.

PREFACE TO THE TWELFTH EDITION.

xi

PREFACE TO THE TENTH EDITION.

The

preparation of this edition has been delayed

by-

more pressing engagements of the author, which have

obhged him to resort to the temporary expedient of a reprint of the previous edition. He has now carefully revised
the work, adding much new matter suggested, in more
than usual abundance, by recent decisions and discussions.
While rejoicing that increased attention is now devoted,
on both sides of the Atlantic, to the subject of legal method,
he cannot help thinking that the order of the German Civil
Code, which has been unavoidably followed in Mr. Jenks's
interesting attempt to exhibit English law also in the form
of a Code, in so far as it treats of Obligations before Rights
in rem, is less convenient, as well as less scientific, than
that derived from the Roman institutional writers.
It may be desirable to repeat that this book has been
copyrighted in the United States since 1896, and that an
unauthorised edition, issued in the same year at St. Paul,
Minnesota, was taken, not, as is stated in the Publishers'
Preface,' from a (then non-existent) ninth English edition,
but, as indeed appears from the title-page, from the seventh
*

edition, published in 1895.

T. E. H.
Oxford, June

1,

1906.

PREFACE TO THE TWELFTH EDITION.

In the preparation of this edition the author has aimed
at producing a text which may be regarded as practically
final, although future issues of the work may be illustrated
by annotations chronicling the movement of legislation
and case-law, British and foreign.

The task thus undertaken has required an expenditure of

time and labour exceeding, probably, that demanded by
any preceding new edition. The old adage 'silent leges
inter arma' needs some qualification.
The reader will,
indeed, find that a considerable amount of new matter
has been suggested to the author by the gigantic struggle

now

in progress.

T. E. H.
Oxford, November

30, 1916.

CONTENTS.
PART

LAW AND

I.

RIGHTS.

CHAPTER
Jurisprudence

CHAPTER

II.

Law

14

CHAPTER
Laws

PAGE

I.

as Rules of

Human

Action

CHAPTER
Positive

III.

25

IV.

Law

43

CHAPTER
The Sources of Law

V.
55

CONTENTS.

XIV

CHAPTER

VI.

PAGE

The Object of Law

78

CHAPTER

VII

Rights

3j

CHAPTER

VIII.

Analysis of a Right

CHAPTER
The Leading

CHAPTER

PART

90

IX.

Classifications of Rights

Rights at Rest and in Motion

125

149

X.
.

II.

PRIVATE LAW.
CHAPTER XL
Antecedent Rights

'

in

rem

'66

'

CHAPTER
Antecedent Rights

'

in personam

CHAPTER

Remedial Rights

XII.
'
.

241

XIII.

........

320

CONTENTS.

CHAPTER XI

XV

\-

PAGE

Abnormal Rights

CHAPTER XV.
Adjective

Law

355

PART

III.

PUBLIC LAW.
CHAPTER

XVI.

The Nature of the Topic

363

Constitutional

Law

367

Administrative

Law

371

Criminal

Law

375

Criminal Procedure

The Law of the State

Civil Procedure by

as a Person

....

and against the State

PART

378

384
385

IV.

INTERNATIONAL LAW.
CHAPTER

XVII.

The Nature of the Topic

388

International Persons

392

Law

394

Adjective Law, Belligerency

400

Substantive

tf

Neutrality

403

CONTENTS.

Xvi

PART

V.

THE APPLICATION OF LAW.

CHAPTER

XVIII.

The Nature of the Topic

......

The Application

Law

of Private

Law

....

...

Public

International

Index

Law

PAGE
406
407

.422

429

43^

TABLE OF CASES
ENGLISH, SCOTCH, COLONIAL,
Ashby
A.

Lindsell, 269.

Midland Ry.

Ashford v. Thornton, 356.

Atkinson v. Newcastle Waterworks Co., 253.
Attorney-General v. Panter,
Attorney-General
of British

Austin

V.

Amalg. Soc. of Ry. Servants

Osborne, 339.
America, the, 181.
Angus V. Dalton, 224.
Anon., 239.
V.

Appleby v. Franklin, 335.

Arkwright v. Newbold, 238.
v. Delamirie, 203.

Lane, and
v.
Yorks. Ry. Co., 154.
Ashbury Carriage Co. v.
Riche, 346.

Armstrong

Trustees
214.

Gt. Western Ry.

Co.,

B.

254.

Armory

v.

Museum,

Co., 254.

Allen V. Flood, 169, 187.

V.

White, 150, 154,

110.

v. Jarvis, 239.

Alabaster v. Harness, 380.

Aldred's Case, 225.
Alexander v. Perry, 283.

Alton

V.

252.

Abernethy v. Hutchinson,
page 212.
Abrath v. N. E. Ry., 188.

Adams v.
Adamson

AND AMERICAN.

De Crespigny, 297.
Bainbridge v. Firmstone, 284.
Bainbridge v. PostmasterBailey v.

General, 132.

Baker

v. Snell, 153, 172.

Ball, ex parte, 335.

Banner, ex parte, 118.

Barnes v. Toye, 349.
Barrett v. Assoc. Newspapers,
188.

Baxter

Beake

v.

Portsmouth, 251.

v. Tyrell, 427.

TABLE OF CASES.

XVlll

Beamish

Behn

Beamish,

v.

Beard, in

re,

69.

Bm^ness, 309.

v.

Bussy

Amalg. Soc. Ry.

V.

Servants & Bell, 187.

Butler and Baker's Case,

276.

Berdell v. Parkhurst, 350.

Bernina, the, 154.

Butterly v. Vyse, 240.

Bethell v. HilHard, 177.

Byrne v. Van Tienhoven,

256.

269.

Bidleson v. Whytel, 258.

C.

Bilbie v. Lumley, 111.

Brown, 273.
Blackbm"n v. Vigors, 275.

Caird

Blain, ex parte, 413.

Caledonian Railway Co. v.

Walker's Trustees, 69.
Carlill V. Carbohc Smoke-ball

Bird

V.

Blyth V. Birmingham Waterworks Co., 113.

Boileau v. RutHn, 334.
Bolton V. Lambert, 273.

Bonham's Case, 37.

Bonomi v. Backhouse,
Boston

Co.

Ice

v.

150.

Potter,

Bradford Corporation v. Fer-

v.
v.

v. Dacres, 110.

Salomon, 343.
Metr. Ry. Co.,

269, 272.

Bromage v. Genning, 259.

Bromage v. Prosser, 184.
Brown v. Brandt, 253.
Brown v. Kendall, 113.
Brunsden v. Humphrey, 169,
v. Gross, 102, 203.

153.

v.
v.

Chisholm

v.

Georgia, 48.

C. S. Co-op. Socy. V. General

Co., 315.

Clark V. Chambers, 153.

Clayton v. Clark, 316.
Cobbett V. Grey, 171.

Cochrane v. Moore, 256.

Coggs V. Bernard, 65, 284.
Collen

V.

Colhns

Wright, 239.
Evans, 239.
Home and Colonial

V.

Colls V.

Stores, 224.
v.

Eastern Counties

Ry., 346.

Bank

v.

Whinney,

210, 313.

Burgess, 212.

March Gas

Wilhamson,

v.

Chanter v. Hopkins, 309.

Chasemore v. Richards, 208.
Chatham Furnace Co. v.

Colonial

Buller V. Crips, 62.

Burrows

312.

Colman

324.

Burgess

Lord, v. Paschal,

Carteret,

Steam Nav.

eral, 177.

Brogden

Co.,

Moffatt, 238.

raud, 56.

Bright V. Boyd, 250.

Brinkley v. Attorney-Gen-

Brisbane
Broderip

W. Ry.

332.

Bowen v. Hall, 182.

Bower v. Peate, 331.

Buckley

Co., 262, 267, 268, 276.

Carr v. L. and N.

Chamberlain
Jones, 265.

V.

v.

263.

265.

Boulton

Sime, see Sime

v.

Caird.

Co.,

Colonial Secretary v. Davidson, 283.

TABLE OF CASES.
v. Hamilton
Manuf. Co., 373.

Commonwealth
Commonwealth

Hay den,

v.

377.

Commonwealth V.Pierce,
Cook V. Fountain, 74.
Cooke
Cooke

114.

Davies v. Davies, 303.

Davis V. Duke of Marlborough, 74.

Day V. Savage, 37.

Debenham v. Mellon, 274.
De Cairos Bros. v. Caspar,

V. Gill, 324.

Midi. G.

V.

282.

W. Ry.

of

Dickenson
Dietrich

Ireland, 173.

Cooper

Phibbs, 15.

V.

XIX

95.

Di Lorenzo

Corelli v. Wall, 190.

Blossom, 151.
Cork
Cornford v. Carlton Bank,
345.

Donaldson

Cotterell v. Jones, 189.

Douglass

V. Steel, 253.

Cowan
Cowan

Drake

v. Hastie, 265.

Co.

Drew

v.

60.

Boulay

v.

Dulieu

D.

V.

Higgins, 269.
v.

Alexander, 269.

Daimler Co. v. Continental

Tyre and Rubber Co.,

Rev. Commissioners,

Darrell v. Tibbetts, 307.

Wood-

ward, 255, 371.

67,

228.
v. L.

155.

Co., 151.
v. Burchell, 274.

Eaton

Jacques, 231.

V.

Edelstein v. Schuler, 61.

L Ry.

S.

W.

Ry.,

Co. V. K. Mucker-

jee, 298.

Ellis V.

and

Co. v.

Eastland

E.

Magniac,

S. Africa Tel.

Cape Town Tramways

v.

213.

Davey

E.

East and

344.

v.

Boulay,

White, 174.

V.

Dunmore

Danubian Sugar Factories

Du

211.

Dunlop

Dashwood

Drummond,

155.

Du

v.

264.

Dublin, &c. Ry. v. Slattery,

Currie v. Misa, 284.

Cuthbert v. Gumming,
Cutting Case, the, 426.

Nunn,

V.

68.

Arkansas, 343.

Dartmouth College

Pike,

Auburn City Ry.,

v.

Drummond

Cox V. Midland Ry., 273.

Cundy v. Lindsay, 262.

Inl.

of

153.

V.

v.

Beckett, 212.

v.
V.

70.

Milbourne, 64.
V. O'Connor, 269.
Cowley V. Cowley, 211.

Curran

Di Lorenzo,

Dockrell v. Dougall, 211.

Donald V. Suckling, 232.

Cornish v. Abington, 263.

Couturier

v.

176.

V.

Couch

Dodds, 268.
Northampton,

v.

v.

London and

S.

Ry., 553.

Evans

v.

Edmonds,

238.

W.

TABLE OF CASES.

XX

Falke v. Scottish Imperial Insurance Co., 252.

Farrow v. Wilson, 315.
Farwell v. Boston and Wore.
Ry. Co., 156.
Feltham v. England, 156.
Ferguson v. W. Union Tel.

Gordon v. Harper, 204.

Gore V. Gibson, 251.
Gray v. Brown, 179.
Greenlands

v.

Wilmshurst,

&c.. Association, 187.

Grey

v. ElHson, 266.
Grierson v. Eyre, 74.

Grill V.

Gen. Iron Screw Col-

liery Co., 114, 299.

Co., 173.

H.

Ffoulkes V. Metr. Distr. Ry.

Hall V. Barrows, 212.

Co., 254.

Finlay v. Chirney, 332.

Fitz-John v. Mackinder, 189.
Fleckner v. U. S. Bank, 273.
Fletcher v. Rylands, 150.

Foakes v. Beer, 316.

Foot V. Card, 174.

211.

Harrison

Foster v. Mackinnon, 261.

Freeman v. Cooke, 263.

Frost V. Knight, 319.
G.
v.

Dubuque,

Heaven
67,

70.

George v. Skivington, 173.

Gerhard v. Bates, 152.
Gibbons v. Budd, 298.
Giblan v. National Labourers'

Gibson
Gibson

Union, 187

v. E. I. Co., 345.
v.

v.

D. of Rutland,

188.

Hart V. Frame, 115.

Hawthorne, in re, 413.
Haynes v. Haynes, 257.
Hearne v. Garton, 377.

V. Pritchard, 74.

Gelpeke

Evans, 183.

v.

Pender, 116.

Hebditch v. Mcllwaine, 185.

Henderson v.
Folkestone

Water v/orks Co., 70.

Henthorne v. Eraser, 269.
Heurtebien

v.

Esmault-Pel-

terie, 191.

Hill V.

Tupper, 229.
v. Macleane, 285.

Hoadley

Hobbs

V.

Glasgow Ry.,

154.

Gilchrist, ex parte, 210.

Hochster

Gilmour v. Supple, 217.

Glamorganshire Coal Co. v.
S. Wales Miners' Federa-

Holmes v. Mather, 151.

Honeywood, in the goods

tion, 187.

Good V. Cheeseman, 316.

Goodwin v. Robarts, 61.

v.

Brand, 208.
Hanfstaengl v. Baines, 212.
Hanfstaengl v. Empire Co.,
Harris v. Brisco, 189.

Foote's Case, 64, 382.

Fores v. Wilson, 181.

Gee

Hallett's Estate, in re, 75.

Hammersmith Ry. Co.

Holman

v.

v.

Delatour, 319.

Johnson, 37.

183.

Hopwood
Horah

v.

v. Thorn, 185.
Horah, 176.

of,

TABLE OF CASES.

XXI

Household Fire and Carriage

Lampleigh v. Braithwait, 252,

Co. V. Grant, 269.

Hurst V. Picture Theatres,

Lansdowne

Ld., 229.

Hyde
Hyde

v.
v.

v.

Lansdowne,

109.

Latless v. Holmes, 110.

Hyde, 177.
Wrench, 267.

HydrauHc Engineering Co.

285.

v.

McHaffie, 259.
I.

Imperial Loan Co. v. Stone,

351.

Lawrence v. Fox, 257.

Laythoarp v. Bryant, 284.
Leask v. Scott, 70.
Lee V. Bude, 38.
Lee V. Griffin, 296.
Lemaistre

v.

Davis, 225.

Leslie v. Shiell, 310, 349.

J.

Jacobson v. Norton, 282.

Janson v. Driefontein Cons.

Mines

Co., 276.

Jeffreysv.Boosey,67,211,212.

Johnson v. Pie, 349.

Johnstone v. Marks, 349.
Jolly V. Kine, 224.
Jolly V. Rees, 274.

Jones V. Broadhurst, 314.

Jones V. Hulton, 183.

Levene v. Brougham, 310.

Lewis V. Holmes, 173.
Lipton V. Buchanan, 282.
Liverpool Insurance Co. v.
Mass., 99.

London
London

v.

Keeble v. Hickeringill, 186.

Kelly V. Metr. District Ry.
Co., 254.

Kendall

v.

Kenyon

v.

37.

Board

v.

Wright, 255.

London Street Tramways Co.

V. London County Council,

69.

Longmeid
K.

Wood,

School

v.

Holliday, 173,

239.

Lord Advocate V. Young, 199.

Lord V. Lord & Lambert,
178.

Hamilton, 333.
Hart, 191.

Keppel V. Bailey, 225.

King V. Hoare, 333.
King V. Lake, 184.
Kneesy v. Exner, 174.
Knight V. Gibbs, 153.
Knox V. Mackinnon, 114.
Krell V. Henry, 315.
Kujek V. Goldman, 239.

Lord

V. Price, 204.

Louisa van den Berg, re, 282.

Lowery v. Walker, 173.

Lumley v. Allday, 185.

Lumley v. Gye, 182, 186.
Lynch v. Knight, 153, 173,
175.

Lynch
Lynch

v.

McNally,

v.

Nurdin, 154.

153.

M.
L.

Lamond

v.

Lamphier

Richard, 253.

v. Phipos, 115.

McCoun

R. R. Co., 255.
Macmillan & Co. v. Dent,
211.

V.

TABLE OF CASES.

XXll

Malan

v. Secretan, 283.

Malloy

N.

V. Starin, 153.

Mangau

v.

Atherton, 154.

Marais, ex parte, 374.

Markham v. Cobbe, 335.

Martin, re, 340.
Max Morris, the, 154.
Maxim-Nordenfelt Gun Co.,
Nordenfelt, 70, 303.
V. Burdett, 150.

V.

May

Mayor of Bradford v.

Nash

Inman, 349.
New York Central Ry. Co. v.
Lockwood, 114.
Newbigging v. Adam, 271.
Niboyet v. Niboyet, 94, 246.
V.

Nicholls V. Bastard, 203.

Nichols

V.

Pitman, 212.

Nitro-glycerine Case, the, 111.

Pickles,

0.

208.

Mehrhoff v. Mehrhoff, 174.

Melhuish v. Milton, 118.
Metropolitan Bank v. Pooley,
Metropolitan Saloon Co. v.
Hawkins, 339.
Meyer v. Knights of Pythias,
v. Surtees, 267.

Midland Ry. Co.

v.

Smith,

335.

Mignonette Case,

the, 378.

Milan, the, 154.

Millar v. Taylor, 67.
Mills V. Armstrong, 154.
Milner v. Milner, 163.
Mitchell V. R. R. Co., 173.
Mogul Steamship Co. v. Mc-

Gregor, 186.

Monson v. Tussaud, 184.

Moore v. Robinson, 201.
Moss V. Moss, 176.
Motteram v. E. Counties Ry.
Co., 110.
V.

Camroux, 351.

Mounsey v. Ismay,
Mowe, the, 354.

Mtembu
Munn V.
Murray

Oliver v.

v. Clinton, 261.

Bank

of England,

v.

223.

Webster, 283.

Illinois,

v. S.

Oliver V. Oliver, 211.

Orme

Orme, 247.

v.

Ormerod

v.

Todmorden Mill

Co., 210.

251, 273.

Moulton

Dalton, 212.

v.

O'Donnell
239.

380.

Meynell

Oakey

209.

C. Ry. Co., 156.

Orr V. Orr-Ewing, 413.

Osborne v. Amalg. Soc. of
Ry. Servants, 276, 339.
Osborne v. Gillett, 181.
P.

Paget

Gee, 73.
Paquin v. Beauclerk, 274.
Paradine v. Jane, 314.
V.

Parlement Beige, the, 326.

Pasley v. Freeman, 237, 239.
Paxton's Case, 38.
Payne v. Cave, 267.
Pearks, &c., Lim. v. Ward,
378.

Peek
Peek

V.

Derry, 238, 239.

Gurney, 238.
People V. Phyfe, 373.
Pickard v. Sears, 263.
Pickering v. Rudd, 191.
V.

Pierce v. Pierce, 71.

Pillans v.

Van Mierop,

283.

TABLE OF CASES.
Redgrave

Pinnel's Case, 316.

Planch6

v.

Pollard V.

Colburn, 319.
Photographic Co.,

V. Curll, 211.

Porter v. Freundenberg, 354.

Power

Banks, 348.
Poyser v. Minors, 355.
Price V. Moulton, 333.

R.
R.
R.

Strange,

v.

190.

Printing

Co.

v.

Sampson,

276.

Q.

Eyre, 189.

Quin V. Hill, 273.

Quinn v. Leathern,

70, 187,

328.

Quirk

V.

Thomas,

332.

R.

R. R. Co.
153.

Raffles V. Wichelhaus, 265.

Ramsay's and Foote's Case,

Ensor, 382.

V.

Essex, 59.

V.

Foote, 64, 382.

R. V. Holbrook, 381.
R. V. Hutchinson, 428.
R. V. Jackson, 247.
R. V. Jones, 382.
R. V. Mayor of London, 345,
R. V. Miles, 428.

R. V. Millis, 69, 293.

R. V. Peltier, 380.
R. V. Ramsay, 64, 382.
R. V. Roche, 428.
R. V. Thurston, 110.
R. V. Topham, 382.
R. V. Windsor, 386.
v. Gt. E. Ry. Co., 173.
Reynolds v. Reynolds, 176.
Rhodes, in re, 251.
Riche V. Ashbury Carriage

Co., 347.

Risdale v. Clifton, 70.

382.

Hotel

Co.

v.

Montefiore, 267.

Randall v. Trimen, 238.

Ranelagh v. Hayes, 308.
Rangeley v. Midland Ry. Co.,
226.

Rann

V.

Read

V. Stout, 173.

Radley v. L. & N. W. Ry. Co.,

Ramsgate

Co.,

378.

Quartz Hill Gold Mining Co.,

V.

Ry.

156.

Priestley v. Fowler, 156.

Albert

Hurd, 271.

R. V. E. Counties

V.

Prince

v.

R. V. Bailey, 110.
R. V. Burgess, 381.
R. V. Dudley, 378.
R. V. E. Archipelago, 345.

190.

Pope

XXlll

Hughes, 283.
Ratcliffe v. Evans, 330, 332.
Read v. Gt. Eastern Ry. Co.,

Robinson v. Davidson, 315.

Robinson v. Mollett, 66.
Rogers v. Spence, 204.

Roodt V. Wallach, 282.

Rotherham, re, 257.
Rousillon V. Rousillon, 303.

v.

173.

Reddel v. Dobree, 194.

Redfern v. Redfern, 382.

S.

Sachs V. Henderson, 254.

Salaman, in re, 95.

Salomon
343.

v.

Salomon

&

Co.,

TABLE OF CASES.

XXIV

Sargasso, the, 154.

T.

Satania, the, 257.

Taff Vale Ry. Co. v. Amalg.

Soc. of Ry. Servants,

Savile v. Jardine, 185.

Schibsby

Westenholz,

v.

187, 341.

40.

Takuji Yamashita, re, 352.

Tayloe v. Merchts. Fire Ins.

Schultz V. Schultz, 350.

Scott V. Littledale, 263.

Scott V. Sebright, 175.

Scott

V.

Co., 269.

Shepherd, 152.

Taylor
Taylor
Taylor

Scott V. Thieme, 283.

Scribner v. Kelley, 172.

Shaw V. Shaw, 176.

Shaym v. Evening Post

Co.,

254.

Taylor

Shrewsbury, Earl of, v.

Staff. Ry. Co., 347.
Siggers v. Evans, 256.

v.

Root, 258.

v.

Temperton

v.

Russell,

182,

186.

V. Caird, 212.

Simmons

v.

field,

343.

Sime

Caldwell, 315
Hawkins, 185.
Manchester, Shefand Line. Ry. Co.,

v.
v.

Heath Laundry

Co., 295.

Smith V. Baker, 155, 329.

Smith V. Freyler, 308.
Smith V. Hughes, 263.
Smith V. Milles, 203.
Smith V. Smith, 176.
South Yorks. Ry. Co. v. Gt.
N. Ry. Co., 347.
Spiers v. Hunt, 276.

Thomas v. Quartermain, 329.

Thomas v. Sorrell, 229.
Thomas v. Winchester, 173.
Thompson v. Alexander,
340.

Thompson

v.

Leach, 256.

Lord Kerry, 184.

Thoroughgood
v.
Bryan,
Thorley

v.

154.
Tilt v. People, 373.

Tobin

The Queen,

V.

132,

386.

Du

Spring Co. v. Edgar, 153.

Standing v. Bowring, 256.

Tradesmen's Ben. Soc.

Stanhope v. Stanhope and

Adye, 332.

Tuberville v. Savage, 171.

Stanley v. Powell, 111.

Steeds

Turner
Turner

v. Stallibrass, 254.

Webster,

v.

Tuttle

V.

Tweddle

Buck, 329.
v.

Atkinson, 257.

of,

U.

339.

Swift V. Gifford, 195.

Swift V. Kelly, 176.
Swift V. Tyson, 67.

Synge

v.

250,

264.

v. Steeds, 318.

Stewart v. Casey, 285.

Stokes v. Stokes, 39.
Sutton's Hospital, Case

v.

Preeze, 283.

Synge, 319.

Union Bank

of Australia, ex

parte, 413.

United

Methodist

Church

Ministers, in re^ 295.

TABLE OF CASES.

XXV

Western Union
V.

Vaughan
Vaughan

b.

v.

Menlove, 113.
Taff Vale Ry.

Co., 208.

Vaughan

v. Weldon, 324.
Vegelahn v. Guntner, 187.
Velasquez Ld. v. Inland Rev-

enue, 211.

Commis-

sioners v. Coultas, 173.

Villar V. Gilbey, 95.

W.
Wakelin

v. L.

and

S.

W.

Ry.,

155.

Walker
Walker

v. Gt.

N. Ry. of

Ire-

Lane, 212.

v.

Walworth v. Holt, 74.

Wandsworth Board of Works
United Telegraph Co.,

Ward V. Turner, 194.

Ward V. Weeks, 153.
Warwick

Williams v. Jones, 172.

Williamson v. Allison, 239.
Williamson v. Freer, 185.
Willis V. Baddeley, 65.
Willoughby v. Willoughby,

Wilson V. Carnley, 294.

Wilson V. Glossop, 251.
Wilson V. Horn, 175.
Windmill Local Board of
Health v. Vint, 335.
Wing V. Angrave, 359.
Wing V. London Gen. Omn.
Winkfield, the, 202.

Wood

Queen's College,

v.

223.

V. Leadbitter, 229.

Woodruff
Wright V.

Wyman

v. Hall, 183.

154.

Woodruff, 70.

Sill,

70.

X.

Xenos

V.

Wickham,

Young

V.

Hichens, 195.

279.

Bell, 239.

v.

Times Bookclub,

184.

Weldon

V.

v. Leavitt, 173.

Watkins, ex parte, 264.

Webster v. Hudson Railway,

Weir V.
Weldon

329.

v. E. I. Co., 239.

Co., 171.

191.

Watkin

Company,

Wilhams

65.

Wallis v. Day, 299.

V.

179.

Wilkinson v. Downton, 174.

Williams v. Birmingham Bat-

Wills V. Murray, 311.

v. Cronin, 182.

land, 95.

Walter

West Rand Central Gold Co.

v. The King, 386, 390.
Whitbourne v. WilHams,

tery

Vicars v. Wilcox, 153.

Victorian Railways

Tel. Co. v.
Wofford, 272.
Westlake v. Westlake, 174.

v.

Weldon, 247.
Z.

Wellock V. Constantine, 379.

Wells V. Abrahams, 335.

Zamora,

Wells V. Wells, 298.

Zollverein, the, 424.

Wennhak

v.

Morgan,

183.

the, 368, 390.

Zouch V. Parsons, 349.

THE

ELEMENTS OF JURISPRUDENCE.

CHAPTER

I.

JURISPRUDENCE.

The

present treatise

is

an attempt to set forth and The need

explain those comparatively few and simple ideas which

underlie the infinite variety of legal rules.

The search

human

for these ideas

The

curiosity.

scientific

not merely a matter of

is

ever - renewed

complexity

of

relations calls for an increasing complexity of legal

merely empirical knowledge of law becomes

detail, till a

impossible.

The

formation of

imbued with

evil

has been partially remedied by the

Codes, in which

under genera and

species.

legislators,

more or

have grouped the

legal principles,

less

legal chaos

But an uncodified system

law can be mastered only by the student whose

of

scientific

equipment enables him to cut a path for himself through

the tangled growth of enactment and precedent, and so
to codify for his o^vn purposes.

In this department of

knowledge, as in others, the difficulty of the subject

due

less
1950

to

the multiplicity of

its

details

is

than to the

of
^f

"^

sfipncG

Law.

JURISPRUDENCE.

2
VHAP.

I.

absence of general principles under which those details

may

In other words, while

be grouped.

memory.

are capable only of being committed to

Its

science

legal

capable of being intelligently learnt, isolated legal facts

is

For the beginnings

name.

of the science

which reduces

legal

phenomena to order and coherence the world is indebted

to the Romans. It is also from their language that the
science derives
*

name.

its

lurisprudentia,

among
just as

the

of

'

in

original

its

use,

was merely one

several phrases signifying a knowledge of the law,

prudentia'

militaris

'rei

conduct

knowledge

of

knowledge

signified

warfare ^ The

of

sort

which the term denoted may be gathered from Cicero's

who must be
current among

description of a jurisconsult as one

the laws, and in

in

citizens,

and

the usages

in giving opinions

'

skilled

private

and bringing actions and

guiding his clients aright^.'

From

this

thoroughly

knowledge the Roman

practical

jurists

conception

of

legal

subsequently rose to a far

The rudiments of tliis may already be traced

in the writings of Cicero, who enumerates the civil law,
along with astronomy, geometry, and dialectic, among the
higher one.

'Habebat enim magnam prudentiam, turn

taris.'

Nep. Cim.

2.

The

iuris civilis turn rei mili-

following terms are used synonymously with

prudentia': 'legum prudentia,' Cic. Rep. ii. 36; 'legum scientia,'

3; 'legitima scientia,' ib. 2; 'iuris notitia,' Tac. Orat. 31;
'cognitio iuris,' Cic. de Orat. i. 44; 'iuris scientia,' ib. 55, Tac. u. s.,
Pompon. Dig. i. 2. 2. 40; 'civilis scientia,' Cic. de Orat. i. 43; 'iuris
'iuris

Inst.

Prooem.

Ulp. Dig. i. i. i. Knowledge of a particular department of law

described by such phrases as iuris civilis cognitio,' Cic. de Orat. i. 59;
iuris publici prudentia,' ib. 60.
^ Cic. de Orat. i. 48. The same persons who were called
iurisconsuiti
qui pragmatici vocantur,' ib. 59,
or 'iure periti,' 'iuris peritos
peritia,'

'

is

'

'

were also described as 'prudentes in iure

briefly as 'prudentes,'
alia

Gai.

i.

antiqua prudentia.' Cod.

7.

Cf.

xviii. 2. i.

employed by Pomponius (Dig. xxxviii.

in Ennius (Gell. xii. 4) and 'imprudens

is

civili,' Cic.

'in libris iuris

The phrase

15.2).

'

Amic. 2; more
auctorum et in
'iuris

prudens

Legum prudens

'

iuris' in lust. Inst. iv. 2.

occurs

MEANING OF THE TERM.

have to do

arts wliich

vNnth

the pursuit of truth

lie

'.

us that the study of law must be derived from the

tells

depths of philosophy, and that, by an

human mind and

the

be discovered

trivial

human and

which the rules

of

well-known

for Ulpian's

'the knowledge of things

as

science of the just

divine, the

of

may

principles

importance ^

Thus the way was prepared

definition of jurisprudence

examination

society,

comparison with

in

law are of but

positive

human

of

and unjust V

Jurisprudence was conceived of as a branch of philosophy;

and such an elevation

of the idea

study was

of legal

naturally accompanied by a corresponding elevation of

Ulpian claims

professors.

brethren that they are

'

himself and his

for

counterfeit

learned

the priests of Justice, engaged in

the pursuit of a pliilosophy that

The Romans

*.'

its

is

truly such and no

had, in fact, attained by this

time to the idea of a science of those legal principles which

exist

independently of the institutions of any particular

No

country.

technical term could be borrowed from the

Greek language to denote wliat was

growth ^, and thus

it

happened that a phrase which

had been but one among

several,

and quite

unscientific sense, a

at length,

by an accident

new

the

of purely indigenous

of

signifying, in a

'knowledge of

at first

homely

law,'

came

Latin philology, to express

idea of a legal science.

The nations

modern Europe are fortunately

of

in the

de Off. i. 6.
de Leg. i. 5. Cf. Plin. Ep. i. 10.
'
lurisprudentia est divinarum atque humanarum rerum notitia, iusti
atque iniusti scientia.' Dig. i. i. 10. This is nearly a translation of the
Stoic definition of <TO(pia as being dtlcov t Ka\ avBpcoirivwy (TnffT-ft/xri (Plut.
Plac. Phil. i. pr.; cf. Cic. de Off. i. 43), modified by the addition of
a clause specifying the particular kind of wisdom intended. The first
clause of Ulpian's definition has been, with little reason, thought by
some to have reference to the distinction between ius sacriun and the
other branches of law; see Gliick, Pandekten, i. p. 198.
'

Cic.

Cic.
'

Dig.

lurisprudentia

i.

I.

I.

I.

is

menopulus, Prompt,

represented in the Basilika,

i.

i.

18,

by

(rocpia v6i.(.ov.

Bz

ii.

i.

i,

and

in

Har-

chap.

i.

JURISPRUDENCE.

4
CHAP.

I.

habit of calling the various branches of knowledge by non-

common

vernacular names, adopted by

languages; so that a science

classical

consent from the

known

generally

is

by the same Greek or Latin term wherever Western

extends.

isation

It

civil-

therefore natural and convenient

is

that most of the European nations should express the idea

law by a word which they have borrowed

of a science of

from the language

of those

whom

by

the idea was

first

conceived S

But the term

Improper
term.

modem
much

is

unfortunately also borrowed by the

languages to express other ideas, wliich might be

Thus, upon the

better expressed in the vernacular.

analogy of certain loose expressions of the

who sometimes

use

'

iurisprudentia

'

Roman

writers,

to denote a current

view of the law^ there has sprmig up in French the use of

such phrases as 'jurisprudence constante,' 'jurisprudence
des arrets de la Cour de Cassation';

the sense of the

view which the courts are in the habit of taking of certain

questions ^.
Still less justifiable is

and

in

EngUsh, of

'

The imposing

'Law.'

the use, so frequent both in French

Jurisprudence

quadrisyllable

duced into a phrase on grounds

we have books upon 'Equity

nothing

more

nor

as

'

less

the equivalent of

is

constantly intro-

euphony

of

Thus

alone.

Jurisprudence,' which are

than

treatises

upon the

we hear of
when nothing

administered by Courts of Equity; and

Jurisprudence of P'rance or

meant than the law which

is

respectively*.

'

Even

'

in force in those countries

the Germans, who have vernacular names for so many of the

Jurisprudenz as well as Rechtswissenschaft.'
'

'

'

Media iuris prudentia,' lust. Inst. iii. 2. 3.

'La maniere dont un tribunal juge habituellement

'

question.'
*

is

the
else

This sacrifice of sense to sound might more

sciences, recognise
'

Russia,

law

'A

telle

ou

telle

Diet, de I'Academie.

practical Treatise of Architectural Jurisprudence,'

by James

Perhaps the least pardonable application

of the term takes place when a treatise upon such medical facts as may
Elmes, was published

in 1827.

A SCIENCE.
readily be pardoned,

had

it

not misled serious and accurate

chap,

thinkers.

Bentham, for instance, divides Jurisprudence into

which ascertains what the law

pository,'

which ascertains what

law

tion of existing

a science of law,

'

Now

ought to be\

it

and

'ex-

censorial,*

an exposi-

obviously quite another thing from

is

and

is,

criticisms

amendment are the

as Bentham himself

upon the law with a view

to its

subject, not of Jurisprudence,

but,

states

Bentham

of the art of Legislation.

further

by

proceeding

in the next paragraph,

carries the confusion

subdivide

to

expository

Juris-

By

prudence into 'authoritative' and 'unauthoritative^.'

'authoritative expository jurisprudence' he

more nor

less

means nothing

than law emanating from the legislative

power; under 'unauthoritative' he would apparently

in-

clude both text-books upon the laws of any one country,

he would say, upon

or, as

upon law without

to use

his

we

are

If

o^^^l

riglit

'

local jurisprudence,'

special reference to

phrase,
in

jurisprudence

authoritative

or,

upon 'universal jurisprudence.'

considering

that

prudence' should be called 'the art of

'

and works

any one country,

'

is

nothing

'censorial
legislation,'

more nor

juris- It

less

is mere commentary, it is obvious that what

Bentham makes the sub-department of 'unauthoritative

prudence'

of the science

'

is

alone entitled to bear the

name

and should bear the name simply, without

the addition of epithets intended to distinguish

it

from

departments of the subject which are non-existent. 'Jurisprudence' ought therefore to be used, and used without

any qualifying

epithet, as the

name

of a science.

become important in legal proceedings is described as a book

upon 'Medical Jurisprudence' (first, apparently, by Dr. Samuel Farr,
London, 1788). Such a work is more properly described as dealing
with 'Forensic Medicine,' or 'M^decine legale.' There is even a Chair
incidentally

of

'

Dental Jurisprudence
Works, i. p. 148.

'

in the

Dental School of Chicago.

lb.

the

thatg^jgnce.

than a body of law, and that 'unauthoritative local juris-

universal jurisprudence

is

JURISPRUDENCE.
CHAP.

I.

This
science

have next to

and we

what kmcl

iiKiuire

shall find that

of a science

it is;

a formal, or analytical, as

is

it

is

a formal
one.

We

opposed to a material one

that

is

to say, that

it

deals

rather with the various relations which are regulated

legal rules than

by

with the rules themselves which regulate

those relations.

This was not indeed the whole scope of the science as

conceived of by

founders \

its

There floated also always

Roman

the later

before the eyes of

jurists

a vision of

a 'ins naturale'; a universal code, from which

cular systems are derived, or to which they
least,

to

approximate

contents, of which

But

set

of

rules,

the

all parti-

all

tend, at

matter,

or

of universal application.

is

point of fact,

and in the very pursuit

of this

material unity, they were led to elaborate a system of

formal unity; to catalogue the topics with which every

system of law has to

deal,

mode

the rest in

its

formed for

Law

however each may

of dealing

service

similar

to

per-

that which

was

rendered to Language by the Greeks of Alexandria,

by observing and tabulating the parts

inflections,

from

differ

They

with them.

of

when

speech,

the

moods and syntax, they mvented a Grammar,

all the phenomena of any

under the formulae of which

language flnd appropriate places I Whether the possessive

an
ad certum numerum
paucitatemque revocanda ... si autem aut mihi facere licuerit quod iam
diu cogito, aut alius quispiam aut me impedito occuparit, aut mortuo
effecerit.ut primum omne ius civile in genera digerat.quae perpauca sunt,
deinde eorum generum quasi quaedam membra dispertiat, turn propriam
cuiusque vim definitione declaret, perfectam artem iuris civilis habebitis,
magis magnam atque uberem quam difficilem atque obscuram.' De
'

Although we find

in Cicero the clearest possible description of

analytical science of law.

'

Sunt notanda genera

et

De lure Civili in Artem redigendo, menunfortunately lost.

2 See Max Miiller, Science of Language, edit.
3, p. 90. On the 'Technik
des Rechts,' 'Chemie des Rechts,' or 'Rechtsalphabet,' as a 'formale
juristische Logik,' see Jhering, Geist des R. R. ii. Th. ii. pp. 334, 335,
and the idea seems to have been worked out by M. E. Roguin, in La
R&gle de Droit, 6tude de science juridique pure, Lausanne, 1880, and by
Orat.

i.

42.

Cicero's Treatise

tioned by A. GeUius,

i.

22, is

A FORMAL SCIENCE.
noun substantive

case of a

of

modification
a

is

human

by prefixing

question

but that the possessive

expressed, yet finds

family of

expressed by a specific

is

termination, or

preposition,

specific

language

its

idea,

some expression

speech,

of

the

to

matter

it

of

however variously
or other in

every

a proposition which relates to

is

linguistic form.

The

assertion that Jurisprudence

is

a formal science

perhaps be made clearer by an example.

If

any

may
indi-

vidual should accumulate a knowledge of every European

system of law, holding each apart from the rest in the

chambers of his mind, his achievement would be best described as an accurate acquaintance with the legal systems
of

Europe.

each of these systems were entirely unlike

If

when laws had been

the rest, except

course of history from one to the

transferred in the

other, such a distin-

guished jurist could do no more than endeavour to hold

fast,

of

and

to avoid confusing, the heterogeneous information

which he had become possessed.

Suppose however, as

the case, that the laws of every country contain a

that they have

element;

effect similar objects,

been constructed

in

and involve the assumption

moral phenomena as everywhere existing;

is

common

order

to

of similar

then such a

person might proceed to frame out of his accumulated

materials a scheme of the purposes, methods,

common

to every system of law.

be a formal
to
in

science of law;

Grammar, the
greater

or

Such a scheme would

presenting

many

analogies

science of those ideas of relation which,

less

dissimilar ways,

and ideas

perfection,

and often

are expressed in

all

the

in

the

most

languages

of

mankind.

To each

of these formal sciences there ministers a science

E. Picard, Le Droit pur, encyclopedic du Droit, alias premiers principes juridiques, Bruxelles, 1898. Cf. J. S. Mill: 'The facts of which law
takes cognisance, though far from being identical in all civilised societies, are sufficiently analogous to enable them to be arranged in the same
cadres.'

Dissertations,

iii.

p. 212.

chap.

i.

JURISPRUDENCE.

8
CHAP

I.

which

and

supplies

with

it

differences in the

collected

of different languages are

and arranged by Comparative Philology, and

the foundation of abstract

the facts thus collected are

Grammar

Just as similarities

materials.

growth

so Comparative

^ ;

Law

collects

legal institutions of various countries,

and tabulates the

and from the

results

thus prepared, the abstract science of Jurisprudence

is

enabled to set forth

an orderly view of the ideas and

methods which have

been

variously realised in actual

for instance, the office of

systems. It

is,

to ascertain

what have been

Comparative

at different times

Law

and places

the periods of prescription, or the requisites of a good

marriage.

It is for

Jurisprudence to elucidate the meaning

of prescription, in its relation to ownership

and

to actions

or to explain the legal aspect of marriage, and

nection with property and the family.
to

suppose that Jurisprudence

is

by

prudence

might

conceivably be

con-

We are not indeed

impossible unless

Comparative Law.

preceded

its

it

is

system of Juris-

from

constructed

the

observation of one system of law only, at one epoch of

its

growth.

mode

the

Such, however, has not been in point of fact

of its evolution,

which must have been extremely

tardy but for the possibility of separating the essential

elements of the science from

its

historical accidents,

by

comparing together laws enforced in the same country at

different epochs,

and indigenous laws with the

though resembling, laws of

*

It

upon

is

of course true, as

is

pointed out by Sir F. Pollock in commenting

this passage (Essays in Jurisprudence

a matter of fact, abstract grammar

by implication

differing,

foreigners."

is

in every systematic

and Ethics,

p. 4), that, as

not taught separately, but

grammar

'

is

given

of a particular language.'

This is probably a subject of regret to most persons who, after mastering

one language, find many pages in the grammars of every other language
devoted to a reiteration of the now familiar distinctions between a substantive and an adjective, a present and a future tense, direct and oblique
narration.
*

A. H. Post,

in his

lays special stress

Grundriss der ethnologischen Jurisprudena, 1894,

of collecting and comparing the

upon the importance

NOT
Jurisprudence

DIVISIBLE.

therefore not the material science of

is

chap.

those portions of the law which various nations have in

common*, but the formal science of those relations of

mankind which are generally recognised

as having legal

consequences ^
In the next place,

it

must be

sufficient at present

merely

to state, without further explanation, that Jurisprudence

not a science of legal relations a priori, as they might have

been, or should have been, but

from such relations

is

abstracted

It

is

^^^'

a posteriori

have been clothed with a legal

as

character in actual systems, that

is

to say

from law which

has actually been imposed, or positive law. It follows that and

Jurisprudence

is

systems of actual s^'^^-

of

law. Its broader distinctions, corresponding to deep-seated

as time

characteristics, will

goes on,

new

no doubt be permanent, but,

distinctions

must be constantly

developed, with a view to the co-ordination of the everincreasing variety of legal

phenomena ^.

laws of peoples having no history ; to whose laws, therefore, the historical

method
*

is

a progressive science. Its generalisations ^^^^g^^^

must keep pace with the movement

human

is positive

is inapplicable.
subject which, under the description of the 'ius gentium,' largely

occupied the attention of the Roman jurists.

' Prof. Grueber, in a review of this work, preferred to describe the
object of Jurisprudence as being die Gesammtheit der auf die verschiedenen Verbal tnisseanwendbaren Rechtsvorschriften,' Krit. VierteljahresBut see Windscheid,
schrift fiir Rechtswissenschaft, 1884, p. 180.
Pand. i. 13, n. 2.
' So Lord Hale
It cannot be supposed that humane laws can be wholly
exempt from the common fate of humane things. Parliaments have taken
off and abridged many of the titles about which the law was concerned
and it shall not be
usage and disusage have antiquated others,
altogether impertinent to give some instances herein of several great
titles in the Jjaw, which upon those occasions are at this day in a great
measure antiquated, and some that are much abridged and reduced into
a very narrow compass and use' (he mentions, inter alia, tenures by
knight-service, descents to take away entry, atturnment), 'and as time
and experience and use, and some Acts of Parliament, have abridged
some and antiquated other titles, so they have substituted or enlarged
'

'

i.

JURISPRUDENCE.

lO
CHAP.

'

We

I.

le it divisible into

general

have

consider whetheif

to

lastly

divided

rightly

several

into

the

and

species,

is

drawn between

inquire into the justness of the distinction

and par-

science

especially to

'

'

ticular'?

general

and

'

particular

'

Jurisprudence.

'

Jurisprudence,' says Austin,

'

is

'

Particular

the science of any actual

it.
The only practical
The proper subject of

system of law or of any portion of

Jurisprudence

particular.

is

universal, Jurisprudence

general, or

a description of

is

common

such subjects and ends of laws as are

and

systems,

those

of

systems which are

between

resemblances

bottomed

in the

common

to all

different

nature of

man, or correspond to the resembling points in these

several portions

Now
two

'

\'

particular

things.

It

'

Jurisprudence

may mean:

may mean

either

from an

a science derived

observation of the laws of one coimtry only.

of

If so, the

particularity attaches, not to the science itself,

which

is

the same science whencesoever derived, but to the source

whence the materials

for

it

are gained.

science of

Law

might undoubtedly be constructed from a knowledge of

the law of England alone, as a science of Geology might
be,

and

of the

in great part was, constructed

England only: yet as there

strata in

ticular science of Geology, so neither

science

of

Law.

tions which,

from an observation

For a science

is

is

is

no par-

there a particular

a system of generaUsa-

though they may be derived from observations

extending over a limited area, will nevertheless hold good

everywhere; assuming the object-matter of the science to

other titles; as for instance, action upon the case, devises, ejectione firmae,
election, and divers others.' Preface to Rolle's Abridgment, 1668. Cf.
the interesting remarks of Sir Henry Maine on the probability that
a general adoption of a system of Registration of title would render
comparatively unimportant such topics as Possession, Bonitarian ownership, and Usucapio; although these have always been recognised as
belonging to what may be called the osseous structure of Jurisprudence.'
'

Early Law and Custom, p. 360.

*
Lectures on Jurisprudence,
p. 149-

vol.

iii.

p. 356.

Cf.

Bentham, Works,

i.

NOT

DIVISIBLE.

same

possess everywhere the

of

II

Principles

characteristics.

chap.

Geology elaborated from the observation of England

alone hold good all over the globe, in so far as the

substances and forces are everywhere present

of Jurisprudence,

principles

Enghsh

data,

if

would be true

arrived

them

from

human beings assuming

the human beings who
;

resemble in essentials

to

entirely

at

same

and the

applied to the particular

if

laws of any other community of

The wider the

inhabit England.

field of observation,

the

greater, of course, will be the chance of the principles of

a science being rightly and completely enunciated ; but, so

far as they are

scientific

general and

universal

of

truths at

The phrase may

appUcation.

however, and probably does, mean

the laws of a particular people

they are always

all,

an acquaintance with

and the impropriety of

describing such merely empirical and practical knowledge

by a term which should be used only as the name of

In either sense

a science has been already pointed out.

therefore the term

existence of

the

mitted,

is

a misnomer

and

it

particular Jurisprudence

'

employment

of

becomes

Jurisprudence'

the

follows that, the

'

bemg

not

ad-

opposed term 'general

Both expressions

unnecessary.

should be discarded, and the science should be treated as

incapable of being divided into these

A
and

distinction
'

may

philosophical

the unity which

allied

Jurisprudence.

'

It

between

may

to Ethics

it

and

Metaphysics,

it

is,

historical ' or into

>

has a side upon which

to

'

be said that p^j ^^^

makes Jurisprudence a science

that while

in idea;

two branches.

also be suggested

exists only
it is

closely

on the other

hand, no less intimately connected with Archaeology and

History
roots,

that

phenomena grow from many independent

its

and are formed and coloured according

acter of the various soils

But

to say this

is

to the char-

from which they have sprung-

only to say that the facts from which

Jurisprudence generalises are furnished by History, the

record of

human

actions.

Identical

human needs have

'

Pl^'^,^,*^"

JURISPRUDENCE.

12
CHAP.

I.

been

by various means, and

satisfied

all

the means of

satisfying each of these needs have not been in simul-

taneous use in every part of the world and in every age.

In the satisfaction of their wants mankind have seldom

seen clearly the ends at which they were aiming, and have
therefore in reaching

which

is

it

after

those ends invented a vast

The

perverse complications.

variety of

underlying

unity, in short,

the business of Jurisprudence to exhibit as

the phenomena which

all

late discovery of

an advanced

investigates, is the

it

civilisation,

and was

for a

long time unperceived while those phenomena were accumulating.

The

can only be presented by History,

facts

and History may be studied with the sole view of discovering this class of facts. But this is not the task of
Jurisprudence, which only begins

when

these facts begin

to fall into an order other than the historical,

and arrange

themselves in groups which have no relation to the varieties

the

of

human

to observe the

The province

race.

wants

of

for the supply of

Jurisprudence

is

which laws have

been invented, and the manner in which those wants have

been

satisfied.

the modes

in

then digests those actual wants, and

It

which they have actually been

satisfied,

irrespectively of their historical or geographical distribution,

according to a logical method.

prudence

may

One work on

Juris-

contain more of historical disquisition, while

in another philosophical

argument may predominate

but

such differences are incidental to the mode of treatment,

and afford no ground

But though the

for a division of the science itself.

science

is

one,

it

may have

as

many

heads or departments as there are departments of law.

It

would therefore be unobjectionable to talk of 'criminal'

civil,' public and private Jurisprudence.

and
Juris-

Sefined^*

'

'

To sum

'

up.

'

'

The term Jurisprudence

is

wrongly applied

to actual systems of law, or to current views of law, or

to suggestions for its

amendment, but

is

the

name

of a

DEFINITION OF THE TERM.

This science

science.

a material one.
It is

is

a formal, or analytical, rather than

It is the science of actual, or positive, law.

wrongly divided into 'general' and

into 'philosophical'

and

'historical.'

defined provisionally as 'the

law.'

The

apparent

till

I3

full

import of

formal
this

'

Law.'

'particular,' or

may

therefore be

science of

definition

after the completion of

all-important term

It

will

an analysis

positive

not

be

of the

chap, l

CHAPTER

II.

LAW.
'Law, or the

Meaning
of the

term Law.

Bentham, 'taken

says

law,'

an abstract or

is

indefinitely,

when

term, which,

collective

it

means

mean neither more nor less than the sum

number of individual laws taken together \'

anything, can
total of a

This

simple statement

is

striking

in

a multitude of assertions upon the subject

are less

term
Ambi-

frequently

Law

than to

The terms

made with

equivalents

its

in

express nothing more

Droit.

of individual

with

which however
the

to

Enghsh

other

languages.

fact,

be said to

lus, Recht, Droit, cannot, in

guity of
lus, Recht,

all

reference

contrast
;

than 'the sum total of a number

laws taken together.'

these terms denote not

only the

It

sum

so happens that
total

of

Laws,

but also the sum total of Rights (lura, Rechte, Droits),

and the sum

When

total of all that is just (iustum, recht, droit).

therefore

we

say that Jurisprudence

of lus, Recht, or Droit,

is

it

Works,

i.

p. 148.

Puffendorf,

i.

i.

20,

of

is

the science

in each case

the science of any one of three things,

U)

we may mean

that

viz.

Law,

(2) of

Rights,

(3) of

Justice

Cf., among the meanings of 'lus' enumerated by

'complexus seu systema legum homogenearum.'

MEANING OF THE TERM

'A LAW.'

15

many

and, unless this ambiguity be borne in mind,

ex-

chap.

pressions having apparent reference to law will be quite

But a coherent

unintelligible \

cannot

science

be con-

structed upon an idea which has complex or shifting

One or other meaning must be chosen, and

when chosen must be made the sole foundation of the
edifice. It is therefore a piece of good fortune that when
we say in English that Jurisprudence is the science of law,
we are spared the ambiguities which beset the expression
meanings.

proposition in Latin, German, and French, and

of that

have greatly obscured

But

the

if

EngUsh

its

exposition in those languages.

abstract term

'

Law

'

from any Meaning

free

is

suggestion of the aggregate of Rights, or of the aggregate

of just things,
in

it is

which the concrete term

language

'

a law '

is

term^'

meanmgs ^^^'

of course suggestive of all the

employed

in

our

and these have unfortunately been so numerous

as to involve the abstract idea in considerable obscurity.

Hence

it

is

that so

many

of the

which have

definitions

been given of that mysterious non-entity strike us as

being vague

or

reference

that divine

to

merely

Many

eulogistic.

order which

of

them have

pervades the

in-

animate universe even more than the actions of rational

beings

and those

of

them which have reference

to

human

action deal quite as often with the voluntarily observed

maxims

of society as with rules

which are supported by

the authority of the State.

Heterogeneous
'

law

them

'

is

may

however

as

the

senses

the

of

at first sight appear, the connection

not hard to trace

nor

is

term

between

the earliest use widely

from the

latest and most accurate.

The shepherd who guides his flock, or, on a larger scale, Its
the head of a family who regulates its encampments and^^

different

'
So Lord Westbury was at the pains to explain that the word ius, in
themsLximignorantia iuris haudexcusat, is used in the sense of general law,
the ordinary law of the country,' not in the sense of a private right.'
Cooper V. Phibbs, L. R. 2 H. L. 170.
'

'

earli-

ii.

LAW.

CHAP. n.

employments, seems to have been the

and

his directions, as orders given

earliest

'

lawgiver,*

by one who has power

to enforce their observance, are the earliest 'laws\'

original,

and

The

the popular, conception of a 'law,'

still

a command, disobedience

which

to

be

will

is

punished,

prescribing a course of action. This conception necessarily

implies that of a lawgiver,

commands ^ From

this

who

has power to enforce his

vague original use of the term

has arisen that large development of uses, some proper,

some merely metaphorical, out of which the jurist has

to select that which he admits into his science.
Derivative
uses.

The strongest
anthropomorphic.
ternal nature

explains the

and

his flock

is

tendency of mankind

intellectual
If

man

still

is

more by the

mystery to himself, ex-

less

obscure.

As he governs

his family, so he supposes that

which he observes

the

greater mystery to him, and he

govern the waters and the winds.

larity

is

The

unseen beings

greater the regu-

nature, the fewer such beings

does he suppose to be at work in her

till

at length he

rises to the conception of one great being whose laws are

obeyed by the whole universe; or

it

may be

that,

having

thus arrived at the notion of a universe moving according

So Homer says of the Cyclopes,

0eniffTev(i 5e tKaffros iralSwp ^8' ii\6x(uv,

Odyss. ix. 114; and Plato, oStoi &paTwvTra\aiuv&pi<7Toi voixo9iraiy(y6va<n,

vonth re koI Troifiivts avSpciv, Minos, p. 321 B. It may be worth while to
notice that y6fios (as distinguished from voij.6s) does not occur in Homer.
Hesiod uses it twice, both times in the singular number, in the Op. et
Dies, 276, 388; and it occurs in the Theogonia. The Homeric word most
nearly expressive of laws is OeVicTTej, which however really signifies rather
Maine, Ancient
decrees made for special cases. Grote, Hist. ii. p.
Law, ch. i. Cicero derives vSfios a suum cuique tribuendo,' De Legg. i. 6.
It is surely reversing the order of ideas to suppose that the use of vdfios
in the sense of 'a chant' is the original one, as does, e. g., Fustel de

m;

'

Coulanges,
2

Prof.

La

Cit6 Antique, p. 227.

Max Miiller seems to have thought that, among the Hindoos at

events, the order of ideas was the converse. In the Vedic Hymns,
meaning the order of the heavenly movements, became
in time the name for moral order and righteousness. Hibbert Lectures,

all

Rita, he says, from

1878, p. 235.

TWO MEANINGS.

ITS

to law, he holds fast to

1/

even while he loses his hold

it,

chap.

on the idea of the existence of a supreme lawgiver.

Men have

also almost always believed themselves to be

acquainted with certain rules intended for the guidance of

and either directly revealed to them by a

superhuman power, or gathered by themselves from such
indications of the will of that power as are accessible.

their actions,

They have supposed that they have discovered by

self-

analysis a master part of themselves, to the dictates of

which they owe

from external
certain ways,
It is easy

account

for

They have observed

allegiance.

may

in order that their senses

objects, those objects

and no

that,

receive certain impressions

must be arranged

in

other.

enough, upon consideration of these

the existence of such phrases

as

facts, to

laws of

Nature, laws of God, laws of Morahty, laws of Beauty,

and others which

will at once suggest themselves.

The employment
different

may

of the

appear

same name

to us

to

to denote things so The

imply an extraordinary of

the

sciences,
confusion of the topics appropriate to Theology, to Physics,

and to Jurisprudence; but the

to Ethics, to Jj^sthetics,

we remember that the separation

of the sciences to which we are accustomed, and which
we take for granted, was unknown to remote antiquity.
wonder

will be less

The world with

all

studied as a whole.
of

man were

The
all

if

its

varied

The

alike conceived of as ordained

constitutions of states

the

peoples of

contrivance

phenomena was originally

and the doings

facts of nature

as

the

by the gods.

and the customs and laws

the earth were

paths

of

the

as

much

planets.

of

The

of

divine

great

problem thus presented for the study of mankind was

number

gradually broken up into a

of

minor problems.

A line was
drawn between those which deal with external nature,
including Theology and Metaphysics, and those which deal
with the actions of men. These latter, the practical, were
There occurred a division of the sciences.

1950

ii.

LAW.

i8

thus severed from the theoretical sciences

law, which had been used ambiguously

and the

* ;

terra

the discussion

of both sets of topics before their severance, has henceforth

two

In the theoretical sciences,

distinct histories.

used as the abstract

phenomena, be those relations instances

of

mere succession

sciences the

term

is

and

of causation or

In

co-existence.

the

practical

human action.
we should rather say in modern
sciences, Law is used to denote the

In the theoretical, or as

the phy-

phrase, in the physical

sical

method

sciences;

is

used to express the abstract idea of

the rules which regulate

Use of the
term in

it

the observed relations of

idea of

of the

would imply,

phenomena

in accordance

the term, that this method

either

of the universe;

by the

will

of

a use which

with the primitive meaning of

is

imposed upon the phenomena

God, or by an abstraction called

Nature.

This use of
ceptions.

know

of

It

the

term may certainly lead to miscon-

has long ago been agreed that

natural phenomena

is

all

we can

that they co-exist with,

or succeed, one another in a certain order, but whether this

order be imposed immediately by a divine

through an

will,

abstraction called Nature, or

or mediately

through minor

abstractions called Gravitation, Electricity, and the like,

the phenomena themselves are unable to inform us.

therefore necessary to realise that

laws of Gravity or of Refraction,

objects do gravitate

It is

when we talk of the

we mean merely that

and that rays are

We

refracted.

are

using the term law merely to convey to our minds the

idea of order and method,

and we must beware

of import-

ing into this idea any of the associations called up by the

term when
in the

practical
sciences.

it is

employed

in the practical sciences.

Its use in these sciences

express a rule of

human

is,

action

speaking very generally, to

and the sciences

action being those in which the term

is

of

human

most used, and

'
They are henceforth connected only by means of religion,
speculations concerning the faculties of the human mind.

and by

AS THE ORDER OF THE UNIVERSE.

indeed

most needed,

is

it

reasonable to say that this

is

proper meaning, and that

is its

sciences

But

use in the theoretical

its

just as its metaphorical use, as

use as signifying

The

'

rule,' so is its

confused

occasionally

by

meaning

meaning

the

a rule

as its proper

it

is

employed

used, by a

Law
is

to

the

in

mere metaphor,

phenomena, and to adopt

of

meaning that which

where

Jurisprudence

of

which
it is

method or order

to express the

human

proper use as

'

of nature.

purposes

physical sciences, where

sciences,

proper

its

step therefore towards clearing the term

first

discard

'order,' is

imagined parity between

an

and the invariable order

ambiguity for the

of

chap, n,

improper, or metaphorical merely.

is

sometimes obscured by associations derived from

a rule

19

it

bears in the practical

employed as the abstract of rules of

it is

action.

The opposition between these two meanings

will be best The two

seen by grouping together, under the heads of Order and

Rule respectively, a few characteristic specimens of the

vague employment of the term Law.

I.

'

Law

is

Law

as the order of

tM

Universe.

the King of Kings, far more powerful and rigid Order,

than they: nothing can be mightier than law, by whose

aid, as

by that

monarch, even the weak

of the highest

prevail over the strong.' The Vedas

may

*.

No/i,05, 6 TravTtov /SatriXciis

Ovariiiv T Koi aOavdroiv.

Koi

Tov

6\ov

vo/xos

Koi

Ta^is,

'Ettci

u)pas,

(\>aivirai.

Koi

Koa-fjiov,

ci

TO.

rots

)(pr]

Pindar

Ocia

optofxtvoi^

^.

koi ras

KaXov/xeVas

TricrTtueiv,

StOLKelv

Demostheucs ^

'

Sat. Br. 14. 4,

'

2.

23; Br.

Law, the King

Ar.Up.

i
,

4, 14,

of All both mortals

Tagore Lect. 1880, p. 136.

and immortals.' Apud Plat.

cited

Gorg. 484 B.
'
Since also the whole world, and thing.s divine, and what
'

C2

we

call

the

LAW.

20
*0

v6fio<:

p)(6fjL(vos,

Kotvos,

avTos

T<3

oiv

i(TTLV

ocTTTip

All

Xdyos

6p6b<i

tovt(o

KadrjyefiovL

TraVTWV

Slot

rrjs

r<ov

oXcdv

Chpysippus \

SiotKij(T(D<; ovTL.

*Lex vera

iubendum

princeps, apta ad

atqiie

ad

et

summi lovis.'
Cicero \
vetandum,
*Lex aeterna nihil aliud est quam summa ratio divinae
sapientiae, secundum quod est directiva omnium actuum et
motionum.'
S. Thomas \
ratio est recta

Law

Of

her seate

there can be no lesse acknowledged, than that

is

the bosome of God, her voyce the

in

homage, the very least as

as not exempted from her power; both angels

and creatures
different sort

what condition

of

harmony

Heaven and Earth doe her

feeling her care, and the greatest

of the world, all things

and manner, yet

all

soever,

and men

though each

with uniforme consent,

joy.'

imperandi atque prohibendi.'

admiring her as the mother of their peace and

Hooker

Rule.

in

*.

*Lex

est

II.

Zaw

recta

ratio

as a rule of Action.

Cicero I

'Lex

numine deorum

iubens honesta, prohibens contraria.'

ratio,
'

nihil aliud nisi recta et a

lus est ars boni et aequi.'

Celsus

^.

'lus est realis et personalis hominis ad

hominem

quae servata hominum servat societatem,

portio,

corrumpit.'

tracta

Cicero ^
pro-

et corrupta

Dante ^

Seasons, appear, if we may trust what we see, to be r^ulated by Law and

Order.' Adv. Aristog. B. p. 808.
'The common law, which is the right reason moving througb all
things, identical with Zeus, the

Apud D. Laert. vii. 88.

* De Leg. ii. 4. Cf. ib,
qu. 93. art.
Leg. i. 15.

I.

De

'

Dig.

3.

i. 1. 1.

I.

supreme administrator

of the Universe.'

iii. i.
*

Eccl. Pol.

'

Phil. xi. 12.

De

i.

c. 18.

Monarchia,

ii.

c. 5.

AS A RULE OF ACTION.
*Any kind
framed.'

must be

Der

'

whereby actions

canon

or

rule

of

are

chap,

(i

That which reason

'

it

21

done.'

in

such sort defines to be goo:l that

Hooker \
Bedingungen unter denen die Willkuhr

Inbegriff der

Anderen nach einem

des Einen niit der Willkiihr des

allgemeinen Gesetze der Freiheit vereinigt werdenkann.'

Kant

2.

'Der abstracte Ausdruck des allgemeinen, an und fur

sich seienden Willens.'

Hegel ^

'Das organische Ganze der iiusseren Bedingungen des

Krause

vernunf tgemassen Lebens.'

*.

'Die Kegel wodurch die unsichtbare Granze bestimmt

wird, innerhalb welcher das
jedes

Daseyn und

Einzelnen einen sichern freyen

Wirksamkeit

die

Raum

gewinnt.'

Savigny \

The term Law

employed

is

abstract idea

sense of the

in Jurisprudence not in the Diversity

of order,

But

abstract idea of rules of conduct.

a particular class are

'

laws

'

but in that of the^j^ng^

of these rules only '*^*-

in the strict sense of the

so that although the jurist

is

in

no danger

entangled in questions of physical science, he

busy himself

to

his

in

His task

of study

as to

Eccl. Pol.

i.

fit it

so

is

popular conception of
action,

is

obliged

marking the boundary which separates

own department

morality.

term

of getting

'

to

a law

for his

'

own

from

the wider field of

narrow and
in

deepen

the

the sense of a rule of

purposes.

This task will

c. 3, c. 8.

'The sum-total of the conditions under which the personal wishes of

one man can be combined with the personal wishes of another man, in
accordance with a general law of Freedom.' Rechtslehre, Werke, vii. p. 27.
' 'The abstract expression of the general Will, existing in and for
*

itself.'

Propadeutik, Cursus,

i.

26.

'The organic whole of the external conditions of life in conformity to

reason.' Abriss des Systemes der Philosophic des Rechtes, p. 209.
* 'The rule whereby the invisible border-line is fixed within which th
being and the activity of each individual obtains a secure and free space.*
System,
p. 332.
*

LAW.

22

be undertaken in the next chapter

which

may

it

and conduct

more

how

men

of

which the term law

to

upon

various

for the guidance of the

in character are those precepts

life

before entering

perhaps be as well to point out

is

with

or less propriety applied.

While some

human

these

of

precepts

received wherever

are

beings are gathered together, others

are limited

to the followers of a particular religion, or to the inhabi-

While

tants of a definite portion of the earth's surface.

some

them deal with the fundamental

of

occupied

are

others

society,

the

Some

are enforced

of ceremonial or deportment.

whole power of great empires,

by any one who

violated

banter

pettiest

whilst others

details

by the

may

be

not afraid to encounter the

is

They

acquaintance.

his

of

certain characteristics in

institutions of

with

possess,

however,

common, which must be

briefly

enumerated.

They

Characteristics

mon

all

either are,

com-

to all
of them.

propositions.

They

may

or

be,

expressed as distinct

are, further, propositions

addressed to

the will of a rational being.

Of the two kinds

addressed, they are

which the cause

in

who commands

of

commands;

of obedience

is

not

express,

an

is

that

is

to

ference to prevent

the

in

say, they

that

itself

they are accomif

they

author

will

imply,

their

not necessarily by a threat

of punishment, as such, but also

in

so

to say, precepts

taken from the thing

intimation

see to their being obeyed;

position

is

may be

depends on the will of him

Bemg commands,

advised \

panied by a sanction

do

that

which

not counsels, which are precepts in which

the reason of obedience

which

propositions

by a suggestion

disobedience, or

to

of inter-

reinstate

things

which they were before the act

of

disobedience.
Lastly,

they are general commands.

They

relate

Hobbes, Works, ii. p. 183. On 'Imperium' and 'Consilium,'

Thomasius, Fundamenta I. Naturae et G. 1705, p. 133.
'

to
of.

AS A RULE OF ACTION.

23

courses of conduct, as opposed to special commands, which

enjoin only a particular action

Laws, therefore,

in the

action, are propositions

vague sense

followed, or

of rules of

commanding the

ing from, certain classes of action

is

ii.

human

doing, or abstain-

disobedience to which

likely to be followed,

is

chap.

^.

by some sort

of

penalty or inconvenience.

There are many propositions

is

likely

of this

kind which no one

seriously to mistake for laws.

It is generally

understood that such phrases as the laws of honour, or

of

way

employed, by

etiquette, are

to indicate rules which, either

by

of

analogy merely,

their trifling importance,

or from the limited circle in which they are recognised,

differ

widely

moment,

from precepts

either

on account

their violation, or
find, as to

The

of the

of

which

are

of

the penalties

such

vital

attached to

general acceptance which they

be more ordinarily talked of as 'laws.'

rules

of

human

action

which are most often con-

Uses most

fused with laws proper, are those which are called lawsj^^fygg^
of

God, laws of nature, and laws of morality.

So closely Y^^^

indeed are these topics connected with those proper to

many of the older works on the

much with the laws x)f God, or of

Jurisprudence, that
are occupied as

as with law proper.

Sir

subject
nature,

Walter Raleigh, for instance,

begins a dissertation upon Law, by stating that laws are

On

the other hand.Blackstone, i. p. 44, makes the

its being addressed to a class of persons. So
Cicero, de Leg. iii. 19, 'legis haec vis est scitum et iussum in omnes.'
A. Gellius, X. 20, takes Capito's definition of lex as 'generate iussum' to

iXyAustin,

i.

p. II.

generality of a law depend on

imply that it must be 'de universis civibus,' as opposed to privilegia,'

andUlpian, 'iura non in singulas personas.sed generaliterconstituuntur,'
Dig. i. 3. 8. Cf. Bentham, Nomography, c. i, Works, iii. p. 233. Sir H.
Maine attributes the 'generality' of law, in both senses, to the great
distance at which the force wielded by the Sovereign has to act upon the
bulk of the persons exposed to it. Early Hist, of Inst. p. 393. On the
advantages and disadvantages of this characteristic of law, cf Arist. Pol.
'

iii.

15. s; Liv. 2. 3.

*^

LAW.

24
CHAP.

II.

three kinds

of

the

eternal or uncreated

the natural

or internal; and those which are imposed, or of addition.

These

law

last,

which are

'

explicatory and perfecting to the

of nature,' are either divine or

human both
;

of

which

kinds are again variously subdivided \

It will therefore

be necessary to touch briefly on those

classes of so-called laws

with laws properly so

'
i.

c.

Works,

iii.

15; Locke,

p. 101

Hum.

which are occasionally confused

called.

Hobbes, Works, ii. p. i86.

Understanding, ii. 6.

Cf.

Hooker, Eccl. Pol.

CHAPTER

III.

LAWS AS RULES OF HUMAN ACTION.

The use

of the

term

Law in any

practical or moral, that

human

is

to say

but the sciences called Uses

which have to do with

of the

the prac-

^^^-^^
thus merely metaphorical,
and irre- sciences.
^
levant to our inquiry \ Our only real difficulty is to draw

the

will,'

is

-^

>

a sharp line between the meaning in which the term

used in Jurisprudence and that in which

The task

other practical sciences.

that the line has not at

all

is

it is

is

used in the

the more difficult

times been so sharply

drawn

now possible and desirable to draw it ^

The common characteristics of the moral sciences, covering as they do collectively the phenomena of human
as

it is

action, using that

term

in the widest sense, as including

volitions, whether accompanied or not by external

movement, may be summed up as follows They postulate
all

a will; free at any rate so far as to be influenced by

^
The reader need hardly be reminded that by a practical science is
not meant a body of rules for the government of practice (which would be
an art), but the study of the principles upon which, as a matter of fact,
human action is governed.
^ The expression in Greek writers coming
nearest to what we mean by
Jurisprudence is probably 'Pohtike.' Aristotle, Eth. Nic. x. lo. 23,
divides ^ irepl rh avBpiiirtva <pi\offo<pla into Ethike and Politike.
'

'

LAWS AS RULES OF HUMAN ACTION.

26
CHAP.

III.

motives presented to

They postulate the determination

it.

by other causes than the mere sensations of

the moment, and, more specifically, by respect for rules
of life and conduct. They have many fundamental ideas
of that will

in

common, such

command;

freedom,

as

act,

obligation,

bound

ideas which they are not

sanction,

to

analyse

exhaustively, but employ in accordance with the usage of

ordinary language, and in senses which might be accepted

by widely opposed schools of speculation. Each science

must define and classify such ideas so far as is necessary
for its own purposes, leaving their full and final investigation to

Psychology or Metaphysics.

Unless the sciences

so far respect each other's boundaries, a treatise

upon any

one of them must be preceded by a sketch of

the rest

and thus

it

all

has happened that systems of Jurisprudence

have been encumbered with digressions and polemics upon

questions lying wholly outside of

Division
of the
practical
sciences.

The resemblances and

the term

a law'

its

appropriate province.

differences in the

employment

the several practical sciences

of

must be

explained by the resemblances and differences between the

sciences themselves.
is

The grand

division of these sciences

between that which deals with states

spectively of their

outward manifestation

which deal with states of the

manifested

in

and those

will only so far as they are

The former

action'.

of the will, irre-

in act,

regards, while

latter disregard, those internal acts of the will

the

which do

not result in outward acts of the body.

The former kind

of science

is

'

The

Ethic'

possess no received collective name, but

provisionally designated

The

'

latter kinds

may perhaps be

Nomology.'

essential difference

between them

is

that Ethic deals

not only with the outward results of the determination of

that faculty of respect for a rule which

is

the basis of

all

the moral sciences, but also, and rather, with the balance
'

Including therein willed inaction.

ETHIC AND NOMOLOGY.

2/

of inward forces by which those results are produced.

It

chap. hi.

men do, but also

men who do themV Nomology, on the other

looks not only to the sort of acts which

to the sort of

hand, deals entirely with the conformity or non-conformity

outward

acts to rules of conduct.

Ethic

the science of the conformity of

of

is

human

char-

Nomology, of the conformity

of actions

the science mainly of duties; while

Xomology

acter to a type;
to rules.

Ethic

is

looks rather to the definition and preservation of rights.

The terms
are

and duty are

right

common

to both Ethic

science, in accordance

of course correlatives,

and Nomology

with

and

but the former

more inward nature, looks

its

rather to the duties wliich are binding on the conscience

*
;

the latter looks to the rights which are the elements of

social

life.

Ethic bas been well described by Kant as concerned Ethic,

with the laws for which external legislation

It

is

the science of those rules which

themselves adopted by the wQl as

its

is

impossible I

when known

are

objects or aims.

This rightness of will can never be enforced by external

legislation,

but must be the free choice of the individual.

All that external legislation can do

expression of the will in act

tion of the

aim

itself of

and

is

to affect the external

this,

not by a

rectifica-

the will, but by causing the will

to follow out in act another aim.

The

science of this office of external regulation

we have

called 'Nomology.'

It

may

is

what Nomology.

be defined as 'the

science of the totality of the rules for which an external

legislation is possible
'

So

Arist. Eth. Nic.

aySpelov.
'

lb.

iii.

8. i;

This definition

Law.

is

v.

^.'

ii.

i.

4.

14.

Law commands
^

not avSptlay, but rek toC

Tugendlehre, Werke, vii. p. 182.

applied by Kant, Rechtslehre,

ib. p.

27, to

He

the

opposes 'Rechtslehre' to 'Tugendlehre,' making

these two species exhaust the genus Sittenlehre.'
Now we have
endeavoured to explain that this genus coptains the two species Ethic,'

science of

'

'

LAWS AS RULES OF HUMAN ACTION.

28
CHAP,

The moral

III.

sciences having thus been grouped under the

-head of Ethic, in which the object of investigation

conformity of the

which the object

to a rule,

we

will to

a rule;

of investigation

Rules of

Nomology, the

it

I.

science

Nomology, in

the conformity of acts

external

of

treats are enforced, into

the

latter.

divided, according to the authority

which

of

is

pass by the former, as foreign to our subject,

and confine our attention t the

external
action.

is

and

science

rules

of

must be

action,

by which the rules

oi

by indeterminate

enforced

authority.
II.

science

of

rules

by

enforced

determinate

authority.
enforced

by indeterminate
authority.

I.

What may

be vaguely called

various origin and obligation.

istic is that,

'

moral laws

Their

regarded with favour, and those

disfavour, either

of

Under

common

character-

although no definite authority can be appealed

to in case of their infraction, yet those

it.

are of very

'

by

who obey them

are

disobey them with

society in general or

large category

this

who

may be

by a

section of

classed the laws

usage in the pronunciation of words, of fashion in

the choice of dress, of social demeanour, of professional

etiquette, or of

honour between gentlemen, as well as the

gravest precepts of morahty, specifically so called.

them possess the common

All of

characteristic of being generally

received in certain circles of society, wliile anything done

in

contravention

of

them exposes the transgressor

to

various shades of ridicule, hatred or coercion.

Laws

The weakest

of
fashion,

of

fashion

sort of these rules are undoubtedly those

and etiquette; deviation from which

is

called

and what we have called 'Nomology,' which latter, besides Jurisprudence,

contains other sub-species. We submit that Kant's definition, as he
applies it, is too wide. There are rules of action which can be imposed
by external authority, and yet are not laws. His definition should
apply, as we have applied it, to a class of sciences, of which Jurisprudence
is

onlv one.

MORAL LAWS.
and

eccentricity or vulgarity,

is

29

visited

by

penalties vary-

chap.

m.

ing from a smile to ostracism from society.

somewhat stronger
law

so-called

may be

force

from which are

of honour, deviations

country stigmatised as

in this

conduct unbecoming a gentleman.'

'

This however, so far as

of ordinary morality,

attributed to the of honour,

it

exceeds in delicacy the dictates

recognised by a comparatively

is

small class, and, as has been well observed, regulates only

the

betwixt

duties

equals

Far more important are

*.

of morality,

more usually

those precepts which are

of morality,

As

and the infraction

to the origin

and of the code

of wliich is called vice.

and authority

conventional, and have

grown up

of

states

society

in

different

Every
degrees,

in particular circles

which they were found

and

beneficial.

reference to those wider formulas called moral prin-

ciples, there is

body

to

no mystery.

is

though

are,

laws of fashion,

of the

of honour, there

one admits that these

With

called principles

of

by no means the same consent.

maxims, regulating the relations

in all the intercourse of

up partly under the

life,

would seem

influence

This great

man

of

to

to

man

have grown

religion, partly out of

of

speculative theories, partly out of the necessities of existence.

Which

of these ingredients

most

essential,

element of morality,

is

the essential, or the

may

well be questioned.

any rate certain that morality

It is at

not due to the

is

direct interposition of political authority.

Into the battles which are perpetually

essential quality of virtue in

itself,

by which the virtuous quality

it

is

of

and

ragmg

as to the

as to the faculty

actions

is

not the business of the jurist to enter.

discerned ^

He

is

not

obliged to decide whether the criterion of virtue be con-

'The law of Honour is a system of

and calculated to faciUtate their
Ibid. Cf.
intercourse with one another, and for no other purpose.'
'

Paley, Mor. Phil, book

rules constructed

Jhering,
^

by people

i.

ch.

2.

of fashion,

Der Kampf urn's Recht, p. 25.

g. Dugald Stewart, Philosophy of the Active and Moral Powers.

See e.

LAWS AS RULES OF HUMAN ACTION.

30
CHAP

III.

duciveness to

he

or accordance with nature; nor need

utility,

an innate moral

profess his belief, or disbelief, either in

sense, or in a categorical imperative of the practical reason.

These

hard

the

are

business of the jurist

questions
is,

in the

The

Metaphysics.

of

first place, to

accept as

an undoubted fact the existence of moral principles in

the world, differing in

and

'at

many

particulars in different nations

different epochs, but having certain broad resem-

blances; and, in the second place, to observe the sort of

by which

sanction

He

these

are made effective.

draw unswervingly the

principles

will then be in a position to

which divides such moral laws from the laws which

line

are the subjects of his proper science ^

While the broad resemblance

mankind
gencies

of the moral principles of

universally admitted,

is

the

between them are frequently

truth upon this point

occasional

diver-

The

lost sight of.

admirably expressed by Paley.

is

'Moral approbation,' he writes, 'follows the fashions and

of

institutions
also

and

the country

we

live in

exigencies,

the climate,

situation, or

which fashions

grown out

mstitutions themselves have

local

of

the

circumstances

the country, or have been set up by the authority of

of

an arbitrary chieftain or the unaccountable caprice of the

multitude

As

I'

to the sanction of moral rules,

the term,

it

was well

said

the wide sense of

by Locke that

'

no man escapes

the punishment of their censure and dislike

agamst the fashion and opinion

of the

and would recommend himself to

who

offends

company he

it I'

keeps,

Such rules

are

Kant, Tugendlehre, Werke, vii. p. 177. Cf. also the remarks of

'Quam angusta innocentia est ad legem bonum esse? Quanto
latius officiorum patet quam iuris regula? Quam multa pietas, humanitas,
liberalitas, iustitia, fides exigunt, quae onania extra publicas tabulas
*

Cf.

Seneca:

sunt?'

De

Ira,

ii.

28.

Mor. Phil, book i. ch. 5. Cf. Herodotus, iii. 38; Arist. Eth. Nic. v. 7;
Montaigne, Essais, i. ch. 22; Pascal, Pens^es, iii. 8.
* Human Understanding, book ii.
i-i 2, where hescarcely does justice
'

MORAL LAWS.
thus by no means

We

without

appropriate

their

sanction,

chap. in.

cannot therefore, with Thomasius, see in the presence

or absence

compulsion

of

the

dividing

characteristic

Law^

between moraUty and

Enough has perhaps been

rules generally. One class

said with reference to moral

of

however

rules has

these

exercised so wide an mfluence, and

is

so intimately con-

demand

nected with our more immediate subject, as to

a more extended notice.

That portion

which supplies the more im- The law

of morality

Nature,

portant and universal

outward
This

mankind

acts of

a plain and,

is

for the governance

rules

called the

is

a subject upon which a vast

has

Such

been expended.

morality

to overt

relating

of being enforced

Law

of Nature.'

submitted, true account of

is

it

'

amount

of

of mystical writing

precepts of

received

the

and therefore capable

acts,

by a pohtical authority, as either are

enforced by such authority or are supposed to be

to be

enforced,

State,

is

it

fit

They

are called 'laws of Nature.'

precepts obedience to which, whether

manded by the

of the

so

are

be or be not com-

msisted upon by a deep-rooted

Resting essentially upon pubUc senti-

public sentiment.

but having reference

ment, they are rules of morality;

only to such outward actions as are thought

form only one

enforcement, they

class

for political

fit

of

such

rules.

After what has been said as to the origin and authority

moral rules

of

in general, it will

be unnecessary to discuss

and authority of such moral rules

at length the origin

as are called natural laws.

Whatever may be the

objective

character of those laws ^, whether they should be identified

to the effects produced

by sympathy with the sentiment

of our fellow-

creatures.
>

Fund.

I.

Nat.

ii.

c.

6. 3.

Cf. Arist.

Eth. Nic.

x. 9. 12, 6 5

vSfxos

ifayKUffTiKiiv X<i Siva/xiv.

'

Whether for instance

it

be more true to say with Cicero, de Leg.

ii.

4,

of

LAWS AS RULES OF HUMAN ACTION.

32
CHAP.

III.

T5vith

the will of God, or should be supposed to be in some

sort the guides even of that will,

jurist that they certainly rest,

lilce

enough

is

it

for the

other moral rules, upon

the support of public sentiment.

While there has been much

Law

the contents of the

difference of opinion as to

of Nature, the existence of

such

a law has been very generally admitted.

At

when

the time

the social were

first

separated from
tlie

former

arbitrary.

Thus

the physical sciences, speculation recognised in

nothing

what

but

and

variable

is

Democritus taught that legal institutions were of human

by Nature*.

exist

sophistical doctrine that moral distinc-

was the stock

It

and vacuum

atoms

while

devising,

law

tions, especially Justice, are the creatures of

itself

is

which

mere compromise, securing each man against

injury on condition that he surrenders the luxury of

treating

his

character

of

Herodotus

neighbours^.

morality

from the

is

purely

Tlie

also

the

which he found to prevail among

But a contrary view found

conventional

conclusion

contradictory views

ill-

drawn by

and

customs

different nations^.

early expression in literature.

Sophocles makes Antigone appeal from the orders of King

Kreon

to the
aypaTJTa
vofii/xa

Ocwv

Ka(T(f>aXrj

*.

Aristotle fully recognises the existence of a natural as

well as of a legal Justice ^

'Lex vera

ratio est recta

'Utilitas iusti prope

summi

mater

He mentions
lovis,' or

as an ordinary

with Horace, Sat.

i.

'

noirjrh 5e vS/xip-a that, (pvati 5e olto/xovs Kcd Kiv6v.

Diog. Laert.

'

Th SIkuiov

ii.

is

3.

98,

et aeqiii.'

awSTpiov ayadSv.

Plato, de

Repub.

ad

init.;

ix. 45.

cf.

Arist.

Eth. Nic. V. I. 17, Pol. iii. 9. 8; Rousseau, Contr. Social, ii. c. 6.

'
Herodot. iii. 38. J'ai bien peur que cette nature ne soit elle-meme
qu'une premiere coutume, comme la coutume est une seconde nature,'
says Pascal, Pens^ea, iii. 19.
* 'Unwritten and steadfast customs of the Gods.'
Antig. ver. 454; cf.
Oedip. R. ver. 838; Xen. Memor. iv. 4. 19; Plato, Legg. pp. 563, 793.
'

'

Tov Se 7ro\iTiKov SiKa(ov rh

ixev (j>v(riK6v ^cri,

rh Si vofiiKov,

ipvffiKhv fikv

rh

THE LAW OF NATURE.

33

device of rhetoric the distinction which may be drawn

between the written law, and 'the common law' which
is in accordance with Nature and immutable ^

The

Law

Stoics

and

such by mere

is

Nature with

of opposing both of these

human

appointment.

by Nature and not by imposition^.'

proceeds from Zeus and the common Nature ^' In
they say,

Justice,'

'It

passage

in the habit of identifying

Law which

terms to
*

were

in the higlier sense,

common
things,

'is

already quoted,

law, which
identical

is

Chrysippus

the

of

'the

reason, pervading

right

with Zeus, the

speaks

all

supreme administrator

of the Universe*.'

The same view

finds expression in the

'Law,' says Cicero,

'is

Eoman

lawyers.

the liighest reason, implanted in

Nature, which commands those things which ought to be

done and prohibits the

born in

was

all

'

begin to be
arose, that

is

We are by Nature

inclined to love mankind,

'Law

foundation of law^'

the

is

'The highest law was

the ages before any law was written or State

formed.'

which

reverse.'

when

it

was put

to say at the

did

not then

into writing, but

when

it

same moment with the mind

GodV

of

iravTaxov t^v avTrjv (xov Swa/xiv, Kol

oil

r^

SoKe7p

fj

fxi),

vofxiKhv 5^ ^ e| opx'^s

He goes on to
explain this statement, and to refute the idea that everything which is
(pvaei is wholl}' aKlvT^rov. He uses avvd7]K7i as synonymous with vofxiKSv.
Eth. Nic. V. 7.
fxkv

ohQev Sia<pepi ovTWi

Rhet.

Kara
^

i.

16.

He also

(pvaiv, ib. 14;

Stob. Eccl.

fj

ii.

cf.

iiAAois, Stoj/ Se Oaivrai

opposes the

5f5ios

Siai^epei.

vS^os to that

Demosth. Aristocrat,

which

is

koivSs or

p. 639.

p. 184.

Chrys. apud Plut. de Stoic. Rep. 9. Cf. the saying of Heracleitus:

rpe(povTai yap ndfTes ol avQpdnrnoi v6/xoi iiirb evhs tov 6flov.
Frag. 91, ed.
^

Bywater.
*

^
'

Chrys. apud Diog. Laert. vii. 88.

De Legib. i. 6; ib. i. 15; cf. De Inv. ii. 52; Rep. (Mai) iii. 22.
De Legib. ii. 4; cf. the distinction between 'summa lex' and 'lex

between 'lex Naturae' and 'civilis,' De Off. iii.

between 'civilis nexus' and 'communis lex Naturae/ Rep. i. 17,
iii. 38; between 'summum ius' and 'ius civile/ ib. v.
3; and between
'universum ius' and 'ius civile/ De Legib. i. 4.
scripta,' ib. cc. 6. 15;

17;

1950

chap. hi.

LAWS AS RULES OF HUMAN ACTION.

34
CHAP.

III.

It

may be worth

while to add a few instances from later

writers of the terms in which the law of Nature has been

spoken

of.
*

Isidorus

lus naturale est

commune omnium nationum,

eo quod ubique instinctu naturae, non constitutione aliqua,

\'

habetur

Thomas Aquinas

S,

'
:

Participatio

aeternae

legis

in

rationah creatura lex naturahs dicitur'.'

Grotius

cans actui

cum

lus naturale est dictatum rectae rationis, indi-

'
:

ex eius convenientia aut disconvenientia

alicui,

Natura

ipsa

rationali

ac

inesse

sociali,

moralem

turpitudinem aut necessitatem moralem, ac consequenter

praecipi

actum aut

Naturae, Deo, talem

ab auctore

vetari

aut

I'

Hobbes:

'Reason

suggesteth

convenient

men may be drawn

Peace, upon which

Articles

to

of

agreement.

These Articles are they which otherwise are called the

Lawes

Nature \'

of

Jeremy Taylor

The law

'
:

law

of the world, or the

necessities,

of nature

of

is

which we are inclined by nature, invited

to

by consent, prompted by reason, but

command

only by the

Cumberland:

of

'Lex Naturae

The term 'Law

we have
and

The wider

The wider

more
is

propositio naturaliter

est

communis boni

,'

of Nature,' besides the sense in

explamed

just

also in a

bound upon us

is

God^'

cognita, actiones indicans effectrices

Special
uses of
term.

the universal law

mankind, concerning common

it,

which

has been employed in a wider

restricted sense.

that of the well-known 'ius naturale' of

sense.

Ulpian, which he says prevails

among animals

as well as

men, regulating the nurture of the young and the union

of the sexes ^
1

Etymol.

De

Duct Dub.

lust. Inst.

I.

It

v, cf.

obvious that the courses of action

Decretum

Bell, et P.

i.

is

ii.

2,

i.

i.

10.

c. i. r. i.

Dist.

c. 7.

91. art. 2.

'

I.

Leviathan, p. 63.
De Lege Nat. v. i

2. q.

THE NARROWER SENSE.

33

mentioned by Ulpian are followed in pursuance, not

of

a rational will, which alone

is

precept addressed

to

chap,

hi,

but rather of a blind instinct,

properly called a 'law,'

resembling the forces which sway the inanimate Avorld\

Such an employment
metaphorical as

verse.

fact,

fully

as

is

no more

than a law of gravitation.

pursuance of this

It is in

which

'law,'

men

supposed to

is

before they have originated

those institutions which

mark

to the merely animal creation, that all

their

men

superiority

are asserted to

'lure enim na^turali ab initio omnes homines

be equal.

nascebantur

liberi

in

use to express the order of the uni-

its

govern the relations of

of

is,

law for the nurture of offsprmg

intelligible

any

the term

of

'

which

is

equivalent to saying that

before any laws were in existence, no differences between

man and man were

naturale

'

recognised

to consequences which,

'ius

upon analysis

be dangerous

to

wrong had its origin after

motion and began to reflect

All legal right and

truisms.

and

Ulpian's

however magniloquently they may

be expressed, turn out

human

by law.

therefore a merely metaphorical phrase, leadmg

is

society

To

act.

was put

talk of law

in

and right

as applied to

mankind

at a supposed period anterior to society beginning to think

and act

is

a contradiction in terms

An employment

the term 'natural law' in a sense The

of

much narrower than

as

as Ulpian's

gentium.'
positive

with

is

whom
B.

'ius

is

that which
its

we have

identification

gentium,' in

its

narrower

given

it sense.

with the 'ius

origin

a system of

law enforced among the Romans and the races

they were brought into commercial contact,

was conceived
tury

wider,

The

^.

of,

c, as a

doubtless as early as the second cen-

body

of

principles

which are found in

Hesiod, Op. et Dies, 276.

writers are not wanting to assure us that the genesis of law preceded even the development of the family. Zocco-Rosa, Principii d'una

Yet

Preistoria del Diritto, 1885, p. 36.

D2

LAWS AS RULES OF HUMAN ACTION.

36
CHAP.

III.

the laws of

and which therefore point to

nations,

all

a similarity in the needs and ideas of

peoples \

all

autem gentium omni humano generi commune

usu exigente

quaedam

humanis necessitatibus gentes humanae

et

Bella etenim orta sunt et

constituerunt.

sibi

quae sunt naturali

captivitates secutae, et servitutes,

By

contrariael'

narrow and

gradually enriched

was an afterthought
and a philosophical

It

authority

identifying

Rome was

law of

them with the

'

them

give

to

by

significance

naturale

ius

iuri

precepts the

the introduction of these

strict

and expanded.
a higher

'lus

nam

est;

'

as

done

is

even by Cicero'; and more explicitly by Gains when he

'Quod vero naturalis

says:

apud omnes populos peraeque custoditur,

id

constituit,

vocaturque ius gentium,

utuntur

omnes homines

inter

ratio

quo iure omnes gentes

quasi

*.'

extravagantly

Ulpian's

wide application

never seems to have gained currency.

other hand, long

and generally used

It was,
in

term

the

of

on the

the restricted

Romans meant by

sense of an equivalent for what the

the 'ius gentium.'
Its

suitable

and convenient use

was employed

it

was

by Aristotle

which

in the sense in

by such

restored

writers as Oldendorp, Gentili, and Grotius.

Deducthe doctrine.

brief notice

must

'

^f

'

various piactical

the

of

suffice

have been drawn

conclusions which

from the doctrine

j^g naturale.'

Cic.

de

Off.

iii.

Cf. Voigt,

69.

Das Ius Naturale, passim, and

Prof.

Nettleship, Contributions to Latin Lexicography, pp. 500-510.

' lust. Inst. i. 2.
Gentium ius
ab eo enim nominatum est
2.
'

et

omnes gentes

est

omnium

Gai. Inst.

similiter eo sunt usae;

utilitati convenit.'

iii.

quod enim honestum

Frag. Vet.

I.

Cti.

Cf. Cic.

de

iustum

et
Off.

iii.

17;

93.

' 'Lege naturae, id est gentium,' DeOf?. i. 23;

In
gentium lex Naturae putanda est,' Tusc. i. 13.
'

re consensio
*

omnium

Inst.

i.

i.

DEDUCTIONS FROM THE DOCTRINE.

1.

Acts

by

prohibited

not 'mala in

Thus

se.'

said

by the

law, but not

positive

so-called natural law, are

3/

be 'mala

to

prohibita,'

government may find

it

ex-

pedient to forbid certain acts, such as the planting of

which

tobacco \

not

are

regarded

by the

odious

as

public sentiment.
2.

Positive laws have been said to be

they contradict
phrasing

Thomas

S.

'
:

Human

laws

So

measures

are

measured by

rules to be

and the law

made according
they are

which rules are two, the law

of nature.

to the general

law

So that laws must be

of nature,

ill

made l'

Grotius

'
:

Humana

and without
otherwise

iura multa con-

stituere possunt praeter naturam, contra

naturam

nihil

Blackstone: 'This law of nature, being co-eval with

mankind

and

superior

in

the

human
all

of

by

dictated

obligation

globe

laws

and such
and

How-

direct.

contradiction to any positive law of scripture;

over

in

such measures they are as have also their higher

of God,

And

when

invalid

Hooker, para-

men whose motions they must

respect of
beit

law of Nature.

the

in

are

them

to

as

any
are

their authority,

their original \'

It

is

himself,

other.

countries and

all

of

God

any

validity,

valid

if

of

is

It is

course

binding

at all times

contrary

derive

all

to

their

all

no

this;
force,

mediately or immediately, from

with reference to assertions of this

*
12 Ch. II. c. 34. Cf. the lenient view which has been taken by
the Courts of evasions of the revenue laws, e. g. Hohnan v. Johnson,

Cowp.

341.
Eccl. Pol.

3 De I. B. et P. ii. 3. 6.
iii. c. 9.
Introd. p. 43. Cf. Cic. de Legib. ii. 4; Suarez, de Lege et
Deo, ii. 14; Raleigh, Works, iii.; Coke, I. Inst. 11, 183, 197; 7 Rep. 14;
Locke, Civ. Gov. 11. Lord Coke in Bonham's case, 8 Rep. 118, says that
^

Comm.

of Parliament is against Common Right and Reason, or

repugnant, or impossible to be performed, the Common law will control
it, and adjudge such Act to be void,' &c.
and Lord Hobart, 'even
an Act of Parliament, made against natural equitj'^, as to make a man
a judge in his own case, is void in itself, for iura naturae sunt immutahilia,
they are leges legmn.'Day v. Savage, Hob. 87. These dicta, though approved
of by Lord Holt in London v. Wood, 12 Mod. 687, appear never to have

'when an Act

chap, iil

LAWS AS RULES OF HUMAN ACTION\

38
CHAP.

III.

Bentham remarks

sort that

'
:

On ne

pent plus raisonner

avec des fanatiqiies armes d'un droit naturel^ que chacun

entend

comme

il

lui plait

comme

dont on ne pent s'ecarter sans crime

un dogme,

et

c'est-a-dire

qu'ils

substituent au raisonnement

perience toutes les chimeres de leur imagination

3.

meme

qui est inflexible en

temps qu'inintelligible, qui est consacre a ses yeux

de

I'ex-

\*

Natural law, or natural equity, has been often called

from the

in to justify a departure

strict rules of positive

law.

With

the changing ideas of society cases of course often

when

occurred

the law of

the State

was found

to be

opposition to the views of equity entertained by the

in

people, or

by leading minds among them.

would be

modern language

said in

The

to be

opposition

between law

But law and moraUty in early times were

not conceived of as distinct. The contrast was therefore
treated as existing between a higher and a lower kind of
and morality.

law, the written law which

may

easily be superseded,

the unwritten but immutable law which

is

and

in accordance

with Nature.

And

this

way

of talking continues to be practised to

the present day.

Long

after the

boundary between law

and morality had been clearly perceived, functionaries

who were

in the habit of altering the

authority to legislate found

fact that they

it

law without having

convenient to disguise the

were appealing from law

to morality,

asserting that they were merely administering

of

Nature instead
4.

In

cases

for

of

law

by

the law

positive.

which the law makes

no

provision,

the Courts are sometimes expressly authorised to decide

in

accordance with the principles of natural law.

been followed

in practice;

and

see

6 C. P. 582; also a learned note

now Lee

by Gray C.

v.
J.

point, in Paxton's Case, Quincy, Mass., 51.

*

Dumont, Trait6s de

Legislation,

i.

p. 147.

This

Bude, &c., Ry. Co., L. R.

on the American cases in

DEDUCTIONS FROM THE DOCTRINE.

the Austrian

instance, in

so, for

is

39

and German

Civil

Codes; and the Commissioners for preparing a body of

substantive law for India recommended that the judges

should decide such cases 'in the manner they deem most
consistent with the principles of justice, equity,

conscience

The new Swiss

'.'

provides

operation in 19 12,

enactment, a judge
droit coutumier.'

is

to

Civil Code,

in

that,

'
:

II s'inspire

default of express

decide in accordance with

Failing both of these sources, he

down were he

apply such rules as he would lay

lator

and good

which came into

is

'le

to

a legis-

des solutions consacrees par la doctrine

et la jurisprudence*.'
5.

The exceptional

'Law merchant' have

Thus it is
Ed. IV that jurisdiction

rules of the

been explained as derived from natural law.

laid

over

down

foreign

the year-book of 13

merchants

legem naturae que

est appelle

que est ley universal par tout

6.

When

is

exercised 'secundum

per ascuns ley marchant,

le

monde^'

English Courts refuse recognition to a foreign

judgment as being
tion

be

to

is

'

opposed to natural

justice,'

the objec-

limited to the procedure by which the judgment

'Nach den

natiirlichen

Grundsatzen/

7.

In which the phrases 'Treu und Glauben,' 'gute Sitten,' 'biUiges

Ermessen,' are of frequent recurrence. See R. Stammler, Die Lehre von
4em Richtigen Recht, 1902. For a discussion of the words 'd'apres les
principes g4n6raux du droit et I'^quit^,' in a Congo Ordonnance of 1886,
see Stokes v. Stokes, L. J. 67 P. D. & A. 55. Cf. the much discussed provision in art. 7 of the International Prize Court Convention of 1907,
fortunately unratified by any Power, that, in certain events, that Court
may decide 'd'apres les principes g^n^raux du droit et de V6qnit6.'
' First Report,
p. 9; Second Report, p. 10. Sir Fitzjames Stephen
seems to have maintained that such attractive phrases mean 'little more
than an imperfect understanding of imperfect collections of not very
recent editions of English text-books.' Stokes, Anglo-Indian Codes, ii.
p. 1 1 59. The dangerous provision in art. 5 of the abortive convention,
above mentioned, empowering the Court, in the absence of Treaties or
rules of International Law, to decide d'apres les principes g4n6raux de la
justice et de I'^quit^,' led to the, fortunately also abortive, attempt, made
in the 'Declaration of London,' to supply something more definite.
* Art. I. The phraseology employed in the three languages of the Code
does not always suggest quite the same idea.
' Cited by Sir F. Pollock, Journal of Soc. Comp. Legislation, 1900,
p. 431. Cf. infra, p. 60 n.
*

'

chap. hi.

LAWS AS RULES OF HUMAN ACTION.

40
CHAP. HI,

was obtained \

This ground of objection, as stated in

the Indian Code of Civil Procedure, would appear to be

of wider application
7.

The law

of

Nature

the

is

foundation,

or

rather

the scaffolding, upon which the modern science of Inter-

Law was

national

built

Grotius. The
modern diplomacy, perhaps

up by Gentih and

appeals to 'natural law' in

most frequently made on behalf

have been

Rules
enforced

by determinate
authority.

Divine
laws.

little

more than

United

of the

States,

rhetorical ^

In contrast with the

which we

species

of

rules

have just been considering, are rules

set

by a determinate

II.

authority.

Among

such rules would no doubt be included rules

mankind by

imposed, or thought to be imposed, upon

a God

or

Gods,

Direct

revelations

the

of

will

of

supernatural power, or such indirect intimations of that

will

as each

alike

believed

man may

fuid in his

been described as 'laws of

that infractions of

either

own

conscience, have

GodV
class

It

of

has

been

God's laws.

Schibsby v. Westenholz, L. R. 6 Q. B. 155.

No foreign judgment shall operate as a bar,
.

'

of the Court before which

Art. 14
^

it is

if it is, in the opinion

produced, contrary to natural justice.'

(c).

The Second Armed Neutrality

(Art. 3) professed to safeguard 'les

du droit naturel, dont la liberty du commerce et de

la navigation, de meme que les droits des peuples neutres, sont une consequence directe.' Martens, Rec, 2me ed., vii. p. 175. Mr. J. Q. Adams,
principes g^n^raux

with reference to the claim of the United States to the Continent of

North America, writes in his diary, Nov. 16, 1819:
'From the time
when we became an independent people, it was as much a law of Nature
that this should become our pretension as that the Mississippi should
flow to the sea.' Memoirs, iv. p. 438. At the Beliring's Sea Arbitration,
Mr. Carter, arguendo, went so far as to speak of the law of Nature as the
true source upon which the whole system of the law of Nations rests,'
p. 289. Upon this statement, see the criticisms of Sir C. Russell, pp. 729,

'

1041.
* Austin introduces a new ambiguity into the term
law of God,' by
applying it complimentarily to the conclusions arrived at by tb*^ utilitarian philosophy as to the mode of producing the greatest happiness
'

of the greatest number.

BY A DETERMINATE AUTHORITY.
known

generally

as

among

redressed; whether, as

sooner

are

sins,

or

4I

later

be

to

the Jews, the redress

reward and punishment,

to take the shape of temporal

chap.

is

or,

as under the Christian dispensation, the readjustment of

and

good

religious

evil

The laws

of existence.

postponed to a future state

is

God thus resemble

of

every point, other than the essential

and

sanction, those laws

be

to

properly

so

difference of source

which we

called.

It

points

is

however

admit

just

this

and sanction which withdraws them

which

of

source

of

shall presently

from the cognisance of Jurisprudence.

and upholder

in almost

Laws

the author

superhuman are within the

is

province of quite a different science, and the jurist

may

be warned, in the quaint words of Thomasius, 'not to

put his sickle into the

field of

dread Theology V

Leaving therefore on one side those rules which are Human

alleged to be set by God,

by a

definite

distinction

human

authority,

to those

it

is

*^^'

which are

and here we draw the

between the case when such authority

when

the case

we come

is,

set

final

and

sovereign political authority.

not, a

Rules set by such an authority are alone properly called

'

laws.'

By
action,

successive

we have

as are laws.

narrowing of the rules

for

human

at length arrived at such of those rules

law, in the proper sense of the term,

human

therefore a general rule of

action, taking

is

cogni-

sance only of external acts, enforced by a determinate

authority,

which authority

authorities, is

that

is

which

is

human, and, among human

paramount

in

a political

society ^

Ne

campum venerandae Theologiae';

Elsewhere the same author doubts
the trut^" of the conception of God as a law-giver. The wise man, he
says,'3ees in God rather the teacher of a law of Nature, or a Father;
Fund. I. Nat. et Gent. c. 5.
'
Fiir das Feuer ist das Brennen nicht wesentlicher als fur das Recht
'

falcem hie immittamus in

Inst. lur. Div., lib.

i.

c. i.

163.

m.

42
CHAP.

III.

Definition

More

LAWS AS RULES OF HUMAN ACTION.

briefly, a

general rule of external

human

action

enforced by a sovereign political authority.

All other rules for the guidance of
called

laws

merely

which are not rules

by metaphor

human

action are

by analogy; and any propositions

for

human

action are called laws

only.

Erzwingung seiner Befolgung durch den Richter.' Jhering, Zweck, i.

It should hardly be necessary to remark that the legal character
of a rule is not affected by the circumstance that it may occasionally fail
to be enforced. Neither does promulgation seem to be of the essence
die

p. 321.

down to the year 1870, laws were

addressed only to the officials whose duty it would be to administer
them, and might be read by no one else; in accordance with the
Chinese maxim let the people abide by, but not be apprised of, the
law.' See Professor N. Hozumi's very interesting paper on the New
Japanese Civil Code of 1898, read at the St. Louis Congress of 1904, p. 21.
of a law: in Japan, for instance,

'

CHAPTER

IV.

POSITIVE LAW.

LAW, in the sense in which that term

Jurisprudence,

in

authority.
rules

It

which,

thus distinguished

is

the

like

principles

honour and

laws of

so-called

by an indeterminate

is

not

of

only from

on the one hand, superhuman,

all

and the

fashion, are

enforced

authority, but

also

or,

Positive

political

morality

of

from

by a determinate authority, which

enforced

employed

by a sovereign

enforced

is

all

rules
either,

is

on the other hand,

politically subordinate.

In order to emphasise the fact that laws, in the

strict

sense of the term, are thus authoritatively imposed, they

are described as
It is

'

positive

'

laws \

to such laws that the following definitions willDefini-

be found to have reference:

ToSto
Sia

ecTTi

TToAAd,

vo/i.09,

KoX

io

fidX.L(TTa

TrdvTas

on

dv^ptoTrovs

'7ra<;

iari

irpocrrjKU

vd/nos

evprjfxa

TTtiBtadai
[xkv

koX

* 'Positive are those which have not been from eternity; but have
been made Lawes by the Will of those that have had the Soveraign
Power over others Hobbes, Leviathan, p. 148. Cf. Aulus Gellius on
discussions as to the true character of words: whether 'nomina' are
'naturalia' ot 'positiva', 4>icu or O^ffti, Noctes Att. x. 4.
'

POSITIVE LAW.

44
CHAP.

IV.

Bwpov

Twv

Soy/ia

6eov,

Kol

Kov(TLu)v

KaO'

KOLvrj,

7]v

Demosthenes

avdpu)Trwv

8^

aKovaliov

'O

KaXelraL.

\'6fjLo<i

vo/xos ecTTi

'Lex

'

Lex

est

Xoyos

^.

/ca^'

a)/oicryw6vos,

b/xoXoytav

KOLvrjv

TroAetos,

Anaxiiuenes ^

iussum populi aut

generale

est

magistratu.'

iroXtt.

ttoXcws ^ovKfvtrajXfvov S ;(p^ iroiciv

Xenophon

TrpaxTetv Ka(7Ta.

Set

fxrjvvuiv TTOJS

t^

iv

81

wvdrjKrj

Bi

'Ocra y' av to Kparovv t^s

ypd^rj,

TroAews

tois

^rjv

Trpocn^Kfi.

ttTracrt

i7rav6p6w/j.a

<^povlfnav,

dfjiapTrjfJidTiov,

Atteius Capito

plebis,

rogante

*.

commune praeceptum, virorum prudentium

con-

sultum, delictorum quae sponte vel ignorantia contrahuntur

coercitio,

communis

'The speech

of

reipublicae sponsio.'

him who by

to be done or omitted.'

right

Papinianus ^

commands somewhat

Hobbes^

'Voluntas superioris quatenus libertatem coarctat lex

dicitur.'

Thomasius

'.

nom

*La notion exacte du

I'idee

les

d'une

hommes

i^uissance

de Droit renferme tou jours

supreme qui puisse contraindre

a s'y soumettre.'

D'Aguesseau

*.

is Law, to which all men ought to yield obedience for many

and especially because every law is a discovery and gift of God,
and at the same time a decision of wise men, and a righting of transgressions, both voluntary and involuntary, and the common covenant
of a State, in accordance with which it beseems all men in the State
to lead their Hves.' Adv. Aristogeit. (p. 774); Dig. i. 3. 2. Cf. the
*

'

This

reasons,

descriptions of

ySfios

as

S6yfj.a

irSKfws, S6^a

iro\iTiK-f],

in Plato's

Minos,

p. 314 c.
2

'Whatsoever the ruling part of the State, after deliberating as to

what ought

to be done, shall enact,

is

called a law.'

Mem.

i.

c. 2.

43.

a definite proposition, in pursuance of a common agreement

of a State, intimating how everything should be done.' Arist. Rhet. ad
Alex. c. I.
* Dig. i. 3. 3.
* Apud A. Gell. x. c. 20.
' lur. Div. i. 84.
* Works, ii.
p. 49; cf. iii. p. 251.

Law is

'

Instructions sur les Etudes, &c., 1716, CEuvres,

i.

p. 269.

DEFINITIONS.

Law is
mon rule
*

obedience.'

*A

of a sovereign, containing a

of life for his

John

Recht

given

person or persons in rela-

whom

tion to others, in relation to

in a state of superiority,'

is

and permanently enduring

applying

act or state of the will, of a

positive

to

Erskine \

extensively

'Das

com-

and obliging them

subjects,

portion of discourse by wliich expression

an

to

command

the

45

he

is,

or they are,

Bentham^
durch

Sprache

die

und mit absoluter Macht versehen,

verkorpert,

heisst das Gesetz,'

Savigny I
'Die von der hochsten Staatsgewalt aufgestellten

Bruns

jectiven Rechtssatze.'

'Der Inbegriff der

einem Staate geltenden Zwanga-

in

'Der Staat die

normen.'

Jhermg

ob-

*.

alleinige Quelle des

Rechts

ist*

*.

'Die durch den allgemeinen Willen aufrecht erhaltene

Ordnung der
Most

Lebensverhaltnisse.'

of the

terms employed in our definition of posi-

law have already been

tive

Dernburg".

suflBciently

remains however to explain what

discussed.

is

meant by

tit.

i.

'a

It

sove-

reign political authority.'

*

Principles of the

Works,

'Positive Right,

power,
*

'

iii.

is called

The

Law

of Scotland, 1754,

2.

p. 233.

embodied

in language,

the Law.' System,

objective

State authority.'

maxims

Apud

of

i.

and invested with absolute

p. 39.

Right which are set forth by the highest

Holtzendorff, Encyclopadie,

i.

p. 258.

'The sum total of the compulsory rules which prevail in a State.'

'The State is the sole source of Law.' Der Zweck im Recht, i. p. 318.
'Nut diejenigen von der Gesellschaft aufgestellten Normen verdienen
welche den Staatszwang hinter sich haben.'
den Namen des Rechts,
lb., p. 319. Without the State, says Puchta, 'das Recht nur ein unvoUstandiges Daseyn hatte.' Without it, 'der gemeinsame Wille, auf dem
das Recht beruht, mehr ein Wunsch, als ein wirklicher, kraftigers Wille
'

seyn wiirde.'
Inst. i. 11.
* 'That ordering of the relations of
will.'

life which is upheld by the general

Lehrbuch des Preuss. Privatrechts, 19.

chap.

iv.

POSITIVE LAW.

46
CHAP.
People.

IV.

'

People

united together by a

and

ancestry, religion,

common

human

of

beings,

language, and by similar

and opinions, resulting usually from common

customs

State.

number

a large

is

'

'State'

is

historical circumstances.

numerous assemblage

generally occupying

of

certain territory,

human

beings*,

amongst

whom

the will of the majority, or of an ascertainable class of

persons,

is

made

to

oppose

it.

A
now

by the strength

may

such a majority, or

any

against

prevail

State

of

of

class,

number who

their

be coextensive with one People ^ as

may embrace

the case in France, or

the case with Austria.

One People may

is

several, as is

enter into the

composition of several States, as do the Poles and the

Jews.

People,

it

truly said,

is

trasted with a State which

is

is

a natural unit, as con-

an

artificial

unit I

There

must doubtless have been Peoples before there were

States; that is to say, there must have been groups of
human beings united by similarity of language, customs, and opinions, before there arose amongst them an
organisation for enforcing the opinions of the majority,

or those of a government acquiesced in by a majority,

upon an unwilling minority.

Although scarcely any traces remain

in history of the

transformation of a People into a State,

to affirm, with

it is

impossible

Savigny, that a People, which he calls

'an invisible natural whole,' never exists as such; never,

that

is

to

say,

without

'its

bodily form,

the State*.

Aristotle, Eth. Nic. ix. lo. 3. denies that a State can be composed of
only ten persons, or that 100,000 persons can be comprised in a single
State. Cf. Id. Pol. vii. 4; Plato, Legg. p. 737. Cf. Rousseau, Contrat

Social,

ii.

c. ro.

According to the extreme advocates of the 'doctrine of Nationality,'

especially in Italy, this is the only perfect and legitimate State: e. g.
Mancini, Delia nazionaliti come fondamento del diritto delle genti (1851).
*

Prelezione, Napoli, 1873.

Savigny, System,

i.

p. 22.

lb. p. 22.

DEFINITIONS OF A STATE.

47

Aristotle speaks of the Arcadians as remaining an e^vos

by the

till,

founding of

Nor can we

iroAis\

follow

Savigny

regardmg the

in

of the State as the highest stage in the

production

Law I

creation of

chap.

Megalopolis, they become a

may

Morality

pro-

Law must

precede, but

follow, the organisation of a political society.

Of such a society the following

.

given at various periods

8'

'H

irXaovwv

Ik

fiiv ovv Tov t/qv Ivexev,

have beenDefin-

definitions

Kwfxuiv

itions of

a State.

ws

ovcra Sc tov fv

^rjv.

ttoXis

reXeios

KOLVuyvia

auTapxeta?,

t^9

Trcpas

c)(ov(Ta

vd(rr]^

ytvo/icvT;

cittciv,

erros

^Sr],

Aristotlc ^

'Respublica est coetus multitudinis, iuris consensu et

communione

utilitatis

aliud

nihil

'Civitas

sociatus.'

est

Cicero*.

quam hominum

aliquo societatis vinculo colligata.'

multitudo,

Augustine ^

S.

'Respublica est familiarum rerumque inter ipsas com-

munium summa
tudo.'
'

Bodinus

potestate

moderata multi-

ratione

ac

^.

Civitas est coetus perfectus liberorum

hominum,

fruendi et communis utilitatis causa sociatus.'

'The Common-wealth

is

iuris

Grotius''.

one Person, of whose Acts a

great multitude, by mutuall Covenants, one with another,

have made themselves every one the Author, to the end

may

he

use

the

strength

means

and

them

of

he shall think expedient, for their Peace and

'

Pol.
'

Hist.
'

'

ii.

2. 3.

Die hochste Stufe der Rechtserzeugung.' System,

i. c.

The

as

Hobbes ^

Defence.'

all,

Common

i.

p. 22; cf. Liv.

8.

perfect

community which arises from several

villages

is

already

aCity, which achieves, so to say, the fulness of complete self-sufficingness,

brought into being by the bare needs of life, but finding its true object
in the
*

promotion of a noble

De Rep.
De Rep.

i.
i.

Leviathan,

life.'

Pol.

i.

2. 8.

25.

De

i.

LB.

p. 88.

Civ. Dei, xv.

et P.

i.

c.

i.

c. 8.

14.

iv.

POSITIVE LAW.

48
CHAP.

IV,

'

Societas

hominum communis

promovendi causa contracta

ci vitas

'A State is a body of free

the common benefit, to enjoy
and

to

do justice to

'Der Staat

others.'

'Der Staat

die

ist

peaceably what

International

of a true State,

which

societies

the

poration,

such as

the

Law

Church
East

origin

The

origin of

speculation.

and

rebels

races;

than of

more

and permanent league, such

nomad

gesich-

Zwangsgewalt.' Jhering*.

of a professed

a treatise upon

the characteristics

fully

some respects

Catholic

instance,

und

der geregelten

and to show how

in

S.

Volksperson

organisirte

would be rather within the scope

work upon

their own,

is

Bluntschli I

Form

Jurisprudence to explain

The

Wolff \

Supreme Court, U.

erten Auslibung der socialen

It

est.'

persons, united together for

politisch

die

ist

eines bestimmten Landes.'

boni coniunctis viribus

it

differs

resemble
a

India

great

from other
it:

as,

trading

for
cor-

Company; a great
Hanse towns

as that of the

pirates.

States has been a favourite subject of

To the Greeks the organised

city govern-

ment in which they delighted seemed the result of

superhuman wisdom. It was a commonplace with their
earliest poets

to States

and

and philosophers
to legislation.

sthenes, 'is a gift of God,

to ascribe a divine origin

'

Every

law,'

and a decision

says

of sages

Demo^'

Later speculators, not content to veil their ignorance

>

lus Gent. Pro!.

'

Chisholm v. Georgia,

'

'

The State is the

9.
2

Dallas, 456.

politically organised impersonation of the

People of

a given country.' Die Lehre vom modernen Staat, i. p. 24.

*
The State is the form of the regulated and assured exercise of the
compulsory force of Society.' Der Zweck im Recht, i. p. 307.
Adv. Aristogeit. i.
(p. 774).
'

SOVEREIGNTY.

49

under a pious allegory, have explained the

by the hypothesis

society

tical

the covenants of which

'Qui se coetui

debebant

quibus

hi

natura

negotii

aut

expresse
promisisse

tacite

secuturos se id quod aut coetus pars

intelligi,

maior, aut

sent

ex

aut

in the

aggregaverant,

hominibusque subiecerant, hi

homini

aut

promiserant,

if

though

by Grotius

alicui

chap.

contract,'

clearly,

is

for the first time, stated

following passage:

poli-

they have set out with vast,

The hypothesis

misplaced, ingenuity.

by no means

an 'original

of

of

rise

delata

potestas

erat,

constituis-

\'

Even were the theory

an original contract within

of

the scope of the present treatise,

would be unnecessary

it

arguments by which

to repeat here the

its

untenableness

has been almost superfluously demonstrated.

dence

is

more concerned with the

distinction

Jurispru-

which we

are about to explain.

Every state
is

divisible into

is

two

parts,

one of which Sove^^^^

sovereign \ the other subject.

The sovereign part, called by Bodin 'maiestas,' is defined by him as 'summa in cives ac subditos legibusque
potestas

soluta

which

Grotius

'.'

by the compact
will

of

I.

them

all;

B. et P. Proleg.

as 'one

many men, is
so as he may

of

c. viii.

Cf. Arist. Pol.

*

iii.

potestas,'

alterius

iuri

and so Hobbes defines what he

person, whose will,

to be received for the

use

all

the power and

so Hooker, Eccl. Pol. i.e. 10 ; Locke, Civ. Gov.

i. c. 6.
The Sophists taught that

99; Rousseau, Contrat Social,

Laworiginates in a bargain, ^^5^' iSiKtiy

i.

summa

ut alterius voluntatis humanae arbitrio

ita

possint reddi*';

pleased to call a 'City'

is

'

it

he defines as being 'ilia cuius actus

non subsunt,
irriti

calls

/xrjT ddiKft<x0ai,

Plato, Rep. p. 359.

9. 8, 6 v6/nos <rvv6-fiK7}.

The term seems only to have come into use in this sense in the time
XIV. It is used by Hobbes, Leviathan, Pt. ii. c. 17.

of Louis
'

De Rep.

i.

8.

He continues

Kiipiov iroXirevfia, Itali

*

I.

1950

B. et P.

i.

quam Graeci
segnoriam appellant.'
:

'

c. 3. 7.

iitpav 4^ovffla>>,

mplav

dpx'^y,

^*

iy.

POSITIVE LAW.

so
CHAP.

IV.

each particular

faculties

of

of peace

and

common

for

The sovereignty of the

is

paramount over

'internal,'

as

expresses

this

double

its

sovereign power

is

\'

two

ruling part has

independent of

external,' as

'

to the maintenance

person

defence

With

by saying that a

character

not in a habit of obedience to any

External.

sovereignty,
is

State

Nations,

of a

briefly

for

membership

the family of

of

enjoyed most obviously by what

is

as

bound

'Simple

State,'

i.

e.

permanent manner

in a

indicated.

without the possession of which

qualified

known

'not

must be

nature of which

External

cally

bulk

the

in the habit of obedience'^.

no

is

the deter-

itself

reference to each kind of sovereignty, questions

the

arise

Austin

action within.

human superior, while it is

minate and common superior to which
is

It

control from without

all

all

determinate

subject society

aspects.

is

techni-

by one which
any foreign

to

political body.'

States which are not

of States,'

in

'

members of a System
combined upon equal or

simple are
'

which they are

In the former case they compose

upon unequal terms.

an 'Incorporate Union,' such as

the United

is

Great Britain and Ireland, or an

of
'

'

'

Kingdom

fitat federatif,'

or

Bundesstaat,' such as are the United States of America,

the Swiss Confederation, or the

German Empire.

latter case the States occupying

the inferior position are

known

as

'

mi-souverains,'

and may be 'protected'

the Republics of Andorre and San-Marino, and

Sultanate of Egypt, or
1909,

till

When

and Egypt

'

In the

like

now

the

under suzerainty,' as were Bulgaria

till

1914-

the component states are equally united, their

external sovereignty resides in no one of them, but in

government which results from

the

The

external

The

Jurisprudence,

sovereignty

of

their

system

Philosophical Elements of a True Citizen,

i.

p. 171.

c.

combination.
of

5,

unequally

Works,

ii.

p. 69.

SOVEREIGNTY.
united states

which

to be looked

is

SI

usually in

for

the

State

chap.

iv.

suzerain or protector of the others.

is

The questions which

with reference to internal

arise

Internal,

sovereignty relate to the proportion borne by the sovethe State to the subject part

reign part of

words, to forms of government.

with reference to simple

in a

way which

be confided to

disability

wise; or

may

it

members.

In

former

In the

powers

of

the

of

who

State

may

in

one

are not

it

more

or

form

the

case,

latter,

monarchy, as the case

tribution

The power may

on account of age, sex, or other-

be restricted to

the

a democracy.

These were analysed,

be desired.

members

all

under some

other

in

by the Greek philosophers

states,

left little to

of

the

of

polity

is

an aristocracy or a

is

Questions as to the dis-

be.

compound

and

States,

especially

governments, have only of late years received

in federal

an adequate treatment*.

Whether the
possible,

or be concentrated

makes but
inquiry.

power be

ruling

is

by the

sovereign, be that

individual or the aggi-egate of

law

'The Lawes

enforced.

is

hands

diffused
of a

despot,

many

sovereign

peace, and

once

is

before

'

settled,

of Nature,'

says Hobbes,

'

In

Das Recht

obedience.

When

men

Common-wealth

then are they actually Lawes, and not

as being

wealth.2

to

one

individuals, that all

'are not properly Lawes, but qualities that dispose

to

as

difference for the purposes of our present

little

It

the

in

Avidely

as

the

then the commands of the

words

existirt erst

of

an

Common-

eminent living

jurist

vermoge der Sanction der Rechta-

gemeinschaft des einzelnen Staatesl'

*

For a masterly analysis

of the structure of a

'

Federal Government,'

see Professor Dicey's Law of the Constitution, ed. viii, 19 15, pp. Ixxiii,
134; and for a detailed examination of the questions to which the actual

working of the greatest experiment in this form of government has given

rise, Lord Bryce's American Commonwealth, 1888. Cf. Essays vi and
viii, in his Studies in History and Jurisprudence, 1901.
2

Leviathan, p. 138.

'

Law first exists through the sanction afforded by participation in the

E2

POSITIVE LAW.

S2
CHAP.

Considerable doubt has of late been thrown upon the

rv.

Diffi-

culties of

doctrine that apart from the existence of a State, and of

the theory

a sovereign power within

of sovereignty.

all

there can be no Law, because

laws are rules enforced by such a power.

were

applying the doctrine to

in

culties

pointed

which

by

out

the

Henry

Sir

his writings

are so conspicuous.

it

with

Maine,

and that cogency

what sense

Real

diffi-

facts of history

illustration

of

fertility

for

it,

of

that

argument

He

asks in

true that the village customs of

is

the

Punjaub were enforced by Runjeet Singh, or the laws

the Jews, during

of

whose main function

vassalage

their

He

Great King at Susa.

the levying of

is

by the

to Persia,

denies that Oriental empires,

armies and the

collection of taxes,

busy themselves with making or en-

forcing legal rules

nor will he concede that

answer

Roman

its ruins,

it

the

As
it

phenomena

actual

political

applied to other political

an ideal or abstraction, related to

as

are the axioms of mathematics to

conditions

economy

When

matter,

of

or

the

postulates

of

to the dealings of ordinary life\

legal

less valuable

phenomena

action of an absolute political

Jurisprudence

societies,

as

These remarks are no

teresting.

almost restrict to

the full applicability of the Austinian conception

he looks upon
actual

a serious

Empire, and the States which arose out of

positive law.

of

He would

allows.'

it is

'what a government

to his objections to say that

does not forbid

the

should

always

than they are

are explained

in-

by the

sovereign, the student of

remember,

may no

and

Von Bar, Das internationale Privat- und

Henry Maine's remarks on 'the retreat out
of sight of the force which is the motive power of law in the modem
world 'The great difficulty,' he says, 'of the modern analytical jurists
law of the individual
Strafrecht, p. 519.

State.'

Cf. Sir

'

has been to recover from its hiding-place the force which gives its sanction
to the law.' Early Law and Custom, p. 388.
'
Early History of Institutions, Lect. xiii. Cf. the Essays on Primitive
Iceland,' and on 'the Nature of Sovereignty,' in Bryce's Studies in
'

History and Jurisprudence, 1901,

i.

p. 312,

ii.

p. 49.

SOVEREIGNTY.

53

doubt be in danger of forgetting, that the explanation,

though

nr.

general statement, necessarily leaves

true as a

many

out of account

chap,

other characteristics of such pheno-

mena.

Henry Maine did good

Sir

a mistake to suppose

is

it

everywhere, and at

rests

all

by showing that Justifica-

service

the

that

times, as immediately

obviously upon a sovereign political authority as

England at the present day.

in

law theory,

obligation of

it

and
does

In guarding against

a crude application of the doctrine of sovereignty, this

great jurist has however perhaps hardly done justice to
its

to

essential

truth.

make

his

to

the following

With

The

we would venture

reply which

remarks upon

would be

point

this

to

effect.

reference

the Western

to

we would

nations,

submit that the dependence of law upon sovereignty was

and Lacedaemon

as obvious in Attica

under the

Roman

Empire.

by

or as imagined

Plato,

as

law as carried by Pericles,

would conform

to Austin's defi-

would a constitution

nition as completely as

ever was

it

of

Marcus

Aurelius.

With

reference to the relation of a great Oriental tax-

gathering empire to the village customs of

or

to

more

the

quered province,

it

its

subjects,

laws of a con-

distinctly formulated

necessary to draw a distinction.

is

Disobedience to the village custom or the provincial law

may
in,

either be forcibly repressed, or

by the

by such

local

authority.

local force as

the local force must,

peace, be

may

if

supported, in

strength of the empire.

lage custom

is

If it

it

be acquiesced

be habitually repressed

be necessary,

it

follows that

only for the preservation of the

the

last

resort,

by the whole

In this case the humblest

vil-

a law which complies with the requirement

of being enforced

by the sovereign.

disobedience be habitually acquiesced

may

may

If,

on the other hand,

in,

the rules which

thus be broken with impunity are no laws;

and.

POSITIVE LAW.

54
CHAP.

IV.

so far

empire

such rules

as
is

arbitrary force, acting

imperfectly

and moral
It

is

are

concerned, the

tax-gathering

lawless, its organisation consisting merely of an

upon a subject mass which

bound together by

network

of

is

but

religious

scruples.

convenient to recognise as laws only such rules

as can reckon on

the

support of a

sovereign political

authority, although there are states of society in which

it is

diflQcult to ascertain as

this description.

a fact

what

rules

answer

to

CHAPTER

V.

THE SOURCES OF LAW.

The

involved the whole subject Ambi-

obscurity which has

of the origin of law,

and the mutual

tomary, judge-made, and statute law,

relations of cus- f^e term

is

largely due

to'^"^<^-'

The uses are

the ambiguous uses of the term 'Source.'

fourfold.
(i)

Sometimes

quarter whence

the

we

word

is

employed to denote the How

obtain our knowledge of the law,

e. g.

whether from the Statute-book, the Reports, or esteemed

Treatises.
(2)

Sometimes to denote the ultimate authority which Ultimate

authority,

gives
(3)

them the

force of law,

1.

e.

the State.

Sometimes to indicate the causes which have, as

were automatically, brought into

have
ii.

subsequently acquired that force;

Religion,
(4)

iii.

rules

existence
viz.

i.

it

Remote

which

Custom,

Scientific discussion.

Sometimes to indicate the organs through which the State

orc&Ds

state either grants legal recognition to rules

unauthoritative, or itself creates

judication,

ii.

Equity,

iii.

new law;

Legislation.

viz.

previously

by

i.

Ad-

THE SOURCES OF LAW.

$6
CHAP.

V.

As

to No. (i),

no explanation

As

to No. (2),

it

the State

is

necessary.

will be sufficient to

remark that

until

constituted there can be no law, in the strict

There may

sense of the term.

been, morality and

have

is

be,

and doubtless always

customary

rules

conduct.

of

After the formation of the State, such rules as receive

sanction

its

among
term,

'

Nos.

i.

for the

the people, become, in the

proper sense of the

laws.'
(3)

and

(4) will

require further consideration.

Remote causes \

(3)

Custom.

and support, whether promulgated

time by the governing body, or already in operation

first

Usage, or rather the spontaneous evolution by the

popular mind of rules the existence and general acceptance of which

'

is

proved by their customary observance.

Top. 5; Auct. ad Hereon, ii. 13; Dig. i. i. 7; Gai. i. 2. The

enumerated in the Institutes of Manu (ii. 6) are four Revelation,

Cf. Cic.

roots

'

or the uttered thoughts of inspired seers the institutes of revered sages,

handed down by word of mouth from generation to generation; the
approved and immemorial usages of the people and that which satisfies
;

our sense of equity, and

is

acceptable to reason. Tagore Lectures, 1880,

P- 137-

In Doctor and Student, i. 4, it is said that the 'law of England is

grounded on six principal grounds: first, it is grounded on the law of
reason secondly, on the law of God thirdly, on divers general customs of
the realm; fourthly, on divers principles that be called maxims; fifthly,
on divers particular customs; sixthly, on divers statutes made in Parliament.' It may be observed that St. Germain makes here no mention of
the Law of Nature.' Attention has been recently called to a passage (i. 5)
in which this author makes his 'student' explain that 'it is not used
among them that be learned in the laws of England to reason what
but, when
thing is commanded or prohibited by the Law of Nature
anything is grounded upon the Law of Nature, they say that Reason
will that such and such a thing be done; and if it be prohibited by
the Law of Nature, they say it is against Reason, or that Reason will
not suffer that to be done.' Sir F. Pollock, The Expansion of the
Common Law, 1904, p. 100. At p. no, ib., he cites the interesting
remarks of Farwell, J. in Bradford Corpor. v. Ferraud, [1502] 2 Ch. 655,
on ius naturae.
;

'

CUSTOM.
no doubt the oldest form

is

57

of law-making.

the transition between morality and law.

It

marks

chap,

Morality plus

a State-organisation enforcing the observance of certain

parts of

customary law.

it is

Two

questions

usage.

are

as

First,

Secondly, as to

to

much debated with reference to

the mode of its growth as usage.

transformation into law.

its

Its chief characteristic is that

No

course of conduct.

commencement

at the

we can

one was ever consciously present

such a course of conduct, but

of

doubt that

hardly

a generally observed

it is

it

generally

originated

in

the conscious choice of the more convenient of two acts,

though sometimes doubtless in the accidental adoption

one

of

of

two

alternatives;

indifferent

the

choice

in

either case having been either deliberately or accidentally

repeated

The

it

till

ripened into habit \

best illustration of the formation of such habitual

across a

common.

the mode in which a path is formed

One man crosses the common, in the

direction

which

suggested either by the purpose he

courses of action

has in

is

is

or by mere accident.

vieAv,

If

others follow in

the same track, which they are likely to do after

once been trodden, a path

Before a custom

is

is

it

has

made.

formed there

no

is

juristic reason

taking one direction rather than another, though

for its

doubtless there was some ground of expediency, of

gious scruple,

or of

accidental suggestion.

reli-

habitual

course of action once formed gathers strength and sanctity

every year.

It is a course of action

accustomed to see followed:

be salutary, and

76,

It has

(vprjfia 5< ipdpiiirwv oiiStyos.

quoted by

W.

L.

is

any deviation

abnormal, immoral.

ir6\((DS

it

Newman,

which every one

is

generally believed to

from

it

is

felt

to

be

never been enjoined by the

o\Ao ^lov Kal xp^vov. Dio Chrys. Orat.

Arist. Pol.

i.

p- 75 n.

Its

v,

'

THE SOURCES OF LAW.

$8
CHAP. V.

has been

un-

individuals of which

the

organised authority of the State, but

obeyed by

questioningly
State

There

composed.

is

the

it

can in fact be

no doubt that

customary rules existed among peoples long before nations

At

or states had come into being.

was made between such

no distinction

first

these rules as relate to in-

of

dividual character and such as concern society.

and customary rules were the same

on

as time

went

y.

^.^^gg

dis-

on.

After the organisation of States,

Its legal

au

thing, but the

between the two was more and more sharply

tinction

drawn

Morality

society

Qf

continued

still

acquired a further sanction.

only by popular

enforced

many

of the

be

to

customary

recognised,

and

They had previously been

by the

opinion, or

licensed

They were now enforced by

They became law; and were
the political authority.
doubtless for the time the only laws known. They were
the unwritten, but well known, opinions of the community
revenge of injured parties.

and wrong.

as to social right
Kvpturepoi

Kara

ol
'

Koi

irfpL

Wt) ticiv

to.

KvpLwrepwv

rwv

Kara

ypafifiara

vufxo>v

*.

Consuetudine ius

says Cicero,

est,'

'

quod aut

leviter

a natura tractum aluit et magis fecit usus, ut religionem,

aut

si

quid eorum quae ante diximus ab natura profectum,

mains factum propter consuetudinem videmus, aut quod

morem

in

vulgi

vetustas

approbatione

perduxit;

quod

genus pactum, par, iudicatum^.'

The laws

of

Draco were repealed, says

Gellius,

'non

decreto iussoque, sed tacito illiteratoque consensu'.'

'Quid

interest,'

says Julian, 'suffragio populus volun-

tatem suam declaret an rebus

Justinian

'

Ar. Pol.

De

lays

iii.

down

ipsis

et factis

in his Institutes that 'diuturni

i6. 9

Cf. consuetudinis autem ius esse putatur id quod

voluntate omnium sine lege vetustas comprobavit,' ib. c. 22.
Dig. i.
' Noct. Att. xi. c. 18.
3. 33.
'

Inv,

ii.

c. 54.

'

';

CUSTOM.
mores consensu utentium

would be more correct

It

an imitation

And
lege

59

legem imitantur *

comprobati

to say that written

law was

of custom.

own Bracton: 'consuetudo quandoque

our

observatur

partibus

in

ubi

pro

more utentium

fuerit

approbata, et vicem legis obtinet; longaevi enim temporis

usus et consuetudinis non est

Custom
where

law

exists as

vilis auctoritas

in every country,

*.'

though

it

every-

tends to lose its importance relatively to other kinds

of law.

It

was known

at

Rome

known

in

England as

stitutum.'

It

is

as the
'

'

ius

the

moribus con-

common

law','

or 'the custom of the realm,' the existence of which

now

usually proved by showing that

by the Courts, or

now

are

known

to all

At an

whom

it

in the English as in the

moots, not by any judicial

of freemen present,

officer,

who were

epoch

earlier

concerned,

the ordinary rules of morahty*.

was declared

is

has been aflQrmed

at least has been appealed to in the

writings of great judicial sages.

was doubtless

it

much

it

as

Thus the law

Frankish hundred-

but by the whole body

represented in later times

by the Rachimburgi, the Schoffen, and the Grand Jury.

i. 2. 9.
Cf. Cod. viii. 53. 3.
Bracton, lib. i. cap. 3, following Cod. viii. 53. 2, 'Consuetudinis
ususque longaevi non vilis auctoritas est: verum non usque adeo sui
valitura momento, ut aut rationem vincat aut legem;' of. R. v. Essex,
4 T. R. p. 594.
'

Inst.

'

The term

the law

'

ius

common

commune' was employed by

the canonists to describe

to the universal church, as

opposed to the special laws

governing the provincial churches. As adopted by the English lawyers
of the thirteenth century, besides this implication of universality,

came

it

opposed to that, then very scanty, species of law

which is made by statute. See Maitland, in Engl. Hist. Rev. xi. p. 448.
Sir F. Pollock in Enc. of the Laws of England, s. v. Common Law,' cites
the Dialogue of the Exchequer (circa 1 1 80) i.i i as opposing the commune
regni ius' to 'voluntaria principum institutio.' The old 'gemeines
Deutsches Recht' was the Roman, as modified by the canon, law. Cf.
the use of 'common law' in Scots Acts of Parliament of the sixteenth
century. A new common law for the larger portion of Germany is now
provided by the Codes.
* Cf. Savigny, System, i.
p. iSito be especially

'

'

chap.

v.

THE SOURCES OF LAW.

6o
CHAP. V.

The

increasing complexity of

the general

and the numerous

affairs,

human

other subjects opened up to

law-rules

consciousness of

made

thought, have

and

impossible,

have rendered necessary the more circuitous proof

by means of Treatises and Reports.

their existence
It

certain that customs are not laws

is

of

when they

arise,

but that they are largely adopted into the law by State

How

recognition.

the case that

it

far

does this recognition extend?

Is

customary rules on proof of their

all

existence as customs obtain

State recognition

as laws?

In other words, does the determinate and organised will

matters within

its

such

adopted for

adopt

invariably

nation

the

of

and

confirm,

cannot

be

by the

matters

not

also that

is

it

mamtained.

a custom

only that

'

all

cognisance, the rules which have been

shall

reasonable

'.'

English

be

and

indeterminate

imorganised wHl of the nation, or of portions of

This

for

proved to

And

it?

Courts

require

exist,

but

the legislature often

abrogates customs, partially or wholesale.

At what

moment

The

State,

through

its

delegates the judges, undoubtedly

does a

grants recognition as law to such customs as come up

custom
become

to a certain

law?

ness.

To

standard

of

general

these the Courts

reception and useful-

give operation,

not merely

prospectively from the date of such recognition, but also

retrospectively;

law before

it

so

far

implying that

was

the custom

received the stamp of judicial authentica-

The contrary view supported by Austin

variance with fact. The element of truth in his

tion.

is

at

view,

which he has done good service by bringing into prominence,

is

that

cannot, without

the State,

view

is

make

usage,

though

it

obtaining for them

laws.

The element

to date the State recognition

may make
the

rules,

recognition

of mistake

in

of
his

from the moment

'Malusususestabolendus.' Co.Litt.s. 212. C{.Cuthberty.Cu?nming,

10 Ex. 809, II Ex. 405.

CUSTOM.

6l

that the usage has been called in question and allowed

to be good in a court of justice.

can

moment

not the

If this is

matur

only say that

binding

which the State impri-

at

given to custom, what

is

force

the

rule

established as hundreds

that

kinds

certain

to

of other

Court

custom

of

as delegates of the

point

this

ready to

only

Equity,

what

is

the

or

rules

The judges

the

which

of

is

their

ratio of

acting

to

emergencj-,

decisions,

not

acknowledged view

generally

it

every

for

and previous decisions

fair,

faith

the

well

Not having a code

others.

hand with

they have invoked, as

give

as

have long ago legislated upon

State,

upon many

as

their

shall
is

law, and has

rules of

been established in the same manner.

We

moment?

that

is

of

upon

of the Courts,

be presumed that people

have been actmg, but also customs, established among,

and

by, the

people

at

large,

presumably embodying

as

the rules which the people have found suitable to the

circumstances

of

fore long ago

established

their

The Courts have

lives.

as

a fundamental

law, subject of course in such case to

and

to

is

rule

which governs a given

only

to

Equity and to

many

restrictions

the absence of a specific rule

qualifications, that, in

of written law, regard

there-

principle of

be had in looking for the

set

previous

of

circumstances,

decision,

not

but also to

custom ^
Binding authority has thus been conceded to custom,
provided

it

fulfils

certain

requirements, the nature of

which has also long since been

settled,

and provided

it

not superseded by law of a higher authority'.

is

See a critique upon my view by Prof. Dewey, 9 Pol. Sci. Quarterly, p. 47.
On the custom of merchants,' once supposed to be incapable of
further growth, but in recent cases recognised as being susceptible of,
even rapid, modification, see Goodwin v. Robarts, L. R. 10 Ex. 337;
Edelstein v. Schuler & Co., [1902] 2 K. B. 144: 'The law merchant is not
fixed and stereotyped. It has not been arrested in its growth by being
moulded into a code.' For Lord Holt's refusal to follow it with reference
*

'

THE SOURCES OF LAW.

62

When,

GHAP. V.

therefore, a given set of circumstances

into Court,

ing them within the operation of

appeals to

custom as

that

brought

a custom, the Court

might to any other pre-

it

motu then

It does not propria

existent law.

time make that custom a law;

fact,

is

and the Court decides upon them by bring-

it

for the first

merely decides as a

that there exists a legal custom, about which there

might up to that moment have been some question,

as there

might about the interpretation

Parliament.

It

stances just as

ment

to them.

an Act of

of

then applies the custom to the circumit

might have applied an Act

good custom or an

Parliament either exists

does

or

before the case comes into Court;

of Parlia-

intelligible

Act

of

not exist objectively,

although

it

is

from

the decision of the Court in the particular case that a

subjective knowledge

the existence
that

or

this

first

is

possible for the people of

or

non-existence

or

that

is

the

of

the

meaning

alleged
of

the

custom,

Act

of

Parliament.

The

legal character of reasonable ancient

customs

is

to

be ascribed, not to the mere fact of their being reasonable ancient customs, but to the existence of an express

or tacit law of the State

giving

to such customs the

effect of laws.

We have described
acts

in

the

mode

in

which the State usually

giving to custom the force of law.

occasionally do so in

express terms.

express terms

them any such

denies

It

It also

may

sometimes

force,

in

and some-

times limits the force which has hitherto been ascribed

to them.

In some States greater force has been allowed

than in others to custom as compared with express

legisla-

BuUer v. Crips (1703) 6 mod. 30; corrected by

Anne, c. 9. The old German Handelsgesetzbuch expressly directed
the custom of merchants to be followed where the Code was silent. So
the Codice di Commercio. But the new Handelsgesetzbuch omits this
provision, and it v/as omitted in a revision of Iho Iialian code.
te promissory notes, see
3

&

RELIGION.
The theory

tion.

law

English

of

63
is

no

that

chap.

statute

v.

The contrary view

can become obsolete by desuetude.

maintained in Germany, and even in Scotland.

is

Such an account

the

of

growth

of

and

custom

its Theories

transformation into law will not content a certain school

whom

of theorists, of

They

illustrious.

no

has

Savigny and Puchta are the most

upon individual

dependence

accident \

It

is

The

has no actual existence apart from

Law

has

(Gesammtwille)

will

cause of Law, but the evidence of

make

not

its

Or, going

We

bodily form, the

its

is

not the

existence \

It does

first appearance in the form of logical rules ^

still

we

further afield,

Law

see in the rise of

its

People, however,

customary observance

are told by Hegel to

the evolution of the Deity.

are in fact told that the principle

The

applications.

The element
school'

customary rules

conceive

The only unity antecedent

constitution of man-

common

to the circumstances is the

'historical

we

nothing else than a generalisa-

is

from the applications.

kind.

anterior to

is

reply to which

true

to be, that the principle

tion

or

by the

(Daseyn) in the general-

existence

its

its

historical

^*''^^^-'

(Recht)

arbitrary will

begotten in the People (Volk)

Popular intelligence (Yolksgeist) ^

State'.

Law

us that the growth of

tell

of truth in the

view of the so-called

Germany

that the adoption of

of

conduct

of

is

is

unconscious.

takes

It

place in accordance with no deliberate plan, but comes

into being piece-meal, as

wants

mode

of

it

is

We may

mankind.

of formation, first, that

Secondly,

that

its

by the natural

remark as
it

is

than law which

to national feeling

factured.

called for

results

of

its

hence better adapted

is

otherwise manu-

importance

declines

with

the growth in a nation of conscious critical power.

ii.

Religion.

The

vSavigny, System,

lb.

'

Savigny,

i.

pp. 35, 168.

i.

p. 16.

i.

description of
p. 15.

Cf.

'

lb.

i.

law as

pp. 175, 177.

Windscheid, Pand.

i.

p. 40.

'a discovery Religion.

'

lb.

i.

p. 22.

THE SOURCES OF LAW.

64
CHAP. V.

God

well expresses the view of the Greeks \

and

gift of

The

influence of the priestly colleges can never be left

'

out of account in studying the development of the law

Rome^

of

nor has the Corpus luris Canonici failed to

systems

the secular

affect

modern Europe.

of

It

has

long been laid down, and has only recently been questioned,
that

'

Christianity

is

part of the law of England

V though

few judges have gone so far as Chief Justice Prisot

in

commun ley sur quel touts

fondes V But it is in the East
to many nations besides the Jews,

declaring that 'Scripture est

manieres de

leis

sont

that religion has been,

a direct and nearly exclusive source of law.

teuch finds

Manu.

of

in the

its parallel

Hence

'derive

and

the

Law,'

their

Koran and the Institutes

any general
'The Hindoo Law and the

arises the impossibility of

legislation for British India.

Mahomedan

The Penta-

it

has

authority

Mahomedan

been

authoritatively

respectively

religion.

It

from
follows

the

stated,

Hindoo

that,

as

law.

make Mahomedan or Hindoo

it
make Mahomedan or Hindoo
so neither can
code of Mahomedan law, or a digest of any

part

of

that

British legislature cannot

religion,

law,

if

Legislative Council of

it

were enacted as such by the

India,

would not be

merely as an

exposition

of

law, which

to

entitled

be regarded by Mahomedans as the very law

itself,

but

possibly might

be incorrect^'

Supra, p. 43For a perhaps exaggerated estimate of the influence of religion on

Roman law, see Fustel de Coulanges, La Cit6 antique.
Cowan V. Milbonrne, L. R. 2 Ex. 230, but see Lord Coleridge's charge
in R. V. Ramsay & Foote, 15 Cox C. C. 231.
* Year Book,
34 Hen. VL 40.
* First Report of the Commissioners appointed to prepare a body of substantive law for India, p. 60. The Statute 21 Geo. IIL c. 70, sect. 17, in
declaring the powers of the Supreme Court at Calcutta, provides that inheritance and succession to lands, rents and goods, and all matters of
contract and dealing between party and partly, shall be determined in the
case of Mahomedans by the laws and usages of Mahomedans, and in the
1

'

ADJUDICATION.
Scientific discussion,

iii.

65

Wissenschaft,'

'

'

Jurisprudence,'

has from time to time played a useful part in the develop-

chap. v.
^[g'^^*^^

ment of rules which have often been adopted as laws.

The responsa prudentium,' before they were clothed with
'

an

to that
'

which has
the

of

Matthew

and

profession

legal

'

obiter

i.

England

dicta

the

to

the writings of such

as

Lord Coke and

is

of English Judges,

'

Sir

the weight

by them as

are

i.

e.

not

by the case before them.'

necessarily called for

(4)

in

to

such statements of law made

to

a deference similar

Of a similar character

Hale.^

attributed to the

conceded

been

practice of conveyancers

sages

Rome

character, received at

official

State Organs.

Adjudication

Res

ludicatae,'

Jurisprudence des Tribunaux,'

nature of this

source

of

'

'

Usus

Gerichtsgebrauch,' Adjudicafori.'

As

law there are two

to the

theories.

According to the old English view, as stated by Blackstone, the judges are

not delegated to pronounce a

'

law, but to maintain and expound the old one\'

are the depositaries of a

body

of

new
They

customary principles

case of Gentds by the laws and usages of Genttls, and when only one of
the parties shall be a Mahomedan or Gentfl, by the laws and usages of the
defendant.' Similar provisions with reference to the Courts at Madras
and Bombay are contained in ,^7 Geo. III. c. 142.
^ See Willoughbyv. Willoughby, i T. R. 771.
2 On the similar function of the Commentators upon Hindoo law, see
Sir W. Markby, Elements of Law, 83. On the influence exercised upon
the formation of judge-made law by the writers of text-books, see some
interesting remarks in Prof. Dicey's Law of the Constitution, ed. viii,
p. 370.

Such, for instance, as the treatise upon Bailments imported by Holt

judgment in the case of Coggs v. Bernard, i Sm. L. C. 1 76.
* I Comm. 69.
For a defence of [this theory by Professor Hammond
of Iowa, see his edition of Lieber's Hermeneutics, p. 312. Lord Esher,
M. R., goes so far as to say There is in fact no such thing as judge-made
law, for the judges do not make the law, though they frequently have to
apply existing law to circumstances as to which it has not previously been
authoritatively laid down that such law is applicable.' Willis v. Baddeley,
[1892] 2 Q. B. (C. A.) 324, 326.
*

C.

J. into his

'

1950

THE SOURCES OF LAW.

66
which have only

Most modern
of

criticisms

childish

is

it arises^

describes as

not made by them, but

made by nobody

and merely declared, from time

in point of fact, the Courts in

by the judges

of modifying existing

them

to

said in a

have disputed

making

and even

laws from time to time in order

the changing

what

to

is

equitable, or

needs of society^.

modern English case

as

\'

countries have neces-

all

to carry out the current ideas of

was

the

existing from eternity,

to time,

provided for previously;

rules for cases not

to adapt

'
:

a mira-

is

been entrusted with a certain power of

sarily

be,

case as

employed by our judges, that judiciary

fiction

culous something

it

new

to each

Austin, upon what he

common law

or

appUed

to be

writers, on the other hand, agree with the

'
:

When

what the governing

So

merchants

rule

should

the Courts have applied to the mercantile business

brought before them what have been called legal prin-

which have almost always been the fundamental

ciples,

rules of right

and wrong ^

;
'

and

it

has even been judicially

'
Lectures, ii. p. 655. Cf. Bentham: 'a fiction of law may be defined
as a wilful falsehood, having for its object the stealing legislative power

by and

hands which could not, or durst not, openly claim

for

it.'

Works,

'Spurious interpretation, while it is the chief means of

growth in the formative period, ... is an anachronism in an age of legisJhering has called the process when applied in a period
lation.
of growth by juristic speculation, juristic chemistry.' R. Pound, upon
'spurious interpretation,' in Col. Law Rev. vii (1907), p. 382.
' It has indeed been suggested that law always begins as a generalisation from a series of judicial decisions. Cf. Maine, Ancient Law, p. 5.
On the almost necessary connection between judicial decision and the
production of law, see Dernburg, Lehrbucli des Preuss. Privatrechts,
Under art. 4 of the Code Civil, a judge cannot refuse to decide
i. p. 43.
a case by reason of the silence, obscurity, or inadequacy of the law. On
the various species of interpretation,' see irifra, c. xviii on The Application of Law,' ad fin. See also Lieber's Hermeneutics, and especially the
learned supplemental Note B, by Professor W. G. Hammond in his edition
vol. V. p.

13.

'

'

of the work, 1880.

R. 7 E. and I. App. 816. So the German Civil

that a contract is to be interpreted wie Treu und
Glauben, mit Rucksicht auf die Verkehrssitte, es erfordern.' Art. 157.
'

Robinson

Code

lays

it

Cf. art. 242.

v. Mollett, L.

down

'

ADJUDICATION.
stated that

when

'

justice,

applied to a

moral

new

fitness,

subject,

6y

and public convenience,

make common law

with-

out a precedent \'

This power the Courts have rarely exercised avowedly ^
but rather under cover of exercising one or other of the
functions with which they are
viz. first, of

distinctly entrusted,

deciding upon the existence or non-existence

of such customs as

binding;

more

they are authorised to recognise as

and, in the second

place,

expounding, and

of

applying to particular instances, laws which are necessarily

expressed, or conceived

Per Willes

J.,

of, in

general terms ^

in Millar v. Taylor, 4 Burr. 2312.

With reference to

this dictum, Pollock C. B. in Jefferys v. Boosey, 4 H. L. 936, said: 'I entirely agree with the spirit of this passage, so far as it regards the repress-

ing of

what

is

a public evil

but

think the

Common Law

cannot

new rights and limit and define them, because, in the opinion
those who administer the law, such rights ought to exist according
their notions of what is just, right, and proper.' Cf. per Bowen L. J.
Dashwood v. Magniac, [1891], 3 Ch. 367. Mr. Justice Holmes of the U.
create

Supreme Court has expressed himself

of

to
in
S.

do not think it desirable that judges should undertake to renovate the law, but I think it
most important to remember, whenever a doubtful case arises, that what
is really before us is a conflict between two social desires
the said
question is which desire is strongest at the point of conflict. When there
is doubt, the simple test of logic does not suffice, and, even if it is disguised and unconscious, the judges are called on to exercise the sovereign
prerogative of choice.' Harvard Law Review, xii. p. 452. Sir Fitzjames
Stephen thought it unlikely that any attempt would be made by the
bench to create new offences at the present day. 3 Hist. Grim. Law,
as follows

'

P- 359.

Lord Bacon mentions that when the French Parlements intended

make law they delivered them en robe rouge. Aug. Sci.
viii. Aph. 7. These were the arrets de reglement, which were thus solemnly
delivered on the eves of the great festivals. Denisart, Collection de
'

their decisions to

Jurisprudence,

s.

v. Arrest.

By

47, 48, of the Introduction to the Landrecht, which were

repealed in 1798, judges were forbidden to interpret doubtful provisions,
'

but were to refer their difficulties to a royal commission, and be bound

by its decisions. See E. Schuster, in L. Q. R. xii. p. 22. On the vexed
question of the value of judge-made law, see Hale, Pref. to Rolle's
Abridgment; Bentham, Works, v. p. 477; Austin, Lectures, ii. p. 348;
Prof. Hammond, in Lieber's Hermeneutics, Note N.; Ffoi. Clark,
Practical Jurisprudence, p. 255; 8 Harvard Law Review, 328, dealing
with Surift v. Tyson, 16 Peters, i; Gdpeke v. Dubuque, 1 Wallace,

chap.

v.

'

THE SOURCES OF LAW.

68

In the weight which they attach to the decision of a

CHAP. V.

^{^re-^^
cedents.

court legal systems differ very widely.

and

While

in

England

United States a reported case may be cited

in the

with almost as

much

confidence as an Act of Parliament,

on the Continent a judgment, though useful as showing

the view of the law held by a qualified body of men,

seems powerless to constrain another court to take the

same view

in a similar case \

The Continental view

Rome

of

among

an inheritance from the law

is

for although Cicero

the

sources of

enumerates

'

res iudicatae

law^ and the Emperor Severus

attributes binding force, in the interpretation of

laws, to the

'

rerum perpetuo

similiter

ambiguous

iudecatarum auctori-

was finally established by a

The Codes of Prussia ^ and

tas\' the contrary principle

Constitution

of

Justin

*.

Austria^ expressly provide that judgments shall not have

and Drummond v. Drummond, L. R. 2 Eq. 335; also an art. by
Tiedeman, on 'stare decisis,' in University Law Review, Jan. 1896,
p. II, and a paper, read at St. Louis in 1904, by E. B. Whitney. For an
ingenious parallel between the uniformity of judicial decision, which
renders a science of case-law possible, and the uniformity of nature, see
Sir F. Pollock's Essays, p. 239. For suggested classifications of precedents
175,

Prof.

as 'authoritative,' 'quasi-authoritative,' &c., see E. Wambaugh, The

Study of Cases, ed. 2, 1894, and J. W. Salmond in 16 L. R. p. 376.
^ In Scotland, the older practice approximated to the Continental, the
later to the English system.

Cf. Ersk. Princ. I. i. 17, Inst. I. i. 47,

with Mr. Rankine's (1890) edition of the first-named work. See T.C.Clay
in Harvard L. R. ix. p. 27. A curious work by Dr. J. Unger, Der Kampf
um die Rechtswissenschaft, citing Bartolus in favour of leaving much
to the Voluntarismus' of the judges, is reviewed in the Deutsche
Juristenzeitung for Feb. 15, 1906.
'

* Top. 0. 5.
The Auct. ad Herenn. ii. 13 discusses the weight to be
ascribed to 'res simili de causa dissimiliter iudicatae,' by comparing

'iudicem

cum

iudice,

tempus cum tempore, numerum cum numero

iudiciorum.'
3

Dig.

'

i.

3-38.

Nemo iudex vel arbiter existimet neque consultationes quas non rite

sequendum, et multo magis sententias eminentisvel aliorum procerum; non enim si quid non
bene dirimatur, hoc et in aliorum iudicum vitium extendi oportet, cum non
exemplis sed legibus iudicandum sit.' Cod. vii. 45. 13. Cf. Dig. i. 18. 12.

iudicatas esse putaverit

simorum praefectorum,

Landrecht, Einl.

6.

'

Burgerl. Gesetzbuch, 12.

ADJUDICATION.

69

the force of law, and although the Codes of France, Italy

and Belgium are

these countries
decisions

is

silent

on

the

point,

the

rule in

all

substantially the same, viz. that previous

are instructive, but not authoritative

subject

to certain special provisions of a strictly limited scope \

In England cases have been cited in court at least as

Edward

early as the time of

by Lord Hale

be

to

They are however stated

than

'less

law,'

though 'greater

evidence thereof than the opinion of any private persons,

as

such,

whatsoever*;'

Duck, remarks, that the

and

his

contemporary, Arthur

Common Law

judges, in cases of

difficulty,

'non recurrunt ad ius

apud

gentes Europeas, sed suo arbitrio et conscientiae

alias

relinquuntur

But

^'

established that

'

former precedents

in

civile

Blackstone's

time the view was

the duty of the judge

;

'

and

it

Romanorum, ut

is

abide by

to

has long been well understood

that our courts are arranged in this respect in a regular

hierarchy, those of each grade being

same or a higher grade, while the House

of those of the

Lords

of

is

bound by the decisions

bound by

its

own

decisions;

as

is

also,

*
E. g. the French law of 27 Ventose, Ann. viii, art. 88; the Prussian
Cabinet Orders of 1836, &c.; and similar Austrian ordinances. The
Gerichtaverfassungsgesetz fiir das Deutsche Reich, art. 137, requires
a court, wishing to override a precedent, to refer the case to a higher
tribunal. On the distinction between les consider mits in a French decision
and the judgment of an English court, see Proceedings in the Behring's
Sea Arbitration, Pt. v. p. 105 1.
^ In Year Book 32 Ed. I, ed. Horwood,
p. 32, the court is warned
by counsel that its decision 'servira en chescun quare non admisit en

Engleterre.'

He

Hist.

Comm. Law,

ch. 4.

Rerum

per priorum saeculorum iudices iudicatarum

exemplis non semper tenentur praesentis saeculi iudices, nisi coram se
agitatis existimaverint convenire, neque enim par in parem imperium
*

continues;

'

De Usu et Auct. ii. c. 8. 6, 8.

Comm. 69.
On the finality of the decisions of the House of Lords, see R.

habet.'
*

v. Millis,

& F.

534; Beamish v. Beamish, 9 H. L. Ca. 274; Caledonian Ry. Co.

V. Walker's Trustees, L. R. 7 App. Ca. 259. The doctrine was laid down
10 CI.

in the most unqualified manner by Halsbury C. in London Street Tramways Co, V. Lo-ridon County Council, [189S] A. C. 375. He would, how-

chap. v.

THE SOURCES OF LAW.

yo
CHAP. V.

apparently,

This

is

Supreme Court

the

of

the

United States \

not the case in the Privy Council ^

may, however,

said,

it is

was that

decidetidi

Precedents

be disregarded in which the ratio

certain

acts

were held to be against

public policy I

There have been of

proximation

late

some symptoms

between the two

theories.

of

an ap-

While on the

Continent judicial decisions are reported with more care,

and

cited with

more

effect,

than formerly, indications are

not wanting that in England and in the United States

they are beginning to be somewhat more freely criticised

than has hitherto been usual \

reversed by a higher court, a curious

If a decision is

question arises as to
in

the

the meantime acted

Was

decision.

or was

it

position

persons

of

in accordance

that decision good law

who have

with the original

till it

was

reversed,

a mere mistake, upon which persons acted at

their peril; their inability to

predict the result of the

appeal being 'ignorantia iuris'^?

narrow the applicability of a case to 'what it actually decides,'

continuing I entirely deny that it can be quoted for a proposition that
may seem to logically follow from it.' Quinn v. Leathern, [1901I A. C. at
ever,

'

p. 506.
^

So Dr. Hannis Taylor,

cases.

rican

The

citing Wright v. Sill, 2 Black, 544, and other

Science of Jurisprudence, p. 511; but see Lord Bryce's Ame-

Commonwealth,

p. 364.

i.

Risdale v. Clifton, 2 P. D. 306, 307; nor are Privy Council decisions

binding upon other courts, Leask v. Scott, 2 Q. B. D. 380.
*
A series of decisions based upon grounds of public policy, however
^

'

eminent the judges by

whom

they were delivered, cannot possess the

and formulate
principles which are purely legal.' Maxim-Nordenfelt Co. v. Nordenfelt,
[i8g4] A. C. 535. On 'Public policy,' see infra, c. xii.
* The astounding growth of Reports in the United States must of
itself tend to produce this result.
* It has been held in America that a 'subsequent decision is a legal
adjudication that the prior one was not law at the time it was made,'
Woodruff V. Woodruff, 52 N. Y. Ct. App. 53. In Gelpeke v. Dubuque
(1863), I Wall. 17s, and in Douglass v. Co. of Pike (1879), loi U. S. 677,
the position of such persons was held by the Supreme Court to be
untouched; so also in a case in the Q. B. Division, Henderson v. Folke-

same binding authority

as decisions which deal with

EQUITY.

As

Equity.

ii.

old

to be out of

felt

a machinery

become too narrow, or are

new views

of

disregard

to

law,

existing

One mode

society.

complishing this object on a large

is

the

of

ac-

without appearing

scale,

introduction,

by the

prerogative of some high functionary, of a more perfect

body

of rules, discoverable in his judicial conscience,

to stand side

is

riding

it

by

side

on some

consist in reality of such

of inherent

title

superiority, but not purporting to repeal

These rules

it.

of received

of the principles

morality as are applicable to legal questions, and

cVtctKcia,

commend

Such a guide

themselves to the functionary in question.

to interference with a strict application of
to the Greeks as

which

with the law of the land, over-

in case of conflict, as

law was known

which, according to Aristotle,

variously

distorted,

reappears

cussions \ coupled, however, latterly, with

classical

Of the

mediaeval

in

its

is

The

not different from Justice, but a better form of it\

term,

dis-

equivalent in

Latin 'Aequitas', whence the modern 'Equity.*

resort to this expedient the

two great

stone Waterworks Co., apparently reported only in

historical in-

Times Law Rep.

1884-5, P- 329; so also in Pierce v. Pierce, 46 Ind. 86. On the position

of persons acting on a decision subsequently reversed, see Lieber,

Hermeneutics, p. 326, Law Quarterly Review,

Law Review, ix. p. 163.

i.

p. 312,

and Columbia

1 Oi5x
wJ 4XXo Ti 7^'0 iv ^tKribv icri rod diKalov, Eth. V. C. 10.
Since the generality of a law is not the only hardship in its application which is redressed by Equity, his definition of rd itnuKis as iiravbpOwfia

vbjMv 5 AXe/Tret 5id rb Ka6b\ov, Eth. v. c. 10, is hardly adequate. Elsewhere

he describes it as being rb waph, rbv yeypafjLfj.4vov vb/jcv SlKaiov, and as look-

ing

M') ifpbs

dXXA wpbs

rbv vbfiov dXXd wp6y ttjv bidvoiav rov vo/mO^tov, Kal

T7]v irpoaiptaiv, koX

fii)

irpbs Tr}v irpd^iv

rb pApos dXXd irpbs rb SXov.

Rhet. i. 13.
E. g. S. Thomas, Sec. Sec, LXXX. i, 'Aristoteles in v. Eth. c. 10
ponit Epicheiam iustitiae adiunctam.' Dante, De Monarchia, i. c. 14,
similarly cites Aristotle upon Epyekia. So Gerson, Regulae Morales, op.
ii. 7,
Aequitas, quam nominat philosophus epikeiam, praeponderat iuris
rigori. Est autem aequitas iustitia pensatis omnibus circumstantiis particfirj

irpbs

'

ularibus, dulcore misericordiae temperata.

enim
*

Hoc

intellexit qui dixit

"ipsae

leges cupiunt ut iure regantur".'

E.

g. Cic.

De

Oratore,

i,

esse iustitiae aequitatisque

56.

quam

'Placuit, in
stricti iuris

chap. v.

ci\'ilisation, E^"i*y-

harmony with advancing

needed for their gradual enlargement and

is

adaptation to

rules

71

omnibus rebus praecipuam

rationem.' Cod. iii. i. 8.

THE SOURCES OF LAW.

72
cH.\p. V.

Rome and

stances are the action of the Praetor at

of the

Chancellor in England.

The Prae-

The

Praetor, though technically without any authority

tor.

to legislate, exerted, during his year of

over

process, which, at first confined within

judicial

all

narrow bounds by the formality

pleading,

a power

office,

became

of the ancient system of

Each

in later times almost unlimited.

Praetor on entering upon his functions gave public notice

in his

edict

against

relief

The

the modes in which he intended to give

of

practical

the

rigidity

of

the

a long succession of Praetors into a body of

arium equal in bulk, and more than equal

'

to the

still

system.

established

devices thus employed were developed

unrepealed 'ius

civile.'

in importance,

Thus

alongside of the proprietary rights open to

by

ius honor-

'

was

it

Roman

that,

citizens

was introduced a system of possession protected by interdicts and fictitious actions which had all
alone, there

the advantages of ownership.

tracts

Effect

which could not be found

in

was given
the limited

to conlist

of

those recognized by the law, and to wills which were

neither sanctioned by the Comitia nor solemnised by a
sale of the inheritance

succession ah intestato

with copper and

scales.

of the artificial 'agnatic' family, its benefits

tically

secured to the blood-relations.

motus proconsul

While

passed by law to the members

still

omnibus

cognatis

'

were prac-

Naturali aequitate

promittit

bonorum

possessionem, quos sanguinis ratio vocat ad hereditatem \'

The Chanccllor

very similar phenomenon of a double system of law,

the newer practically overriding the older, while affecting

to treat

it

with the utmost deference ^ occurred also in

England, where however

managed than

at

Rome.

its

No

introduction was less easily

great officer in England

was

invested with the attributes which enabled the Praetor

to announce beforehand the principles upon which he
*

'

Dig. xxxviii. 8. 2.
'Equity follows the law.'

sequitur.'

Dig. xxii.

5. 14.

Cf. 'ius praetorium,

quod

ius civile sub-

EQUITY.

73

intended so to administer the law as in effect to modify

its

The

operation.

is true,

Chancellor, with his clerks, could,

frame new writs, but

was

it

for the

Common Law

He

therefore con-

judges to decide upon their validity \

what proved

tented himself with

it

to be the very sufficient

expedient of deciding each case that was brought before

nearly as he

him, as

seemed

him

to

to be

its

with what

in accordance

dared,

In

merits.

his

character of

'Keeper of the King's Conscience,' he was held

justified

in thus exerting the undefined residuary authority

was attributed

in early times

So

it

was sung

to an English king.*

Thomas

of St.

which

a Becket

'Hie est qui regni leges cancellat iniquas,

Et mandata

And

to the Chancellor

On

Hatton asserts

Christopher

Sir

Queen that

conscience of the

in

is

facit'.'

'It

some

is

sort

the holy

committed

\'

was

this foundation

theory of Trusts which

and that system

aequa

pii principis

built

up that vast and complex

peculiar to the law of England,

is

by means

of interference

of

'

Injunctions by
'

which the process of the Common-Law Courts was brought

to a standstill,

The

when

principles

seemed

it

likely to

may

the exercise of their powers

in

from

law

injustice.

best be gathered

own mouths.

their

Lord Hardwicke
of

work

by which the Chancellors were guided

said

'
:

When

the Court finds the rules

follow them, but then

right, it will

it

will like-

wise go beyond them^'

Lord Cottenham:
to
*

'

adapt

practice

Cf. Sir

it

the duty of this Court

is

and course

Spence, Equitable Jurisdiction,

c. vii.
*

its

'I think

i.

H. Maine, Ancient Law,

of

proceeding to the

p. 325.
c. iii,

and Early Law and Custom,

p. 605.

lo. Sarisburiensis, Policraticus,

Auctor ad opus suum.

Spence, i. p. 414. Cf. the general conscience of the realm, which is

Chancery.' Fenner J., cited in Bacon's Reading on Uses, Works, vii.
*

'

p. 401.
*

Paget v. Gee,

Amb. App.

p. 810.

chap. v.

THE SOURCES OF LAW.

74

existing state of society,

CHAP. V.

and

by too

not,

ence, to decline to administer justice,

for

which there

is

an adher-

strict

and to enforce rights

no other remedy.

This has always

been the principle of this Court, though not at

all

It is not surprising that claims to a jurisdiction

should have

elastic
1

given

occasion

some

to

according

and as that
one as

larger or narrower, so

is

they should

if

a Chancellor's foot.
/

this be

proceeded

'
:

Common Law,

foot,

'tis

another a short

the same thing in

^'

Lord Eldon replied

The

'Tis all

an uncertain measure would

on which

well settled and

equity.

is

is

Chancellor,

What

\, the Chancellor's conscience

traces the lines

equity

the standard for the measure,

an indifferent foot;

this charge

is

make

One Chancellor has a long

foot, a third

To

him that

the conscience of

to

thus

criticism.

For law we

'Equity,' said Selden, 'is a roguish thing.

have a measure, we know what to trust to

<f

times

attended to\'

sufficiently

his

own

judgment which

in a

administration of equity

doctrines of this Court ought to be as

made

laying

as uniform, almost, as those of the

down

fixed principles, but taking

care that they are to be applied according to the circum-

stances of each case,

cannot agree that the doctrines

of this

Court are to be changed with every succeeding

judge.

Nothing would

inflict

me

on

greater pain,

quitting this place, than the recollection that I

in

had done

anything to justify the reproach that the equity of this

Court varies

like the Chancellor's foot'.'

Lord Nottingham had

conscience as

is

nothing to do:

merely

is

long before

only naturalis

et

'
:

the conscience by which I

civilis et politica^

and

With such

interna this

am

tied to certain

Court has
to proceed

measures *.'

Table Talk, tit. 'Equity.'

Walworth V. Holt, 4 My. and Cr. 635.
Gee V. Pritchard, 2 Swanst. 414; cf. Davis v. Duke of Marlborough,

ib. 152;
*

said,

Grierson v. Eyre, 9'Vesey, 347.

Cook

V.

Fountain (1676), 3 Swanst. 600,

EQUITY.
The

by which the court

the

to

modern

views

principles

Speaking

Cottenham.

'the

of

rules of equity,' the Master of the Rolls (Jessel)

it

say modern rules,

I intentionally

'
:

must not be forgotten that the

rules of Courts

the rules of the

Common Law,

Equity are not

of

the

of

guided approximates more nearly

is

Lord

of

said in a recent case

because

exposition

authoritath'^e

latest

75

like

supposed to be established from time immemorial.

known

perfectly well

from time to time

many cases we know the names of

who invented them. No doubt they

Chancellors

were invented

for the

administration

of

against

purpose

justice,

Take such things

woman, the

improved, and refined from

In

time to time.
the

been established

they have

that

altered,

It is

as these

on

restraint

securing

of

but

separate use of a married

modern

the

alienation,

and the rules

perpetuities,

better

they were invented.

still,

the

the

rule

equitable waste.

of

We

can name the Chancellors

first

invented them,

and

state the date

first

introduced into

who
when they were

Equity jurisprudence

and, therefore, in cases of this kind

the older precedents in Equity are of very

The

doctrines

are

if we want
we must look, of

and
the

Sir

know what

the rules of Equity are

to

course, rather to the

more modern than

'.'

Henry Maine points

out,

Lord Eldon himself, during

to

value.

refined,

more ancient cases

As

little

and improved;

progressive,

it

his

was greatly owing

long

reign in

the

Court of Chancery, that equity became a body of rules

scarcely

stage

more

elastic

was reached

than the

Common Law. A similar

Roman equity when

in the history of

the edicts of the Praetors were consolidated by Salvius

lulianus

in

the

time

of

the

Emperor Hadrian ^

subsequent history of both systems

'

Re

Hallett'a Estate, L.

is

R. 13 Ch. Div. 710.

The

also not dissimilar.

*

Ancient Law,

c. iii.

chap. v.

THE SOURCES OF LAW.

76
CHAP. V.

The work
body

Praetors was finally adopted into the

of the

law by the

of the

were

legislation of Justinian, as

the doctrines of the Chancellors into the law of England

by the Judicature Act

of

In either case equity

1873.

ceased to exist as an independent system, but bequeathed

its pruiciples to

Legisla-

the system into which

tends

Legislation

iii.

with

was absorbed.

it

Graecia capta ferum victorem

'

cepit.'

advancing

civilisation

new law\

become the nearly exclusive source

of

may be

autocrat

work not only

the

an

of

or

to
It

of

sovereign Parliament, but also of subordinate authorities

permitted

exercise

to

the

The

function.

making

general orders by our Judges, or of by-laws by a

way company, is
the Crown and
Rules made by

as true legislation

as

of
rail-

carried on

is

by

the estates of the realm in Parliament.

a

subordinate legislative authority are,

however, valid only in so far as that authority has acted

within

its

delegated powers in making them, and

Law

the duty of the Courts of

arises,

to declare,

whether the rules are in

this

This function of the Courts

made.

is

when

it

is

occasion

respect well or

ill

every day exercised

with reference to the by-laws of railway companies or

municipal

corporations.

It

is

no

less

systematically,

though not so frequently, exercised in testing the legality

of laws

by the

made by the Governor- General

Parliament

that of the

of

Commonwealth

a federal government

of India in Council,

the Dominion of Canada, or by

the

of

Australia.

power

of

When

under

even the supreme

On

the relation of Legislation to Nature, Custom, and Utility, see

For differing views as to the comparative effiii. c. 22.
cacy of Legislation and Adjudication, as instruments for bringing law
into harmony with social progress, see Mr. Justice Baldwin, in Two Cen^

Cicero, de Inv.

turies'

Growth

of

Common Law and

American Law,

p. 6,

and Mr. R. Pound's

Legislation, in 21 Harv.

Law Rev.

383.

article

on

Till Parlia-

mentary draftsmanship and procedure are vastly improved, the

ence will hardly be given to Legislation.

prefer-

'

LEGISLATION.

make laws

legislature to

constitution,

Hence the commanding

States by the federal

the United

is

the

of

position occupied in

Con-

not omnipotent.

is

powers are circumscribed by a constitution which

cannot

alter,

and

resort, to say

it

Supreme Court,

for the

is

whether a given act

force of law, or, as being

'

chap. v.

first

Supreme Court.

the British Parliament,

gress, unlike

by a written

strictly defined

is

function of the courts

this

importance.

Its

'j'j

it

in the last

Congress has the

of

unconstitutional,'

mere waste

is

paper \

In

both

legislation,

and

devised,

force

legal

contents

the

given

is

the sovereign power which

the

of
to

it,

what

is

tendency,

popular

called 'unwritten

obtain

professional

the force

the standards which the

before

it

gives

its

whole

contents, which are derived from

discussion,

genuity, or otherwise, as the case

developed

of^vritten''

All

law.'

law^' to which the sovereign authority gives

legal force, but not its

'

by acts

produce 'written

the other law sources produce

are Written

rule

of

may

be.

judicial

law by complying with

State exacts from such

them binding

in-

Rules thus

force.

Having

rules

so complied,

these rules are laws, even before the fact that they are
so has been attested

The

by a Tribunal.

State has in general two, and only two, articulate

the Legislature

organs for law-making purposes

Tribunals.

The

first

organ makes

new

and the

law, the second

attests

and confirms old law, though under cover

doing

introduces

it

many new

of so

principles.

* The relation of subordinate legislatures to the Law Courts is fully discussed in Professor Dicey 's Law of the Constitution, c. 2, and Lord
Bryce's American Commonwealth, vol. i. c. 23.
^ Cf. Hale, Hist. 'C. L., p.
55; Blackstone, Comm. i. p. 63; Austin,
Jurisprudence, i. p. 195; Lieber, Hermeneutics, by Hammond, p. 323.
The Roman writers, on the other hand, give to these terms a merely
accidental and literal meaning. Their ius scriptum is that which is
committed to writing, by whomsoever, at the time of its origin.
'

'

^^^"

'

CHAPTER

VI.

THE OBJECT OF LAW.

Law

The most

as reB raining.

coercive.
*

'

Law

obvious characteristic of

was added because

It

that

is

of transgressions

lura inventa metu iniusti fateare necesse est

'Law was brought

nothmg else, but to

into the world,'

says Hobbes,

of individuals,

it

man

by Kant

It is accordingly defined

under which the

as

free-will

can be united with the free-will of another,

in accordance with a general

rule

law of freedom';' and by

which determines

Savigny, as

'the

limit within

which the existence and

individual

common enemy I'

does so by restraining any interference

'the totality of the conditions

one

assist

operates in favour of the legitimate action

it

with such action.

of

'for

limit the naturall liberty of particular

one another, and joyn together against a

Even when

is

\'

men, in such manner, as they might not hurt, but

\.

it

'

may

obtain secure and

these high authorities

make

the

activity

free play*.'

the function of

invisible

of

each

Both

Law

of

to be

Hor. Sat. i. 3. in.

Leviathan, p. 138. Cf. 'Factae sunt autem leges ut earum metu
humana coerceatur audacia, &c.' Decretum, Pars i, Dist. i, c. i.
*
'
System, i. p. 114.
Rechtslehre, Werke, vii. p. 37.
*

SOCIAL WELL-BEING.

79

the preservation from interference of the freedom of the

will.

This conception

and

positive conception

purely negative, and

is

definition

is

Law.

wide enough to cover

rules which regulate the relations

another, but

all

of individuals one to

too narrow to cover enactments pro-

is

it

a wider

needed to embrace the operation

is

of Public as well as of Private

The Kantian

chap, vi

viding, for instance, for the organisation of

a ministry

of education, or giving to certain great libraries a claim

new book that is published.

writers, among whom Krause and

to a copy of every

school of

demands that Law

are representative men,

Ahi-ens

'

shall be con-

ceived of as harmonising the conditions under which the

human

race

highest

good

this highest

accomplishes
of

which

it

its

destiny

is

capable.

the

realising

The pursuit

of

good of the individual and of society needs

a controlling power, which

is

Law, and an organisation

for the application of its control,

The truth which

speculations

by

is

is

which

is

the State.

contained in these somewhat obscure

capable of

much

simpler expression; and

to find a definition of the function of law which

leave these writers nothing to desire,

we have

would

only to

who says: 'Finis et scopus quem

leges mtueri, atque ad quem iussiones et sanctiones suas
dirigere debent, non aUus est quam ut cives feliciter
The same idea is expressed by Locke, who
degant
asserts that 'Law, in its true notion, is not so much the

turn to Lord Bacon,

^.'

limitation as the direction of a free

to his proper interest,

it

may

intelligent agent

and prescribes no further than

for the general good of those

however

and

under the law ... so

be mistaken, the end of the law

is,

not

to abolish or restrain, but to preserve or enlarge freedom

'
'
*

Abriss des Systemes der Philosophie des Rechtes, 1828.

Cours de droit nature!, 1840.
De Aug. lib. viii. aph. 5. Cf. S. Thorn, i. 2. q. 90. 20 concl.
Of Civil Government, i. 57.

is

that,

^'

Law

aa organising.

THE OBJECT OF LAW.

8o
CHAP.

VI.

So Bentham

*
:

Of the substantive branch

only defensible object or end in view

community

of the

in

question

the statement of Leibnitz

non esse principium

'
:

is

the maximisation

number

of the happiness of the greatest

\'

Still

law the

of the

of the

members

better perhaps

is

humanae societatis custodiam

tamen iustum esse quod

lustitiae, sed

societatem ratione utentium perficit ^'

Law
object

more

something

is

no doubt nothing

is

than

Its

police.

than the

less

being of society: and the State, from which

all its force, is

anstalt,'

derives

'

or 'Institution for the protection of rights,' as

It is

however no part

how

of our undertaking to discuss the question

may

Law

something more than a Rechtsversicherungs-

has not inaptly been described.

it

ultimate

liighest well-

properly go in

being of those within

its
its

Law

endeavours to promote the wellsphere.

The merits

government, of centralisation, of factory

churches, are

far

topics for the

of a paternal

acts,

poUtician rather

of

State

than the

jurist'.
Rights.

Jurisprudence
poses which

is

Law

concerned not so

much with

subserves, as with the

the pur-

means by which

The purposes of Law are its remote

The means by which it effects those purposes
its immediate objects.
The immediate objects of Law
the creation and protection of legal rights *

subserves them.

it

objects.

are

are

'

Works,

ii.

p. 6.

Obs. de Princ. luris, ii, Opera, ed. Deutens, t. iv. p. 272. Cf. Portalis,
Discours preliminaire sur le Code Civil.
' With the advance of civilisation the State naturally extends the
sphere of its activity. It is represented by some writers as having been
'

War, to Law, and to Culture and Well-being.

which has attained this last stage is its tendency
towards Communism. For an attack upon this tendency, amounting to
an attack upon anything like a Kultur- oder Wohlfahrtsstaat,' see Hersuccessively devoted to

The danger

of a State

'

The Man versus the State, 1884.

* The creation and enforcement of legal duties is of course the
same
thing from another point of view; and a point of view from,which soma
bert Spencer,

writers prefer to regard the operation of

Law.

Cf. injra, pp. 85 n, 86.

CHAPTER

VII.

RIGHTS.

What
.

then

It

'

legal

right ' ?

But

what

first,

is

man's

one

is

is

,,

right generally

influencing

capacity of

another, by means, not of his

own

the acts

of

strength, but of the

opinion or the force of society.

When

man

said to have a right to do anything,

is

or over anything, or to be treated in a particular manner,

what

is

meant

the act, or

is

that public opinion would see him do

make use

of

the

thing,

or

be

treated

in

that particular way, with approbation, or at least with

acquiescence;

one

who

but would reprobate the conduct of any

should

making use

prevent

him from doing the

of the thing, or should fail to treat

act,

or

him

in

that particular way.

A
a

'right'

man

has

is

thus the

when he

feeling of approval,

is

name given

to the

advantage

so circumstanced that a general

or at

least

of acquiescence, results

when he does, or abstains from doing, certain acts, and

when other people act, or forbear to act, in accordance
with his wishes; while a general feeling of disapproval
1950
G

right
generally,

RIGHTS.

82
CHAP.

VII.

when any one prevents him from

results

abstaining at

ance with
go.

It

is

liis

wishes.

for

Psychology to

mind

extent unravel for us

by what,

inquire

prevalent

most vexed questions

may

History

growth

the

also

such

of

and

Psychology

of

some

to

conceptions

and these are among

absolved from such researches.

The only conception

Right which

arguments

we have

essential to her

is

already propounded, and

which, as far as

it

Jurisprudence

is

A legal

about

is

is

of a

that which

the

truth

of

no question.

goes, there can be

specifically

the

of

Jurisprudence

respectively.

Civilisation

any,

if

capable of affirming or deny-

is

now

as to rights as are

of

or

Further than this we need not

his

special faculty the

History

domg

pleasure, or refuses to act in accord-

ing the existence of rights.

the

so

concerned only with such

nght.

rights

power
right,'

recognized

are

as

of

We may

State.

what we

in

by law and enforced by the

shall

therefore

hereafter

define

see

is

the

'legal

strictest

man

sense of that term, as a capacity residing in one

controlling,

of

with

the

assent

and assistance

the

of

State, the actions of others.

That which gives validity

case, the

thing

force

else

may

which

to a legal right

lent to

is

it

by the

be the occasion, but

is

in every

is,

State.

Any-

not the cause,

of its obligatory character \

Sometimes
times

it

it

has reference to a tangible object.

has no such reference.

is

owner, as

exercised

object,

subject,

Thus, on the one hand,

a power residing in the land-

the ownership of land

its

and available against

all

over

the

other men.

has a certain power, residing in himself as

and exercised over

his

Some-

child

as

its

land,

as

its

So a father
its

object,

subject

available

As Thomasius says of Pactum,' 'non est causa sed tantum occasio

The contrar}^ view is strongly put by Demburg, Lehrbuch,
39: 'Die Rechtsordnung gewahrleistet und modelt die Rechte im
'

'

obligationis.'

subjectiven Sinne, aber

sie ist

nicht ihr Schopfer.'

A LEGAL RIGHT.
against

the world

all

83

On

besides.

the

servant has a power residing in himself as

no tangible

object,

and available only against

compel the payment

to

such wages as

of

hand, a

other

its subject,

his

chap.

tii.

over

master

may be due

to him.

This simple meaning of the term

purposes of

the

jurist

'Right';

to

a right

entirely adequate.

ever been covered with endless

similarity

'

an

formed from the adjective

for the Ambigu-

has how- oUhe

confusion owing to

abstract

Hence

just.'

its

*"^*

term formed from

way

the adjective 'right,' in the same

'

is

'

It

that 'Justice'
it is

is

that Black-

stone actually opposes 'rights' in the sense of capacities,

to 'wrongs' in the sense of 'unrighteous acts\'

We
*a

England are happily spared another ambiguity

in

which

many
The

right.'

Italian

languages besets the phrase expressing

Latin

'Diritto,'

'lus,'

the

and the French

German

'Recht,'

the

'Droit'

express

not

only 'a right' but also 'Law' in the abstract.

press the distinction

Germans

are therefore

To

ex-

between 'Law' and 'a right' the

obUged to resort to such phrases

and 'subjectives Recht,' meaning by the

as 'objectives'

Law in the abstract, and by the latter, a concrete

right.
And Blackstone, paraphrasing the distinction
drawn by Roman Law between the 'ius quod ad res'
former.

and the
first

'ius

quod ad personas

and second volumes

'Rights

of

Persons'

of

his

pertinet,'

the

devotes

Commentaries to the

and the 'Rights

of

Things,'

re-

spectively.

If

the expression of widely different ideas by one and Resulting

confusion,

the same term resulted only in the necessity for these

clumsy periphrases, or obviously inaccurate paraphrases,

no great harm would be done

but unfortunately the

identity of terms seems irresistibly to suggest an identity

'

The absurdity

is

carried a step further

by people who write

newspapers about copy-rights and copy-wrongs.'

'

G2

to the


RIGHTS.

84
CHAP

VII.

between the ideas wliich are expressed by them.

German

writers have evidently the greatest difBculty in keeping

Law and

apart

Law

to regulate.

the 'science

of

source

this

of

been

already

the rights which

Jurisprudence

it

is

the business of

with them indifferently

is

and the 'science

rights'

confusion

indicated

add

they
being

as

which

hindrance

selves.

They have a vague impression

merely

etymological

connection

Law.'

of

that

to

To
has
our-

more than

of a

between 'a right' and

the eulogistic adjective 'right.'

Definitions.

The following
authors

by various

right'

are definitions of 'a

'

Potentia Boni, lustitiae regulis consentanea.'

'

Qualitas

ilia

Zouche \

moralis qua recte vel personis imperamus

vel res tenemus, aut cuius vi aUquid nobis debetur.'

Puffendorffl

'Quaedam

potentia moralis.'

Leibnitz'.

'Qualitas

moralis

ex

personae

quo

in

competens

ad

societate vivit

Thomasius
'

activa

aliquid

iuste

concessione

ab

altero

habendum

vel

superioris

homine cum
agendum.'

*.

Die Befugniss zu

z wingen.'

Kant

'Eine physische Macht, welche durch die Gebote der

Autoritat nicht allein sittlich verstarkt

ist,

sondern welche

auch diese ihre Macht durch Anwendung von Zwang

Oder

Uebel

Kirchmann

gegen

den

Verletzer

schiitzen

kann.'

'.

* De I. Nat. et Gent. i. c. i. 20.

luris prudentae, p. 19.
* lurispr. Div. lib. iii. c. i. i. 82.
Opera, i. p. 118.
' 'The authority to compel.' Rechtslehre, Werke, vii. p. 29.
*
A physical power, which through the commands of authority not
only is morally strengthened, but also can protect this its power against a
transgressor by the application of compulsion or evil.' Die Grundbegriffe
dcs Rechts und der Moral, p. iii.
*

Elementa

'

DEFINITIONS.

85

Eine Macht Uber einen Gegeustand, der vermbge dieses chap.

'

Rechts

dem Willen

des Berechtigten unterworfen

ist.'

vii.

Puchta \
Ein rechtlich geschiitztes

Interesse.'

Jhering \

may be as well to re-state in a few words precisely Explanawhat we mean by saying that any given mdividual has right.
It

'a right.'
If

man by

his

own

force or persuasion can

out his wishes, either by his

own

acts, or

carry
^

by influencing

the acts of others, he has the 'might' so to carry out

his wishes.
If,

irrespectively of having or not having this might,

public

opinion would view

with

approval, or

at

least

with acquiescence, his so carrying out his wishes, and

with disapproval any resistance made to his so doing
then he has a 'moral right' so to carry out his wishes.
If,

irrespectively of his

having, or not having, either

the might, or moral right on his side, the power of the

State will protect

him

in so carrying out his wishes,

compel such acts

will

other people as

may be

may

or

forbearances

and

on the part of

be necessary in order that his wishes

so carried out, then he has a 'legal right' so to

carry out his wishes'.

If it is a

own powers

question of might,
of force or

all

depends upon a man's

persuasion.

If it

is

a question

^ ' A power over an object, which by means of this right is subjected to

the will of the person enjoying the right.' Instit. ii. p. 393.
'
A legally protected interest.' Geist des romischen Rechtes, iii. 60.
^ Maine points out how much more prominent in early Roman law was
the idea of duty than that of right. The Japanese seem to have possessed
'

no word for legal right till the term 'Ken-ri,' meaning 'power-interest,'
was coined by Dr. Tsuda, when, after a course of study at Leyden, he
published in 1868 his Treatise on Western Public Law. The term, and
the idea expressed by it, were accepted, and the Japanese Civil Code
'Rights' as the basis of its classifications. See Professor N.
Hozurai'a lecture on that Code delivered at the St. Louis Exposition in

takes

1904,

RIGHTS.

86
CHAP.

VII.

of moral

right,

opinion to express
right,

of legal

State to exert

depends on

all

itself

all

If it is a

his side.

question

depends upon the readiness of

on

force

its

upon

the readiness of public

his behalf.

the

hence obvious

It is

moral and a legal right are so far from being

that a

may

identical that they

opposed to one another.

easily be

Moral rights have, in general, but a subjective support,

have the objective support

legal rights

of the

force

the physical

of

The whole purpose

State.

laws

of

announce in what cases that objective support

granted, and the

manner

Law

In other words.

which

in

it

may be

was stated

exists, as

is

to

will

be

obtained.

previously, for

the definition and protection of rights.

Of a duty.

Every

whether moral or

right,

legal, implies

the active

furtherance by others of the wishes of

or passive

Wherever any one

party having the right.

is

the

entitled to

such furtherance on the part of others, such furtherance

on their part

is

Where such

said to be their 'duty,'

furtherance

is

merely expected by

public opinion of the society in which they

live,

the
it

is

their 'moral duty.'

Where
to

it

The

might

correlative of

to force; of moral

duty.

is

legal

it

will be

right

state

it

is

is

is

of the State

their 'legal duty.'

necessity, or

susceptibility

moral duty; of legal right

These pairs of correlative terms

express,

observed, in each case, the same state of facts

viewed from opposite

by the power

will be enforced

which they are amenable,

of facts in

sides.

which a man has

witliin himself

the physical force to compel another to obey him,

be described either
control
to A,

B, or that

is

of

under a necessity

obeying, the position

by saying that

may

has the might to

of submitting

So when public opinion would approve of

manding and
either

by saying that

may

com-

be described

has a moral right to command.

or that

when

is

LAW AND

RIGHTS.

under a moral

duty to

the State will compel

or forbearance, the wishes

say that

87
Similarly,

obey.

to carry out, either

chap. vn.

by act

we may indifferently
that B is under a legal

A,

of

has a legal right, or

duty.
It is

unimportant in theory whether a system of law

starts with a consideration of rights or of duties.

It is

important only that whichever point of view be adopted

should be consistently adhered

We

to.

shall take Rights

rather than Duties as the starting-point of our classification,

may be adduced

although some authority

of the opposite

Law

has been for centuries described as a

but this description, though essentially true,

the

to

extent of

being

an

(2)

is

inadequate

Austin,

who very

into (1) a desire conceived

to

evil

by the

to be incurred

by words or other

proceed from the former

latter

and

(3)

signs,

is

pliance with the wish,

case

in

of

non-com-

an expression of the viash

unable

to

discover these

laws which are merely declaratory, or

characteristics

in

which repeal

pre-existing

law,

or which, because they

can be disobeyed with impunity, are said to be 'of imSimilar difficulties have been raised

perfect obligation^.'

by Austin's critics with reference

laws by Mr. Frederic Harrison, for
:

to

other classes

of

instance, with refer-

ence to enabling statutes, laws conferring franchises, and

rules of interpretation or of procedure ^

Such cases
recognise

will

that

however cease

every

See Bentham, Works,

Am. Law Review, vii. p. 46.

law

iii.

Jurisprudence, Lect.

i.

p. 181;

anomalous

proposition

Comte,

if

we

announcing

Phil. pos. ed.

Prof. Terry, formerly of Tokio,

Principles of Anglo-American
^

is

to be

2, vi.

p. 454;

Some Leading

Law, combines the two methods.

'

relation of law
to rights.

command,' "^^^e

'

rational being that another rational being should

do or forbear,

and

misleading.

command

properly analyses a

by one

in favour

method \

Fortnightly Review, 1878, p. 684.

RIGHTS.

88
CHA.P. VII.

the

the will of

State,

and implying,

not expressing,

if

that the State will give effect only to acts which are in

accordance with
punish, or at

advantages

The

being legal rights, what

disadvantages

it

will enforce as

what methods

it

will

being legal duties, and

pursue in so doing.

The announcement may be made

ways.

'

No

'

but

different

wards, shall be

may

also be in the indicative

for the price

of

the

10

of

sterling or up-

be good, except the buyer

allowed to

part

accept

it

contract for the sale of any goods, wares

and merchandises,

shall

many

in

law may be imperative, as 'Honour thy father

and thy mother

mood, as

will

it

known what

thus makes

State

protect as

will

it

while

so announced,

with nullity, any acts of a con-

least visit

character.

trary

will,

its

goods so

and actually

sold,

receive the same, or give something in earnest to bind

the bargain, or in part of payment, or that some note

memorandum

or

in writing of the said bargain be

made

and signed by the parties to be charged by such contract, or their

'From and

the

after

jurisdictions

several
to

agents thereunto lawfully authorised

commencement

which by

this

of

'

or

Act the

Act are transferred

this

and vested in the said High Court

Justice

of

and

the said Court of Appeal respectively shall cease to be

exercised, except

by the said High Court

of Justice

and

Court of Appeal respectively, as provided by

the said
this Act.'

The

real

meaning

of all

Law

that, unless acts con-

is

form to the course prescribed by

it,

only ignore and render no aid to

either of its

own

cancel

effects.

what

their
is

called

the

accord or

if

the State will not

them, but will

also,

called upon, intervene to

This intervention of the State

'sanction'

of

law^

It

is

true

is

that

the State intervenes not only with a view to punishment,

*

'

L'^s;um eas partes quibus poenas constituimus adversus eos qui contra

leges fccerint, sanctiones vocamus.'

lust. Inst.

ii.

i.

lo.

LAW AND
and occasionally
to

89

and

this

perhaps

is

of State intervention

in

case

mission operates upon the general mind by

punishment.

who

to one

faulty

of

way

wrong be merely undone,

his

if

of its

fails

so

effect,

or

his

Law

is,

in

formulated and armed public opinion, or the opinion

of the ruling body.

states of

with

courses

that he has, as

the saying goes, 'his trouble for his pains.'

fact,

of threat

a punishment to a wrongdoer, or

It is

procedure

com-

its

neglects to comply with prescribed

procedure,

of

chap, vn,

principal

its

but before the commission of the wrong the

announcement
of

but also

to prevent anticipated illegality,

restitution,

effect

function

RIGHTS.

announces not only that certain

It

and courses

things

of

favour, but also that, in

action

case

of

are viewed by

it

the invasion of

these states of things, or in case of contrary courses of

action being pursued,

it

^vill

not only look on with

dis-

favour, but will also, in certain events, actively intervene

to restore the disturbed balance.
It

defines

the rights which

it

will

aid,

and

specifies Substantive

the

way

thereby
it
'

in

which

creating,

provides

it
it

will aid them.

is

method

So far as

'Substantive Law.'
of

aiding

Adjective Law,' or Procedure.

and

it

and

defines, Adjectiv*

So far as

protecting,

it

is

^^*

CHAPTER

VIII.

ANALYSIS OF A RIGHT.

We

have seen that a 'moral right' implies the

exis-

tence of certain circumstances, with reference to which

viewed with general approba-

a certain course of action is

tion,

and the contrary course with disapprobation; that

of

of

action

is

enforced, and the other prohibited, by that organised

We
right,

where the one course

exists

'legal

which

society

The

right'

the

called 'the State.'

is

have next to consider more particularly what

character of

those

elements

is

from which a Right

results.

They
(i)

are

person 'in
is

by
(2)

In

(3)

its

many
is

whom

resides,' or

who

is

cases,

an object over which the right

exercised.

Acts or forbearances which the person in

'who

benefited

existence.

the right resides

(4)

the right

clothed with the right,' or

person from

is

whom

these acts or forbearances

can be exacted; in other words, against

the

duty

right
it is

is

available

to act

or

whom

entitled to exact.

in

whom

other words, whose

forbear for the benefit of

the subject of the right.

'

ELEMENTS OF A RIGHT.
The

may

elements into which a Right

of

series

resolved

91
be

chap.

vm.

therefore

is

The Person The

Object.

The Act

The Person

or Forbearance.

obliged.

entitled.
It will be

observed that the

The second term

of the series are a person.

(whether

of the right

physical or

either

term

made up

is

the acts

be convenient to

person of inherence
of

'

such)

the object terms.

is

call

no

to

bound.

is

the person entitled

obliged,

'

the Proposed
termin-

the person ology.

'

The intermediate terms may be

incidence.'

object,

and the third

forbearances to which

or

and the person

series
of four

(for there exist

which have reference

the person in the fourth term

It will

any

if

assimilated to

of

terms A

last
.

be a physical thing, or what

it

the law chooses to treat as such)

large classes of rights

and the

first

shortly

referred to as 'the object' and 'the act' respectively.

That

no technical abstraction but a simple

this series is

formula for the representation of the indisputable elements

of a right,

may

the daughter

right
to

is

the

'

person of inherence,'

i.

which her right

where, as

we

e.

stated to

is

the

the person against

Or take an example

available.

is

i.

of

of

the 'person of inherence,' reasonable service

is

'act' to

series

which he
against

incidence,'

is

is

'

act

is

whom
right

be often the case, the second

wanting.

term

the

whom

in

and the executor

entitles her;

the 'person of incidence,'

e.

the 'object' of the

is

the delivery to her of the tea-service

her right

Here

daughter a silver tea-service.

liis

resides; the tea-service

the right

be more apparent from an example.

testator leaves to

entitled,

whom

the

is

and
right

A's servant.

is

is

the

Here
is

the

'person of

available.

The

nature of the right varies with a variation in any one

of the four

terms which

variations in the

may

be implied in

nature of the

main heads or departments

of law.

right give

it,

rise

and the
to the

ANALYSIS OF A RIGHT.

92
cAP.

The preceding

Till.

analysis of the nature of a right implies

the ideas of 'Person,' 'Thing,' and 'Act.'

permanent phenomena

of a right;

These are the

statical elements.

its

right, conceived of as at rest, postulates

and which the

entitled,

is

and

perform;

often,

Person of

Acts to which the

inherence and a Person of incidence;

former

latter

obliged

is

to

though not always, an Object or

Thing.

But

Facta.

if

the right

is

put in motion, phenomena of

new kind intervene. They are shifting, dynamical, and

under
may be expressed by the general term Facts
'

' ;

which are included, not only the 'Acts' of persons, but

which occur independently

also the 'Events'

It

is,

joyed.

as we have seen, by
And we shall see that

it

through the agency

is

or of 'Events' that rights are created, trans-

of 'Acts'

ferred, transmuted,

to

of volition.

'Acts' that rights are en-

and extinguished. In order therefore

understand, not only the nature of a right and the

mode

of its enjoyment, but also the

and

transfer,

tion,

extinction,

clear ideas of the full

meaning

it

is

manner

of its crea-

necessary to acquire

terms

of the following

Person.

I.

II.

Thing.

III. Fact,

under which term are included

Event,
Act, of omission as well as of commission.

With

reference to the important term

'

Act

sary to consider the relations of the will to

exertion and

expression.

its

It

will

also

'

it is

its

neces-

conscious

be necessary

to classify acts.
Person.

I.

'

Person

'

is

often defined as being

or Bearer, of a right^'; but this

ficance of the term.

E.

g.

is

to

ii.

p. i;

Subject

narrow the

Rights not only reside

Savigny, System,

the

Puchta, Inst.

in,

ii.

signi-

but also

p. 291.

PERSONS.

In other words, there are chap. nn.

are available against, persons.

persons of

incidence as well

the subjects

are

Duties

of

93

Persons

inherence.

as of
as well

as

of

In

Rights.

persons rights inhere, and against them rights are avail-

For the benefit

able.

Persons,

and

subjects

e.

i.

personality

the

certain groups,

venient

such

'

as opposed to an

human

being

as

is

'

person

artificial,'

by the law

regarded

As having any such

'status.'

recognised by the law, he

is

is

as

Roman

in the language of

capable of rights or duties:

law as having a

and duties; as

rights

sense \

artificial

natural,'

as subjects of

treat

to

Persons in an

Rights or of Duties, are in

of

human beings; but, in imitation of

of human beings, the law recognises
of men or of property, which it is con-

individual

general

i.

of persons duties are created,

on persons that duties are imposed.

it is

capacity

said to be a person, or, to

Roman

approach more nearly to the phraseology of the

lawyers, to be clothed with, or to wear the

mask

(persona)

of legal capacity^.

Besides possessing this general legal capacity, or status,

man may

the

as

rights.

slave

had

or

caput,'

of

capita'

'tria

liabilities,
*

also possess various special capacities, such

having,

Roman

in

says

Ulpianl

mission, says Modestinus,

we

manumission, as
habuit^'
'

So

'

de

Off.

'

Dig. xxviii.

Dig.

neither

nullo

On

the

incipit

isti

'

status,'

apud

habentur

day

of

nor

rights

manu-

his

statum habere

Before

*.'

'

'

ol

ovTcs

airpoa-wTroi

oiKerai

persona singularis

Dig.

to

'

'

populus,'

'

curia,'

The equivalent

of persona' in the Insti'

is npSffoiirov.

8. i.

iv. 5. 4.

eV

iv. 2. 9. i.

cc. 30, 32.

i.

tutes of Theophilus

such,

and family

read in the Institutes, nullum caput

Thus Ulpian opposes

Cf. Cic.

'

Theophilus:

'collegium' or 'corpus.'

as

citizenship,

law, strictly speaking, no

'Pro

'persona.'

praetorem,'

liberty,

i-

16.

Natural

ANALYSIS OF A RIGHT.

94
CHAP.

VIII.

'

Twv

twv

7rpo<T(i)iroiV

otKctwv

^(apaKTrjpt^ovTai

Bta-'jrorwv

must however be remembered that the terms

and

'

caput

were also used

'

'

It

*.

persona

language as nearly

in popular

equivalent to 'homo,' and in this sense were applied to

Many

as well as to freemen ^

slaves

posed that

Roman law

recognised, besides the

which they distinguish as

varieties

similar

of

age,

This view finds

now

little

and

health

which they describe as

circumstances,

naturales.'

upon

tria capita

'

innumerable

'status civiles,'

depending

status,

writers have sup-

favour

'status

but the

modern employment of the term 'status' in this flexible

sense, apart from any supposed authority for it in the
law of Rome, is both common and convenient \ It is

homo

true to say that 'unus

i.

one individual

e.

capacities ^

legal

of

may

plures sustinet personas,'

be clothed with different kinds

natural person

therefore well

is

'homo cum statu suo consideratus

natural person must combine the following

defined as

Characteristics of.

istics

(0 He must be a
must be no monster \

iii.

tit. 44.

vi. 8.

character-

living
(b)

human

He must

being:

i.

e.

he

(a)

be born alive (vivus) \

Servos quasi nee personam habentes.' Nov. Theod.

ii. 14.
'Servos qui personam legibus non habcbant.' Cassiodor. Var.
'O SovKos irapk rots v6fiois airpScranrSs iari, rovTfcmv ovdi SoKf7 (riv If

17; cf.

'

Theodor. Herm. vii. 6. 'Perfortunam in omnia obnoxii, tamen

secundum hominum genus sunt.' Florus, Hist. iii. 20.

awflvai.

quasi
^
1.

Cf. Cic.

de Off.

i.

30-34, de Orat.

ii.

24

Gai. Inst.

i.

9; Dig. iv.

5. 3,

17. 22.

Savigny, System, ii. Append, p. 445; Baron, Pandekten,

'The status of an individual, used as a legal term, means the

26.

position of the individual in, or with regard to, the rest of the

com-

'
*

Cf.

legal

Brett L. J. in Niboyet v. Niboyet, L. R. 4 P. D. (C. A.) i.

'Tres persona? unus sustineo.' Cic. de Orat. i. 40.
* 'Status' is defined by Heineccius as 'qualitas cuius ratione
homines
diverso iure utuntur,' Reeit. i. tit. 3; and 'persona' by Miihlenbruch as
potestas iuris, sive facultas, et iurium exercendorum et officio rum
munity.'
'

'

subeundorum, hominibus iure accomraodata

Pand. ii. i. Cf. Austin, Lect. xl, xli.
'

Dig.

i.

5.

'

Dig.

1.

16. 129.

14,

1.

16. 38;

Cod.

vi. 29.

t,;

et quasi imposita.'

Co. Litt.

7 b,

29 b.

Doct.

NATURAL PERSONS.

95

though not necessarily capable of contmued

(vitalis)\

But

before birth.

humanis
partus
infant

many

says

quaeritur,'
in

purposes.

It is

Paulus^
is

to

as

if

it;

(2)

so

ipsius

Blackstone:

made

be

'An

born

for

it

is

to

it.

It

may have

enabled to have an

to take afterwards

actually

born^.'

must not have ceased

the other hand, he

need not be

and
and

were then

it

rebus

in

si

capable of having a legacy, or a

estate limited to its use,

limitation

So

supposed to

surrender of a copyhold estate

an estate assigned

ac

quotiens de commodis

mere

sa

ventre

begins

existence

est perinde

in utero

custoditur,

esset

purposes

certain

for

Qui

'

existence chap, viit

to

by such
(c)

Uve.

On
He

rational.

He must

be recognised by the State as a person;

must not be a

slave in the absolute control of

his

master, a 'caput lupinum,' or otherwise civilly dead, as

was

in

abjured

English
the

law

realm,

or

man who was

who 'entered into

banished,

or

religion'

as

a professed monk, when, says Blackstone, 'he might, like

other dying men,

make

his

testament and executors; or

1 Dig. XXV. 4. 1,1. 16. 129;

but by the Code Civil, art. 725, 'I'enfant
qui n'est pas n^ viable is incapable of succession.
^ Dig. i. 5. 7.
'curator ventris' might be appointed to look after its
interests. Dig. 37. 9.
' I Comm. 130.
By the Code Civil, art. 906, 'pour etre capable de
recevoir entre-vifs, il suffit d'etre con^u au moment de la donation; pour
etre capable de recevoir par testament, il sufht d'etre conou h I'^poque du
'

Cf. German Civil Code, 1923- By the Prussian

Landrecht, Pt. i, vol. i, 10, 'the general rights of humanity' attach to
a child from the moment of conception. Mr. Justice Holmes has kindly
called my attention to a case in which an action was unsuccessfully
brought by the administrator of a foetus for the injury to the mother
which had caused its premature birth and almost simultaneous death.
Dietrich v. Northampton, 138 Mass. 14, S. C. 52 Am. Rep. 243. Cf.
Walker v. Gt. N. Ry. of Ireland, 28 L. R. Ir. 69, and an article on 'Un-

d^c^s du testateur.'

born children and their rights,' in 26 Am. Law Review (1892), p. 50.
See also Villar v. Gilbey [1905] 2 Ch. 301, [1906] i Ch. 583, [1907] A. C.
139; but cf. Re Salaman [1908] i Ch. 4- It would seem that a child
whose father at its conception was Belgian but before its birth had
become an alien, may elect, on attaining majority, for Belgian nationality. Hall, Foreign Jurisdiction, p. 64 ?t.

ANALYSIS OF A RIGHT.

96
HAP. Tin.

he made none, the ordinary might grant administra-

if

next of kin, as

to his

tion

if

he were actually dead

intestate \'

Any
a

'

individual combining these

person,'

He may

two

characteristics

and

capable of rights

is

e.

liable

man may

may

sustain different personalities, as an

play in several masks, or parts.

The various degrees

persons at

which individuals who

in

by circumstances

to

which

different con-

sequences have been attached by different

There

are

are capable of rights or liable to duties,

all

are determined

law.

is

to duties.

otherwise be said to sustain a personality; and

the same
actor

i.

are

different

grades

of

systems

personality,

of

and

these depend upon the freedom, the maturity, the sex,

the sanity, the citizenship, and so forth, of the individual ^

As

to

freedom, for instance, a

the disposal

not

serf,

master, might

his

of

be

As

personality,

though

distinctions

have been drawn, depending

limited

one.

absolutely at

said

have a

to

to

maturity,

sometimes on

sometimes on the fulness of the

physical development,

reasoning powers.
Artificial

persons.

'conventional,' or 'juristic' persons, are

'Artificial,'

ii.

such masses of property or groups of human beings as

are in the eye of the law capable of rights and liabilities,
in other

'

words

Coram

to

'Cum semel

132.

omnibus quae

which the law gives a status ^

quis se religioni contulerit renunti&t

Bracton, 421 b;

seculi sunt.'

cf.

Co. Litt. 132

a.

Roman

law declared certain persons, e. g. 'deportati,' to be 'mortuorum loco,'

Dig. xxxvii. 4. 1.8, but it did not include among them monks and nuns,
Cod. i. 3. 56. I, nor did it employ the technical term 'mors civilis.' The
conception of mort civile,' as a result of conviction, was carried to great
'

lengths in France, where

it

was

e. g.

applied to the 6migr^s in 1792,

but the articles of the Code Civil dealing with

this subject, 22-33, have been superseded by the law of 31 May, 1854, by
which 'la mort civile est abolie.' 'Der biirgerliche Tod' is little heard
Merlin, Repertoire,

of in

s. v.,

Germany.

Cf. infra,

'

c. xiv.

Die juristische Person

ist

ein erlaubter, bleibender Zweck, welchm,

ARTIFICIAL PERSONS.
Such

entities are treated as

mask

ing the

They
'

of personaUty.

are of

pious uses

which

two kinds

'

Species of.

without a trustee

personae vice

'

as,

funds

left

mancipium

sicut

'

to

aditio,'

et decuria

So the estate of an intestate before admin-

et societas.'

Universitates

'

such

a hereditas before

f ungitur,

Bankrupt.

istration; the estate of a

(2)

being persons, or as sustain- chap. vm.

Universitates bonorum';

'

(i)

97

such

personarum';

State

the

as,

departments or parishes: colleges; churches.

itself;

Such

juristic,

or

artificial,

persons

come

being Requisitea

into

when
There exists a mass of property, or group of persons,

(i)

may

as the case

The law

(2)

be,

and

attributes to the

may

in question

occur by means of

either

(a)

mass or group

This

the character of a person.

special

act of

power,

sovereign

e. g.

an incor-

its

conditions

porating statute, or charter.

(^)

general rule, applicable wherever

are satisfied, e.g. 'the Companies Act, 1862.'

'universitas

to an

end

to an

end

in

ways

..

tooDissolu-

universitas personarum' comes

failure of

ad

versitas

to specify; a

By

(i)

bonorum' comes
.^

numerous

unum

component

its

redit,

magis

parts.

'Sed

si

posse

admittitur

uni-

eum

cum ius omnium in unum renomen universitatis \' The number of

who must necessarily be members of a 'uni-

convenire et conveniri;
stet

et

ciderit,

individuals

versitas personarum'

creating
(2)

is

often defined by the instrument

it.

In consequence of judicial proceedings, initiated by

kraft Rechtsfiction (zwar nicht die voile Rechtsfahigkeit, aber doch), die

Vermdgensfahigkeit

zukommt.'

Baron, Pandekten,

ch. xiv.

Dig.
1950

iii.

4. 7.

30

v.

infra,

tion of.

ANALYSIS OF A RIGHT.

98
CHAP.

VIII.

one of the corporators, or otherwise, as in the winding

up

Company.

of a

By

(3)

forfeiture

of the

case

revocation

London by Charles

By

(4)

was alleged

privileges, as

of

the

of

charter

of

the

in the
city

of

II.

a surrender of

its

charter, such as took place in

the case of the London College of Advocates in pursuance

of 20

and

Much

21 Vict.

c.

77,

s.

117-

controversy has taken place with reference to the

nature of an

artificial

person, the

modes

in

come into existence, and the rights and

may

be attributed to such an entity.

which

liabilities

It

it

may

which

may be worth

while to touch, though very briefly, on each of the, mainly

theoretical, questions thus raised \
(i)

The

idea that a collection of individuals might be-

come a universitas,' or persona,' was of course familiar to

the Romans^. It would, however, seem that Pope Innocent IV (1243) was the first writer to dwell explicitly upon
'

'

the fictitious character of such a personality, in such phrases

cum

'

as

sona,'

collegium in causa universitatis fingatur una per-

'capitulum, quod est

incorporalis

surely the true view

is

understand the opposition to

instance, maintain that

ery,

nomen

praedeces-

intellectuale et res

I'

The Pope's

living

cum

*finguntur enim eaedem personae

soribus,'

'

it

of

and

modern

a corporation

is

it is difficult

writers,

to

who, for

no symbol, but a

organism no collective name or part of state machin;

but a living organism and a real person with body and

will of its

own

'.'

For a more practical treatment

of the subject, see infra, ch. xiv.

E. g. Dig. i. 8. 6, iii. 4. i, xxxviii. 5. 31, xlyi. i. 22.
' E. g. c.
57 X. 2. 20, c. 28 X. 1. 6, c. 53 X. 5. 39. For these and
some other references the writer is indebted to vol. iii of Professor
Gierke's learned Genossenschaftsrecht. Innocent does not, however, use
the phrase persona ficta,' as might be inferred from p. 2 79 of that volume.
* Of. Savigny, Geist, iii. p. 343.
* E. g. Maitland, Political Theories, and the same writer in the Journal
1

'

of

Comp.

Leg. N. S. xiv, p. 192; Gierke, Genossenschaftsrecht, and his

ARTIFICIAL PERSONS.
The

one which

is

'

sole

'

ecclesiae gerere

')

The need

(2)

between a corporation

distinction

(e. g.

such as

was unknown

of

said

is

to the

'

99
'

aggregate

'

and

vicem sen personam

Romans.

governmental recognition for the estab-

lishment of a corporation
sages of the Digest,

e. g.

'

is

asserted in well-known pas-

neque societas neque collegium,

neque huiusmodi corpus passim omnibus habere conceditur

nam
tis

et legibus et senatus-consultis et principalibus rescrip-

Pope Innocent lays down

ea res coercetur ^'

that a

'

societas

Principem, vel
(1509)

non

distinctly

est collegium nisi aliter constituitur per

S.C.^,

vel alio

modo ^' and Lucas de Penna

express that 'solus Princeps fingit quod in rei

is

veritate

non

nership

is

est

\'

must however be noted that

It

a part-

recognised as a legal entity in Scotland, and,

under some circumstances,

in the

United States ^

also that

the House of Lords, in the well-known Taff Vale case, gave

effect to

an action against an unincorporated Trades-union *.

The

(3)

rights of corporations are numerous, such as of

holding property, of entering into contracts and of bringing

actions.

many

They

are also liable on their contracts and for

acts of their agents.

Whether they

are so liable for

acts implying malicious intention has been disputed.

cent

IV

gives as a reason

why

'

universitas

'

Inno-

cannot be

excommunicated, that impossibile est quod universitas de'

linquat I'

Modern English

able will carry

little

cases in which this view

is

trace-

weight after the judgment delivered by

the Privy Council in the case of The Citizen^s Life Assurance

Company

v.

Brown

'.

Rectoral address (1902) on Das Wesen der menschlichen Verbande;

Geldart, in 27 L. Q. R., p. 90.
^ Co. Litt. 300, I Bl.
384, 470.
2 Dig. iii. 4. I.
But see on the one hand Demburg, Pandekten, i. p.
14s; on the other, Gierke, Genossenschaftsrecht, iii. pp. 97-208.
* C. 14.X. 5. 31.
* Comm. in tres poster. Cod. libros, I. 14. C. xii.
35, see Gierke, u. s.
'
Liverpool Insur. Co. v. Mass. (1870), 10 Wallace, 566.
* [1901] A. C. 426.
But see the Trade Disputes Act, 1906.
^ C.
[1904] A. C. 426.
S3. X. s. 39.

chap.

viii.

ANALYSIS OF A RIGHT.

100
CHAP.

II.

VIII.

Thing.

'

Thing

'

'

and

Intellectual.

as the object over

i.

whatever

e. is

is

which one person exwhich another person

to

under a duty \

Of Things,'

Physical

the Object of a Right

and with reference

ercises a right,
lies

is

by the law

treated

Material

(i)

objects,

physical

e.

i.

such as a house, a

porales,'

two kinds

in this sense, there are

tree,

things,

'res

cor-

a horse, or a

field,

slave.
(2)
ales,'

Intellectual objects, artificial things, 'res incorpor'

Rechtsgesammtheiten,' such as a patent, a trade-

mark, a copyright, an easement, a

estate, a

'

universitas'

i.

e.

'

hereditas,' a bankrupt's

groups of advantages

shortness are treated by the law as

if

which for

they were material

objects.

So

that, just as

by a 'Person'
tively of

the

is

we have seen

subject

case, or not being, a

what

being, as

human

law regards as

the

that

what the law means

the subject of a Right or Duty, irrespecis

more frequently the

individual; so a 'Thing'

the

Object

of

Rights

Duties, irrespectively of that object being, as

This

artificial

use of the term

tion of

the distinction.

usually

a material object.

is,

Deriva-

it

is

and

to legal science, but

was

speculative philosophy.

in

'

Thing

fact

'

is

not peculiar

borrowed by

Cicero, talking

of

it

from
the

'res' in

sense of objects of thought, says that they are divisible

into 'eae quae sunt'

and 'eae quae intelliguntur

he happens to mention, as instances of the

' ;

and

latter, 'usu-

capio, gens, tutela^' In Jurisprudence the double use of

the [term
res,'

is

C Quaedam praeterea

he says, 'corporales sunt, quaedam incorporales

is defined as 'dasjenige was in sich

imd einen bestimmten Vermogenswerth hat/ Baron,
'alles was bios gegenstandliche Bedeutung im Rechte hat,'

'Sache,' in this its widest sense,

einheitlich ist

Pand.

37; as

Arndts, Pand.
'

at least as old as Gains

48.

Top. 0.5. Cf.'ius, quod sit incorporale,apprehendimanunon posse.'

Quintil. V. 10.

THINGS.
quae tangi possunt

quae in iure consistunt

'),

and

is

chap.

by him, and by the Roman writers generally, to

carried

perhaps excessive
tious

lOI

when they extend

lengths,

so far as to embrace even

class

mere claims that one man has

'

this ficti-

obligations,'

i.

e.

the acts of

to control

another.
It is

no doubt convenient

to include

among

groups

certain

also

for the purposes of our science

'Things,' not only physical objects, but

of

which, for

rights,

purposes

of

and otherwise, are occasionally treated as if

they were physical objects. The fiction by which patents,
transfer

bankrupts' estates, or easements are regarded as

'

Things,'

indeed not only harmless but almost indispensable.

is

The theory
lawyers,

may

more

and

especially in

owing

of this topic, as

Germany,

developed

fully

by no means

is

modern

in

free

from

times,

difficulty,

to considerable variations in the use of terms,

be stated as follows

'Thing' (Res, Ding, Chose)

its

worked out by the Roman

proper meaning, has

is

a term which, besides

an analogical

also

but

In Jurisprudence this analogical use

is

appUcation.

kept within due

Legal science recognises 'Things' (Dinge) only

bounds.

so far as they are capable of standing in relation to the

human Will

('

Sachen,' in the wildest sense of that term).

Such things are either physical or

i.

Physical

thing,

'

res

artificial.

corporalis

'

('

Sache

narrower, and proper, sense of the term^),

*

So Theophilus

oijTe 64q. VTroirLTTTft

Inst.
*

ii.

dcrw^aToi' 5^

^anv

iffwixari i<xTLv & iv

vQ

(ibvtf

SiKalt^)

is

'

in

the Res

sometimes

yvupl^trai, oUre Si a<p^

arvvlaraTai, olov KXTjpovo/xla.

2.

This term

is

and accordingly

said to be strictly applicable only to corporeal things,

is so defined in the Civil Code for Germany (1900),

90. The new Swiss Code, art. 713, treats as moveable property 'les
choses qui peuvent se transporter d'un Heu dans un autre, ainsi que les

forces naturelies qui sont susceptibles d'appropriation, et ne sont paa

comprises dans

les

immeubles.'

cor-

vm.

'

ANALYSIS OF A RIGHT.

I02
CHAP.

vm. defined

Nature

as
'
'

'a

limited

locally

perhaps better as

portion

of

volitionless

permanent external cause

'a

of sensations.'

The
a

meaning

full

not

question

The

of

any such

definition is of course

Jurisprudence

of

but

Metaphysics.

of

need not go further than to lay down that

jurist

a physical thing

something which

is

external organs of sense, and

ceived again and again.

By

is

by the

perceptible

is

capable of being so per-

the latter characteristic

it

is

distinguished from an ' Event,' which, as a cause of sensa-

As Austin

tion, is transient.

'The import

says:

expression ''''permanent sensible object"

denotes an object which

it

which

is

perceptible repeatedly^ and

by those who repeatedly perceive

considered,

is

as being (on these several occasions)

object.

Thus the horse or the house

to-day

of

changes which

may have undergone

appearance

somewhat

precise

popularly

meant by the term,

generally

sufficient

may however

It

for

be

occasionally called

the

is

in spite of the intervening

^.'

This rough definition of a Thing, which indeed

more than

it,

one and the same

horse or house of yesterday

its

of the

I think, this;

is,

statement
is,

purposes

the

of

we have

as

is

Uttle

what

is

stated,

of Jurisprudence.

remarked that even lawyers are

upon

to

what
The Romans were content

consider

more minutely

in

the identity of a thing consists ^

to describe

as 'quae tangi possunt,' giving

as

'

res corporales

instances, a plot of

ground, a slave, a coat*.

'Ein raumlich begrenztes Stiick der willenlosen (oder als willenlos
Baron, Pandekten, 37. Cf. 'Ein Stuck der nicht mit
Vernunft begabten Aussenwelt.' Windscheid, Pand. i. 40. 'Ein dem
menschlichen Willen zugangliches, und seiner Herrschaft unterwerfbarea,
Stiick der sinnlichen Aussenwelt, welches dergestalt raumlich begrenzt
ist dass es von seiner Umgebung dauernd unterschieden werden kann.*
Kuntze, Cursus, i. 357. Cf. Savigny, Obligationenrecht, i. p. 305.'
Austin, Jurisprudence, ii. p. 20.
1

fingirten) Natur.'

Austin, loc.

See

e. g.

cit.,

Buckley

p. 21.
v. Gross, 3 B.

&

S. 566.

lust. Inst.

ii.

2.

'

CLASSES OF THINGS.
Of such things there are three kinds

103

rather such

\ or

chap, vni,

things occur under three conditions:

(i)

Graece

simple thing 'quod continetur uno spiritu\ et

a beam, a stone

(2)

id

i]vu>fXi>ov^

vocatur

unitura,

est

compound

thing,

'quod

ex contingentibus, hoc

quod

est pluribus inter se cohaerentibus, constat,

box *
'

connexum, vocatur

id est

fievov,

later described as

parts, as

its

them, as
(3)

is

An

'

'

rerum cohaerentium,'

universitas

a house, or

is

may

avvrjfx-

as a house, a ship, a

The compound thing may be

Sacheinheit.'

a slave,

g.

e.

' ;

^.

different

from

be a mere aggregate of

a bar of silver.

aggregate

distinct

of

thmgs conceived

of as

a whole, 'quod ex distantibus constat, ut corpora plura

non soluta sed uni nomini subiecta

regiment, a flock
versitas facti,'

'

'

as

people, a

described by modern writers as a

universitas hominis,'

'

'

uni-

Sachgesammtheit '.'

Such a whole may continue to subsist though

all

its

parts are changed.

ii.
'

Res

Intellectual, or artificial, things,

incorporales,'

'

'

bios gedachte Dinge,' Res incor-

quae tangi non possunt,' quae

'

in iure

consistunt'; as a usufruct, a hereditas, a dos, a peculium,

an obligation

where the ipsum

'

Dig.

Cf. 'tota statua

'

The terms

xli. 3.

philosophy.
* Cf. Dig.
*

Cf. Dig.

ius

is

'

incorporeal,

though

30.

uno

i]vuix^vot>

spiritu continetur,' Dig. vi. 23.

and

5.

borrowed from the Stoic

awqiifxivov are

vi. I. 23. 5.
ii.

20. 18.

I.

'Est enim gregis

unum

corpus ex distantibus

capitibus.'
8 It is disputed whether a whole of this sort is the object of a right.
This Booking, Inst. p. 31, denies. Windscheid, Pand. i. 137, would
allow it in the case of a natural aggregate, such as a flock, but not of an
artificial aggregate, such as 'the tackle of a ship,' citing Dig. vi. i. 3, i;
but mentions a case recently decided in which the properties of a theatre
were recognised as a whole, so that a mortgage of them included afteracquired properties. Seuffert, Archiv, xv. 187.
'

ANALYSIS OF A RIGHT.

I04
CHAP.

This class might

often relates to corporeal objects \

VIII. it

of course include all Rights ^

the

Roman

lawyers

writers

term Rechtsgesammtheit.'
'

of fact

from treating under

abstain

German

'dominium I'

though as a matter

It will

it

of

by the

express the idea

be observed that some

'things' of this class are aggregates of duties as well as

of rights

e-

g.

a hereditas,

which imposes on the heir

well as profit; and that

liabilities as

has added to the class

those

as 'copy right,' 'patent right,'

tively described as

'

modern

civilisation

groups of rights

known

and the hke, and

collec-

intellectual property

of

;
'

which more

hereafter.

Other

classifications

of things.

'Things' are further

different

ways

in

classified, in

accordance with the

which they are subservient to persons,

under various heads, of which the following are the more

important.
Divisible,
indivisible

Things divisible and

(i)

When
its

a simple thing

from the

parts,

(which does not

diviso,

imply actual

pro diviso nostrum

sit id
'

are distributed

severance), are held jyro

new

whole.

'Quod

non partem sed totum

esse*;'

becoming

so each share of an estate

As

capable of physical division,

moment when they

thereupon

each

indivisible.

is

non

a general rule, a thing

is

est pars fundi sed

juristically

fundus ^'

thus divisible

Cf. 'Rei appellatione et causae et iura continentur,'

Hereditas etiam sine ullo corpore iuris intellectum habet,'
Dig. V. 3. 50; 'Hereditas iuris nomen est,' Dig. 1. 16. 178.
* So that a Right might be the object of a Right; in other words, might
be one of the four terms into which, as we have shown, a Right may be
analysed. This use of language, though convenient by way of a short
description of certain groups of rights, such as a copyright, or of masses
of mingled rights and duties, such as a 'hereditas,' seems less necessary
in the case of simple obligations. This feeling finds expression in the
rule, formerly prevalent in English law, that 'a chose in action is not
^

Dig.

lust. Inst.
1.

i6. 23;

ii. 2.
'

assignable.'

Cf. Baron, Pand. 37;

Dig.
Dig.

1.

16. 25, I.

viii. 4. 6, i.

Wachter, Pand.

59.

CLASSES OF THINGS.

I05

which can be divided without destroying

impairing

divisible, are

Some

value \

its

juristically

tilings,

indivisible,

the character of their parts

because by division

entirely changed,

is

e. g.

The thing may however

an animal, a house.

picture,

essence or chap. vui.

its

though physically

also be divided into merely ideal parts of a whole,

which

held pro indiviso^ as in the case of joint owners of

is

a slave, or the several joint tenants of an estate, each

whom

of

is

seised in

it

my

per

et

per

things are susceptible of division in this

'

Compound

tout.

manner only^

Corpora ex distantibus corporibus,' as a flock of sheep,

though only

The

which

estate,

wholes,

intellectual

parts of a

'

is

res

incorporalis,'

itself

have

physical

merely intellectual

parts.

such as a bankrupt's
entity,

are

intellectual also.

Res mobiles, immobiles.

(2)

Moveable, as furniture or Moveable,

and immoveable, as land or houses. No distinc- ^hT *'^^"

cattle,

tion

more generally accepted

is

consequences.

its

It is

or

more far-reaching

in

perhaps hardly necessary to remark

that this distinction does not exactly correspond to that

between

'

of feudal

and

'

'

and

ideas,

'

personal

'

property, which

surviving only in

derivatives

its

(3)

real

the

law

is

a result

England

of

".

Res in commercio,'

'

in patrimonio nostro,'

'

in bonis,' In commercio,

Dig. XXX. I. 26, 2. Cf. Savigny, Obligationenrecht, i. p. 305.

Opinions differ as to the nature of -partes -pro indiviso. E. g. Booking,
Inst. p. 30, holds that they are parts of the Right. Windscheid, Pand. i.
142, and Baron, Pand. 39, that they are parts, though only intel*

lectual parts, of the

Thing

itself.

On

the derivation of this distinction from Bracton's division of actions|into in rem and in personam (in a sense other than that of Roman
*

'

'

'

L. Q. R. 394. Still more

was the long obsolete distinction between 'res mancipi' and
'nee mancipi.' Sir H. Maine points out that the Roman distinction
between moveable and immoveable things was relatively modern: an
attempt to abandon the old historical classifications, and to classify
objects of enjoyment according to their actual nature. Early law and
Custom, ch. X.

law), see an article

arbitrary

by T. Cyprian Williams, 4

ANALYSIS OF A RIGHT.

io6
CHAP.

VIII,

extra com-

mercium.

and

'

res extra commercium,'

in bonis,'

Of the

of private ownership.

the

extra patrimonium,'

'

nuUius

things which are, and which are not, capable

e.

i.

'

latter,

some

things, like

are incapable of appropriation; others are both

air,

owned, and exclusively used, by the State and

tionaries,

and are then said to be

as are, for instance, palaces

though owned by the

'

its

func-

in patrimonio populi

and ships

of war.

'

Others,

State, are at the disposal of "the

community, as are parks and roads.

Others again are

set apart for religious purposes.

Principal,
accessory.

Consumed, or not,
by use.

Fungible,

non-fun-

Things principal, accessory.

(4)
(5)

Res quae usu consumuntur, non consumuntur.

(6)

Res

fungibiles,

non

fungibiles.

'

Fungible things,'

'quae mutua vice funguntur,' are those one specimen of

which

as

is

good as another, as

is

the case with half-

gible.

crowns, or pounds of rice of the same quality.

and so

slaves,

Horses,

forth, are non-fungible things, because they

differ individually in value

and cannot be exchanged

in-

differently one for another ^

Facts.

Ill-

'Facts' (Thatsachen, Faits), which have been

in-

adequately defined as 'transient causes of sensation,' are

either
Events.

i-

'

Events

'

'Events'

or

'

Acts.'

(Ereignisse,

Casus, ifivenements)

may

XJmstande,

zufallige

Zufall,

be either movements of external

nature, such as a landslip, the increase of a flock of sheep,

the death of a relative, or an accidental

acts of a

human

being other than the

rights or duties are

fire; or

human

may be

being whose

under consideration.

Lapse of time and change of place are among the events

which are most productive

of legal

consequences I

1 On
the application of this distinction in the contracts 'locatioconductio' and 'depositum/ see Dig. xix. 2. 31.
2 Savigny, System, iii. p. 297; Windscheid, Fand. i. p. 291. Stat. 43
and 44 Vict. c. 9, was passed 'to remove doubts as to the meaning of
expressions relative to Time in Acts of Parliament and other legal in-

struments.'

ACTS.
'Acts' (Handliingen, Actes),

2.

the term, are movements of the

'inward

of the will are

which produce an
*

107

outward

Determinations of the will

acts.'

upon the world

effect

chap. vni.

Mere determinations ^^^'

'The inner stage

acts.'

the widest sense of

iii

will.

of sense

an

of

are

Act,' says a

recent writer, 'ends with the determination (Entschluss),

which

to

it

guided by a

is

outer stage (die That)

is

cause

final

The

(Zweck).

the realisation of the former in

the external world by the help of natural laws, such as

Jurisprudence

gravity

\'

acts^

An

'Act'

may

concerned only with outward

is

therefore be defined, for the pur-

poses of the science, as 'a determmation of will, producing

an

effect

the

in

negative, in

world

sensible

which case the Act

The

I'

may

effect

be

properly described as

is

a 'Forbearance,'

The

essential elements

an exertion

of the will,

of such

an Act are three,

viz. Essentials

an accompanying state of con-

^^^'^

sciousness, a manifestation of the will.

Any

I.

and the

discussion on the nature of the faculty of will Will,

mode

We may accept

of its exercise

would here be out

of an act of will as, 'the psychical cause

by which the

motor nerves are immediately stimulated*,' or

inward state which, as experience informs

by motion while the body

succeeded
condition,'

If

e. g.

is

movement

is

always

its

normal

caused by physical compulsion, 'vis

Der Zweck im Recht,

Jhering,

'Nee consilium habuisse noceat,

1.

in

is

as, 'that

us, is

not paralysed ^

Dig.

of place.

as sufficient for our purpose the definition

i.

p. 32.
nisi et

factum secutum

fuerit.'

16. S3.

The 'Entschluss des WiDens'

plus the Aeusserung des Willens' is

omission or of commission.
Die That ist iiberhaupt die hervorgebrachte Veranderung und Bestimmung des Daseyns.
Zur Handlung aber gehort nur dasjenige was von der That im Entschlusse liegt, oder im Bewusstsein war, was somit der Wille als das
seinige anerkennt.' Hegel, Propadeutik, Einl. 9.
* Zitelmann, Irrthum, p.
36.
* Sir J. F. Stephen, General View of the Criminal Law,
p. 76.
*

'

That,' which

may be of

'

'

Vis.

ANALYSIS OF A RIGHT.

io8
CHAP.

VIII.

absoluta,' as

when

hand

the

making a signature, there

in

But the

Metus.

metus,'

'

Here there

minas.'

no

'

forcibly guided

vis compulsiva,'

indeed

is

is

act, since will is absent.

amenable to motives, may be

will itself, being

coerced by threats,

of a person
is

an

act,

duress per

'

one which

but

produces none or few of the legal consequences which

would have produced had

'

volition.

If,'

says Paulus,

under the influence

yet

did

if

been

am

result

of opinion that I

had been

'

will give

be set aside, and

will

become

a wife

have

compulsion

me

So in English law, a contract or will obtained by

influence

it

of free

free I should

though under

consent,

But the praetor

(coactus volui).

the

have accepted an inheritance

of fear, I

because, although

heir,

refused,

'

it

relief
'

*.'

undue

who commits

certain crimes in the presence of her husband, will be

presumed

to

have

acted

under

his

coercion,

and

will

therefore be excused from punishment.

merely

juristic

Consciousness.

is

obviously

of

of

members.

2.

The moral phenomena

necessarily accompanied

by

of

an

exertion

intellectual

only immediate result of a volition

ment on the part

follow the muscular

the act

is

ful acts

Dig.

On

'

a muscular move-

is

movement which
to the

alone he can directly

attamment

directed are said to be 'intended

done with intention, are

said to be done

'

maliciously

Cf.

iv. 3. 21.

are

The

present to his mind, as likely to

Those among them

control.

of will

phenomena.

of the person willing, but certain further

results are also always

Intention.

incapable

by a representative, or by a majority

willing, unless
its

person

intention,' see

German
James

^'

of

which

and wrong-

English law often

in

I'

Civil Code, 123.

Mill, Analysis,

ii.

p. 399.

Actual malice is proved by evidence throwing light upon the state

of mind with which an act is done, but malice is often presumed from
the character of the act complained of, e. g. from the untruth of a
*

'

'

IGNORA.\'CE.

Such a

state of consciousness

different times.

'

cretion,

may

be possessed in very

by different classes of persons, and at

different degrees

It is

nulla voluntas

109

wholly absent in a

'

lunatic,'

'

vm.

furiosi

an infant under years of

est^'; in

chap.

-^^^rees of.

dis-

sensus nullus infantis accipiendi possessionem ^,'

by 'impuberes,' although

It is imperfectly possessed

fantia maiores

'

of

law; by decreed prodigals, and by minors.

of

these

In some

an understanding

the defect of

cases

'in-

by women, according to older systems

will

is

supplied by a provision of law, such as 'tutela,'

Intelligence

may

be

also

drunkenness or sleep; and

i.

ignorance or mistake ^

e.

may

a state of facts, while

by showing that
'Regula

its

when done

Paulus, 'If one knows that he

does

know

not

that

the

possessio" to an heir, time

he

is

mistaken

of fact.

An

act

in

his

drawn

may

be

in

is

ignorance of the law.

runs

law^'

says

so,

heir under a will, but of law.

praetor

will

give

against

And

Lord Ellenborough, that a captain

so

it

"bonorum

him, because

was held by

of a king's

who

ship

had paid over to his admiral, according to a usage in

the navy, one-third of the freight received by

bringing

home

treasure upon the

him

for

public service, could

defamatory statement, or from a prosecution without reasonable cause.

In such cases the state of mind of the wrong-doer is immaterial to his
guilt.
^

Dig. xliv.

'

Dig.

'Der Irrthum

mann,

7. i; 1. 17. 5

xli. 2.

et 40.

32.
ist

unrichtige oder mangelnde Vorstellung.'

Zitel-

p. 327.

Dig. xxii. 6. 9. Lord King C, in Lansdoivne v. Lansdowne, Moseley,

is reported to have said that the maxim means that ignorance
cannot be pleaded in excuse of crimes, but that it does not hold in Civil
cases. But this is certainly not law.
' Dig. xxii. 6. I.
*

364,

of fact,

in ignorance of

ignorantiam cuique nocere^';

est, iuris

'error,'

consequences cannot be avoided

was done

it

be misled by

distinction is usually

between ignorance of law and

excusable or even rescissible

suspended by Ignorance

temporarily

it

ANALYSIS OF A RIGHT.

no

recover the payment upon discovering that there

was no law compelling him to make it \ Persons have

CHAP. vin. not

even

convicted of what

been

under an Act

became an offence only

Parliament passed subsequently to the

of

fact; in accordance with the rule, since altered, that the

an Act of

operation of

Parliament, in the

express provision, relates to the

in

which

first

day

The very

was passed ^

it

absence of
the session

of

reason

artificial

alleged in the Digest for the inexcusability of ignorance

of

law

extent

that 'law both can and should be limited in

is

^
'

and so Blackstone

may, but

discretion, not only

know

points out, that

ground

The

the law.'
'

says, that

'

bound and presumed

is

true reason

is

ignorance, of law were admitted as

if

it

were scarcely possible

which would render the administration

to impracticable.'
to ascertain,

been

It

first,

the law at the

secondly,

to

no doubt, as Austin

of exemption, the courts Avould be involved in

questions which

he

every person of

was

whether

time of

might have known the law,

of these questions

in
if

law

Court

ignorant of

alleged wrong,

his ignorance of the

previously placed

for the

party was

the

the

next

of justice

would be necessary

and

if

inevitable, or

such a position
he had duly

are next to insoluble.

'

and

solve,

to

so,

had

that he

tried.

Both

Whether the

party were really ignorant of the law, and was so ignorant

of the

law that he had no

surmise

of

its

provisions,

could scarcely be determined by any evidence accessible

to others,
of his

and

for the

ignorance

incumbent upon
liistory,

and

purpose of discovering the cause

reality

the

tribunal

being ascertained)

(its

to search

his

to

whole

unravel

life

his

it

were

previous

for the elements of

Brisbane v. Dacres, 5 Taunt. 143.

Attorney-General y. Ranter, 6 Bro. P. C. 489; Latless v. Holmes,
4 T. R. 660; R. V. Thurston, 1 Lev. 91. Cf. R. v. Bailey, Russ. and Ry.
Cr. Ca. i; and, as to By-laws, Motteram v. E. Counties Ry. 29 L. J.,
1

'

M.

C. 57.
Dig. xxii.

6.

2.

CHANCE.
a just solution

The stringency

'.'

Ill

of

of

in

Roman

five,

soldiers,

chap.

and persons under the age

Such

of twenty-

unless they had good legal advice within reach ^

may

Results

means

from

follow

also

Such

intended.

results,

if

to

without

acts

being Chance,

had no

person acting

the

ascribed to 'chance,' and

of foreseeing them, are

no responsibility attaches

him

in

respect of them*.

they are such as he might have foreseen had he taken

more pains

mind before coming

to inform his

to a decision,

they are attributed to his negligence.'

'

This term, like

used to

which
of

vm.

certain classes

persons 'quibus permissum est ius ignorare.'

were women,

If

was

of the rule

law modified by exceptions in favour

indicate

has

taxed

commentators.

advertence,

Latin equivalent

its

state

covers

resulting in

culpa,'

mind, the

ingenuity

the
It

of

'

injury

all

to

of

many

those

has been

description

generations

shades

others,

of

Negli-

of^^^^

in-

which range

between deliberate intention ('dolus'), on the one hand*.

^ Jurisprudence, ii.
So Lord Ellenborough: 'There is no
p. 171.
saying to what extent the excuse of ignorance might not be carried.'
Bilbie v. Lumley, 2 East. 472. As against Austin's view, Mr. Justice
Holmes maintains that 'every one must feel that ignorance of the law
could never be admitted as an excuse, even if the fact could be proved
by sight and hearing in every case,' and thinks the true explanation of
the rule to be the same as that which accounts for the law's indiflference to a man's particular temperament and faculties. The Common
Law, p. 48. For an argument by Mr. Melville M. Bigelow in favour of
extending the (in England) very rudimentary doctrine of equitable relief for mistake of law, see i Law Quarterly Review, p. 298.
* Dig. xxii, 6.
9.
* 'Impunitus est qui sine culpa et dolo malo casu quodam damnum
committit.' Gaius, iii. 211. Sir F. Pollock, Torts, ed. x, pp. 142-155,
shows that while the earlier English decisions incline to admit some liability for the accidental consequences of an act, later cases, e. g. Stanley
V. Powell, [1891] I Q. B. 86, incline towards the view prevalent in the
United States which is in full accordance with that of the Roman
lawyers. So it was held by the Supreme Court that 'no one is responsible for injuries resulting from unavoidable accident, whilst engaged in
a lawful business.' The Nitro-glycerine Case, 15 Wallace, 524.
* 'Culpa' in the widest sense included 'dolus'; and a high degree of

CHAP.

viii.

ANALYSIS OF A RIGHT.

12

and

total

absence

responsible consciousness, on

of

the

other \
measured by an
IS

The

state of

objective

subject

standard

whether

of
it

mind

of the

doer of an act

enquiry with

legal

exhibits the

phenomena

often the

ascertaining

of 'intention^.'

From

similar enquiry can hardly be

the nature of the case, a

undertaken with a view to

phenomena

is

a view to

of 'negligence.'

detecting the psychological

Lawyers have therefore long

been content, in enquiring into the alleged negligence of

a given individual, to confine themselves to ascertaining

whether or no his acts conform to an external standard

of carefulness.

the

Roman

Two

such standards were employed by

lawyers to measure that diligentia

'

'

the failure

to attain which they called 'culpa.'

In

some cases they measured

amount

of

care which the

due diligence by the

person whose

conduct was

management
was wont to
of his own affairs, quantam in suis rebus adhibere solet.'
Conduct falling short of this is described by modern
show

called in question

in the

'

'culpa'

is

said to resemble,

xvii. I. 29; xlvii. 4. i;

1.

and even

to be, 'dolus.'

Cf. Dig.

xi. 6. i. i;

16. 226.

According to Austin, 'negligence' is the inadvertent omission to act

is the inadvertent acting as one ought not,
while 'rashness,' 'temerity,' or f oolhardiness is the acting as one ought
not, adverting to the consequences which may follow from the act, but
assuming, upon insufficient reflection, that those consequences will not
follow in the particular instance. Thus, I take up a rifle and shoot AB.
This act may be accompanied by very different mental conditions. I
may see AB, point the rifle at him and expect him to fall dead if I fire.
Here I 'intend' his death. Or I may be firing at a target, and omit to
make the signal which would have prevented AB from passing behind
it and receiving my bullet.
Here the death is due to my 'negligence.'
Or I may fire without thinking of the likelihood of any one passing that
way. The death is then due to my 'heedlessness.' Or, it may occur
to me that some one may pass by, but I may think the chance so slight
that it may be disregarded. The death of AB is here the result of my
'rashness.' These distinctions are interesting, but do not appear to be
adopted in any system of positive law. See Austin's Lectures, ii. p. 103;
Bentham, Pr. Morals and Legisl. c. ix.
' E. g. to establish the cancellation of a will, actual malice in libel, or
the 'animus furandi.' But see Holmes, Common Law, p. 138.
1

as one ought, 'heedlessness'

'

'

NEGLIGENCE.
as 'culpa

civilians

portant measure of

'

But a

concrete'

in

diligentia

'

113
far

more im-

by the care

afforded

is

which would be exercised under the circumstances

chap. vni.
^^^'^{1^^^^

by

i<ieal

the average good citizen, conduct falling short of which

the

is

ideal, objective

codes,

so-called

and

is

test

that which

is

is

by Tindal

C.

and

J.,

applied in

So

was

it

has always been

the

rule

down

laid

by

down

laid

to the supposed diflQculty of applying

as

modern

as early as 1837, that 'the care taken

man

a prudent

or

abstract,

stated with growing clearness in the decisions

English and American Courts.

of

This

culpa in abstracto.'

a jury

it,

has always been able to say whether, taking that rule

as their guide, there has been negligence

question.

in

Instead

saying

of

on the occasion

the

that

liability

for

negligence should be co-extensive with the judgment of

each individual, which would be as variable as the length

of the foot of each individual,
to the rule

such

which requires

man

as

of

we ought

rather to adhere

in all cases a regard to caution

ordinary prudence would observed'

Actionable negligence has

been well

described

as

'the

omission to do something which a reasonable man would

do, or

the doing of something which a reasonable

would not do^' In a recent case

of Massachusetts,
liability is

we have

Holmes

concerned at

J.

explained that

least, it is

man

Supreme Court

in the

'

so far as civil

very clear that what

called the external standard

would be

applied,

1
Vaughan v. Menlove, 3 Bingham, N. C. 468. In this case the
question of the test of negligence was distinctly raised. The argument,
unsuccessfully urged in favour of a new trial, having been that the jury
should have been asked 'not whether the defendant had been guilty of
gross negligence with reference to the standard of ordinary prudence,
a standard too uncertain to afford any criterion, but whether he had
acted bona fide to the best of his judgment; if he had, he ought not to
be responsible for the misfortune of not possessing the highest order

of intelligence.'
*

Per Alderson B. in Blyth

v.

Birmingham Waterworks

Cf. Grill V. Gen. Iron Screw Collier Co., L.

Kendall, 6 Gush. 292.

1950

R.

Co., 11

C. P. 600;

Ex. 781.

Brown

v.

one.

'

ANALYSIS OF A RIGHT.

114
CHAP.

viii.

and that
a

in

Unless

a man's conduct

if

man
lie

such as would be reckless

is

of ordinary prudence,

it

reckless

is

him.

in

can bring himself within some broadly-defined

exception to general rules, the law deliberately leaves his

personal equation

or idiosyncrasies out of

peremptorily assumes that he has as

judge and to foresee consequences as a

account, and

much
man

capacity to
of ordinary

prudence would have in the same situation.^

The

The

de-

neg1i-
gence.

care and skill which people are required to exhibit

their conduct

ill

^^^q

jg

C diligentia

')

has two degrees ^

that which

from persons generally; and that which

due

is

from persons occupying positions which mark them out as

being exceptionally reliable with reference to the matter
in question ('exacta diligentia').
class is liable only for

id est,

non

negligence

intelligere

\'

Romans spoke

Commonwealth

'

culpa

lata,'

person of the former

i.

'

nimia negUgentia'

quod omnes intelUgunt ^'

person of the latter

as

e.

'homo

v. Pierce,

Knox V. MacMnnon, 13 A. C.
* The view of the degrees

class, of

diligens et studiosus

138 Mass. 165, S. C. 52

for

'

gross

whom

the

paterfami-

Am. Rep.

264.

753.

of negligence given in the text

is

in the

whose work, Die Culpa des Romischen Rechts, first

published in 1815, is the foundation of the modern hterature of the
subject. An admirable resume of Hasse's theories, with ample illustration from English and American decisions, will be found in Dr. Francis
Wharton's Treatise on the Law of Negligence, of which much use has
been made by the present writer.

main that

of Hasse,

Dig. 1. 16. 213, 223; cf. ix. 2. 31.

Objections have been made of late years to the employment of this
term. 'Gross' has been said to be a 'word of description and not of definition,' Willes J. in Grill v. Gen. Iron Screw Collier Co., L. R. i C. P.
600. But the Supreme Court of the U. S., while admitting 'that such
expressions as gross " and " ordinary negligence are indicative rather of
the degree of care and diligence which is due from a party, and which
he fails to perform, than of the amount of inattention, carelessness, or

'

'

'

'

which he exhibits,' went on to say that 'if the modern

mean more than this, and seek to abolish the distinctions
of degrees of care, skill, and diligence required in the performance of
various duties, and the fulfilment of various contracts, we think they
go too far.' New York Cent. R. Co. v. Lockwood, 17 Wallace, 357, cited
by Wharton, u. s. 49stupidity,

authorities

NEGLIGENCE.
V but who

lias

writers as a

'

IIS

has been shortly described by some modern chap.

specialist

even a slight deviation

liable for

is

from the high standard to which he holds himself out as

attaining,

i.

e,,

'

for

culpa

Although, as a matter of

'

better,

spondet peritiam

culpae adnumeratur *.'

he

is

unqualified

The

negligence)
plained,

may have done

is liable

diligence

'

'.'

work
do

imperitia

conversely of

(or

as

cases,

has been

undue

already

ex-

The ordinary person must

the opinion of the judge or jury,

average care of a person of that

must

his

for his failure to

In his case,

artis.'

an objective one.

exhibit what, in

ordinary negligence

His assumption of duties for which

both

in

is

'

in itself negligence.

is

true

of

test

he

fact,

as well as he could, yet he

it

or

levis,'

class,

and a

is

the

specialist

similarly attain to the standard to which specialists

are expected to conform ^

Negligence

may

faciendo,' being

consist either 'in faciendo

'

or 'in

non

indeed either non-performance, or inad-

equate performance of a legal duty.

An

attempt has been made to generalise the law of

actionable

negligence, which, though not

accepted, will

doubtless influence judicial speculation upon the subject.

E.

g.

Dig.

xxii, 3. 25; xlv. i. 137.

Wharton, 32. Cf. Hasse, 24, on the 'diligentia diligentis.'

' Hasse is at much pains to disprove the existence of a third grade of
culpa, viz. 'levissima.' In 25 he ridicules the attempt of SaHcetus to
distinguish further a 'culpa levior.' There is however no doubt that the
three grades of negligence, 'gross,' 'ordinary,' and 'slight,' favoured by
Lord Holt and Sir W. Jones, are usually recognised in the English and
American Courts. Cf. Wharton, 59. Three grades are recognised in
the Prussian Code, but two only in the, more modern. Codes of France,
Italy, and Austria. The German Code, 823, does not distinguish grades
'

of

'

Fahrlassigkeit.'
lust. Inst. iv. 3.

7.

Cf. Dig.

ix.

2.

8.

i;

1.

17.

132.

and care expected from physicians or attorneys, see Hart

and F. 193; Lamphier v. Phipos, 8 C. and P. 475.

On

v.

On

the

skill

Frame, 6 CI.

the ideal character of the standard, see Holmes, The Common

Compare the maxim that 'every man is supposed to intend
the necessary and reasonable consequences of his own acts.'
*

Law,

p. 108.

I2

viu.

ANALYSIS OF A RIGHT.

ii6
CHAP.

VIII.

According

to

Brett M. R.,

'

When

one person

by

is

circumstances placed in such a position with regard to

who

another that every one of ordinary sense

would

at once recognise that,

own conduct with

care and skill in his

did think

he did not use ordinary

if

regard to those

circumstances, he would cause danger of injury to the

person or property of the other, a duty arises to use

rdinary care and

Expression.

Agency.

3. The will must be manifested, or expressed; and in

some cases may be expressed by some one other than the
party willing, i. e. by an agent, whence the maxims 'qui

facit per

alium

For an

Imputation.

volition, a

man

an

of

act,

said to be

'

The

responsible.'

'imputation,'

is
is

i.

e.

is

called

'the judgment by

"deed" (factum) and

is

lawsV

Acts are divided by Jurisprudence into those which are

'lawful' and those which,

are

result of the unlawful acts

is

doer.

'unlawful.'

others, his intention

is

as 'negotium civile,'

juristic

acts, their operation is

;

in the case of

directed to the juristic result '.

In the last-mentioned case, the act

*

The

never that aimed at by the

In the case of some lawful

independent of the intention of the doer

Juristic
act.

attributing

regarded as originator (causa libera)

which then

regulated by

respondeat superior.'

'

the sense of a manifestation of conscious

is

responsibility

of

acts.

facit per se,'

act, in

which any one

Classification of

avoid such danger^.'

skill to

is

technically described

actus legitimus,'

'Rechtsgeschaft'; the nearest

'acte

EngUsh equivalent

juridique,'

for

which

1 Heaven v. Pender, L. R. ii Q. B. Div. 506, per Brett M. R.,

Cotton and Bowen L. JJ.
* Kant, Rechtslehre, Werke, vii. p. 24,

Cf. in/ro, pp. 260, 266, 276,

diss.

JURISTIC ACTS.
terms

is

probably

'

Juristic

Act \'

117
recent writer has

used for this purpose the phrase act in the law

^.'

'

It

has been defined, by a high authority, as ' an act the

intention of
result

^'

which

But

is

directed to the production of a legal

this definition,

as

stands,

it

wider than

is

the received use of the term would warrant.

ment
might

of a

The judg-

Court, or an order of the King in Council

be so described.

fairly

better definition

is

'a

manifestation of the will of a private individual directed

to the origin, termination, or
*

Juristic

Act

'

alteration of

has also been well described as

which the Subjective Will develops

same writer continues

these limits does

it

either barren of result,

is

an empty

turned negatively against the

is

It is not to

it

the form in

by the

only in so far as

really operate

'

its activity in

rights, within the limits assigned to it

'

rights*.'

creating

law.'

The

keeps within

beyond them

its

act is

nullity, or its operation

will, as

an obligation to

be wondered at that no vernacular equivalent is available

an idea which, indispensable as it is, has hardly

for the expression of

yet been naturalised in this country.

ad Cod.

On

'

dispositiones iure efBcaces,'

Gentium, p. 16.
* SirF. Pollock, Contract, c.i. This term would be convenient enough,
could it be disentangled from its conveyancing associations, and were it
not that act in law has a special use as opposed to act of the party,'
Hale, Analysis of the law. Sect, xxvii. Mr. Jenks, A Digest, &c., 1905,
see Leibnitz, Praef.

'

'

lur.

'

uses 'legal act.'

'Handlung, deren Absicht auf eine rechtliche Wirkung gerichtet ist.'
Puchta, Inst. ii. p. 342. 'Erlaubte Willensausserung, durch welche ein
Rechtsverhaltniss, d. h. eine gewisse zufolge der Rechtsbestimmung geltende Beziehung der Willen der Rechtssubjecte, begriindet, geandert,
oder beendet wird.' Booking, Inst. p. 44.
*
Die auf die Entstehung, den Untergang, oder die Veranderung von
Rechten gerichtete Privatwillenserklarung.' Windscheid, Pandekten, i.
'Erlaubte Willenserklarung einer Partei, welche unmittelbar
p. 174.
auf eine rechtliche Wirkung gerichtet ist.' Baron, Pand. i. p. 81. 'Eine
Handlung, oder ein Complex von Handlungen, welche, oder welcher,
nach den rechtlichen Auslegungsgrundsatzen betrachtet, die Absicht
ausdriickt, einen vom objectiven Rechte zum Schutze der Wirksamkeit
solcher Handlungen verheissenen Erfolg herbeizufiihren.'
Leonbard,
Der Irrthum bei nichtigen Vertragen, i. p. 250.
'

chap. vni.

ANALYSIS OF A RIGHT.

ii8
CHAP.

VIIl.

undo what has been done, by

making reparation \'

suffering

punishment or

Juristic Acts (Rechtsgeschafte) must, of course, exhibit,

Requisites
of.

common with

in

all

Acts (Handlungen), an exertion of

WiU, accompanied by consciousness, and expressed^; and

any circumstances which prevent the free and intelligent

may either prevent the occurrence of

may modify the consequences which
What might appear to be a Juristic Act

exertion of the will

the Juristic Act, or

result

from

thus

is

'

it.

null,'

or

'

void,'

e.

i.

has, as such,

no existence,

if

due to such actual violence as excludes an exertion of

will, or if

accompanied by states of consciousness, such as

lunacy, drunkenness, and certain kinds of mistake, which

are incompatible with an intelligent exertion of will'. So

also a Juristic Act,
'

voidable,'

producing

i.

e. is

its

which does come into existence,

liable to

be attacked, and prevented from

ordinary results,

if

attended at

its

by 'duress per minas' (metus), by fraud (dolus)

Mistake.

inception
*,

and, in

some exceptional cases, by mistaken motives.

Of the circumstances which may thus affect the
istence,

ex-

or the operation, of a Juristic Act, that which

has given

rise to

The language

is

most discussion

of the

Roman

Jhering, Geist des R. R.

iii.

is

'mistake,' or 'error.'

lawyers upon this subject

^ is

p. 132.

See R. Saleilles, De la d6claration de volont6. Contribution k I'^tude

de I'Acte Juridique dans le Code Civil AUemand, 1901.
5 In Roman Law a similar effect might be produced by anger: 'Quidquid in calore iracundiae vel fit vel dicitur non prius ratum est quam si
perseverantia apparuit indicium animi fviisse.' Dig. xxiv. 2. 3.
Dig. iv. I (De in integrum restitutionibus)
'Sub hoc titulo pluri*

fariam praetor hominibus vel lapsis vel circumscriptis subvenit; sive

metu, sive calliditate, sive aetate, sive absentia, inciderimt in captionem,
sive per status mutationem, aut iustum errorem.' Cf. Dig. iv. 2 (Quod
metus causa gestum erit); ib. 3 (De dolo malo); xliv. 4 (De doli mali
et metus exceptione); Story, Equity Jur., 184, 238. As to the effect
of fraud upon wills, see Melhuishv. Milton, 3 Ch. D. 33; upon a judgment,
ex parte Banner, 17 Ch. D. 480. As to the effect of duress and fraud

on contracts, see
"

infra,

See especially, Dig.

Chapter

xii.

xxii. 6;

Cod.

i.

18.

JURISTIC ACTS.
by no means

and has also been much misunderstood,

clear,

It is obvious that such a

est\'

errantis

number

taken

if

of transactions

proposition

would

literally,

examinmg

which bear upon the

luris

sweep

away a

to be per-

has been pointed out, render

as

superfluous the whole doctrine of fraud ^

service in critically

chap. vui.

'nulla voluntas

as

which every one admits

and would,

fectly valid,

119

Savigny did good

the passages in the Corpus

and

point,

in

carefully dis-

tinguishing between the error, whether 'in negotio,' 'in

persona,' or 'in corpore^'

which prevents a

from coming into existence, and the error

may

prevent such an act from producmg

Error of the former kind he

as being merely the

we

shall see,

or

')

its

yet

ground

expression which,

in his opinion fatal to the existence of

is

positive,'

in

mentary matters
itself

absence of

of that

though,

because,

produces no effect upon such an act

nocet

usual effects *.

Error of the latter kind he describes as

a Juristic Act.
'genuine,'

its

which

'spurious' or 'negative,'

calls

accompaniment

correspondence between the will and

as

Juristic Act

in motive,

for

some exceptional
',

and

'

in

('falsa

cases,

condictio

as

rule,

it

causa non
in

e. g.

indebiti,'

it

testais

in

an interference with the operation of

the act.
It

was

laid

down by Savigny

that,

order to the The

in

corre-

production of a Juristic Act, the will and

its

expression

must be

in

accordance ^i^P^^^'

in

correspondence \

This view

is

sion.

with the prima facie interpretation of most of the relevant

passages in the

Roman

lawyers

*,

and

is

still

predominant

* Savigny, System, iii. p.

Dig. xxix. 3. 20.
342.
* System, iii. pp.
Cf. Dig. xviii. i. 9.
263, 441.
* Cf. Dig. xii. 6. 65. 2: 'Id quoque quod ob causam datur, puta quod
negotia mea adiuta ab eo putavi, licet non sit factum, quia donari volui,
quamvis falso mihi persuaserim, repeti non posse.'
8 Dig. V. 2. 28; xxviii. 5. 92; xxxv. i. 72. 6; Inst. ii. 20.
4, 11, 31. Cf
Story, Equity Jur., 179.
^

'

System, iii. p. 368. Cf. injra,

E. g. Dig. xxxiv. 5. 3.

p. 260.

of ^ilf and

ANALYSIS OF A RIGHT.

I20
CHAP.

VIII.

in

Germany \ but

certainly cannot be accepted as uni-

An

investigation into the correspondence

versally true.

between the inner

in

is

many

will

and

outward manifestations

its

most cases impossible ^ and where possible

cases

This was

undesirable.

is

in

so clearly perceived

as long ago as the sixteenth century, that Brissonius, in

order to adapt the phraseology of

exigencies, boldly explains
'

Roman law

the term

'

velle

'

to practical
as

meanmg

expressis et disertis verbis testari et profiteri se velle ^'

The
differ

cases

difference

may be

a mental reservation

(i)

its

usually

amount

^
:

intentional,

(2)

a use of

legal phrases are

used

lecture-room; or

when phrases

of one kind

Act

are

in jest, or

resulting

from

words which would

effect, e. g.

when

on the stage, or in the

appropriate to a Juristic

employed notoriously with a view

to the production of a Juristic

Act

the sale of an inheritance by

in

may

to a Juristic Act, with an obvious absence

an intention that they should have this

of

expression

have been distingushed as follows*:

The

i.

which the Will and

in

'

of another kind,

e. g.

mancipatio,' or in the

1 See e. g. Windscheid, Pand. i.

75, and his Essay on Wille und
Willenserklarung, 1878; Zitelmann, Irrthum und Rechtsgeschaft, 1879.
* 'The intent of a man is uncertain, and man should plead such
matter as is or may be known to the jury.' Y. B., 4 Ed. IV. 8. 9.

Warum kann der lebendige Geist dem Geist nicht erscheinen?

Spricht die Seele, so spricht, ach! schon die Seele nicht mehr.'
Schiller (Votivtafeln), cited by Jhering, Geist des R. R. iii. p. 445.
'

'

Brissonius,

De Verborum

Significatione,

s.

v.

Cf. Gllick,

Pand.

iv.

p. 147-

See e. g. Savigny, System, iii. p. 258; Windscheid, Pand. i. 75-77.

This case Savigny declines to consider, since it amounts to a lie, iii.
p. 258, and Windscheid, Wille und Willenserklarung, p. 29, puts it aside
as a case of fraud. So the German Civil Code, 116: 'Eine Willenserklarung ist nicht deshalb nichtig, weil sich der Erklarende insgeheim
vorbehalt, das Erklarte nicht zu woUen. Die Erklanmg ist nichtig, wenn
sie einem Anderen gegeniiber abzugeben ist, und dieser den Vorbehalt
kennt.' The only authority for the nullity of a contract when there was
a mental reservation seems to be the decision against a marriage so
*
'

contracted, in Decretals,

iv. i. 26.

WILL AND EXPRESSION.

proceedings which took place in a

when

lastly,

'common recovery ';

several persons are agreed to put a

which

their act other than that

upon

I2i

it

or,

meaning

would naturally

when the rule of Roman law was plus

valere quod agitur quam quod simulate concipitur \'
e. it may be
ii. The difference may be unintentional,

bear

('

simulatio

'

'),

i.

the result of essential mistake.

The prevalent theory would seem

correspondence between

when

every case, except

a ground of nullity.
that

all

the will

to be that a

and

its

want

expression

of
in

is

the result of a mental reservation,

It can,

however, hardly be disputed

the other cases of intentional non-correspondence

must, to be ground for nullity, be known, or knowable,

to others.

There

we remember
surface,

meaning

which, under

in fact here

is

words and deeds, but

of

the

all

justified in putting

therefore

no non-correspondence

that expression consists not in the

in the

circumstances, other

if

or

meaning

persons

on those words and deeds \

literal,

It

are

would

seem that uniutentional non- correspondence,

i.

e.

such non- correspondence as arises from mistake, can alone

be represented as preventing the production of a Juristic
Act.

There

Whether even
is

by a recent school
requisites

of writers, that, in

inscrutable

purports to be
*

can be conceded

of a valid Juristic Act,

account the

this

open to doubt.

its

will,

and look

outward expression*.

'

est.'

Dig.

enumerating the

we may

Cod. iv. 2 2.
In emptis et venditis potius id quod actum

eequendum

is

something to be said for the view, maintained

leave out of

solely to

what

We

hope

shall

quam id quod dictxmi sit

xviii. i. i.

This view has been maintained, with reference to all Juristic Acts, by
Der Parteiwille im Rechtsgeschaft, 1877; to Juristic Acts inter
vivos, by Rover, Ueber die Bedeutung des Willens bei Willenserklarungen,
1874; to Contracts, by Regelsberger, Civilr. Erorterungen, I. pp. 17-23.
1868, and Bahr, in Jhering's Jahrb. xiv. pp. 393-427, 1875; to obligatory
Contracts, by Schlossmann, Der Vertrag, pp. 85-140, 1876. See WindIt is temperately advocated, prinscheid, Wille und Willenserklarung.
cipally with reference to Contracts, by Leonhard, Der Irrthum bei
nichtigen Vertragen, 1882-3. I ^^ unable to share the view of the learned

Schall,

chap. vin.

'

ANALYSIS OF A RIGHT.

122
CHAP.

VIII.

later to establish that this

is

at all events the case

that species of Juristic Act which

The mode

Form.

in

which the

will

is

for a

'

stipulatio,'

is

Contract

with
^'

ought to be expressed for

the production of any given act

cases a special form

called a

'

is

its

and in English law

In some

'form.'

required by law, as in

Roman law

for a contract not

to be performed within a year, for a marriage, or for the

probate of a

The form may be such

will.

certain classes of persons

were incapable

of

from doing the

act, as

peregrin!

'

pronouncing the solemn formula of the

In other cases the form of the act

stipulation.

and the determination

material,

as to preclude

of

will

is

is

im-

sometimes

expressed only by a course of conduct ^

Most, but not

Represen
tation.

juristic acts

all,

may

in

performed through a Representative.

modern times be

representative

whose authority extends only to the communication of

the will of his principal

representative whose

is

an act of will on behalf of

Agency.

extent, as

it

His authority
his

may

'

at his

him

to exercise

his principal, to act to

own

discretion,' is

be express or implied, and he may, in

with different results, the fact that he

on behalf

of another.

agency in

some

an 'Agent.'

dealings with third parties, disclose, or he

disclose,

of

said,

is

a mere messenger, 'nuntius.'

instructions allow

may
is

not

acting

The scanty and gradual admission

Roman law

history of that system ^

is

a well-known chapter in the

The tendency

of

modern times

author that Savigny is to be interpreted as agreeing with the newer

theory, although Savigny confesses that a difference between Wille and
Willenserklarung is important only when it can be known to others,
System, iii. p. 258. So also Windscheid, u. s., has to define 'Willenserklarung' as 'Der Wille in seiner smnenfalligen Erscheinung.'
Infra, Chapter xii.
So the acceptance of an executorship will be inferred from acting as
an executor. In some cases the natural inference from a course of conduct
may be rebutted by 'Protest,' or 'Reservation.' Cf. Dig. xxix. 2. 20;
1

'

XX. 6. 4.
'

Cf. the distinction

drawn by

Prof.

Sohm between what

he

calls

CHARACTERISTICS OF ACTS.
towards the

is

fullest

recognition of the principles pro- chap.

claimed in the Canon law

perinde ac

potest quis per alium

'

'

per seipsum

si faciat

Juristic Acts

'

seipsum

per

facere

potest

qui

est

^'

is

active, as in

accepting an inheritance, or taking seism

is

quod

alium

per

facit

viii.

where One-sided
making a will, sided jurand two-sided,' *^*^^ ^^*^-

are distinguished into 'one-sided,'

the will of only one party

where there

123

'

two or more wills to

which is then a contract,'

a concurrence of

produce the effect of the

act,

'

in the widest sense of that term.

The
and

'

'

essentialia,'

'

Character-

naturalia,'

accidentalia negotii.'

The
it

any given species

characteristics of a juristic act of

are divided into those which are

'

essentialia

cannot

'

of the act are the facts

exist, e. g.

without which Essen-

Roman law

according to

there could

*^^ ^^'

be no contract of sale without a price fixed.

The

sumed

'natui-alia' are those facts

to be part of the transaction in question,

the presumption

Roman law

in

pass

till

The

may be

contradicted,

e. g.

the presumption

that the property in goods sold did not

'accidentalia' are those facts

which

in the given Acciden-

presumed and must therefore be proved.

pretended act which

'essentialia negotii'

is

is

deficient in

any one of the Nullities,

a 'nullity,' 'void ab initio^; when,

as a rule, the deficiency cannot be supplied

sequent change of circumstances,

'

quod

initio

non potest tractu temporis convalescere ^'

by any subvitiosum est

In exceptional

where the principal is himself incapwas early recognised in Roman

law, and what he calls procuratorial representation,' in the case of an
agent appointed by a principal under no such disqualification, which
was admitted by that system only for the purpose of acquiring pos'tutelary representation,' in cases

able of performing a juristic act, which

'

session.
^

Naturalia.

though

the price had been paid.

cases are not

which are always pre-

Institutionen, 32. Transl. p. 145.

C. 68, de R. I. in Sext.;
Dig. 1. 17. 29.

c. 72,

eodem.

'
'

ANALYSIS OF A RIGHT.

124
CHAP.

VIII.

cases the deficiency can be waived, or

In certain other cases the

of time.

facto void,
Condi-

The

is

voidable

'

is

act,

cured by lapse

though not ipso

at the option of a party concerned.

'

'naturalia' and

'

accidentalia

can alone be varied

'

tions.

by the
wliich

will

may

(a

the parties to the act.

The

variations

thus be superadded to necessary portions of

the act are

(a future

of

its 'conditions.'

event which

is

Some

of them, such as

certain to happen)

direction for the application in

dies

modus
manner of

and

a certain

property received), affect only its operation

'

'

others,

which

are conditions in the most accurate sense of the term,

affect also its

Such a condition

very existence.

'

'

may be

defined as 'the presupposition of a future uncertain

cir-

cumstance, upon which the Will of the party makes the

existence of his juristic act, or of
partially to

depend

condition

is

its

contents, wholly or

\'
'

suspensive

'

when

the commencement,

and 'resolutory' when the termination, of the operation

the act is made to depend upon its occurrence.

Puchta, Inst.

ii.

p. 365;

Sohm,

Inst. 30.

of

CHAPTER

IX.

THE LEADING CLASSIFICATIONS OF RIGHTS.

The

modes

possible

infinite,

depend respectively
I.

of

classifying

but four only are of

Upon

the

public

first-rate

or

private

Rights are almost

importance.

These

of

the

of

the

extent of

the

character

persons concerned.
II.

Upon

the

normal or abnormal

status

persons concerned.
III.

Upon

IV.

Upon

the

limited

or

unlimited

person of incidence.
the act

being due

for

its

own

sake, or

being due merely in default of another

These various modes of dividing Rights

observed, nothing to do with one another.
are called cross divisions, such as
liquids into viscous

They

would be

and non- viscous, hot and

act.

have, be
are

it

what

divisions of

cold,

fermented

and non-fermented; and consequently, though any given

right can only exhibit one of the alternative characteristics
of each

mode

of division, yet

it

may combine

this

with

either of the characteristics of each of the other modes.

Just as a liquid

may

viscous, fermented,

be viscous, fermented, and cold; or

and hot

or non- viscous, non-fermented.

THE LEADING CLASSIFICATIONS OF RIGHTS

126
CHAP.

IX.

and hot

and so

forth,

through

the possible combina-

all

tions of viscosity, fermentation, heat,

Choice of

classifi-

cation.

and

their opposites.

Since therefore every Right exhibits either the positive

or the negative characteristic of each of the above-men-

modes

tioned

classified in

division, i.e. since every

of

accordance with

relations to each

its

of the

above-mentioned distinctions,

which

of these

to be adopted

is

may be

Right

it

and

all

becomes a question

by the Jurist

as being

the radical distinction, and in what order the others are

to be subordinated to

have

to

them

it

just as a writer on fluids might

determine whether he would set out by classifying

and non-viscous, or into fermented and

is to be decided upon grounds

into viscous

The question
Whichever
convenience.

non-fermented.
of

division

most

is

fertile

in

results should obviously be selected as the radical one, to

which the

rest should be subordinated in the order of their

relative importance.

The

importance of the four modes of division

relative

will perhaps be self-evident

when

the nature of each has

been fully explained.

Public and
Private
Persons.

I.

very radical division of Rights

is

based upon a

broad distinction between the public or private character

of the persons

with

Public person

'

reign part of

it,

authority under

By

'

'

we mean

or a
it

represents

'

Of. Wolff:

'

By

connected.

either the State, or the sove-

'

we mean an

however

large,

of course a unit of the

it,

is

body or individual holding delegated

Private person

is

the Right

lection of individuals

whom,

whom

individual, or col-

who, or each one of

State,

but in no sense

even for a special purpose.

Imperium publicum nihil aliud est quam ius universis in
eorum actiones ad finem civitatis diri-

singulos competens, quatenus

gendae.'

Ius Naturae, Praef. ad Part.

exercised by permission of the State,

viii.

e. g.

All authority

is

of course

of a father over his family, but

better to see here only a relation of private life, sanctioned

sovereign, not a delegation of the sovereign power.

it is

b}^

the

PUBLIC AND PRIVATE LAW.

When

both of the persons with

whom

nected are private persons, the right also

one

is

12/

a right

con-

is

When

private.

chap. ix.
^^^".'^'^"S

of the persons is the State, while the other is a private Rights,

person, the right

From

public.

is

this division of rights there results a division of and of

Law, as the definer and protector

Between subject and

Private

'

(2)

And

when

Law.

they subsist
(i)

of Rights, which,

When

law.

'

between State and subject, by 'Public 'law.

law

distribution of the whole field of

this

by

are regulated

subject,

is

of The radical divi-

such capital importance that

we have no

hesitation lUsion.

adopting the division of rights out of which

springs as

it

the radical division of them.

We
tion,

have now to explain the application of the

and

to justify our assertion that this

distinction

distinc-

the radical

is

between Rights, and consequently between the

departments of Law.

By

adopting this subdivision of municipal law,

once into two natural sections.

field falls at

hand

is

its

On

whole Value

the one

the law which regulates rights where one of the

persons concerned

is

'

public

' ;

where the State

which defines and protects the right

terested in or affected

by the

who

the right to uphold or to extinguish

'person of inherence,'

itself

its

the 'person

it

incidence,'

directly

own
may

a party in-

to say,

is

it is

at

are concerned with

it.

If the State is the

will naturally,

it

not of compulsion, protect

of

is

That

right.

the option of one of the persons

is,

Here the very power

one of the parties.

or indirectly,

though

of course

If the State is

right.

conceivably refuse to

uphold the quasi-right of the person of mherence against

the State executes

itself.

If

against

itself, it is

own conduct by
legibus vivimus
'

Inst.

ii.

laws which protect rights

upon the maxim

Roman Emperors

acting

the

\'

17. 8;

Opposed
cf.

Dig.

i.

to this is the
3. 31,

xxxii. 23;

applied to their
'

Legibus soluti

law whicli reguCod.

i.

14. 4-

jiyision

THE LEADING CLASSIFICATIONS OF RIGHTS.

128
CHAP. IX.

the persons

of

Here

persons.

'private'

the

This

done by the

is

concerned are

interested

parties

by the right have nothing

affected
it.

where both

rights

lates

or

in

do with protecting

to

whenever the person

State,

of

inlierence invokes its aid.

Examples.

The punisliment, for instance, of a traitor

The right violated by him
of pubUc law.
The

whom

because the person in

right,

resides

it

a public

is

is

the State.

the offender.

If,

my

the

though

am

a private right,

is

myself are private indi-

entitled to call for the intervention

State to obtain compensation from

injury I have

My

one of private law.

is

goods safely carried

because both the carrier and

viduals

and to punish

itself

on the other hand, a carrier damages

goods, the question raised

right to have

The

and the same State whose right

has been violated intervenes to protect

of

a matter

State has a right not to be conspired against.

traitor violates this right,

my

is

sustained \

It

is

him

necessary, in

for the

order to

obviate a frequent confusion upon the point, to mention

that the

same

individual

is

may

act

a private right.

often infringe both a public and

Thus an

a violation

assault

of

two

or

a Ubel upon an

distinct

rights,

i.

e.

of

the private right of the individual to be unmolested, and

of the

acts

pubhc right

constituting,

of the State not to be disturbed

tending

or

towards,

breaches

of

by
the

public peace.

The

distribution of

Law which

has been thus shown

to be logically consistent possesses other advantages also.

moment's consideration

will

show the convenience

of

an arrangement in accordance with which constitutional,

ecclesiastical,

criminal,

and administrative law, on the

one hand, and the law of contracts, of real and personal

'

It is

Scotland

noteworthy that
(art. i8)

public right, policy, and civil

private right.'

Union between England and

drawn between Scots laws 'concerning
government, and those which concern

in the Articles of

a distinction

is

PUBLIC AND PRIVATE LAW.

property, of wills

and successions, and

other hand, form

two groups,

may

every legal topic

to

I29

of torts, on the

chap, ix

one or other of which

be readily referred S

In recognismg as the primary principle of the division

between pubUc and private

of our science the distinction

persons, resulting, through the severance of public and

private rights, in the opposition of public

we have

'Publicum
Justinian

world,

'

and private law,

the irrecusable authority of the

ius,'

quod ad statum

tum quod ad singulorum

Paulus says

'
:

jurists.

says Ulpian, and his words adopted by

have influenced the legal

est

Roman

Alterum

Romanae

rei

utilitatem

utilitas

speculation
spectat

of
;

pertinet^.'

the

priva-

Or

as

privatorum, alterum vigor

publicae disciplinae postulat^.'

But indeed the

much older. It is beautiby Aristotle, who classifies offences

distinction

worked out

fully

according to those

They

whom

they are

committed.

are committed, he says, either against the State (to

KOLvov)
is

against

is

or an individual (eVa twv

An

koivcovouvtoji').

assault

an injury to an individual, while avoiding military

vice

is

ser-

an injury to the State \

Although

clearly grasped

and stated by the Romans,

and borrowed from them by

nations

as

distinction

most

of

the

continental

the fundamental basis of legal division, the

has

been relegated by writers of repute to

a subordinate position,

Thus Austin

not altogether rejected.

if

divides primarily the whole field of law Austin's

rf^ipction

into the

law

'

of Persons

'

and that

'

of Things,' subordinat- of the

ing to the law of Persons the mighty cleavage between

*
For Sohm's eccentric identification of Private Law with the Law of
Property, see his Institutionen, 19. Transl. p. 98.
* Inst. i. I.
4; of. Dig. i. i. i.
Dig. xxxix. iv. 9.
5; of. Cod. i. 2. 23.
* Rhet. i.e. 13.
So Demosthenes: (tti 5i5o ftSr} ire^\ Siu da\v 0! yo/xoi, wv
rh fi4v f'ffTi, 5i' wv XP'^M'^" a.\\-fi\ois Kal avvaWaTTo/xty Kal irepl tuv I^Iidv & xp^

iroiflv SicDpiffneOa koI

KoivS

rijs irdAecDS

1950

C'^/J.ey

eVa (KucTToy

S\q)s
fi/xaiv

ra vphs

fi/j-as

XP')"'*"'-

aurovs, rh

5'

^^ Timocrat.

ty Tp6nov Se? J<f

p. 760.

dis-

^^'^'^*'^"'

';

THE LEADING CLASSIFICATIONS OF RIGHTS.

I30
CHAP.

IX.

Public

and Private law.

law

political

of

status

arrangement

of this

'Public law,' he says,

Our reasons

\'

will probably be sufficiently apparent

when we have explained

the distinction which Austin

thus treats as the primary one

when

observe that

we may however

so secondary a function

to find a satisfactory position in the

it is

impossible

Corpus luris for the

Crime ^

of

Connected with Austin's choice of a primary principle

His absolute and

relative
duties.

at once

assigned to

is

the division of law into Public and Private,

law

the

'is

disapproving

for

division

of

which

duties ^

duty

his

is

doctrine of

he

explains

absolute

'

follows

as

is

by a

right.

right with

which

it

person^

Where

which

it

relative
relative

In other words, a

is

or

a duty

is

relative

a duty to
determinate

be

persons,

rela-

implied

implied by,

is

to

right,

towards a determinate

other

than

the obliged,

and other than the sovereign imposing the duty.

All absolute obligations are sanctioned criminally.

do not correspond with rights in the sovereign

classifies

absolute duties as being (i) towards

wards persons
(3)

indefinitely,

or

no

is

no right to

is

duty corresponds
fulfilled

is

absolute, there

There

correlates.

It neither implies, nor

answers.

it

a rights ...
e.

duty answers to a right or imphes and

tive

'

'

incumbent upon one party, and correlates with

a right residing in another party.

i.

and

'

towards

duties not regarding persons, but

the

They

He

^.'

self, (2) to-

sovereign

regarding

God

or

the lower animals ^

All

this

is

unsatisfactory.

Not only are we

quite

'
Austin, ii. p. 71. He fortifies himself by the authority of Hale and
Blacks tone.
^ See Austin, ii.
p. 72. On the difference between civil and criminal
law see Ed. Rev. vol. 54 (1831), pp. 220, 221.
^ See Benthara, Traitfe de Legislation,
i. pp.
154, 247, 305; Princ
Morals and Leg., pp. 222, 289, 308.
* Austin, ii.
' lb. ii. p.
p. 67.
73.

lb.

ii.

pp. 74-75-

PUBLIC AND PRIVATE LAW.

willing to concede that a

man

131

can have no * relative

'

duty

chap.

ix.

towards himself, towards God, or towards the animals.

"We go further, and maintain that he can have no legal

duty at all towards these beings, whatever may be his

But we

moral or religious obligations towards them \

deny that there can

to the sovereign

may

sovereign

may

so

no

be

what seems

indefinitely, or,

amount

In other words,

^.

persons

duties to

relative

to

same

to the

we

thing,

assert that the The State

That

be clothed with a rights

this

is

^^"^

be seen from the form of indictment, which in

'The King on the prosecution

England runs
against C. D.'

against E. F.

The

^'

ing a right as

America

in

State

'

is

The State

(or

A. B,

surely as capable of possess-

the Corporation of London,

is

of

The People)

has rights, and duties owed to

it

The

State

are as relative as any

others.

Indeed

it is

not improper to talk of the State as having and

duties.

namely such as

duties,

prescribes to

it

itself,

though

it

has the physical power to disregard, and the constitutional

Such duties we often

power to repudiate them^.

Cf Hermogenianus

'

tum

sit.'

Dig.

i.

5.

2;

'

see

Cum igitur hominum causa omne ius constitu-

and

cf.

supra, p. 90.

It

is

obvious that laws

against suicide, blasphemy, or cruelty to animals, confer no rights capable

of being enforced at the discretion of the beings for whose benefit they

may appear
As

*
'
'

laid

to be intended.

down by

Inter subditos et

Austin,

ii.

p. 59.

Rempublicam

homines singulos contingunt.'

obligationes

non minus quam

inter

Zouche, Elementa lurisprudentiae,

iv.

viii.
* So some Recognizances are in the nature of an acknowledgment of
debt to the Crown, upon which, if it be broken, the Crown can take

proceedings.
* This view is supported by Jhering, who says that the State may
advantageously make laws applicable to itself as well as to its subjects.
Recht, in diesem Sinne des Wortes, ist also die zweiseitig verbindende
Kraft des Gesetzes, die eigene Unterordnung der Staatsgewalt unter die
von ihr selber erlassenen Gesetze.' The motive of the State in submitting
itself to law is self-interest, since it can prosper only through security.
'Das Recht ist die wohlverstandene Politik der Gewalt.' Der Zweck im
Recht, i. pp. 344, 366.
'

^'

132
CHAP. IX.

THE LEADING CLASSIFICATIONS OF RIGHTS.

enforced,

in

e. g.

by a Petition

England, principally but not exclusively,

of Right,

which

is

lodged with the

Home

Secretary, and, after due investigation, receives, in suitable

cases, the

Royal

proceedings

follow the

This remedy

is

The

Interna-

field

be done.' The subsequent

jiat 'let right

course

an

of

ordinary action ^

inapplicable to cases of tort ^

of law,

so called,

strictly

may be

thus ex-

tional

Law.

haustively divided between the law which regulates rights

between subject and subject

and

(civis

civis)

which regulates rights between the State and

and

(civitas

which

it

is

civis).

for

But there

many

is

its

and that
subjects

kind of

third

law

reasons convenient to co-ordinate

with the two former kinds, although

it

can indeed be

described as law only by courtesy, since the rights with

which
legal.

it

is

It

is

concerned cannot properly be described as

that

body

of

rules,

usually

described

as

International law, which regulates the rights which prevail

between State and State

(civitas

and

civitas)

'.

1 Cf. injra, ch. xvi.

It is a maxim of American law that 'the State,
being a Sovereign, cannot be sued.' Claims against the United States, or
the States individually, could therefore be arranged only by legislative
action. The practical inconveniences hence resulting seem to have been
considerable, and led to the institution in 1855 of a 'Court of Claims,'
which has partially relieved the Congress of the United States from the
decision of questions arising upon government contracts. As long ago as
1793, Judge Wilson, in the Supreme Court, said: 'On general principles
of right, shall the State, when summoned to answer the fair demands of
its creditors, be permitted, Proteus-like, to assume a new appearance, and
to insult him and justice by declaring " I am a Sovereign State"? Surely
not.' See an article on 'Suing the State,' by Mr. Davie, in the American
Law Review, 1884, xxviii. p. 814. An Act of 1887 has given concurrent
jurisdiction with the Court of Claims to all District and Circuit Courts

of the U. S.

lb.,

1891, vol. xxv.

Cf. Bryce,

Am. Commonwealth,

i.

p. 231.
* Tobin v. The Queen, 16 C. B. N. S. 310.
For a review of the cases
dealing with the immunity of the head of a government office for defaults of his subordinates, see Bainbridge v. Postmaster-General, [1906]

K. B. 178 (C. A.).

* A statement remarkable for its date (1594) as to the nature of International law is to be found in Hooker's Ecclesiastical Ponty,i. ex. 12:
I

NATURE OF INTERNATIONAL LAW.

vate.

Law,

differences between these three kinds of

The

33

Pri-

chap. ix.

Public, and International, depend upon the presence

or absence of an arbiter of the rights of the parties.

many

In Private law, which in

typically perfect law,

whom

stands the State as an impartial

Public law also the State

it is

at the

is

same time one

in International

where a
'

In

of the parties interested.

law there

is

no arbiter at

own

political arbiter is present,

of

Municipal,' to distinguish

be-

present as arbiter, although

parties are equally judges in their

identical also with one

and

arbiter.

individuals, above

parties concerned are private

tween

it

only

the

is

be observed that both the

will

it

respects

all,

But

but both

The law

cause.

be he, or be he not,

the parties,

often

is

called

from the so-called law which

described as 'International,' and which has no arbiter

is

to which

can appeal other than the opinion of the

it

civilised world.
It is plain that
it

if

Law

\ a political arbiter

its

essence,

and law without an

the phrase

'

defined Nature

can be enforced

it

arbiter

Convenient therefore as

in terms.

we have

be defined as

by which

is

is

is

of tional

a contradiction ^^^

on many accounts

International Law,' to express those rules of

conduct in accordance with which, either in consequence

of their express consent, or in pursuance of the usage of

the civilised world, nations

are

expected

to

act,

it

is

Besides that law which simply concerneth men as men [morality] and
that which belongeth unto them as they are men linked to others in some
'

a third kind of law which

such several bodies politic, so far as one of them hath public
commerce with another, and this third is the law of Nations.' R. Zouche,
in his Elementa lurisprudentiae (1629), Pars i. sect. 6, divides the
'communio humana quae virtute lurisprudentiae sustinetur' into:
'
privata,' publica,' and generalis quae inter diversos Principes et Respolitical society [municipal law], there is

toucheth

all

'

'

publicas exercetur.'

Montesquieu distinguishes 'droit

CEuvres,

i.

p.

Esprit des Lois,

public,' 'droit prive,' 'droit entre les nations.'

'

Supra,

civil,'

'droit

D'Aguesseau,
268, had employed the preferable terminology: 'droit

politique,' 'droit des gens.'

p. 41-

i.

c.

3.

of

134
CHAP.

IX.

THE LEADING CLASSIFICATIONS OF RIGHTS.

impossible to regard these rules as being in reality any-

thing more than the moral code of nations.

Of the three departments therefore into which law may

be divided, having regard to the political or non-political
character of the

must be borne
described

as

Law

of

International law

11.

The

rights

mind that what

in

'Municipal law,'

'Private' and 'Public,'

'

whose

persons

is

'

is

in

is

regulates,

it

it

not very happily

two departments

its

alone properly so called, while

law only by analogy.

status of the persons concerned

is,

as

we

before

Persons

and

of

mgs.

observed, another basis of the division of rights.

That
of the

is

to say, there are

some rights

in

which the status

persons concerned has to be specially taken into

consideration, while in others this

is

not the case.

This distinction has led to a division of

Law

into the

'law of persons' and the 'law of things'; but in order

to trace the steps

must go back

by which

this result

was

obtained,

we

to our analysis of a Right into its elements,

and to the differences which

last elements of a

exist

between the

first

Right on the one hand, and

its

and

two

intermediate elements on the other \

We

see at

once that, while the intermediate elements

consist of an object

elements

is

and an

a person; and

act,
it

Supra,

each of the two extreme

becomes apparent that an

p. 91.

LAW OF PERSONS AND OF

THINGS.

135

important step will have been taken towards understanding the variations in Rights

we reduce

if

upon which those variations depend

solidating the tAvo extreme

elements

enough, the

called, distinctively

'

the four terms

two

to

only,

by con-

what has been

into

law

chap, ix,

and the

of persons,'

two intermediate elements into what has been much more

ambiguously called the law of things.'
'

Although the
date, the

now drawn,

distinction, as

phraseology in which

as the time of Gains,

it

is

of

expressed

is

modern The

ter-

as old^'^^^*"^

is

and probably much older \

There

has been considerable discussion as to the precise meaning

Roman

put by the
personas,'

and

'ius

lawyers upon the terms 'ins quod ad

quod ad

that this early attempt to

popularly

rather

than

res pertinet.'

map

conceived.

scientifically

obvious enough to put on the one side the

whose sake

all

law

exists,

and on the

about the enjoyment of which persons

analysis

the

was pushed a

certain

It is

out the field of law was

little

was

It

persons

'

for

other, the 'things'

may

dispute.

When

further, persons

were

divided into several classes, with reference mainly to their

position in the

Roman

family,

and

it

was observed that

since things, in the literal sense, are not the only enjoyable

term might receive an

objects, the

as to cover

Each

'

incorporeal things,'

artificial

and even

of the terms in question is

extension, so

obligations.

open to objection on

the ground of ambiguity.

The

'

Ins quod ad personas pertinet ' aptly enough ex- lus quod

presses the law

'

Inst.

as

to

those variations

in

rights

which gonas,

Omne autein ius quo utimur vel ad personas pertinet, vel ad res.'
8. He adds
vel ad actiones,'
e. to Procedure, which does not
'

i.

i.

interfere with his division of the field of substantive law.

The

distinc-

was probably drawn in the edictum perpetuum. See the fragm. of

Herraogenianus, Primo de personarum statu, et post de ceteris, ordinem
edicti perpetui secuti.' Dig. i. 5. 2. From the use by Gains of 'vel'
rather than 'aut,' it has been argued that the passage is an enumeration rather of points of view than of distinct classes. See Dr. Emerton's
tract on 'The threefold division of Roman law,' 1888
tion

THE LEADING CLASSIFICATIONS OF RIGHTS.

136
CHAP. IX.

from

arise

But

Roman jurists

to express

recht';

which

i.

e.

who

in the Persons

varieties

with them.

it

are connected

unfortunately also used by the

is

what the Germans

call

'

Familien-

to express, not only the variation in rights

caused by certain special variations in personality,

is

but also the special rights which belong to certain personal

Not merely,

relationships \
tions

and

exemp-

for instance, the legal

and femes

disabilities of infants

covert, but also

the rights of a father over his son, a husband over his

wife,

and a guardian over

his ward.

Such questions, however, as how

mutual rights

of

far a

woman's capacity

by coverture, and what are the

for contracting is affected

husband and

wife, are radically different

in character.

Quod ad
net,

The

'lus

quod ad

very ambiguously

res pertinet'

dicates the department of law

which treats

from

fications of rights as result

of such modi-

varieties in the objects

That the

or in the acts with which they are concerned.

Roman
phrase

meant

jurists
is

to cover these modifications

own

quite clear from their

either 'corporeal,' things

such as a farm, a slave

or

'

by

explanation of

they include under the term 'Things.'

us, are

in-

this

what

'Res,' they tell

which can be touched,

incorporeal,'

which cannot

be touched, consisting in right only, such as a right of

servitude, a right of action, a right arising out of contract^.

Now

'corporeal'

have called the

'

objects

'

things

are the advantages which the

upon
he

in other words,

'

obviously what

are

of the right

incorporeal

'
;

'

we

things

person entitled can insist

the acts or forbearances

'

to

which

is entitled.

We may identify,
The opinions

though only approximately,

therefore,

what Gaius meant by

lus quod ad personas

Savigny, System, i. p. 398, cf. ii. App. v,
who asserts that the term is equivalent to Familienrecht.'
' Inst. ii. 2. pr.
Cf. Habetur
quod peti potest.' Dig. 1. 16. 143;
and the phrases chose in possession and chose in action.
*

pertinet' are

as to

summed up by

'

'

'

LAW OF PERSONS AND OF THINGS.

members

the two extreme

Romans

our series with what the

of

and the two

called the 'law of Persons'

mediate members with what they called

The

Things.'

to

'

the law relating

between, on the one hand, the persons in

whom

available

it is

hand, the objects over which

by means

which

of

it

a right

and, on the other

enjoyed.

it is

Roman

quod ad personas pertinet'

shorten 'ius

whom

exercised and the acts

is

be observed that though the

It will

cha.p. ix.

inter-

turning upon the distinction

division

resides or against

137

writers

into 'ius

per-

sonarum\' they never abbreviate the 'ius quod ad res

Yet their later followers have

pertinet' into 'ius rerum.'

talked of 'ius rerum,' as well

thereby causing not a

little

'ius personarum,'

of

as

confusion

and

of Persons

The

and

of Things,'

and

is

'

Rights Equiva-

followed by Blackstone ^

which probably made

distinction,

Matthew

Sir

them

Hale, adopting these phrases, mistranslates

its

phrases.

appear-

first

ance in the Edict, which was adopted by Justinian, and

recognised more or less by almost

is

all

modern

jurists',

has also been expressed in other ways.

Bentham's distribution of the law into 'particular' and

'

general

'

amounts

to

much

the same thing *.

M. Blondeau means to indicate the same

when he
'

incapables

is

and of

^'

Mr. Westlake defines

'

status

a person whereby what

of

distinction

divides the law into that of 'capables'

not law for him

is

'

as

'

that peculiar condition

law for the average

citizen

.'

Mr. Poste, guided perhaps by reminiscences of Aristotle,

opposes the law of equals to that of unequals
'

'

''.'

'

'

'

Inst.

'

See Thibaut, Versuche,

ii. I.

pr.

p. 393; Austin,
*
'
'

ii.

ii.

Comm.

i.

tiber ius rer. et pers.; Savigny,

p. 122.

System,

pp. 383, 398.

Traites, i. pp. 150, 259, 294, 299; Austin,

Cited by Austin, ii. pp. 411, 417.
Private International Law, ed. i. 89.

ii.

p. 418;

'

iii.

p. 225.

Gaius,

i.

8.

I.

THE LEADING CLASSIFICATIONS OF RIGHTS.

138
CHAP.

It

IX.

not easy to find apt terms to express the true

is

None of those already enuand we would venture to suggest

Normal
and ab-

nature of the distinction.

normal

merated are satisfactory,

rights.

the adoption in

Why we

place of

their

we
tinction
explained.

'

and

'

abnormal.'

of

the subject upon which

are about to enter.

dis-

normal

prefer these terms to any others will appear

from the closer examination

The

'

Right varies with a variation in any one of the series

of its

constituent elements.

the two

The

possible variations in

extreme terms of the series

are,

however, far

fewer than in the two intermediate terms.

case, first,

This

is

the

because both of the extreme terms are Persons,

so that they are subject to the

same

sets of variations;

and, secondly, because as a matter of fact the possible

varieties in juristic personahty are far fewer

than those

in the juristic character of objects or acts.

The Law

The order
of study.
is

therefore

of

Persons, as a source of variety in rights,

distinct

from and much smaller than the

residue of the Law, which

Things.

The

jurist

is

generally called the

may make

Law

of

either one or the other

species of characteristics his starting-point in considering

the aggregate of rights which

of
in

Law.

He may

the persons

make up

the whole field

consider seriatim the possible varieties

with

whom
Law

rights

of Things.

may be

connected;

THE ORDER OF STUDY.

treating under each

and acts

personality of

which

^vith

may

it

from the variations

start

by way

of

139

the various objects

be combined

and acts

in objects

may

he

or,

considering

supplement the modifications which the rights

connected with these undergo in each case from varieties

Thus the aggregate of rights may be

figure of two dimensions the shorter of

personality.

in

likened to a

Law

these dimensions representing the

Law

longer the

And

Things.

of

posed to be marked

by the intersection

of Persons

may

the figure

the

be sup-

into squares, like a chessboard,

off

a few horizontal lines expressing

of

the possible varieties of personality, and of a multitude

of vertical lines expressing the possible varieties of object

or act.
It

a mere choice of

is

whether the

jurist

right or its

real

Now

'

dimension the basis of his

classification.

as a matter of fact the personal dimension

which
at

'

the more convenient course,

makes the 'personal' dimension of the

all.

in the

majority of

When

cidence are

cases needs no

is

one

consideration

the Persons both of inherence and of in-

human

beings

who

are citizens of

full

age

and sound mind, not under coverture, or convicted of

crime, in other words when their personality is 'normal,'
the personal dimension of the right in question
disregarded.

It is only

concerned are
infants, or

'

abnormal,'

i.

e.

are

effect

'

its

artificial

'

persons, or

lunatic,

abnormal Personality has to be considered.

and

since,

when

it

is

wholly

and so

upon the right in question

therefore in most cases Personality

all

is

or both of the Persons

under coverture, or convict, or

forth, that the special

of this

when one

is

Since

not considered at

considered, because abnormal,

aberrations are confined within very narrow limits of

possibility ; it

would form a most inconvenient

classification of rights,

basis for the

compared with those characteristics

which depend upon the object or act with which the right
is

concerned.

The

variations of these characteristics are

chap. ix.

THE LEADING CLASSIFICATIONS OF RIGHTS.

14
CHAP. IX.

incalculably numerous,

upon

question, founded
of supplement,

and

to an account of the right in

these,

is

it

way

easy to add, by

any modification which

may

it

receive on

account of abnormal personality.

What

may

has been said

The

stance.

made

be

by an

clearer

in-

right of an infant to build on his land so

windows of the house of his neighbour who is a person of unsound mind, is capable of
being considered from at least four points of view, viz.
as

obstruct the

to

as a branch of the law (i) of Infancy, (2) of Ownership,

Servitudes, (4)

(3)

of

the

first

to one

and the

But

Lunacy.

of

and the same department

Persons

and a

in

way

numerous

in

show that these

infancy, lunacy, cover-

and a few more, nearly exhaust the

ture, alienage

varieties

belong

(4),

in the conditions

reflection will

little

variations are not very

clear that

is

and

of law, viz. the

which rights are varied by variations

of

it

last points of view, (i)

list of

personality; while, on the contrary, the in-

termediate points of view,

and

(2)

classes of

raise

(3),

questions which are of almost unlimited extent, because

they are bounded only by the varieties of physical objects

and the modes

in

By abstractmg

which they may be treated.

the law of Persons from the rest of the

law the description of a right

Two

thus

is

much

simplified.

terms only, instead of four, have primarily to be

considered, viz, the

when

there

person

of

is

fourth terms of the series,

now

of Persons,' be considered at

into the

in

the condition of the

incidence need

inherence or of

The inquiry

the

first

consolidated into the

commonly

law

called the

'

or

Law

all.

Persons

of

is

thus supple-

mentary and secondary to that into the residue

law,

Only

physical object and the act.

any peculiarity

law of Things.

of the

The order

of

exposition, either of the science of Jurisprudence, or of a

body

of law, should, therefore, be

without regard to

peculiarities

first,

the law generally,

of personality

secondly,

THE TEST OF A STATUS.

the law of Persons.

Austin

out that Blackstone

made

he

'the Rights

calls

of Things';

following

herein

it

before

the

Roman

the

Matthew

The

institutional
of

convenient to draw a line between Where

to be

drawn?

what

Hale.

the law of Things and that of Persons, where

to be

tests

is

the line ^ne^be

which have been proposed

of*^'^*^'^^

the characteristics of the law that ought to be treated of

under the

marks
three.

latter

head are various and unsatisfactory.

The

of a status or condition are, according to Austin,

First, it resides in a person as a

'

member

of a class.

Secondly, the rights and duties, capacities and incapacities,

composing the status or condition, regard or interest

number

and

speci-

Thirdly, these rights and

ally the persons of that class.

duties, capacities

incapacities, are so considerable in

that they give a conspicuous character to the in-

dividual, or extensively influence his relations with other

members

of society.'

essential,

and would not be regarded

This last quality

is,

in

he thinks, not
a body of law

rationally constructed \

These marks are however not

sufficiently distinctive, as

they will be found not only in infants or lunatics, to

a special status

is

is

whom

conceded.

as

members

It

has been ingeniously

of

suggested that 'the essential feature of a status

the rights and

whom

generally attributed, but also in land-

lords or stockbrokers, to

nothing of the sort

liabilities

affecting

a class

is

that

the class which con-

stitutes each particular status are

such as no member of

the class can vary by contract*.'

But something more

is

necessary.

'

and

Jurisprudence, Lect. xl. p. 712, ed.

Legislation,

chap. ix.

'Rights

from the better arrangement

writers, but departing

his great forerunner Sir

Assuming

doubtless right in pointing

is

a mistake in discussing

Persons'

of

14I

iii.

Cf.

Bentham, Princ. Morals

c. 16.

' Sir W. R. Anson, Principles of Contract,

ed. i. p. 328. Mr. Hunter's
proposed use of 'status' as covering 'those cases where a permanent

THE LEADING CLASSIFICATIONS OF RIGHTS.

142

The true

CHAP. IX.

test

Does the peculiarity

surely this.

is

of

the Personality arise from anything unconnected with the

nature of the act

the person of inherence can

itself whifch

enforce against the person of incidence?

In order to determine, for instance, whether the rights of

landlords should be considered under the law of persons,

we must

ask whether landlords as a class have any juristic

peculiarities

entitled to

ment

of

unconnected with the acts which they are

demand from

rent,

clearly have not.

such as the pay-

They

covenants, &c.

landlord merely means a person

On

entitled to these acts.

is

their tenants

the observance of

landlord to be an infant

who

the other hand, suppose the

here at once a whole set of

characteristics are present, modifying the right to rent, &c.

and quite unconnected with

the

Nor

it.

is

only because

it

same person sustains the two characters

landlord that this

is

the case

and

of infant

man may

be a pawn-

broker and landlord, but the rights as landlord will not

The

be affected by his occupation as pawnbroker.

sonality recognised in the law of persons
indefinitely the

legal

relations into

may

clothed with the personality

Classes of

Of such
(i)

aiity.

The person may be

per-

such as modifies

which the individual

enter.

affections of Personality there are

human
(2)

is

'artificial,'

i.

e.

two

classes

may

be not a

being.

The person may be under

disability, or

may

enjoy

exemption, on account of age, sex, mental

in-

capacity, crime, alienage, or public station.

All of these are abnormal deviations from the ordinary

case of both parties concerned in a right being
beings, under no

exemption.

When

special

disability

the disability or exemption

far-reaching character,

it

is

or

not of a

will not be treated in practice as

when

duties imposed upon a person

a class' (Roman Law, p. 475), is
more vague than those above mentioned.

relationship

is

created by the law

are imposed upon him as a

etill

and far-reaching

human

member

of

'

THE TEST OF A STATUS.

I43

founding a special status, although, upon the principles

above stated, otherwise capable of being so treated.

chap.

ix.

Thus,

as a rule, soldiers, or blind, or illegitimate, persons are not

held to occupy a status, although in several respects, and

with reference to testamentary powers and

in particular

rights

of

succeeding ah

ment that they are

We

they

intestato^

may

which are not involved

exhibit peculiarities

respectively
in the state-

in military service, blmd, or illegitimate \

have already pointed out what we conceive to be

Austin's mistake in subordinating to the distinction

under discussion, what

radical one

Law;

between

'

a mistake to which

perfection which

in

is

Public,'

'

we

our opinion the

Private,'

more

and International
'

attribute

mars the result

still

now

much

of the im-

the labours of this

of

great jurist.

The

contrast between the law of persons and of things, The

or between

'

normal and

normal
'

'

and abnormal
'

'

abnormal persons,'

of

'

law,

i.

e.

the law

'

dis-

of traceable

sharply defined only

is

one of the departments into which the whole subject

in

may
tion,

be divided in accordance with this threefold distinc-

though something analogous to

it

may

be detected

in the others.

In Private law, where

all

the characteristics of law are

in Private

Law,

The modern

civilians

recognise status

characteristics as 'naturales,' opposing

(libertatis, civitatis,

and

farailiae)

founded

them

upon physical

to the 'status civiles'

recognised in the older

Roman

law.

Sa\igny objects to this, and to the vague definition of status as a quality

by means of which a man has certain rights,' that the list of status
would be interminable, and the law of status would become identical
with the whole body of the law. System, ii. p. 445, Appendix. His
objection would not apply to such a definition as is now proposed.
Prof. A. V. Dicey, in a most able review of the first edition of this
book, points out that status as here defined would be one of the real
kinds' of J. S. Mill, 'which have, besides the patent qualities which have
led us so to class them, an indefinite number of common characteristics
which we have not before our minds, and may not even have within our
'

'

knowledge.'

Law Mag. and

Rev., iSSo, p. 400.

THE LEADING CLASSIFICATIONS OF RIGHTS.

144
CHAP. IX.

fully present, the

described

law

it,

is,

as

we have

ways

in

which the general

law of Persons

a statement of the

already

modified by varieties of status; while the law of

is

Things

a description of

is

the various kinds of rights

enjoyed in private capacities by persons as being within

way

the jurisdiction of the State, but not as being in any

representative of the sovereign
in Public

law,

In Public law, which, as

is

of the State.

seen, possesses the

law in a lower degree of development,

characteristics of

the distinction

power

we have

What

but faintly traceable.

analogous

is

to the law of Persons here consists in a description of the

State as a whole, of

ruUng body,

its

of bodies or persons

enjoying delegated ruling power, and of

members

as such; in short, in

On

'Constitutional' law.

Public law has

consists in
(i)

way

of the

gacies of the governing

may
(2)

in

which the

body are

member

of

injuries

it,

and

done to

of the

it

as a whole,

of such rights are visited.

commonly

called

Criminal

the usual

mode

national law

is

'

is

'

of stating

by defining

or

'

Penal

'

law

violations of them,

to a

This
;

is

because

and circumscribing such

punishment due to such

law

of

and by pre-

violations.

Persons in Inter-

contained in that portion of the science

and the modes

affected

personam.

This

punishments with

which infractions

The nearest approach

III.

It

different dele-

set in motion.

which describes the characteristics of a

rem and

Things.

'

scribing the

Rights in

as

A description of those rights of the community at large

rights

State,

known

'

or to any

in Inter-

usually

be called Administrative law.

which are violated by

national
law.

is

the other hand, the residue of

analogies to the law of

its

A description

what

constituent

its

by the absence

in
of

which the rights

fully

Sovereign

of a State are

such characteristics.

Another grand division

of rights

turns upon the

limited or unlimited extent of the person of incidence, by

RIGHTS IN REM AND IN PERSONAM.

145

which phrase, as may be remembered, we mean the person chap.

whom

against

the right

available.

is

right

is

ix.

available

either against a definite person or persons, or against all

persons indefinitely.

wages

to his

for the

servant, for instance, has a right

work he has

a definite individual, his master

garden has a right to

done, available against

while the owner of a

exclusive enjoyment available

its

more than another, but against

against no one individual

everybody.

This distinction between rights has been expressed by

calHng a right of the definite kind a right in personam^
of the indefinite kind a right in rem.

And

these terms,

though not perfectly satisfactory, have obtained a currency

which

a recommendation, and moreover are

of itself

is

perhaps as good as any substitutes which could be sug-

The former term

gested for them.

perspicuity a right available

'

a definite individual, while

right

the

capable of exercise over

is

out reference to any one person

The use

is

Thus we

by the

and
if

rem'

incUvidual, 'in

are told

in rem,' with-

between two

Praetor in hoc

edicts.

Any

is

Roman

classical

between different classes of

are said to be 'in personam'

'

'

more than another.

lations, pacts, actions, exceptions

a given

implies that the

its object,

their use

jurists, in distinguishing

of

against

comparatively recent date, but

of

harmony with

quite in

latter

(certain),'

these terms to distinguish

of

rights

of

classes

indicates with tolerable

personam

in

stipu-

of these

referring to the duties

if

operating generally.

edicto,'

i.

e.

quod metus

rem loquitur, nee adicit a quo

gestum.' 'Pactorum quaedam in rem sunt, quaedam in
personam. In rem sunt, quotiens generaliter paciscor ne
causa, 'generahter et in

petam

in

personam quotiens ne a persona petam,

ne a Lucio Titio petam\'

This use

is

id est

also analogous to

the description of judgments as being in rem or in per*

Dig.

iv. 2.

9;

ii.

14. 7. 8.

a. 19; xliv. 4. 2. 2; xliv. 4. 4.

1550

Cf.

14. 57; vii. 9. 5; xxxix.

Gai. Inst. iv. i. 4.

ii.

Z2>'>

i.

10; xxxix,

History of
^^*

'

THE LEADING CLASSIFICATIONS OF RIGHTS.

146
CHAP. IX.

sonam, and to the mediaeval distinction between 'statuta

realia

Equiva-

and personalia\'

'

The same opposition has

descriptive terms

'

ius in re

occur in the canon law

and

'

by the

less

ad rem,' which

first

also been denoted

lent terms.
'

and

ius

'

and by the terms

'

absolute

which by employment with many other

relative,'

meanings are too void

of precision for the purpose.

more complete, expressions

Longer, but

are

'rights

against individuals,' and 'rights against the world,' and

suggested by

these, originally

Hugo

^,

are perfectly un-

objectionable.
If

Rights
antece-

the terms 'in rem' and 'in personam' were to be

discarded,

we should

prefer to speak of 'rights

terminate,'

and rights

of indeterminate incidence.'

IV.

'

The

great

the

of

last

dent and

tinguishes those where the act

remedial.

from those where

another

styled

ment';

the

is

dis-

own

sake,

its

default of

rights 'primary,' 'sanctioned,'

latter

'of

enjoy-

have been described as rights

kind

prefer to distinguish
'

due for

rights

made due merely on

'sanctioning,' 'secondary,'

rights

is

of

de-

The former kind have been by various

act.

writers

it

divisions

of

'

them

We

restitutory,' 'of redress.'

as

rights

'

antecedent

'

and

remedial.'

The nature
rights of the

of the distinction

owner

of a

is

suflBciently simple.

garden not to have

it

The

trespassed

upon, of a servant to have his wages paid, of a purchaser

to have his goods deUvered to him, are all of the former

kind,

viz.

rights

See Chapter

'

antecedent,'

which

exist

before

any

xviii, infra.

thus explained by Huber: 'Ius in re est facultas

sine respectu ad certam personam. Ius ad
rem est facultas competens in aliam personam ut nobis aliquid det vel
His references to the Sext. are infaciat.' Praelect. Pars. I. ii. i. 12.
accurate. 'Ius in re' is classical, e. g. Dig. xxxix. 2. 19. Of. Gliick, Pandekten, ii. 175; Thibaut, Versuche, ii, p. 26.
* Lehrbuch eines civilistischen Cursus, v. p. 72.
2

The

homini

distinction

in

is

rem competens,

RESULTING DIVISIONS OF LAW.

They
The

wrongful act or omission.

given

their

for

own

salce.

rights

are
right

of

I47

which are chap,

ix

the owner of

men who have

a garden to get damages from a party of

broken mto his grounds, of a servant to sue his master

for unpaid wages, of a purchaser to get damages from
a vendor

who

deliver the goods sold, are, on

to

refuses

the other hand, of the latter kind, or rights 'remedial';

they are given merely in substitution or compensation

for

rights

antecedent,

exercise

the

of

which has been

impeded, or which have turned out not to be available.

If

all

went smoothly, antecedent, or primary, rights

would alone

exist.

Remedial, or

sanctioning, rights are

merely part of the machinery provided by the State for

the redress of injury done to antecedent rights. This

whole department of law

is,

in

an especial sense, 'added

because of transgressions.'

Out

grand divisions of rights there The

of each of the four

Including therefore

arises also a grand division of law.

the distinction between

'

substantive

explained in a former chapter \

ciples

into

upon which the

field

of

and adjective
'

'

'

law,

result

g"ous*of
^^^'

we have five main prinlaw may be divided, viz.

Substantive and Adjective law;

and International law

law
Abnormal
Normal and
The law of rights 'in rem,' and of
Private, Public,

sonam

rights

'in per-

1 .

The law of rights antecedent,' and of rights remedial.'

One or other of these principles must be selected as
Each limb of the
determining the fundamental division.
'

'

subject

may

be then

subdivided in

accordance with the

other principles one after another.

Adopting as the primary division

of rights that

which The

turns upon the distinction between the political or non1

p. 89.

L2

pri-

vision.

THE LEADING CLASSIFICATIONS OF RIGHTS.

148
GHAP.

IX.

political quality of the

nected,

we

persons with

whom

they are con-

shall divide law, in the first instance, into

Private,
Public,

and

International

and

shall deal

with each of these great topics in the order

in

which we have enumerated them.

so,

we propose

But before doing

to call attention to certain characteristics

of rights generally,

explained, once for

which may be now most conveniently

all.

CHAPTER

X.

RIGHTS AT REST AND IN MOTION.

Rights may be regarded under two aspects, either as The
at rest or as in motion.
to

consider not only the nature, or scope, of any given

na-

causes of
'"'Shts.

but also the causes which originate or terminate

right,
its

In other words, the jurist has

connection with the person in

must

whom

it

He

resides ^

include, for instance, in a survey of the

law of real

property, not only an account of the various rights of the

owner
of

'

of land,

titles.'

but also a description of the various kinds

He

has

therefore to

determine whether to Method

work into two halves, one of which shall deal

with rights, and the other with the causes by which

divide his

rights

are connected or disconnected with

whether

to

make

each kind of right

by which

it is

or

rights his sole topic, bringing in under

all

needful information as to the causes

set in motion.

We propose to

adopt the latter alternative, as presenting,

upon the whole, the fewer

rate,

persons

difficulties.

We

shall,

at

any

be spared the awkwardness of discussing possessory

rights apart from the acts of possession out of which they

arise, or contractual rights

apart from the agreements to

which they owe their existence.

^

Supra,

p. 92.

Some

repetition

is

no

"^'^"'^^'

of

RIGHTS AT REST AND IN MOTION.

ISO
CHAP.

X.

doubt inseparable from the proposed method, but

may

it

is

Prelimin-

hoped that the amount

ary statements.

lessened by the general statements respecting both the

this

of

be

considerably

nature and the movement of rights which will be com-

prised

Rights at

I.

the present chapter.

which

right

reference to
Orbit.

Infringe-

ment.

'

orbit,'

'

its

we mean

orbit

and

'

'

its

By

infringement.'

its

the sum, or extent, of the advantages

which are conferred by

its

ment,'

we mean an

which

interferes with the

rest has to be studied with

at

is

rest.

By

enjoyment.

its

infringe-

'

the strict sense of the term\

act, in

enjoyment of those advantages.

knowledge of the former necessarily impUes a know-

ledge of the latter, and vice

precisely correlative

know

to

the whole

by the enjoyment

what

versa,,

since the one

with the other.

extent of

of a right

is

It is

is

always

obvious that

the advantage

conferred

know
right may

the same thing as to

acts are infringements of

it.

Thus the

be such as to exact from the world an abstention only

from any deliberate interference with

it,

or

it

may be

such as to exact an abstention even from such an

fraction of

it

as

the person of

may

result

inherence

from want

may be

of care.

entitled

in-

Again,

absolutely to

abstention on the part of others from certain acts, although

they

may

diachylon

'cost

him

nothing, no not so

as a Uttle

or only to abstention from those acts

they occasion him actual

damnum^.

much

If

it

loss,

when

not only iniuria but also

be established that a solicitor has an

Supra, p. 107.
See Lord Holt's remarks in Ashby v. White, Lord Raymond, 938.
' Cf the liability which arises upon subsidence of land, caused
by the
otherwise innocent excavations of the owner of the subsoil, Bonomi v.
Backhouse, 9 H. L. C. 503; and upon damage done by the bursting of
a reservoir, the storage of water in which gives, of itself, no right of action,
Fletcher v. Rylands, L. R. 3 H. L. 330, or by the escape from custody of
an animal of known dangerous propensities. May v. Burdett, 9 Q. B. loi.
Damage so done is actionable without proof of negligence. The excavation is made, and the dangerous substance, or animal, is kept 'at one's
^

ORBIT AND INFRINGEMENT.

151

absolute right that no one shall falsely impute

professional misconduct,

irrespectively

loss resulting, or not resulting,

it

chap,

any pecimiary

of

from the charge, and that

a street passenger has a right not to be run over

gent driving,

him

to

by

negli-

follows that slander of a solicitor, though

unaccompanied by

loss,

and negligent drivmg causing

injury to a street passenger, are alike wrongful acts.

On

ascertained by an

is,

which are violations

acts

consecrated by the

not

it

to

observe
of

because the apparent act

that

right

be

is

slialt

not

turns

often

no act at

may
all,

to Apparent

upon

out

J^g^T.^^"

be the case,

or because

not the true cause of the damage complained

is

steal.'

what might appear

This

one.

and

as a right of property
'

an infringement

investigation

of

be,

enumeration of the

commandment Thou

It is necessary to

be

may

the other hand, the orbit of a right

very generally

of,

it is

or because

the right which seems to have been infringed has been

waived, or because the right has been forfeited, or

is

dis-

allowed on grounds of public policy.

When

1.

the apparent act

is

really the

result of cir-Act.

cumstances over which the apparent agent had no control

as,

instance,

for

if

the

horse

which he

is

driving

is

frightened by the sudden noise of a cart driven furiously

along the street, and becoming unmanageable does injury

to persons

here

is

and property, he

mere

is

The result
must be accom-

not responsible.

accident, since a true act

panied either by intention, or at least by negligence \

2.

No

one circumstance in this world can be called with Cause,

perfect accuracy the cause of

a pistol at a

man and

kill

any
him,

other.

many

Even

if

I fire

other causes are

work besides the agency of my will upon my finger,

and so upon the trigger of the pistol. There must be,
at

and such seems to be the rule of Scots, and of Roman-Dutch Law,

E. and S. Africa Tel. Co. v. Cape Town Tramways Co., [1902] A. C. 381.
But see Cork v. Blossom, 162 Mass. 330.
1 Supra, pp. 108, III.
Of. Holmes v. Mather, L. R. 10 Ex. 261.
peril'

RIGHTS AT REST AND IN MOTION.

152
CHAP. X.

explosive power of the powder, the law

for instance, the

the passage of the

of gravitation permitting

manufacture and sale

the

of

and so

pistol,

bullet, the

In

forth.

many cases the share of the person whom we wish to

make answerable is mixed up in a far more complex
manner with the other events and

A at

and B,

B,

to get rid of

thus passed on,

till

it,

threw

said the

Court, 'is answerable for

was

and

'He who does the

liable.

first

was

it
it

was

wrong,'

the consequential

all

All that was done subsequently to the original

damages.

throwing was a continuation of the

which

act,

at C,

it

ultimately hit and injured Z,

it

held that

bursting,

which have led

acts

In a case in which a squib was thrown by

to the result.

continue

will

and

first force

first

was spent by

the squib

till

and

think that any innocent person removing

the danger from himself to another

is

justifiable \'

It

conceivable that the decision in this case might have

is

been otherwise, and

must be remembered that the law

it

an act to be the cause of a result

will refuse to consider

which

either, in

is

the

language

English law, 'too

of

remote,' or to which the injured party has 'contributed*

by
ness.

own

his

As

Remote-

were

and

negligence.

to remoteness,
infinite for

it

by

acts

itself

said

by Lord Bacon

'

It

the law to consider the causes of causes,

their impulsions

tenteth

was

one of another;

therefore

it

con-

with the immediate cause, and judgeth the

that,

looking

without

at

The wrong and the damage must

'concatenated as cause and effect I'

any further degree I'

be,

it

The

has been
difficulty

said,
is,

of

Sm. L. C. 399; cf. the opinion of Labeo: 'Si,

ventorum navis impulsa esset in funes anchorarum alterius, et

Scott V. Shepherd, i

cum

vi

nautae funes praecidissent, si nullo alio modo nisi praecisis funibus

explicare se potuit, nullam actionem dandam.' Dig. ix. 2. 29. 3. lb.
49,

I.

Maxims, Reg.

'

Gerhard

i.

v. Bates, 2 Ell.

&

B. 490.

CONTRIBUTORY NEGLIGENCE.
course, to decide
case.

when

be said to be the chap.

this can fairly

Lord Ellenborough held that where

must be shown,

must be the

it

special

ingly that

of slanders

which had caused

from his situation \

he so acts as to become a
instance, the

owner

for the utterance

of this

has

view

said to contribute to his

'

and accord-

of,

to be wrongfully dismissed

Much doubt

thrown upon the correctness

A person is

however been

^.

own

injury,

co-operative cause '

of cattle

x.

damage

well as the

as

legal,

natural, consequence of the act complained

had no action against

153

of

it.

when ContribuFor gence.

which have been injured by

Company if they
through his own negligence

a railway train cannot recover from the

have strayed on to the

in not shutting gates ^
is

line

But the negligence

not held to be contributory,

when

of the sufferer

the result complained

might have been avoided by the exercise

of

care on

the part of the

negligence

'

wrong-doer ^ nor

is

of
'

ordinary

contributory

a defence where the injury complained of was

the result not of the defendant's negligence, but of his

unconditional responsibility for

damage from things kept

by him, and known by him to be dangerous ^.

The contributory negligence of a third party is no Of third
To this ^^^ ^*
excuse for the negligence of the defendant
.

Vicars v. Wilcox, 8 East, 3; cf. Ward v. Weeks, 7 Bing. 211.

v. Gibbs, i Ad. & E. 43; Lynch v. Knight, 9 H. L. C. 577;
Pollock, Torts, Ed. vii, p. 237. The cases on remoteness of cause were
^

'

Knight

elaborately considered

by Cockburn C.

J. in

Clark v. Chambers, L. R.

3 Q- B. 327.

London and S. W. Ry., 2 H. & N. 424.

& N. W. Ry. Co., i App. Ca. 754.
Lynch v. McNally (1878) 73 N. Y. 347; Spring Co. v. Edgar (1878),
99 U. S. 645. Cf. supra, p. 150. Even here it has, however, been held
that acts on the part of the plaintiff which amount to a voluntary
assumption of risk will exonerate the defendant. Drake v. Auburn City
Ry. (1903), 173 N. Y. 466, Malloy v. Starin (1906), 35 N. Y. L. J. 1071,
where a child had gone close to a cage of bears.
* Burrows V.March Gas Co., L. R.
5 Ex.67; Bakerv.Snell{igo8),gg
*

Ellis V.

Radley

L. T. 753.

v. L.

RIGHTS AT REST AND IN MOTION.

154
rule

CHAP. X.

two exceptions have been recognised.

the cause
party,

action

of

which

is

caused by

and secondly, where the

tiff

the

when

the case where a parent or guardian sues

for injury to a child,

with

First,

from a negligent third

derived

is

negligent

plaintiff

third

was a passenger

in

own

its

carelessness

has 'identified himself

party,

where the

as

plain-

a vehicle the driver of which

contributed by his neghgence to the injury caused by the

driver of another vehicle,
action^.

This

Scotland

in

latter

who was

doctrine,

and generally

the defendant in the

which

in the

is

disapproved of

United States

*,

has

at length, after a currency of forty years, been repudiated

by the House
Apportionment
of negli-

gence.

'

of Lords ^

The Admiralty practice in cases of contributory negligence was to apportion the liability equally between the
plaintiff and defendant (the rusticorum iudicium) ^ and
this rule was extended by the Judicature Act of 1873 to all
such cases of collision between two ships, but was reversed,
for all purposes,

by the Maritime Conventions Act,

pursuance of a Convention to that

effect,

191

1,

in

signed at Brussels

in the preceding year^

In other cases, according to the law of England, a plea of

the contributory negligence of the plaintiff

is, if

supported,

fatal to his right of action'.

'

Mangau

v. Atherton, L.

R.

Ex. 239, but

cf.

Lynch

v.

Nurdin,

Q. B. 29.

2 Thoroughgood v. Bryan, 8 C. B. 115.

Cf. Armstrong v. Lane, and
Yorks Ry. Co., L. R. 10 Ex. 47.
* Hobbs V. Glasgow Ry., 3 Ct. of Session Cases, Ser. 4. 215.
* Webster v. Hudson Ry., 19 N. Y. Rep. 341.
^ The Bernina, 12 Prob. Div. 58, confirmed in H. L., as Mills v. Armstrong, 13 App. Ca. I.
8 The doctrine extends to cargo-owners, whose remedy is against both
ships in equal moieties. The Milan, 1 Lush. 388.
^
Cf. The Sargasso [1912] P. 192. For a review of
I & 2 G. V. c. 57.
the cases on the Admiralty practice, see L. Q. R. ii. p. 357. The principle of the rusticorum iudicium has recently been extended by the Supreme Court of the U. S. to all cases of maritime tort. The Max Morris,
137 U. S. Rep. I. On the different systems for apportionment of liability prevailing in different countries, see L. Q. R. xii. p. 260, xiii. p. 17.
* See the notes to Ashby v. White, i Sm. L. C, and an able article bj'

FORFEITURE.

Roman law seems

practice,

in

one

but

causation

of

have arrived at the same result chap.

to

somewhat

though on

The question

grounds.

155

different

Digest not as

the

is

treated

in

as

one of

set-off,

x.

theoretical

which the

in

negligence of the plaintiff balances that of the defendant \

'

Quod

Pomponius

says

becomes

a right

If

iniuria.'

lit

which would otherwise

act

intelligitur sentii*e,'

^.

'Volenti non

3.

non

quis ex culpa sua sentit,

be

an

waived, an Waiver,

is

infringement

Thus consent on the part

permissible'^.

husband was a good plea

So

criminal conversation.

in bar
'

of

the

of

it

of the

old action for

leave and licence

'

is

an answer

and a similar defence may be

to an action for trespass,

pleaded for what might appear to be a breach of covenant.

The waiver must

of

course

be

given

freely

and with

knowledge of the circumstances.

a right

4. If

an
of

forfeited, or

which would

act
it

is

previously have

ceases to be unlawful.

on the ground that

had forced

his

way

it

suspended, by misconduct, For-

An

assault

been a violation

may

be justified

was committed upon a person who

into one's house

and refused to leave

Mr. E. H. Crosby in the American Law Review for 1880, p. 770. In

and some other states, it seems that the courts weigh the
question of 'comparative neghgence,' allowing a plaintiff whose negligence is slight to recover against a defendant whose negligence is gross.'
It has lately been held that the plaintiff is bound not only to prove the
neghgence of the defendant, but also to disprove any contributory negligence of his own; Davey v. L. andS. W. Ry., 12 Q. B. Div. 70; Wakelin
V. L. andS. W. Ry., 12 App. Ca. 41; but see Dublin, &c. Ry. v. Slattery,
3 App. Cases, 1155.
^ This is sometimes described as 'Culpa-compensation.'
See Pernice,
Zur Lehre von den Sachbeschadigungen, p. 58.
* Dig. 1. 17. 203.
So Ulpian 'Si in loco periculoso sellam habenti
Illinois,

'

'

'

tonsori se quis commiserit, ipse de se queri debere,' Dig.

ix.

2.

11. pr.;

and Paulus: 'Multa huiusmodi deprehenduntur quibus sommovetur

petitor

si

Dig.

lb. 28; cf. his Sent. Rec. i. 15. 3.

immaterial when the defendant is in dolo.

evitare periculum poterit.'

The culpa

of the plaintiff

is

ix. 2. 9. 4.

On

the difference between 'voluntas' and 'scientia,' see Smith v.

Baker, [1891] A. C. 325.

RIGHTS AT REST AND IN MOTION.

156
CHAP. X.

it,

or an arrest

by the production of

the warrant of

a competent authority.
Public
policy.

5.

right

be justified

The

suspended on grounds of public

also be

may

So a trespass on land adjoining a highway

policy.

Responsi-

may

if

the highway

responsibility for

is

impassable.

an infringement does not always

bility.

attach

the

exclusively to

cordance with the maxims

facit

per alium facit per

visible
'

respondeat superior

se,'

acts of his agents or servants

In

wrong-doer.

a person

is

and

'

ac'

qui

liable for those

which either were expressly

authorised by him, or which were done by them in the

course of their employment

By way

Common
employment.

of exception to

*.

this principle, it

years settled English law that

'

was

not recover for injuries sustained in their

ployment from the negligence

such fellow servant

is

shown

for

many

one fellow servant could

common em-

of a fellow servant, unless

to be

either

an unfit or

improper person to have been employed for the purpose

the reason given being that an implied contract

is

''';

entered

*
Mr. Justice Holmes brings forward a mass of curious evidence,
beginning with Exodus xxi. 28, to show that the remedy was in early
times against the immediate cause of damage, even inanimate, the owner
of which was therefore bound to surrender it (' noxae deditio'), though
in later times he was allowed to redeem the offending property by a
money payment. Common Law, pp. 7-35- Gf. Fitz. Abr. Barre,' 290.
On the connected institution of the 'Deodand,' see i Coram., 300.
'

steam-engine which had caused death was forfeited to the Crown by

of deodand as lately as 1842: R. v. E. Counties Ry. Co., 10 M. & W.
58; but deodants were abolished by 9 & 10 Vict. c. 62. See Homes J.
in Harvard L. R. xii. p. 445, and infra, p. 168.
2 Fellham v. England, L. R. 2 Q. B. 36.
This view, first held in the
case of Priestley v. Fowler, 3 M. & W. i (1837), is not wholly unknown
on the Continent. With Parliamentary Papers, 1886 [c. 4784], compare
an instructive article by W. G. Clay, in Journal of Comp. Legisl. ii. p.i,
especially pp. 95, 99, with reference to art. 1384 of the Code Civil. It is
settled law in the U. S. See Murray v. S. C. Rail. Co., i McMuUan (South
Carol.), 385 (1841), and Farwell v. Boston and Wore. Rail. Co., 4 Metcalf
(Massachusetts), 49. Cf. an important art. in Michigan Law Review, ii.
p. 79, on the fellow-servant doctrine in the U. S. Supreme Court.'

way

'

FACTS.
by

into

servants

consequences

the

accept

to

157
of

the chap.

3?.

fellow servant, as an

negligence of a properly selected

The exception was,

however, much restricted in its operation by the Employers'
LiabiUty Act, 1880, and still further by the Workmen's
Compensation Act, 1897 \ Under the latter Act, in certain
ordinary risk of their employment.

specified

dangerous employments, and subject to certain

was made

exceptions, an employer

any question

of negligence, to

No

accidental injuries.

liable, irrespectively of

compensate his workmen for

contracting out of the Act was to

be permissible, unless with reference to some scheme of

Insurance approved by the Registrar of Friendly Societies.

An

Act

of 1900 applied the provisions of the last-mentioned

Act to agricultural and cognate employments ^ but the

whole topic is now governed by the consolidating and

amending Act

of 1906 \

The tendency on the Continent

to substitute systems

is

State Insurance for any direct liability of a master,

of

either for negligence or

under

an

implied contract of

indemnity.

The

II.

the

or, as

Germans would

connection

of

'

species of Facts,

may

A fact

i.

e.

of rights. Rights in

the connection and dis-

say,

Rechtsverhaltnisse

are due to Facts, but

two

and extinction

origination, transfer,

with their Subjects*,

'

be the result of either of the

an Event or an Act '.

either of

giving rise to a right has long been described as

a* title'; but no such well-worn equivalent can be found

for a fact

through which a right

by which a

right

is

transferred, or for one

is

extinguished.

new nomenclature

was accordingly invented by Bentham, which

'
*

& 44
& 64

43
63

Cf

Vict.

c.

42

Vict.

c.

22.

60

Savigny, System,

p. 170.
*

Supra, pp.

92, 102,

&

61 Vict.

c.

37

63

&

64 Vict.

p.

374 ;

ii.

p.

convenient

c.

37.

Ed. 7. c. 58.
Windscheid, Pand.
3

ii.

is

i.

'

RIGHTS AT REST AND IN MOTION.

158
CHAP. X.
Dispositive Facts.

found

for scientific use, although it has not

He

ordinary language.
i

^^

Dispositive

means
tive

lative

of

'

'

Investitive

'

those by

which a right comes into existence, as

those through which

'

into

describes this whole class of facts

distinguishing as

'

way

its

terminates, and as

it

those through which

'

it

Divesti'

Trans-

passes from one person to

another \

An

i-

Investi*'^^'

'investitive fact'

Latin

in classical
initium,'

and

'

finds its

the terms

in

two stages

'iustum

'iusta causa,'

In some, but not in

titulus.'

possible to detect

nearest equivalents

all,

cases, it is

in the acquisition of a right,

a more remote and a nearer, and

it

has been proposed to

them by describing the 'causa remota' as

the 'causa proxima' as 'modus adquirendi.'

distinguish
'titulus,'
'

Cavendum

says Heineccius,

ante omnia,'

est

modum

to assert that

'

dominium

can never be gained without the combination of a

giving a

'ius

'

titulus,'

personam,' and a 'modus adquirendi,'

in

which superadds the

undoubtedly

ne con-

adquirendi, quippe qui toto

fundamus titulum et
and he goes on
coelo differunt
'

'

'

ius in rem.'

traceable in

These two stages are

Roman

such a transaction as a

contract of sale followed by delivery, but they are by no

means universally present

rights,

and

is

it

in the

now admitted that

much overrated

the distinction has been

right

may

acquisition even of real

the importance of
^.

be conferred either by a direct act of the

sovereign power, or by some fact which brings a particular

In the

instance within the operation of a general law.

former case the investitive fact would be properly described

His further distinction

conferring rights,
facts into

tive'

and
Cf.

'

exonerative

Works,

iii.

'Investitive' facts into 'collative' as

imposing duties, and of Divesti' as

of

and impositive
'

'

'

destitutive

'

'

or 'ablative' as extinguishing

rights,

as extinguishing duties, seems to be of less value.

p. 189.

Der vergebliche Versuch, jede RechtsHein. Recit. ii. tit. 2. 339.

erwerbung auf einen iustus titulus und s. g. modus adquirendi zuruckBufuhren, ist nun allgemein aufgegeben.' Bocking, Inst. p. 44.
*

'

TRANSLATIVE FACTS.
*

as

privilegium,' in the latter

159

case as a

'

title.'

The chap.

x.

grant of a monopoly would be a fact of the former kind,

the death of an ancestor, bringing into operation the law

would be a

inheritance,

of

would be an instance
as 'Qualification,'

events

of

i.

of

e.

definite

fact

what

the latter kind, and

of

described by some writers

is

the substitution by the course of

instead

individual

of

an 'incerta

persona as the person entitled to a right \

'

2.

'divestitive fact' puts

an end to a right altogether

so the right of a tenant terminates with the expiration

of his lease,

and the right

his debt has

been paid.

3.

of a creditor

at an

^^^'

end when

Rights are more commonly transferred than altogether Transla-

extinguished, so that a divestitive fact

also,

is

from another point

of being regarded,

tive

is

Divesti-

very often capable

of view, as investi-

conveyance of land not only terminates

the rights of the vendor, but also originates those of the

purchaser.
called

fact

by Bentham

from such a

fact

is

'

view, and

this

fulfils

may

may

double function

and the right which

said to be acquired

Translative facts
of

which

translative,'

'

derivatively

is

results

^.'

be regarded from several points

be classified with reference to their

voluntary or involuntary character, to the persons between

whom

the

right passes,

fact

may

and

the extent of the right

to

passed.

The

be involuntary,

to the right are concerned,

it

i.

e.

may

as far as the parties Voluntary

be a mere external

event, such as a bankruptcy, the death of an intestate,

accession, adjudication, escheat
act

or

on the part of the person from

such as a contract of

sale, or a

it

may be

whom

a voluntary

the right passes,

testament.

In the latter

Austin,

iii. pp. 93-98.

Puchta, Inst. ii. p. 325, points out that in all derivative acquisitions
there is a legal relation between the auctor and the person acquiring not
merely a loss by one and gain to another, as in usucapio.

(^V
*

voluntary,

RIGHTS AT REST AND IN MOTION.

i6o
CHAP. X.

case

it

when

gratuitous,
*

Alienation

'

called

is

may be

which again

' :

the resulting acquisition

ex lucrativa causa,' or for an equivalent.

is

said to be

The

distinction

between involuntary and voluntary investitive

by the English law-terms

expressed

'

facts

law

act of

'

is

and

'act of party.'

The

persons.

or

translative

it

may

fact

may

pass a right from a deceased to a living person

or from a natural to an

The

ex-

tent.

person, or from one

artificial

The

person to another.

artificial

in

operate wholly 'inter vivos,'

may

person

artificial

some cases be the State itself.

The right passed by the translative

fact

cannot, as

a rule, be of greater extent than the right whence

it is

Non debeo melioris conditionis esse quam auctor

mens a quo ius in me transit ^' It may however either
be of less extent, as when a leasehold interest, or an
easement, is granted by an owner of land; or it may be
'

derived.

Succes-

the very right

itself,

in

which

latter case the translative

sion.

fact is called a

When,

Singular.

as

'

Succession.'

usually the case, the succession passes one

is

more separate

or

rights, as

the ownership of an estate,

or a leasehold interest in a house,

and was described

in rem,'

'

'

as

'succedere

universa

On

Dig.

the phrases

'

singular,'

succedere

universitatem,'

bona ','
is

known

which the Romans described by the phrases

per

here passes

'

'

called

a more complex kind of succession,

is

universal,'

Roman law by

is

in rei dominium.'

But there

Universal.

in

it

'

adquirere

what German

'in

per

universum

universitatem

jurists call the

'

ius,'
*.'

'in

What

Gesammthcit

Alienation, cf infra, p. 209.

.

1.

17.

175.

But Casaregis would substitute

I.

in mercantile

transfers the principle possession vaut titre.' This theory seems to

'

have

the interests of commerce, by recent German

Vierteljahresschrift fur Rechtswissenschaft, &c., N. F. vii.

been carried very

decisions.

far, in

p. 204.
'

Dig.

xii. 2. 8.;

Gai.

ii.

97.

xxi. 3. 3. i; xxxix. 2. 24. i;

xliii. 3. i. 13.

INTESTATE SUCCESSION.
the whole

des Vermogens,'

mass

man's property chap.

of

l6l
x.

whether consisting of rights 'in rem' or of rights 'in

personam,' or of both combined; and with the property,

bona activa,' the liabilities, bona passiva,' pass

Such a 'universal succession' takes place when
'

or assets,
also.

'

an executor, or administrator, or trustee in bankruptcy

succeeds to a whole group of the rights and liabilities
of a testator, or

an

Many forms

of

intestate, or a

This

an antiquarian interest.

bankrupt respectively.

succession

universal

have now only

the case, for instance,

is

with the 'addictio bonorum libertatium conservandarum

causa V with
the

'

Senatusconsultum Claudianum^ with

the

bonorum

Other forms, such as confiscation

venditio.'

bankruptcy and heirship, can never be. out

to the State,

of date.

The passage
heirs,

the

'

fact,

in

successio

habuit^' which
successions,

the rights of a deceased person to his Intestat*

of

is

is

universum ius quod defunctus

the most important

of

all

universal

brought about either by an involuntary

the man's death intestate, or by a voluntary act,

the making of his

Intestate
succession.

is

will.

chronologically

anterior

Recent investigators, and especially Sir Henry

Maine, have abundantly shown that there

but nttle trace of individual ownership.

had only the most precarious

children

their lives

testamentary

to

in

in early times

is

Even gro\vn-up
during

interest

the property which they were allowed

to

handle, and on their deaths their father took possession of

as a matter of course.

it

When

the father himself died,

his property passed of right to his surviving children, or

he

left

no children, then

collateral

members

wider family which

of his
is

to certain

family, or in default, to that

known

as a

'

gens

'

The

or clan.

idea that property really belongs to a family group,

Inst.

Gains, Dig.

1950

iii.

II.

1.

if

precisely designated

16. 24.

Inst.

ii.

la.

and

SllCCGS"

gioQ.

RIGHTS AT REST AND IN MOTION.

l62
CHAP.

X.

that the right of an individual

share of

his

it

during his

merely to administer

is

may

lifetime,

be said

still

to

survive in those provisions against the total disinheriting

which modern systems have borrowed from

of relations

Roman

law \ and

less obviously in the rights

as to the succession

and

the heir-at-law to real property,

of

an

of escheat, in default of

heir, to the lord of the

widely different in character.

fee, is

of this latter doctrine, that

It is as a

an intestate who dies leaving both

property,

and personal

and that the heir and the administrator have

devoured wholly on the

made upon

this

'

heres.'

Roman system

great inroad

The

cession.

principle

death'

property

his

of later origin than

is

Such a

succession.

by

man may

that a

whom

person on

is

^.

voluntarily select the

to

devolve after his

the principle of intestate

had at

selection

first to

be ratified

legislative authority, in order to oust the rights of the

relatives.

The gradual

a will, from the days

groA\i:h

when

it

of the

E.

g.

Code

Civil, liv.

tit.

iii.

2.

power

of

making

made in the
people drawn up in

could only be

*comitia calata,' or in the face of the

been

estate, vested absolutely in a testator or

intestate, passes to his personal representatives

tary suc-

lias

system by the Land Transfer Act, 1897,

under which real

Testamen-

the rights

all

real

between them what under the

divided

consequence

no one individual has been

recognised by English law as succeeding to

of

given to next

The feudal doctrine

under statutes of distribution.

of kin

chap.

3,

'de la Portion de Biens

disponible et de la Reduction.'
'

to

'

oil

60

&

amend
'

il

61 Vict. c. 65,

the

'

An Act

Land Transfer

to establish a Real Representative,

and

Act, 1875.'

Le testament est unacte parlequel

le testateur dispose,

n'existera plus, de tout ou partie de ses biens.'

Code

pour le temps

Civil, art. 895.

'Neque enim aliud videtur solatium mortis quam voluntas ultramortem.'

Quint. Declam. 308. A curious a priori justification of Wills is given by
Leibnitz: 'Testamenta mero iurenuUius essent momenti.nisi animaesset
immortalis. Sed quia mortui revera adhuc vivunt, ideo manent domini
rerum, quod vero heredes reliquerant, concipiendi sunt procuratores in
rem suam.' Nova Methodus lurisprudentiae, P. II. 20,

WILLS.
'

battle array,

in

163

through the twelve

procinctu,'

and the praetorian relaxations, down

enjoyed under the later Empire,
the

of

topics

teresting

the subject of

wide

liberty-

one of the most

is

history

points to which attention

to the

tables,

Roman

of

must be

in-

The

law.

directed in studying

testamentary disposition

in its

fully de-

veloped form, and with reference to each of which very

various

contained in

are

provisions

systems of

actual

law, are the following

The

(i)

from patria

The

(2)

potestas,'

effect,

testator acted

The

(3)
will,

'

as to age, freedom

testator,

coverture,' or the like.

any, to be given to proof that the

if

under mistake or undue influence

formalities necessary

for

the

execution of

such as signing, sealing, attestation, or enrolment in

a public

more

the

capacity of

'

office;

and the

special cases

in

formalities than ordinary are insisted

The contents

(4)

must be

of

expressly, or

upon ^.

Whether any

the will.

may

which fewer or

be only

relatives

tacitly, disinherited

whether the heir must be instituted before other matters

are mentioned

The

(5)

and so

forth.

capacity of the heir, or other person

take beneficially under the

various systems, of
witnesses, charities

The modes

(6)

may

'

the

querela

to

under

and churches.
which a will, when once well made,

in

the agnation of a

'

incapacities,

is

incertae personae,' corporations, priests,

subsequently become invalid

by marriage; or

The

will.

who

in

new suus
'

which

as in

heres,'

and

may be

it

Roman law by
in

English law

set aside,

e.

g.

by

inofficiosi.'

Roman and modern English law on this

Lord Hardwicke's judgment in Milner v. Milner, i Vesey, 106,
and Story, Equity Jurispr. 179.
- The formalities will, for instance, be more elaborate in the case of
a blind man, Cod. vi. 22. 8; less so in the case of a soldier on active
service, 7 W. IV. and 1 Vict. c. 26. 11.
1

On

the differences between

point, see

chap. x.

RIGHTS AT REST AND IN MOTION.

l64
CHAP. X.

(7)

Whether

the

devolves

inheritance

through the operation of the

immediately

whether any act

will, or

is

necessary on the part of the heir or executor, such as the

Roman law \

in

or

executor
(8)

the procuring

which

judicial authority,

other than the 'necessarii'

heirs

or 'aditio' of

'cretio'

is

of

from a

probate

demanded from an Enghsh

^.

Whether the

heir can refuse to accept,

and how

far he can claim to be relieved from liabilities in excess

of assets.

may be

It

well to observe that although an English

executor did not take the whole property of

who

a person

dies leaving real as well as personal property, yet

he

might well have been regarded as a universal successor,

so far as relates to the personal property

upon

Legacies.

it

and the claims

One form

of singular succession

so closely connected

is

with universal succession under a testament as to be unintelligible

apart

from

a defuncto relicta^'
for the benefit of

it*.

Legacy, 'donatio quaedam

a deduction from an inheritance

is

some

one.

It is the creation of a claim

upon the universal successor ^ and a

distinction

is

drawn

Before which the hereditas was described as iacens,' and was treated
'

as a juristic person.
' He may also render himself liable by intermeddling with the estate,

when he is said to become 'executor de son tort.'

' As to his position with reference to real property, under the Land
Transfer Act, 1897, v. supra, p. 162 n. 2. The early history of the English
executor is discussed with great learning by Mr. Justice Holmes in The

Common Law,

p. 344, and in the Harvard L. R. xii. p. 446, where he

traces the executor from the sale-man of the Lex Salica.
'

'

extra propositam quidem materiam videtur nam

loquimur de his iuris figuris quibus per universitatem res nobis adquilocuti sumus, non sine
runtur: sed cum omnimodo de testamentis
causa sequenti loco poterat haec iuris materia tractari.' Gai. ii. 191.
*

'

Quae pars

iuris

Inst.

ii.

20.

I.

Although, according to Neratius, 'ea quae legantur recta via ab eo

qui legavit ad eum cui legata sunt transeunt.' Dig. xlvii. 2. 64.
'

'

LEGACIES.
between the

'

vesting

of the legacy,

'

becoming payable, 'dies

the testator, or
sistent with

it

may

any rule

of

property which
persons

'

receive them.

they

its

chap. x.

may be revoked by
be void

may

incon-

if

law as to the amount of

which

and

dies cedit,'

It will

to remain with the

is

who may

It

venit.'

'lapse.'

as to the proportion

or

165

bear

legacies,

the

to

heir, or as to the

Legacy must be

tinguished from a 'donatio mortis causa

^'

dis-

which, though DonatlOTlPS

donoi does not do so^ortig

takes effect on the death of the donor,

it

by way of deduction from the inheritance.

Having now considered the general

law and

of rights,

we

a more detailed examination of

three great heads of

'

characteristics of

are in a position to enter

private,'

'

upon

our subject, under the

public,'

and international
'

law.
1

'Cum magis se quis velit habere quam eum cui donatur, magisque
quam heredem suum.' Inst. ii. 7. i. On the evils of the

euro cui donat

wide applicability to securities of

day, see L. Q. R. ii. 444-

'

donatio mortis causa' at the present

CHAPTER
PRIVATE LAW

The
ation

which we are about

of division

we

enter,

distinguish at
in

which were explained

'adjective,' that is to say,

is

may be most
the outset the

These are to be

it.

of

the principles

in a preceding chapter,

which seems best suited

Private law, as thus treated,

Substan-

IN REM.'

'

by a successive application

in the order

adjective,
law.

if

to

which are contained

topics

ascertained

tive,

RIGHTS

great department of law, upon a detailed examinof

conveniently studied

main

XI.

to the subject.

either

'

substantive

'

or

either defines the rights of

it

individuals, or indicates the procedure

by which they are

to be enforced.

Normal,
abnormal,

The

rights dealt with

by substantive law may be

'normal' or 'abnormal,' as the persons with

either

whom

they

rights.

are connected are of the ordinary type, or deviate from

Both

Antecedent,
remedial,

rights.

which exists

right of the former kind,

committed.
person

it.

classes of rights are either ' antecedent 'or ' remedial.'

who

it

will be

irrespectively of
It is
is

in Middlesex, or

remembered,

is

one

any wrong having been

an exceptional advantage granted to the

clothed with

it.

the merchant

The devisee

who

of

a house

has bought a cargo

'

THE ORDER OF STUDY.

of rice,

by virtue

is,

167

of being thus devisee or purchaser, in

chap. xi.

enjoyment of powers which are not possessed by the rest

A right of

of the population.

way

given by

is

rem

'

or

is

when an

one which

antecedent

Antecedent rights are either

right has been violated.

'

the latter kind

of compensation

'

in Rights

that is to say, they are available personam.

personam
the whole world or against a definite

in

'

against

either

Thus the proprietary

individual.

a house

is

good against

landlord to his rent

is

all

right

of the

owner

of

the world, while the right of a

good primarily against his tenants

Remedial rights are most usually available only

'in per-

sonam,' though proceedings against a ship in the Court

of Admiralty,
'

in rem,' as

obtain

or to

was the

'

actio

a divorce, are undoubtedly

quod metus causa

law^ Ulpian pointed out that all

videantur concepta, vi tamen ipsa
distribution of the subject

may

'

in

Roman

rem
sunt^' Our

interdicts, 'licet in

personalia

be more shortly expressed

as follows

Substantive,

Normal

Antecedent

Private

law

is

Un
'

defining

rem,

in personam,

rights,

.Remedial.

which are

either

Abnormal.
-Adjective, providing for the protection of rights.

"We

shall begin

with the consideration of the substantive

law of the various species of normal

treat of the

law of abnormal

rights.

rights,

We

shall then

and conclude with

the topic of Adjective law or Procedure.

Normal

rights

may

be, as

has been already explained,

either Antecedent or Remedial, and rights of the former

See Mr. T. Cyprian Williams' learned article in 13 L. Q. R. 288,
landlord's remedies other than those against his tenant.
* 'Cirni autem haec actio in rem sit scripta, nee personam vim facientis coerceat, sed adversus omnes restitui velit quod metus causa
' Dig. xliii. i. i.
factum est.' Dig. iv. 2. 9. 8.
1

upon a

'

PRIVATE LAW: RIGHTS 'IN REM.'

l68
CHAP.

XI.

kind

may be

of Private
Rights in

tion of

'

either

law

rem

in

or

'

will naturally

The study

in personam.'

'

commence with an examina-

normal antecedent rights

'

in rem,'

i.

e.

of rights

ex-

which, irrespectively of any wrong having been committed,

amined.

^re available for the benefit of the person of inherence

^
firat

against a person of incidence so unlimited as to comprise

Rights of this kind are both numerous

the whole world ^

and important, and must be examined

A distinction is

call

'

Rights of the former

essential,'

'

Urrechte and erworbene Rechte V

'

'

'

'

which are also said to be

kind,

'inborn,' 'fundamental,'
universal,'

due order.

very generally drawn by German writers

between what they

'

in

inahenable,' 'natural,' 'immediate,'

unconditional,' or absolute,' are such

'

human being possesses independently of any act

own while rights of the latter kind, described

as every
of

his

also as

'

'

derivative,'

mediate,'

'

alienable,'

'hypothetical,' are the result of

some

between the two classes of rights

is

'

accidental,' or

free act.

The

line

however so variously

drawn, and must always be drawn subject to so many

and reservations, that the

qualifications
little

value.

We

have called attention to

distinction
it

only as

is

of

illus-

trating that graduated intimacy of relation between the

right

and

its

subject which

we

shall

take as our guide

upon which

in determining the order of the investigation

we

are about to enter.

We

shall begin

with the right which

is

most

closely

connected with the personahty of the individual entitled

to

it,

and

The new

shall

Civil

proceed to consider, one after another,

Code

Germany, by an inconvenient inversion of

for

the order of treatment hitherto accustomed, deals with Sachenrecht

after the Recht der Schuldverhaltnisse.' This order is followed in the
'

'

Digest of EngHsh Civil Law, edited by Edward Jenks, of which Book I

appeared in 1905; as also in the German edition of the same work (Das
biirgerliche Recht Englands) with a commentary by Dr. Schirrmeister.
Continuations of this work have appeared from 1906 to 1916, almost
yearly.
2

c. i:

'OfBcia et iura connata

Roder, Naturrecht,

i.

Wolfius, lus Naturae, Pars

but see Savigny, System, i. p. 335.

acquisita.'

p. 174;

i.

PERSONAL SAFETY.

169

those rights which are progressively less connected with

his proper

and are more connected with the

personality,

which he

control

allowed to exercise over the actions

is

and with the advantages which he

of others,

from the world

to derive

Taken

in

which he

may be ranked

is

allowed

lives \

now under Classifica-

in this order, the rights of the class

consideration

chap. xi.

as follows

antece-

dent
I.

II.

To
To

personal safety and freedom.

the

and control

society

vl^!?fl

and

one's family

of

dependents.
III.

IV.

To reputation.
To advantages open

to

community generally;

the

such as the free exercise of one's

calling.

V. To possession and ownership.

VI.

To immunity from damage by

we

In each case

fi'aud.

have to consider not only the

shall

nature of the right in question, but also the character

of the act

by which

origination,

transfer

it

Our

extinction ^

elsewhere, be

will here, as

and the modes

violated,

is

and

drawn

chiefly

of its

illustrations

from the law

of England.

I.

Rights to personal safety and freedom are the most Personal

widely enjoyed of

any.

They

are

possessed

one who has not waived or forfeited them.

acquired at the
to be

'

innate,'

years of
chastise

life,

moment

of birth,

though they are

by the right

and keep

by every ^^ ^^'

They

are

and are therefore said

limited, during the earlier

and guardians to

of parents

in their custody persons of tender age.

Similar rights of custody,

and even

of chastisement,

have

i, Cave J. suggests a
Mind, Body, and Estate. On the essential difference between the right to personal safety and
the right to property, see Brunsden v. Humphrey, 14 Q. B. D. 141. Cf.
'Dominus membrorum suorum nemo videtur.' Dig. ix. 2. 13. pr.

* In his opinion in Allen v. Flood, [1898] A. C.

division of rights into those relating respectively to

'

Cf. infra, eh.

xiii.

PRIVATE LAW: RIGHTS

I/O
CHAP. XI.

'IN REM.'

been at various periods recognised also with reference to

women.

These rights are of course, from their nature,

They may be

incapable

of

who engages

person

transfer.

waived.

partially

a lawful contest of strength

in

waives, by so doing, as against his antagonist, his right

not to be assaulted and battered \ and any complaint

by him

in

defence of 'volenti non

So a

sailor

who

or 'leave

fit iniuria,'

and

licence.'

enters on board ship waives for the voyage

waiver of rights of

An

own movements.

right to direct his

his

made

such a case would be well answered by the

unUmited

kind, such as a self-sale into

this

slavery, or a self-dedication to

monkish

recognised in early systems of law,

is

seclusion,

though

discountenanced by

They may be temporarily forfeited.

In other words complaints founded upon a violation of
as in English
them may be met by a plea of 'justification
law a complaint of assault is well answered by a plea
modern

civilisation

'.

'

of son assault demesne, provided always that the violence

complamed
first

of

not out of

is

all

used by the complainant.

They

are, in

many

proportion to the violence

They terminate with

cases, violated

that degree of will which

is

by

death.

acts exhibiting only

called neghgence.

In enumerating the rights of this kind which are recognised in advanced states of society,

it

will be convenient to

begin with those which have the widest extent,

the injury

m
i.

is

more and more

order to rights
e.

where there
violent

tinctly

i.

e.

where

an act of the slightest kind, and to proceed

is

restricted

no injury unless the act

character, or

is

is

accompanied

in

scope,

of a dis-

by actual

damage.
^-

Menace.

A man

has

right not

gestures, as by the shaking of

ed.
'

to be even

fist,

menaced by

the brandishing

Similarly by submission to a surgical operation. See Pollock, Torts,

viii.

p. 167.

For limitations on the rule liberos privatis pactis non posse servos

fieri,'

'

see Dig. xl. 13. 3, Inst.

i.

3. 4.

PERSONAL SAFETY.

171

Such acts may

any wrongful character, if the

of a stick, or the presenting of a pistol.

however be deprived

of

parties be so distant that

no contact

is

words are used showing that no harm

where a man
manner, but

laid his
said,

'

hand on

If it

A man

with by one who

who

or

3.

would not

manner, thus sustaining a

This

right

is

not interfered

pushing his way gently in a crowd,

is

touches his neighbour to attract his attention, or

him

intended, as

is

in a threatening

j^ou'.'

'battery' in English law.

gives

if

has a right not to be touched, pushed, or Assault.

in a rude or hostile

struck

sword

were not Assize time

take such language from

2.

his

possible \ or

chap. xr.

a jocular

man

and friendly blow.

has a right not to be wounded or disabled, Wound-

whether by deliberate

assault, or

by negligence ^ such

as^"^'

that of a reckless cab-driver, or of a railway company,

which sends a train over an inadequately protected level

crossing *.
4.

A man

has a right to go where he pleases, so long imprison-

as he does not interfere with

the rights of others, and^*"

any one who prevents him from so doing, whether by

constraint actually applied, or by such

show

-of

authority

or force as has an effect on the will equivalent to actual

constraint,

is

said in

English law to be guilty of 'false

imprisonment.'

An

act

which appears to infringe a right

of one of the

three last mentioned kinds often does not really do

may

so.

It

be justified on the ground of self-defence, of defence

of a friend or of property, of preservation of the peace,

Cobbett V. Grey, 4 Ex. 744.

Tuberville v. Savage, 1 Mod. 3.

' Supra, p. 112.

a motor-omnibus, injured by its skidding on a greasy
road, has no claim for compensation, although the tendency of the vehicle
to skid on a road in that condition is notorious. Wing v. London Gen.
Omn. Co., [1909] 2 K. B. (C. A.) 652. On perils from air-ships, see articles
by Judge Baldwin and A. K. Kuhn, in the Am. Journ. of Int. Law, iv.
*

A passenger in

pp. 95, 109.

PRIVATE LAW: RIGHTS

1/2
CHAP.

XI.

or of the execution of
to

fact

taken

be

The

process \

legal

subject

'IN REM.'
right

is

in

on various

qualification

to

grounds.

The heads
without

of right hitherto

causing

with those which

Dangerous
things.

A man

5.

we

mentioned

damage.

actual

This

be violated

not the case

are about to describe.

has a right not to receive injury from any

stores

up a great bulk

of

law, to do so 'at his

peril,'

if

one

said,

by English

liable,

should

of the reservoir, or the

may have

possible care to prevent the mischief

would attach

is

and mil be

damage be done by the bursting

escape of a tiger, although he

Any

water in a reservoir, or

keeps a caravan of beasts ferae naturae^

places.

is

dangerous substance or animal kept by another.

who

Dangerous

may

*,

taken the greatest

The same

liability

to the keeping of animals mansuetae naturae^

known to be vicious ^
6. A man has a right

that his

personal safety shall

not be infringed by the negligent exercise on the part of

own rights, or rather

own rights; as when

others of their

of

what might appear

to be their

person

house to be in such bad repair that

it falls

allows

his

on a passer-by,

or allows the existence of latent dangerous places in his

house or land, whereby damage

is

sustained by persons

non videtur iniuriae faciendae causa hoc

enim executio nemini facit iniuriam.' Dig. xlvii. 10. 13.
Cf. Williams v. Jones, Hardw. 301.
2 Cf. supra, p. 150 n. In Baker v. Snell (1908), 77 L. J. K. B. 726, the
owner of a known vicious dog was held to be liable, although it had been,
by his servant, wantonly set on to the plaintiff.
3 The need for proving the scienter, when damage is done by dogs
to cattle or sheep, has been dispensed with by 28 & 29 Vict. c. 60. The
distinction drawn by English law between animals ferae and mansuetae
naturae, and the similar distinction drawn (for a different purpose) by
Romto law between feritas genitalis and that which is contra naturam,
Inst. iv. 9, finds no place in continental systems. See thfe Code Civil,
art. 1385, and the German Civil Code, 833. The American Courts do
not accept the view that wild animals are kept 'at one's peril.' See
an article by E. O. S. in the Journal of Comparative Legislation, N. S.
No. i. p. 54, citing Scribner v. Kelley, 38 Barbour N. Y. 14. Cf. supra,
'

'

Is qui iure publico utitur

facere, iuris

p. ISO.

PERSONAL SAFETY.

173

having lawful business there, or exercises a statutory

chap. xi.

power without due care ^

Not

dissimilar

man

the narrowly limited right of a

is

not to be damnified through breach of a contract to which

he

is

not a party, as by the sale of an imperfect article by

which he
It

is

eventually injured I

might perhaps be supposed that since a

man

has Not

a right not to sustain personal injury, he has a fortiori

a right not to be killed.
since

case,

unless

its

but the

This

is

however hardly the

no 'antecedent' right can be said to

infringement gives rise to a

right,

if

any, to

redress

for

'

remedial

the

It

it

vests in

man

at the

him '.

would seem that a man has no right

from needless mental

right

'

infringement

of the right in question dies with the injured

very moment when

exist,

of

immunity

suffering*, unless, perhaps,

'nervous shock' causing bodily

from a

illness ^

On

a wider liability for injuries sustained for licensees who are young
W. Ry. of
Ireland, [1909] A. C. 229. May an occupier's knowledge that trespass is
habitual convert a trespasser into a licensee? Lowery v. Walker, [1909]
2 K. B. 433.
* See Longmeid v. Holliday, 6 Ex. 761; Thomas v. Winchester, 6 N. Y.
397; George v. Skivington, L. R. 5 Ex. i.
* In this, as in most other cases of delict, actio personalis moritur cum
persona, i. e. the remedy ceases to be enforceable upon the death of either
the party injured or the wrong-doer. For criticisms upon the applications of this maxim, see Pollock, Torts, ed. x, pp. 64-70, and T. F. Martin, in Z2) L. Mag. & Rev., p. 23. Lord Campbell's Act, 9 & 10 Vict. c.
93, does not keep alive the right for the benefit of executors, but creates
a new right, on the analogy of what was already common law in Scotland,
for the benefit of the 'wife, husband, parent and child,' and no other
person, to compensation for the shortened life and labours of the deceased. It is, however, held that if the deceased has accepted compen*

children, see R. R. Co. v. Stout, 17 Wall. 667, Cooke v. Midi. G.

sation for his injuries, his representatives have no fvirther right of action.

Read v. Gt. E. Ry. Co., L. R. 3 Q. B. 555.

* So held in the Supreme Court of Maine (1880), in Wyman v. Leavitt,
36 Am. Rep., 303; where see the learned note, citing dicta in Lynch
v. Knight, 9 H. L. 598. (Ridiculously enough, damages were awarded
for the

disappointment of a bride, who did not receive her trousseau in

time, in Lewis v. Holmes, 109 La. 1030.) Cf. Victorian Railways Commissioners V. Coultas (1888), 3 App. Ca. 222; Mitchell v. R. R. Co., 151
v. W. Union Tel. Co., 60 N. E. 416.
This distinction has been drawn in certain later cases in Texas, Am.

N. Y. 107; Ferguson
'

to be

PRIVATE LAW: RIGHTS

174
CHAP.

Family
Riights.

XI.

II.

'IN REM.'

Rights to the society and control of one's family.

These family-rights

'in

from those rights

'

family

may have

rem must be
'

personam

in

against

its

'

carefully distinguished

which a member

of a

other members, and with

which we have at present no concern.

They

all

result,

from the institution of marriage,

directly or indirectly,

has' drawn woman from the

and most humiliating servitude, has distributed
the mass of the community into distinct families, has

which, as

Bentham

well said,

'

severest

created a domestic magistracy, has formed citizens, has

extended the views of

men

to the future

through affection

for the rising generation, has multiplied social sympathies

\'

They may be distinguished as 'marital,' 'parental,' 'tutelary,' and dominical.'

I
The marital right of a husband, as against the world,
is that no other man shall, by force or persuasion, deprive
him of his wife's society ^ still less be criminally intimate
'

Marital.

with her.

An

analogous right might of course be con-

ceivably recognised as vested in the wife, and has been

so recognised in recent

Law Review,

1895, p. 209;

American cases ^

and where a wife had become

ill

from a shock

to her nervous system, caused by a statement falsely and wantonly made

to her that her husband had met with a serious accident, the informant

was held by Wright J. to be liable in damages for having wilfully done

an act calculated to cause physical harm to the plaintiff: that is to say,
'

to infringe her right to personal safety.' Wilkinson v. Doumton, [1897]

2 Q. B. 57. So in Dulieu v. White, [1901] 2 K. B. 669, where shock had

caused premature confinement with a child born an idiot.

1 Bentham, Principes du Code Civil, par Dumont, iii. c. 5.
* Cf. the interdict 'de uxore exhibenda ac ducenda,' which could be
obtained even by a filiusfamilias against his father. Dig. xliii. 30. 2.
See Westlake v. Westlake, 34 Ohio St. R. 621; Kneesy v. Exner,
Brooklyn Superior Court, N.Y.; Mehrhoff v. Mehrhoff, U. S. Circuit
Court, 26 Federal Reporter, 13 (with a reference to which the author

was kindly furnished by Mr. Roger Foster, of New York) Foot v. Card,
58 Conn.; and an article on 'The Husband-seducer,' in 26 Am. Law
Review (1892). The proposed Civil Code for the State of New York
expressly forbids, Pt. ii. 32, 'the abduction of a husband from his wife,
or of a parent from his child.' (Professor F. M. Burdick of Columbia
University, kindly informs me that this Code has been adopted in
;

FAMILY.
The

right

175

acquired by Marriage, the nature of which chap

is

has varied with varying civiUsation.

it

seems to have consisted

the

woman by

the man.

the forcible

in

capture

the

woman by

more modern form

individuality of the

of

Later the capture becomes a

symboUcal ceremony, following on a voluntary

gift of

or

sale

her relatives to the man.

The

still

marriage, possible only

when

the

of

woman

has received recognition,

is

that of a mutual and voluntary conveyance, or dedication,

of the

one to the other

*.

The contract of marriage, giving

must obviously be governed by

rise,

as

it

does, to a status^

rules varying

from those governing contracts generally.

voidable,
for

i.

e.

the marriage

may

It

somewhat
is

indeed

be declared to be a nulUty,

any reasons which negative a true consent, such as are

As

lunacy and duress I

to mistake, according to the canon

law: 'non omnis error consensum excludit, sed error alius

est personae, alius fortunae, alius conditionis, alius qualitatis ^'

It is

person

whom

admitted on

all

hands that mistake as to the

one mtends to marry

of the contract*.

It is equally

free

Mistake as to condition,

who

is

fatal to the

vaUdity

admitted that mistake as

no

to social or pecuniary position has

tract ^

is

i.

e.

really a slave, could not

effect

upon the con-

beUef that a person

now

occur.

Montana and North and South Dakota.)

is

Doubt can

Cf. Lords Campbell

H. L. 577.
^ The discussion of the question how far marriage is something more
than a contract led to the theory of Gratian that sponsalia are only an
initial marriage, needing to be perfected by physical consummation; to
Peter Lombard's distinction between verba defuturo and verba de praesenti;
and to the requirement by Vacarius of a mutual traditio, suggested doubtless by the in domum deductio of the Civil Law. See F. W. Maitland in the
Law Quarterly Review, xiii. 135. Cf. also infra, chap. xii.
^ Scott V. Sebright,
12 P. D. 21. On duress, see Cases collected in
Columbia, L. R. vii. p. 128; on fraud, ib. ix. p. 552. Cf. C. A. H. Bartlett in 33 L. Mag. & Rev. p. i.
' Decretum, Causa, xxix. q. i.
Cf. Ayliffe, Parergon, p. 361.
* The decree of nullity, on the ground of misnomer, in Wilson v. Horn,
41 Scottish Law Reporter, would seem to be questionable.
' Cf. R. Browning, The Ring and the Book, ii. 1309-13 19.

California,

and Brougham,

in

Lynch

v. Knight, g.

xi.

In primitive races Marriag.

PRIVATE LAW: RIGHTS

176
CHAP.

XI.

'IN REM.'

what Gratian

therefore only arise with reference to

'error qualitatis,' as to

own

only on his

authority

quam

vel corruptam,

potest

earn

calls

which he lays down, apparently

'
:

qui ducit in

uxorem meretricem

putat esse castam vel virginem, non

dimittere et aliam

ducere.'

This view has

been by no means generally accepted, at any rate when

the

woman

proves to be

pregnant aliunde, by Courts,

whether Catholic or Protestant, administering the

Law.

It is contradicted

the Code Civil,

art.

Austrian Civil Code,

art. 1333; as well as

Canon

by the interpretation placed upon

the Codice Civile,

i8o,

art. 58,

art.

and the German

by a course

of

105,

the

Civil Code,

American decisions \

It was, however, followed in the Privy Council in 1835 ^

and

in 1897

had

by

Sir. F.

unwittingly

Jeune, in the case where the husband

married

woman

advanced

far

in

pregnancy by another man*.

Marriage has been very generally associated with some
religious

observance, and in

valid only

when performed

modern times

in the

manner

the ceremony

of the Council of

must take

as a rule,

hj the State

in the presence of oflBcials recognised,

where the decrees

is,

prescribed,
;

and
e. g.

Trent are accepted,

place in the presence of a priest.

The law of Scotland, a survival from prae-Tridentine

times, demands for a valid marriage only the mutual consent of competent parties, which

may

be established not

only by a declaration de praesenti, but also by verba de

Reynolds v. Reynolds, 3 Allen (Mass.) 605, extended by Smith

Mass. 404. Di Lorenzo v. Di Lorenzo, 174 N. Y. 473. So also
at the Cape, in Horah v. Horah (1861), 3 Searle, 389. In the recent case
of Shaw V. Shaw, in the Natal Law Reports, it appeared that early Dutch
authorities held antenuptial incontinence, unknown to the husband, to
be a ground of nulhty; but this effect is now allowed only to antenuptial
pregnancy, known to, and un-condoned by, him. The U. S. cases are
attacked by L. M. Friedman in American L. R. xxxii. p. 568; defended
^

E.

g.

V. Smith, 171

by F. G. Fessenden
*

in

Harvard

L. R.

xiii.

p.

no.

Swift V. Kelly, 3 Knapp, 256.

Moss V. Moss, [1897] P. 263, in which the authorities were carefully

considered.

FAMILY.

177

futuro subsequente copula^ and even by cohabitation with

'habit and repute

ing between

The

\'

contract

who have

persons

is

generally only bind-

attained

a certain age,

and who are outside of certain degrees of consanguinity

or affinity ^ among which 'fosterage' has sometimes been
reckoned.

The consent

often also prescribed

Marriage

of parents or other guardians is

*.

defined by Modestinus as

is

et feminae et consortium

communicatio *

omnis

by Kant

' ;

as

'

Coniunctio maris

vitae, divini et
'

die

humani

iuris

Verbindung zweier

Personen verschiedenen Geschlechts zum lebenswierigen

wechselseitigen

Polygamy,
is

i.

e.

Besitz

ihrer

Geschlechtseigenschaften

polygynaeky or polyandry, has been and

recognised as marriage in

many

parts of the world, but

the tendency of the higher races of mankind

towards a recognition of

Of marriage
in legal

*.'

monogamy

for a definite period

is

doubtless

as alone legitimate^*

but slight traces occur

systems '.

Under the marriage law of ancient Egypt, which was

strictly monogamous, the woman seems regularly to have
been taken on probation for a year, after which she was
'

established as a wife

Ersk. Inst.

i.

^'

2-6.

6.

So not between a man and his deceased wife's sister, prior to

7 Ed. VII, c. 47^
But the Council of Trent, Sess. xxiv, Decretum de Reform. Matr.,
qui falso affirmant matrimonia a fiHisfamihas sine
c. I, anathematises
consensu parentum contracta irrita esse.' See A. Rivier, Droit de Famille
Romain, p. 142.
* Dig. xxiii. 2.1.
^ Werke, vii. p. 76.
* So the Enghsh Courts have refused recognition in Hyde v. Hyde, L. R.
I P. & M. 130, to a Mormon, and in Bethel v. Hilliard, 38 Ch. D. 220,
to a Baralong marriage. On the other hand, a Japanese (monogamous)
marriage was declared valid in Brinkley v. Atty. Gen., 15 P. D. 76.
' Such marriages are regulated with the utmost precision by the Shiah
system of Muhammadan law. Tagore Lectures, 1874, p. 373. But it is
expressly enacted by art. 13 of the Egyptian 'Statut personnel du droit
Musulman,' that 'le mariage temporaire, celui dont la dur^e est limit^e
k un temps determine, ne se contracte pas valablement.'
* Revillout, Chrestomathie D6motique, 1880, p. cxxxii.
^

'

1950

chap.

xi.

PRIVATE LAW: RIGHTS

1/8

The marital

CHAP. XI.

of waiver'.

or

parties,

right
It

is

of course inalienable,

terminates on

their

divorce.

As

and incapable

the death of one of the

the permissibility of

to

and the grounds on which

divorce,

'IN REM.'

ought to be granted,

it

the widest difference has prevailed in different systems.

Rome

At
ship
it

while

sacrament,

is

stances

party

either

pleasure ^

at

might

repudiate

according

indissoluble

relation-

under

any

law

circum-

*.

Under some systems marriage may have

legitimating previously born children

effect, in

The

the

the canon

to

right

is

infringed

by so injuring the wife as

deprive the husband of her services

or harbouring

The

man's wife ^
called in

of,

or
'

a retroactive
*.

also

to

by abduction

by criminal intimacy with, another

co-respondent,' as the adulterer

English law,

is

not liable for his act

unaware that the woman was married

if

is

now

he was

*.

No damages

will however be granted against a co-respondent if

shown.
^
Libera matrimonia esse antiquitus placuit, ideoque pacta, ne liceret
divertere, non valere.' Cod. viii. 39. 2. In the older Roman law, a
paterfamilias could divorce a son or daughter in his power; but see
*

collusion

is

'

Dig.

Ixiii.

30.

I.

5.

Divorce is still unknown in Italy, as was the case in France (except

during the interval 1792-1816) till the year 1884, and in England
(except by Act of Parliament) till the institution of the Court for
Divorce and Matrimonial causes, in 1857. In Germany divorce has
long been generally and readily permitted, as it is in most of the States
of the American Union. See tlie interesting work of Dr. Theodore
D. Woolsey, Divorce and Divorce Legislation, 1882 and D. W. Amram,
The Jewish Law of Divorce according to the Bible and Talmud, 1898.
On the laws of marriage and of divorce in different countries, see Pari.
Papers 1894 (c. 7392), and Sir D. Fitzpatrick, in Journal of Comp. Legisl.,
N. S. Nos. V. p. 359, viii. p. 157. On Indian marriage laws, see ib. viii.
^

p. 271.
*

On

'legitimatio per subsequens matrimonium,' see Journal

Comp.

No. vi. p. 23.

' This last mentioned infringement of the right, besides giving rise
to a right of redress, may also affect indirectly the matrimonial status
itself; as will appear hereafter.
6 But see Lord v. Lord & Lambert^ [1900] P.
297, drawing a distinction
Legisl.,

N.

S.

between damages and

costs.

FAMILY.
The parental

2.

179

right extends to the custody

and control

of children, and to the produce of their labour,

arrive at years

which

them the

of

it

they

chap. xi.
^*'"^^'-

In case of disagreement

discretion.

of

between the parents,

till

becomes necessary to determine to

right shall belong, or to apportion

it

between them.
It is acquired

on the

on the adoption of a

It

also,

under some systems,

under some systems,

is,

of the child to another person

adopts him, or by the father giving himself, together

with his children,

delegated

adoption to

in

another.

may

It

terminates with the death of

It

be

master

for instance, to a schoolmaster, or to the

an apprentice.

of

and

child.

by emancipation

alienable

who

birth,

the

parent or child, with the emancipation of the child, or

by

attaining full age, by marriage, also

his

by

judicial

sentence.
It

is

by an

infringed

control

of

parent

act

over

with the

which interferes
his

cliildren,

with

or

the

advantage which he derives from their services. The much-

abused English action for seduction

with

legal

girl herself,

who

is

quite in

The person wronged

principles.

harmony

is

not

the

ex kypothesi has consented to the act,

but her parent, or other person entitled to her services,

who

is

damnified by

its

law has, on grounds of

recovered in this

results \
policy,

action far

in

It is true that

English

allowed damages to be
excess of the value

of

the lost service I

3.
'

as

The

right of a

'

tutor,' or guardian, defined

ius ac potestas in capite libero

propter aetatem se defendere nequit

by Servius

ad tuendum
^' is

eum

Tutelary,

qui

of course given to

>
So no action lies against a seducer who is also the girl's employer.
Whithourne v. Williams, [1901] 2 K. B. 722. By Scots law a woman
seduced, with professions of honourable intentions, has herself an action.
Gray v. Brown (1878), 5 Rettie's Rep. 971.

See Dicey, Parties,

p.

329 n.

'

N2

Dig. xxvi.

i.

i.

PRIVATE LAW: RIGHTS

l8o
CHAP. XI.

him not

own

for his

benefit,

ward\ whose want

or

and whose

affairs

of understanding

may

of Chancery.

'

extension

be conferred by the last

classes

vest in a tribunal, such as the Court

cannot refuse to accept the

the

he supplements,

artificial

According to some systems, the guardian

which

office,

regarded as

is

In French law a

being of a public character.

tuteur'

an

by devolution on certain defined

may

of relatives, or

It is

by a deed executed by him*, or by

will of the parent, or

act, or

but for that of his ' pupillus,'

he manages.

of the parental power, and

a judicial

'IN REM.'

'

subroge

appointed by the family council as a check on

is

The

tuteur '.'

right terminates on the death of tutor

or ward, on the resignation or removal of the former, and

on the marriage of the

By

age.

the older

ward

at

law, a

an early

age, generally at fourteen

a boy and twelve in the

case of

attainment of a certain

woman was under

Under those systems which

petual guardianship.

the

latter or his

Roman

case of

the superintendence of his guardian, he

may

per-

release
in the

girl,

from

be placed for

a further period under the lighter control of a 'curator,'

whose duties cease when the ward attains the age of

Such curators, and the curators, or comfull majority.
or persons interdicted as prodigals,

mittees, of lunatics

are generally appointed by a court of justice.

The

right

is

infringed

by any interference with the

control of the tutor or curator over the person or property

of the ward, lunatic, or prodigal

4-

Domini-

The

*.

right of a master over his slave was, in early

cal.

The

lord's

wardship

the contrary, for his

' See Stat. 12 Car.

&

49
'

50 Vict.

Code

in chivalry,

own

without account of

profits,

was, on

benefit.

II. c. 24. s. 8, as varied, in

favour of the mother,

b}'

c. 27.

Civil, art. 420.

On

the writ of 'ravishment of gard,' see 2 Inst. 440. "WTien the

tutelary right has been vested in a Court, any infringement of it becomes
a matter of public law. Thus interference with a ward of Chancery is
*

treated as

'

contempt of Court.'

CONTRACTUAL.
law, of precisely the

which he had over

and transferred

was capable

of

The

right

is

'

was

It

chap, xl

also acquired, lost

had reference
disabilities of

patron!,'

infringed

to the

position of those

legal

The

towards their

his cattle.

as that

same way, except that the slave

being manumitted and the peculiarities

and the

to be slaves.

same extent and character

in the

of the subject all

mission,

l8i

fill

by

him so that he becomes

'

modes

of

manu-

who had

ceased

libertini,'

and

a large chapter hi
killing the

slave,

less valuable \

or

their

duty

Roman

law.

by injuring
by enticing

him away ^
Certain rights arising out of contract strikingly resemble Contracthe two classes of family rights last
must be mentioned in this place in
available against all the world,
of being violated

by third

considered.

They

so far as they are

and are therefore capable

mode

parties; although the

which such rights are acquired and

lost,

and

in

their effect

as between the contractors themselves, can be explained

only at a later stage of our inquiry.

master has a

right, as

services of his servant,

whose act the servant

against the world,

to

the

and can sue not only any one by

is

rendered less capable

of*, or is

hindered from*, performing his duties, but also any one

who

entices

him away from the performance

of

them*:

' Acts for which remedies were provided

by chapters i and 3 of the
Lex AquiUa.
^ In which case the owner had in Roman law an action 'servi cor-

rupti.'
* It was held in Osborne v. Oillett, L. R.
Ex. 8, diss. 88 Bramwell, B.,
that a master has no redress for an act which causes the immediate death
of his servant. So also in The America, [1914] P. 167 (C. A.), after full
consideration of the authorities. As to Lord Campbell's Act, see supra,

p. 173 n. 3.
*

Cf

'
.

quare tenentes suos verberavit per quod a tenura sua recesse-

runt' in the writ 14 Ed. IV. pi. 13, and similar phraseology cited by Sir F.
Pollock, Torts, ed. x. p. 245; also his remark that 'picketing,' when
amounting to physical intimidation, may be a trespass at common law

against the employer, lb. 244 n.

' The seduction of a maid-servant

master. Fores v. Wilson, Peake, 55.

may

give a right of action to her

PRIVATE LAW: RIGHTS

l82
CHAP. XI.

been declared to apply not only to

this principle has

and

'IN REM.'

domestic service, but also to any kind of employment.

In a modern English case, when a celebrated singer had
agreed with the manager of an opera to sing for him

during a definite period, and for no one

else,

but had

manager of another opera to

was held that the first manager
had a right of action against the second. The claim was
resisted on the ground that the employment was not of
persuaded by

been

the

break her contract,

it

such a nature as to warrant the application of the ex-

remedy given against any one who wrongfully

and maUciously entices a servant away from his master,
indeed that this remedy was itself an anomalous relic of
ceptional

But the majority

the times of serfdom.

the view expressed

adopted

who

said:

'The

of

the

Court

by Mr. Justice Crompton,

nature of the injury and of the damage

being the same, and the supposed right of action being

in

servant,

the

analogy to

strict
I

see

ordinary case

of master

and

no reason for confining the case to services

or engagements under contracts for services of any particular description \'

Later cases have established the broad principle that, apart

from any question

of domestic service, a person

a party to a contract to break

to the other party to

it,

Reputa-

III.

A man

good name

him

commits an actionable wrong ^.

that

to say,

is

is

it

he has a right

v. Gye, 2

E.

&

that the

well-founded, which others feel

shall not be diminished ^

Lumley

causing damage thereby

has a right, as against the world, to his

respect, so far as

for

induces

with intent to injure that party, or

to get a benefit for himself,

*^'

it,

who

The

B. 216, diss. Coleridge

right
J.;

is

Walker

however
v. Cronin,

107 Mass. 555.

* Bowen v. Hall, L. R. 6 Q. B. Div. 333, diss. Lord Coleridge C. J.;
Temperton v. Russell, [1893] i Q. B. (C. A.) 715. But see infra, p. 186.
* The Twelve Tables recognised it to be a grave offence: 'si quis
occentavisset, sive carmen condidisset quod inf amiamf aceret flagitiumve
alteri.'

Cic. de Rep. iv. 10.

REPUTATION.
subject to

two

limitations.

183

First, there are certain trivial

imputations which do not infringe

circumstances

certain

are

which w^ould otherwise be wrongful

Since the right

fiable.

well-founded,

it

imputation \
lasts

till

is

an

held to be justi-

only to respect so far as

is

is

common

innate, or

to

direct or indirect,

or his family and

consist not only in words, spoken

i.

e.

may

it

disparage the

belongings.

any insult to

essential to

is

wrong

for

damage done
I

or uttered by

There

though

intention,

word
no

is
it

of

'

Niemand

ein

to a statue

Publication

which
letter

is

'

is

there-

addressed

mouth when no one

infringement

without

need not necessarily have

been directed against the complainant ^

1

'

this right,

by abuse of a man in a

near\

Roman

would have an action

tomb

his

an infringement of

fore not violated

to himself,

up upon

set

to

be

himself

dead body, or to his funeral pro-

and a son could sue

of his father

else

his

may

It

man

So, according

law, the heirs of a deceased person

men, and

all

or written, but also in gestures or pictures.

cession

it is

^.

The infringement may

for

there

imputation

obviously not infringed by a truthful

is

It

death

Secondly,

it.

under which

'

Iniuriani potest

Recht auf einen Scheinwerth und auf Lugen haben

kann.' Dresch, Naturrecht, p. 158. Cf. Dig. xlvii. 10. 18 pr.

^ On the question whether a representative may have an action for
a libel on a deceased person, 'que celui-ci peut etre presum6 d'avoir

abdiqu^/ see Dalloz, 11 27 and 11 28, s. v. 'Presse-outrage.' In 1914,

damages were awarded by a French Court to a Mdme. Lauth against a
playwright, on the ground that his play had revived the memory of certain doings of her grandmother, George Sand, who had, however, herself written freely about them.
* Dig. xlvii. I. 4; ib. 27.
Cf. an art. in Am. Law Review, xxiii. p. 578.
* Or uttered by a man to his wife, Wennhak v. Morgan, 20
Q. B. D. 635.
Aliter in Scots law, cf L. Q. R. xviii. p. 257. Defamation in a Will is no
libel, goods of Honeywood, L. R. 2 P. & D. 251 and see Harvard L. Rev.
.

xviii. p.

483.
see Jones v. Hulton

& Co., [1909] 2 K. B. 444 (C. A.), affirmed in

the words of Coleridge C. J. in Gibson v. Evans,
23 Q. B. D. 384, 'it does not signify what the writer meant; the question
is whether the alleged libel was so published by the defendant that the
world would apply it to the plaintiff,' were quoted with approbation.
Repetition of a rumour may be actionable, Watkin v. Hall, L. R. 3 Q. B.
'

But

[1910] A. C. 20,

396.

when

PRIVATE LAW: RIGHTS

l84
CHAP. XI.

nemo,

facere

EngUsh

the

qui

nisi

nesciat cui faciat

^
;
'

and no more than

legal justification.
'

'

Roman law

it is

presumed where there

or not, and whether I intend

not, the

law considers

wrongful and intentional

classified

place where,

was given

',

by blows.

law may be probably summed up as follows

tioif^'

to the

and the

Some statements are wrongful irrespectively

mode in which they are published, or of

^^^

^^

The

defamatory statement recognised by English

grades of

Degrees of

done

but did not clearly

distinguish defamation from insult given

i-

as

it

^'

acts of insult according

in which, the insult

exists

'

rank of the person insulted, the

mode

si

meant by

is

traduce a man,' said Mr. Justice

If I

him an injury or

of malice, because

'

know him

Bayley, whether I
to do

tliis

doctrine of 'maUce' being essential to defa-

mation, since malice will be

no

iniuriam facere, etiam

se

scit

'IN REM.'

consequences,

e. g.

either
their

the imputation of an indictable offence,

or of ignorance of one's profession, or of insolvency in

There

trade.

shall not be
2.

an absolute right that such statements

made.

Others, short of these in importance and tending to

make a man
only

is

if

ridiculous

rather than odious, are wrongful

put into a permanent form,

written, printed, or suggested

are said to be a
3.

loss

'

i.

e.

only

if

special

and 'temporal'

can be shown to have resulted from

It

they are

libel ^'

Others are wrongful only

made.

if

by pictures % when they

has been for instance laid

Dig.

Bromage

v. Prosscr, 4 B.

Compare

in

down

their
that,

being

without

xlvii. 5. 2; cf. ib. 10. 18. 3.

& C. 255.
English law the statutes against 'scandalum magnatum,'

by 50 & 51 Vict. c. 59.

exhibiting a man's waxwork effigy in propinquity to effigies of
infamous characters. Monson v. Tussaud, [1894] i Q. B. D. 671.
^ This distinction, which seems to be purely English, is as old as the

repealed, as obsolete,
*

Or,

by

time of Charles II. King v. Lake, Hardr. 470, Skinn. 124; Thorley v.
Lord Kerry, 4 Taunt. 335. See F. C. Carr, in L. Q. R. xviii. p. 388. As
to disproof of negligence, see Weldon v. Times Bookclub, 28 Times L. R.
143.

ORDINARY RIGHTS.
damage,

proof of special
a
*

man

he

that 'he

is

not actionable to say of

is

town and

unfit for decent society,'

*he has cheated his brother-in-law of ;^2ooo\'

a recent statute

woman

'^

chap, xi,

a scoundrel, a blackguard, a swindler,'

a disgrace to the

is

it

185

Only by

have words imputing unchastity to a

been made

actionable without

proof of special

damage.

The most important

may be

statement

of the

justified

modes

in

by showing that

is

was acting

the defendant

in a certain capacity,

a Judge, an advocate, or a witness

stances are of
to

rebutted,

upon the
if

a certain class,

e.

is

plaintiff.

that a character

of proving actual malice

'

whom

privilege

g.

as

is

is

was
then

thrown

however, this can be proved ^ or

If,

the statement was carelessly so

than those to

e.

or that the circum-

g.

a servant, the presumption of malice

and the onus

the plea of

it

This can be done by showing either that

'privileged.'

given

which a defamatory Justifica-

'

made

as to reach others

might properly be addressed*,

it

is

unavailing.

Statements made

in the course of judicial proceedings or to or

having an interest in their being made,

by a person

fair reports of trials,

legislative debates, or public meetings, fair

public men, and fair criticisms of literary

comments on
and

artistic

productions are privileged.^

IV. The next class of rights

is

of a vaguer character Exercise of

and a wider range than those which have already been rights.
* See Savile v. Jardine, 2 H. BI.
532; Lumley v. Allday, i Cr. and Jer.
301; Hopwood V. Thorn, 8 C. B. 316. 'Defamation was also a common
subject for spiritual censures, and the fact that it was so explains the
rule of the common law that no action lies for words spoken unless they

impute a crime, or relate to a man's profession or trade, or cause special

damage.' Stephen, History of the Criminal Law in England, ii, p. 409.
*

54&

55 Vict.

c.

SI.

See Taylor v. Hawkins, 16 Q. B. 321.

* Williamson v. Freer, L. R.
9 C. P. 393; Hebditch v. Mcllwaine, [1894]
2 Q. B. 55' See 3 & 4 Vict. c.
9, the Newspaper Libel and Regulation Act, 44
*

&

45 Vict.

c.

64.

c.

60,

and the Law of Libel Amendment Act, 51

&

52 Vict,

PRIVATE LAW: RIGHTS

l86
CHAP.

XI.

Every one

considered.
to perform

all

is

entitled

<IN REM.'

without molestation

lawful acts and to enjoy

all

the privileges

which attach to him as an inhabitant of the country

which he
Liveli-

The most

I.

pursuit of the occupation

his livelihood.

trade

or

hindering him.

damage

livelihood

is

in

unmo-

to the

an

to

liable

is

There are two sorts

to a man's employment, for

the one

is

by which a man gains

The English law upon this subject is thus

'He that hinders another in

explained by Lord Holt

his

kind

specific right of this

hood.

lested

in

lives.

action

for

so

of acts for doing

which an action

lies

respect of a man's privilege, the other in

In that of a man's franchise or

respect of his property.

privilege, whereby he hath a

fair,

market or ferry

if

another should use the like liberty, though out of his

limits,

he shall be

from the king.

liable

But therein

between a liberty

in

an action though by grant

to
is

the difference to be taken

which the public hath a

and that wherein the public

is

not concerned.

where a violent or malicious act

is

occupation, or profession, or

There an action

way

lies in all cases.

done to a man's

is

of getting a livelihood.

But

if

man

damage by using the same employment, no

Much doubt has been, however, thrown
lie \'
Lord Holt's views as

benefit,

The other

to injury to occupation.

doth him

action will
of late

upon

In a case

which attracted much attention, an attempt so to extend this

principle as to render actionable persuasions and threats
on the part of members of a trade-union, unaccompanied

Keeble v. Hickeringill, ii East, 575 n. Cf. Lumley v. Gye,

E.

&

B.

216; Temperton v. Russell, [1893] i Q. B. 715. The innocence of commercial competition, causing, even intentionally, loss to others, was conclu-

Mogul Stemnship Co. v. McGregor, [1892] A. C.

but in America the tendency is strong against 'unfair competition,'
by means of 'Trusts' and 'Combines.' See, with especial reference to
the Sherman Anti-Trust Law of 1890, Journal of Comp. Legislation, ii.
p. 330. For the confused state of the law on this point in America, see
Harvard Law Review, vii. p. 338.

sively established in the

25;

ORDINARY RIGHTS.

187

by either fraud or violence, whereby an employer was

induced to terminate, as he had a right to do, the engage-

ments

of certain of his

was

again,

explained

workmen, and not to employ them

unsuccessful \

away

in

This

decision

was

subsequent cases, from which

largely
it

might

be deduced that a trade-union, though not a corporation,

might be sued in a representative

a general

rule, in the

action,

and

that, as

absence of justification, coercion, and

even persuasion, leading to the breach of a contract of

on the part

service,

perhaps

if

contract,

actual

of

either

employer or servant, or

merely preventing the formation of such a

would be an actionable wrong,

damage

indirectly, injured ^

The law

has, however,

by the Trade Disputes Act,

tionized

if

productive of

to the party thereby intentionally,

the language of Darling

J.,

'

though

been revolu-

1906, which, to use

has relieved

all

registered

trade-unions from the humiliating position of being on

a level with other lawful associations of H. M. subjects

They

are

now

supra legem ^'

Allen V. Flood, [1898] A. C. i, so held in the House of Lords by 6 to 3,

two arguments, and hearing the opinions of the Judges. Of the
twenty-one Judges, however, who heard the case at its various stages,
1

after

thirteen differed from the final decision, which largely turned

upon

disputed facts.
2 Ta^ Vale Ry. Co. v. Amalg. Soc. Ry. Servants, [1901] A. C.
426; Quinn
V. Leathern, ib. 495; Glamorganshire Coal Co. v. S. Wales Miners' Federation, [1903] 2 K. B. 545; Giblan v. Nat. Labourers' Union, ib. 600. So also
in Vegelahn v. Guntner, 167 Mass. 92 {diss. Holmes, J.). On an untrue
report as to a trader's credit, see Greenlands v. Wilmshurst, <kc., Assoc,
[1913] 3 K. B. 507.
3 Bnssy v.'Avialg. Soc. Ry. Servants & Bell, 24 T. L. R. 417.
For the
French doctrine of 'I'exercice abusif d'un droit,' see an article in the
Journal of Comp. Legisl. N. S. vi. citing Joost v. Le Syndicat de Jallieu,
Sirey 1893, i. 42, in which the Cour de Cassation lays down that although
'les menaces de greve sont licites quand elles ont pour objet la defense
des int^rets professionels, elles ne le sont pas lorsqu'elles ont pour but
d'imposer au patron le renvoi d'un ouvrier, parce qu'il s'est retir(5 de
I'association et qu'il refuse d'y rentrer'; citing also the new art. 642 of
the Code Civil, and art. 226 of the German Civil Code, to the effect that
Die Ausiibung eines Rechtes ist unzulassig, wenn sie nur den Zweck
haben kann, einem Anderen Schaden zuzufiigen.' Cf. also Michigan Law
'

Review,

ii,

p. 305.

PRIVATE LAW: RIGHTS

l88

Not

CHAP. XI.

dissimilar to the acts just discussed are statements

in disparagement of
'

action for
Highways.

title

slander of

to property, giving rise to the

title \'

Every one has a right to the

2.

'IN REM.'

free

and unobstructed

Not

use of the public highways and of navigable rivers.

only

is

any interference with the use of them a public

wrong, which
of the

may

be redressed criminally, but each one

community has

also a private-law right not to be

inconvenienced by such interference ^

This right has been

held to be violated where a traveller found his accustomed

road blocked up, and was forced to go by a longer

his

to

destination

way

where an omnibus was wilfully so

driven as to hinder the progress of another omnibus;

where damage was caused by a house which was so

built

upon the highway, and where a vessel was

injured by piles which had been driven into the bed of
a river during the doing of some work, and had been
as to intrude

left

Abuse

n^a
cess.

of

^^^

3.

there after

its

completion.

Every one has a right that the machinery

l^w, which

is

maliciously set in motion to his detriment.

by the act known

infringed

prosecution,' the essence of

maliciously,

i.

of the

established for his protection, shall not be

e.

in English

which

is

This right

is

law as 'malicious

that

it is

done both

from some motive other than that of

bringing an offender to justice, and without reasonable and

probable cause ^

Which

A prosecution, though

it

originated bona

supported by proof of malicious statements

is

made

to third

parties respecting not only the property, strictly so called, but also in-

tangible rights of the plaintiff, such as goodwill, or a trade name,

is injured in his business. Cf. Dig. iv. 3. 32; and, on the
stringent provisions, especially 6, of the German Law of unfair competition,' 'zur Bekampfung des unlauteren Wettbewerbs,' of 1896, Law

whereby he

'

Quarterly Review, xiii. p. 160. Cf., as to an allegation that a house was

haunted, Barrett v. Assoc. Newspapers, 23 T. L. R. (C. A.) 666.
* He may, however, become a trespasser if he abuses his right of passage by, e. p; preventmg the owner of the soil of the road from shooting
his preserves. Harrison v. D. of Rutland, [1S93] i Q. B. (C. A.) 142.
3 See Abraih v. N. E. Ry. Co., 11 App. Ca. 247.
,

PROPRIETARY.
may

fide^

189

subsequently become malicious,

'

if

the prosecutor,

chap. xi.

having acquired positive knowledge of the innocence of

the accused, perseveres malo animo

in the prosecution,

with the intention of procuring per nefas a conviction

I

A malicious

arrest, malicious proceedings to cause a

^'

bank-

ruptcy, and abuse of a writ of execution, are acts of the

same character^;
tenance,'

to

without

it,

as

is

the statutory

was redressed

in the earlier

amongst other methods, the

action, 'calumniae iudicium,'

called 'main-

by a stranger

The vexatious

lawful cause ^

of a civil action
by,

wrong

assistance rendered in a suit

e.

i.

institution

institution

Roman law
of

a cross

which might be brought by

the defendant, either during the progress of the principal

action, or after
plaintiff*.

judgment

upon malicious or
costs

law

compelled

Many

of

to

may become
V.

of Justinian the chief restraint

frivolous

suits

upon the losing party*, and

the

of

in his favour, against a dishonest

But by the time

England ^

of

infliction

of

this is also the policy

Sometimes

give security for

liable in case

was the
the

plaintiff

is

the costs for which he

he should lose his action ^

the rights which

have hitherto engaged Propri-

our attention, although of the highest importance, relate

Fitz-John v. Mackinder, 9 C. B. N. S. 531.
Cf. Quartz Hill Gold Mining Co. v. Eyre, 11 Q.B. Div. 674.
' But charity is such cause: Harris v. Brisco,
17 Q. B. D. 504. See
Pollock, Torts, ed. x. p. 350.
* 'Qui intelligit non recte se agere, sed vexandi adversarii gratia.'
Gaius, iv. 178. Cf. the authorities quoted by Mr. Amos, Journal Comp.
Leg. N. S. vi. p. 459, on the French doctrine of 'plaidoirie t6m4raire.'
* Cod. iii. I. 13. Both plaintiff and defendant, as well as their counsel,
had also to take an oath as to the goodness of their cause. Nam sacramenti timore contentiosa litigantium instantia compescitur.' Cod. ii, 59.
It seems that there may be cases in which a combination of malice,
groundlessness, and special damage will entitle a defendant to an action;
see Williams J., in Cotterell v. Jones, 11 C. B. 730. According to the
older law the plaintiff found pledges, who were amerced if his claim was
not sustained. Cf. infra, c. xv.
' Such security, under the name 'cautio iudicatum solvi,' is commonly
exacted on the Continent from a foreign plaintiff. So also, as a rule, in
1

'

England, under Order

65, r. 6.

^^'

PRIVATE LAW: RIGHTS

IQO
CHAP. XI.

no tangible external

to

'IN REM.'

One's

object.

good name, for

though invaluable, may be regarded from

instance,

point of view as an 'airy nothing

will not apply to the

this

The same remark

^'

group of rights which we are now

Proprietary rights are extensions of

about to consider.

the power of a person over portions of the physical world.

These

rights, like all others, are

of the

made

by means

available

or forbearances of the person of incidence;

acts

but such acts or forbearances

an

especial reference to

due with

are, in this case,

object, or thing,

from which the

person of inherence derives some advantage ^

It is

not every portion of the material world which

capable

being thus

of

and the water

common

statement
air,

is,

all

men, but to belong to none.

however, so far at any rate as

by no means

incontrovertible.

Digest to the effect that

munia

ilia:

aer, et

litora maris','

'

naturali

so

Still less

it

This

relates to

The passage in the

iure sunt omnium com-

aqua profluens,

et mare,

et

per hoc

must be compared with other passages,

which seem to connect spaces

land*,

the sea,

air,

have been said to be for the

of rivers

use of

The

appropriated.

is

suggesting

the

old

of

air

with the subjacent

maxim

of

English

law,

tangible would be the 'right to privacy,' or 'right to be let

been suggested, ought to be so far recognised as to

alone,' which, it has

man from

the publication, without his consent, of his portrait,

life.
See Pollard v. Photographic Co.,
40 Ch. D. 34s; Corelli v. Wall (1906), 22 T. L. R. 532; andcf. Harvard
Law Review, iv. p. 195; vii. p. 182. A French law of 1868 provides that
'toute publication dans un ecrit p^riodique, relative k un fait de la vie
privde, constitue une contravention punie d'une amende de 150 francs.'
On a right not to have one's portrait published, see Col. L. Rev. ii. pp. 437
and 486, citing a series of N. Y. cases. An Austrian law of 1896 requires
the consent of the sitter. Cf. Prince Albert v. Strange, i McN. & G. 25,
where the wrong alleged by the plaintiff was the publication by the defendant of a catalogue of etchings kept private. Cottenham C, here said

shield a

or of the details of his private

that 'privacy is the right invaded.'

* Supra, p. 92.
* Dig. i. 8. 2.
Cf. Bracton, i. c. 12. Puchta would apply these words
to air rather than to the space occupied by it. Inst. ii. p. 525 n. Cf.

Ovid, Metam. i. 135. vi. 349.

* Dig. viii. 2. I. pr., xliii. 24.

22. 4.

PROPRIETARY.
*

191

cuius est solum eius est usque ad coelum

truth

nical

thrown upon
prius) ^

by a dictum

it

Lord Ellenborough

modern

cases

of

19 12,

Gesetzbuch,
led to

art,

667.

Cf.

in a recent

it

many

g. in the

e.

Code,
the

The novel

art. 905.

much

(at Nisi

by such Judges as Blackburn,

552 ^ the Japanese Civil

Code

of

It figures also in

often with certain quaUfications,

art.

tech-

'a fanciful phrase,' has been abundantly-

Bowen, and Fry.'

Brett,

of

and a disrespectful description

obiter dictum^ as

affirmed in

The

maxim, notwithstanding the doubt

this

of

*,'

art.

Civil,

the Swiss

207,

German

Codes,

Code

Biirgerliches

art of aerostatation has

discussion of rights over

cipally in their international aspects ^

though prin-

air,

It

has also led to

legislation, primarily for the protection of occupiers of land.^

Most

things, on the other hand, are capable of subjection

human

to the

will,

and

in

them proprietary

rights

may

be

acquired which vary in extent from absolute ownership to a

narrowly limited power of user.

rights lies not so

much

in the

The essence

of all such

enjoyment of the thing, as in

the legal power of excluding others from interfering with

the enjoyment of
says Kant,

'

it.

If a

man were

alone in the world,'

he could properly hold or acquire nothing as his

own; because between

ward

'

himself, as Person,

objects, as Things, there is

and

no relation

^'

all

other out-

The

relation

between him and other people whom he excludes from

is
1

Cro. Eliz. L18, Co. Litt.

He

4. a, Shep. Touchst. 90, 2 Bl. 18.

did not think it was a trespass to interfere with the superincumbent column of air, otherwise 'an aeronaut would be liable to trespass
qu. cl. fr. at the suit of the occupier of every field over which his balloon

might happen to pass.' The remedy for damage would be by action on

the case. Pickering v. Rudd, 4 Camp. 219.
s
Kenyan v. Hart, 6 B. & S. 249; Wandsworth Board of Works v. United
Tel. Co., 13 Q. B. Div. 904. Cf. Pollock, Torts, ed. x. p. 364 n.
*

The

Pelterie

right under this article

was

in 1914, in Heurtebien v.

Esmault-

& Others, held to extend only to the height of trees and buildings.

See infra, chap. xvii.

See the 'Aerial Navigation Acts,' 191 1 and 1913.
^ Rechtslehre, Werke, vii. p. 60.
Mein
Dasjenige womit ich so
verbunden bin, dass der Gebrauch, den ein Anderer ohne meine Einwilligung von ihm machen mochte, mich ladiren wurde.' lb. p. 44.
*
*

'

chap. xi.

PRIVATE LAW: RIGHTS

192
CHAP. XI.

'IN REM.'

may be said to be an
extension of the advantage which a man has when a physical
object is actually within his grasp. As was well observed by
'The savage who has hidden the game that
Bentham:
he has killed may hope to keep it for himself, so long as
The whole

the thing.

class of rights

his cave

or

it,

undiscovered; so long as he watches to defend

is

stronger than his rivals; but that

is

wretched and precarious

man

advanced state of society a

is

some writers would

as

by

How

all.

his

say, is

own

In an

secured in the exclusive

enjoyment of an object to an extent

can assert for himself

is

such a possession M'

is

far

beyond what he
His personality,

force.

extended over a wide

circle

of matter.

What had up
begins,

by the aid
In

a right.

lowest form

its

indeed included in the

from

it

deny

in

which case

we

has, as

shall

who

is

it,

so peculiar that

is

Possession

it

the

ascertain

The

which

is

merely as a matter

continue in possession, and

have been deprived

is

it is

is

technically called

right

is,

if

In order to

any, which results from

necessary to enquire what that possession

recognised as having legal consequences.

Bentham

says,

Everything which
^

to possess

right of the possessor to continue

called the 'ius possessionis.'

what the

possession,

as

owner

right of the

ius possidendi.'

to possess

is

some

an object

and this sometimes even as against the owner.

The
'

of

to the possession of that object.

to be restored to possession, should he

of

is

also exist apart

The owner

in possession,

also a right to

of fact, has

of

see presently, the right, unless he has

expressly parted with

But a person

may

but

all.

now

The former

Ownership.

nature

its

fact

a right of Possession, in

it is

latter,

to be a right at

it

mere

assume the character

of the law, to

highest form a right of

its

been

this time

to

'

is

is

no vain speculation

most precious

Bentham, Principes du Code

to a

Civil,

This^

of metaphysics.

man may depend

par Dumont,

c. ix.

POSSESSION.
upon

this question: his property, his liberty, his

and even
I

193

may

his

lawfully strike,

The ascertainment

my

Indeed in defence of

life.

wound and even

of the nature

in fact, indispensable in every

kill, if

honour,

chap. xi.

possession

necessary

of legal possession

department of law.

\*

is,

It is

as essential to the determination of international controversies arising out of the settlement of

new

countries, or

to the conviction of a prisoner for larceny, as

an action of trover or trespass.

selection of the plaintiff in

It is therefore

not surprising that the literature of the topic

a very large one, and

is

endeavour to present

moment's

any sense

to the

it is

We shall

not a few.

its intricacies

in as simple a

it

form as

possible.

must show that possession,' in Its

must imply, first, some actual
'

reflection

of the terra,

ele-

power over the object possessed, and, secondly, some

amount of will to avail oneself of that power. Neither
the mere wish to catch a bird which

nor the mere

notion of

power which

exercising

to

it,

is

out of

have, without

seize

topic

this

describe

find

in posses-

fulness

and subtlety,

elements of possession

essential

The Romans, by whom

was treated with great

these

me

reach,

the least

horse which

standing at a shop door, will sufiBce to put

sion of the bird or the horse.

my

by the

terms 'corpus' and 'animus' respectively.

i.

The

He who

corporeal element presents the fewer difficulties. Corpus.

is

popularly said to be in possession of an object,

though he need not be

doubtless have

it

unless overpowered
its

enjoyment.

in

actual contact with

it

must

so far under his control as to be able,

But

by

violence, to

this

exclude others from

requirement has long been, for

Bentham, Works, v. p. 188.

No one would deny that a soldier lying on the ground with his rifle
within easy reach of him, is in possession of the rifle. Cf. 'Non enim
*

'^

corpore et actu [tactu?] necesse est apprehendere possessionem, sed etiam

Dig. xli. 2. i. 21.

oculis et affectu.'
1950

PRIVATE LAW: RIGHTS

194
CHAP. XI.

'IN REM.'

legal purposes, very liberally construed.

was admitted

It

by the Roman lawyers that possession acquired in the

first instance by exclusive physical appropriation might
be continued by something falling far short of

may

possession of a mountain pasture

rupted, although
of winter

^ ;

it

continue uninter-

remains unvisited during the months

and a possession

by them which, even at

its

to full physical control over

wheat

of a quantity of

is

many

in

cases recognised

inception,

never amounted

object;

so the purchaser

its

put into possession of

is

being given the keys of

may

by having the land shown

neighbouring point of view '.

it

is

take possession

whole by entering upon any one

or even

by

it

the warehouse in which

stored ^ and the donee of an estate

of the

the

this, as

portion of

it,

him from some

to

A long succession

of writers

has maintained that the acquisition of possession in these

cases

symbolical, or fictitious

is

that the

'

claves horrei,'

a mere symbol of the contents of the

for instance, are

The error of attributing this view to the

Roman jurists was conclusively shown by Savigny*, and
the reason why in EngUsh law delivery of the key of

warehouse.

bulky goods has been allowed as delivery of the possession

by Lord Hardwicke

is

stated

of

coming

On

the

to be

at the possession or to

same

principle

it

was

'

because

make use
said

it is

the

way

of the thing '.

that a

man who

has purchased goods acquires possession of them by their

delivery

has

one

at

the house where he

touched

them on

his

is

residing,

behalf*.

He

though no
does

not

^
Saltus hibernos aestivosque animo possidemus, quamvis certis temporibus eos relinquamus.' Dig. xli. 2. 3. 11.
*

Dig. xviii. i. 74; xli. 2. i. 21.

* Recht des Besitzes, 17.
Dig. vi. I. 77; xli. 2. 3. I, and 18. 2.
' He adds: 'and therefore the key is not a symbol, which would not
do.' Ward v. Turner, 2 Ves. Sen. 431, cited in Pollock and Wright on
Possession, p. 63. On the other hand, when a locked box was delivered,
the owner retaining the key, it was held that the contents of the box
had not been delivered. Reddel v. Dobree, 10 Sim. 244, cited ibid. p. 68.
2

'

Dig.

xli. 2.

18; xxiii. 3. 9. 3.

POSSESSION.

195

acquire possession of a treasure or other object which

buried in his land, since this

up

it

chap. xi.

is,

unless he actually

nor of a wild animal which he has wounded,

The distinction between the

upon the greater or less

he actually catches it^

till

is

not within his exclusive

same way that a house

control in the
digs

is

cases has been

to turn

said

probabihty of the power to exclude others from the object

'Every one

being

interfered

that a

wounded hare may

that he

that

may

with.

easily get

acknowledge

will

away from him,

vam for hidden treasure so

may forestall him; but that

search in

some one

else

by

sanctity of his house should be interfered with

or that in the short

space of

an adjoining

new

who was

field,

or

long
the

force,

time necessary to enter

possessor

should

spring up,

not previously to be seen, are circumstances so

improbable that no one would take their probability into

consideration
one.

On

The

^'

must obviously be

distinction

the one hand,

it

has been held that

a fine

when

fish

were nearly surrounded by a seine with an opening

boats were

of

between the two ends, at which point

seven fathoms

stationed

to

frighten

them from

escaping,

they were not reduced to possession as against a stranger

who rowed

in

and helped himself.

has been decided

it

whalemen

that

in the Arctic ocean

a whale to the

vessel

On

custom

the
is

the other hand,

of the

American

a good one, which gives

whose iron

remains in

first

provided claim be made before cutting in

If

*.

it,

an object

be under the control of a servant, exercised on behalf of

his master,

ii.

it is

under the control

Mere juxtaposition

is

not possession.

pupillus sine tutoris auctoritate,

1

Dig.

Young

of the master.

'

Furiosus, et Animue

non potest incipere pos-

2 lb. xli. i.
Savigny,
5.
19.
B. 606; Swift v. Clifford, 2 Lowell, no; cited
in a very valuable article upon Possession contributed by Mr. Justice
Holmes to the American Law Review, vol. xii. See also his 'Common
Law,' p. 206.

xli. 2. 3. 3.

v. Hichens, 6 Q.

O2

PRIVATE LAW: RIGHTS

ig6
CHAP. XI.

sidere, quia affectionem tenendi

'IN REM.'

non habent,

maxime

licet

rem contingant, sicuti si quis dormienti

To some possibility of physical
in
there must, at any rate for the commencement of

corpore suo

aliquid

manu

control

ponat^'

posses-

be superadded a will to exercise such control.

sion,

This mental element

may

possession

conceivably be

manifested in three degrees.

Degrees

of.

In

lowest

its

degree

the holder of an

any right over

it

on his own behalf.

Such

is

described as

higher

'

entrusted with the property of his

is

is fitly

representative.'

degree

of intention

persons, other than servants, to

purposes.

for various

of

the intent

Such possession as he may seem to have

master.

the length

merely to

against violence, without asserting

it

who

servant

of a

goes

object

meaning to protect

manifestation, the intent of

of

by those

exhibited

is

whom

objects are delivered

usufructuary, a borrower, the

lessee of land, a carrier, all intend to dispose of the object

over which they are given a control otherwise than as

they

may

be from time to time directed, although none

them deny the

of

the 'dominus proprietatis,' or

of

title

who
may be,

the objects to them,

of the person

has

as the case

to be still outstanding.

The highest degree

delivered

intention

of

is

denial of the

right of any other than the possessor himself

as the possessor

means

right than his own.

to

This

is

the one hand, by a person

inasmuch

pay no regard to any other

the intention manifested, on

who

thinks himself, rightly

or wrongly, to be the owner of the object in question,

and on the other hand, by a

has stolen

thief

who

well

knows that he

it.

So far there

is

little

controversies begin

room

for varieties of opinion.

when we proceed

The

to enquire what,

if

Such a relation between a person and an object was

by the Glossators as 'possessio asinina,' i. e. the possession
which a donkey could be said to have of its saddle.
*

Dig.

xli. 2. I. 3.

described

POSSESSION.

between these

legal

of

any, differences

several

197

flow from a difference

result

degrees

intention.

of

view

to consider, in the first place, the

Roman

taken by the

whom

till

the question

quite lately been almost ex-

how

and, secondly,

chap. xi.

have

lawyers and modern civilians by

the enquiry has

clusively conducted

of

We

far similar ideas

have influenced other legal systems, and more especially

the

common

(i)

There

law.

no doubt that the

is

Roman

classical

jurists The

recognised two degrees of control over an object, the of Roman

lower of which they described by such phrases as, 'in'^^possessione
tenere,'

esse,'

'alieno

'

naturaliter

possidere,'

nomine possidere

\'

The

'

corporaliter

higher degree

was alone recognised by them as 'possessio,' properly so

and such possession alone was protected by the
called
'^,

Interdicts, irrespectively of

origin ^ against

the justice or injustice of

any one from

whom

is

by modern

called

civilians

its

had not been

The lower degree

acquired 'vi clam aut precario*.'

possession

it

of

'Detentio' (In-

habung), while they distinguish the higher as 'Possessio,'

properly so called (Besitz).

According to what

may

perhaps

still

be called the ac-Savigny.

cepted view, these two degrees were differentiated by the

intention of the possessor.
^

Mere

detention, or 'naturalis

'Nee idem est possidere et alieno nomine possidere: nam possidet

nomine possidetur, procurator alienae possessioni praestat mini-

cuius

sterium.'

Dig.

xli.

2.

18.

nomine sit in possessione,

videmur.' Dig.

Cf.

'Generaliter quisquis

omnino nostro

veluti procurator, hospes, amicus, nos possidere

xli. 2. 9.

Improperly described by the earlier commentators as 'possessio

civilis,' a term which, as Savigny has shown, 7, is used in the sources
to describe possession exhibiting those additional characteristics which
enable it by means of 'usucapio' to ripen into ownership.
' 'lusta enim an iniusta adversus ceteros in hoc edicto [sc. uti possidetis] nihil refert, qualiscunque enim possessor, hoc ipso, quod possessor
est, plus iuris habet quam ille qui non possidet.'
Dig. xliii. 17. 2.; cf.
*

ib. xli. 2. 3, s.

The

remedies, such as 'actio furti,' enjoyed by persons having only

were conferred upon them in respect of some interest beyond that of bare possession. See Savigny, 42.
*

'possessio naturalis,'

'

PRIVATE LAW: RIGHTS

198
CHAP.

XI,

exists

when

the

limited

by a

distinct

possessio,'

object

is

REM/

'IN

intention to dispose

recognition

the

of

the out-

of

standing right of another; and this equally whether the

holder be a slave, a usufructuary or a bailee.
exists,

when

owner

of the object, or, having merely

keep

it

the holder believes himself to be the rightful

found

means

it,

having

The

comers^.

all

stolen

means

it,

to

making

subject to the possibility of the owner

his appearance \ or,

against

Possessio

'

to keep

it

intention of such a possessor

has been described by modern civilians as the 'animus

domini ^' but more recently as

which there

for

classical

is

'

animus possidendi,' a term

This view of the

analogy*.

grounds of the distinction drawn by the

Roman

lawyers

between the possession which would be and that which

would not be protected by the

Interdicts,

whom

with the great name of Savigny, by

the

first

luminously

time

set

associated

is

forth.

It

was

it

for

in general

is

accordance with the language of the classical

jurists,

and

supported by the fact that the classes of persons to

is

whom

possessory remedies were denied, such as the fruc-

tuary, the lessee, the borrower

and the

carrier,

were just

those whose intent to dispose of the object possessed

is

limited by a distinct recognition of the outstanding right

Savigny's theory

of another.

objection that
Interdicts

it

however, open to the

is,

does not account for the fact that the

were also accorded to the

pledge holder, the

to none of

whom

'

precario tenens

can the

'

'

emphyteuta,' the

tand the

animus domini

'

'

'

sequester,'

be attributed.

Savigny was only able to reply by saying that for pracDig.

xliii. 17.

2.

Pro possessore vero possidet praedo, qui interrogatus cur possideat

nee ullam causam possessionis possit
responsurus sit, quia possideo,
2

'

dicere.'

Dig. v.

11-13.

3.

^ Apparently coined by Cuiacius, Obs.

gested by the phraseology of Theophilus,

ydfieffOai oCttj' 6ti

fovTos Kar^x^^")
*

'

KpareTv

iii-

p.(v i<TTi

29. 2; of.

ii.

adipiscendi'inDig.

xiii. 7.

rod KpareTv kuI tov

vijxeffdai Sk

rb i^vxv Se<nr6-

Cf. 'opinione domini,' Dig.

Animus possidentis occurs in Dig.

'

was doubtless sug-

dia(popd, yd,p

rb (pvcriKQs KaT^x^'-f<
9. 4.

It

ix. 33.

xli. 2. i.

20;

'

ix. 4. 22.

animus possessionem

37; and' animus possessoris' in Dig.

xli. 2.

18.3.

POSSESSION.
reasons what he calls a

tical

possession

was admitted

derivative

C abgeleiteter

'

Roman

In a work

and

theory of possession as a whole.

published nearly

years ago\ Profes- jhering.

fifty

requirement of

actual control can only be discovered in the writings of

Roman

the

jurists

by doing considerable violence

to their

language; and that the amount of control demanded by

Roman law

varied, as

it

reasonably should vary, according

to the nature of the object in question, so that cut timber

in a

wood might

well be held to remain in the possession

a purchaser

of

who had

although his watch,

if

left

ownership

conflict

lying where he

cut

it,

might

place,

In going on to assert that

was protected merely

as

or as being to ownership

a fortress ^ Jhering

to

is

it

found in the same

be treated as lost property '.

possession

the

'

actuahty

of

what an outwork

appears to us to come into

with clear statements in the sources, to maintain

and to be inconsistent with

an anachronism,

maturer views upon

his latest

work,

'

this

upon the key

to

his

own

point as incidentally stated in

Ueber den Besitzwillen

work that Jhering has

It

'.'

is

in

this

delivered a long-prepared attack

Savigny's position, the

Shortly stated, von Jhering's thesis

is

'

animus domini.'

that the difference

between Detention and Interdict-Possession has nothing

to do with the will; that

whoever so

far exerts his will

over an object as to obtain Detention of

it,

possesses

for all purposes, except in so far as possession

1

9.

Cf

thing

is

it

denied

Grund des Besitzesschutzes, 1867.

by possession is meant possession of that character of which the
2

'
.

is

capable.'

Ld. Advoc. v. Young, 12 App. Ca. 556.

Grund des

Besitzesschutzes, p. 45.
* lb. p. 64.
May it not rather be compared to an earthwork, worth
defending, whether or no the fortress of ownership lies behind it?
*

Jena, 1889, v. p. 327.

Which he describes as the 'Objectivitatstheorie,' as opposed to the
'Subjectivitatstheorie' of Savigny and his predecessors.
*
^

chap. xi.

originality to attack Savigny's account

von Jhering showed that Savigny's

sor

')

This and other

in these cases\

the current view have recently led a writer

difficulties in

of j?reat vigour
of the

'

199

PRIVATE LAW: RIGHTS 'IN REM.'

200
CHAP.

XI.

him by some

to

was obliged
sion in
principle
in aid a

the

to

For just as Savigny

special rule of law.

allow

case of

'derivative'

fictitious

would not be

does Jhering pray

possessors, so

variety of special

rules

of

and the

denial to borrowers, lessees,

posses-

and others who on

pledge holders

law to explain the

like, of

the possessory

remedies to which in accordance with his theory they are

prima

The arguments of von Jhering will

be reckoned with by any future writer upon the
but it would as yet be premature to proclaim

facie entitled.

have to
subject,

the victory of his views over those of Savigny as to the

true meaning of the classical

jurists.

It is also

impor-

tant to remember that a theory more nearly approaching

Savigny than

that

of

new

interest

from

its

ruled by modernized
ineffaceable imprint

(2)

Teutonic
theory.

The

jurists

that

of

his

critic

has

derived

long acceptance in the countries

Roman law \ and

which
of the

it

has

left

especially

from the

upon modern codes ^

Teutonic races seem never to

have recognised the two grades of possession which have

1

Cf. Jhering, Besitzwille, pp. 429, 457.

g. The Prussian Landrecht, I. ? i, 'Wer das physische Vermogen hat, liber eine Sache mit Ausschliessung Anderer zu verfiigen, der
hat sie in seinem Gewahrsam und wird Inhaber derselben genannt.' 3,
2

E.

Wer aber eine Sache, in der Absicht daniber fiir sich selbst zu verfiigen,
unmittelbar oder durch Andere, in seinen Gewahrsam nimmt, der wird
Besitzer der Sache.' 6, 7, distinguish between the 'imperfect' and
the 'perfect' Besitzer, the latter being defined as 'welcher eine Sache,
Oder ein Recht, als sein eigen besitzt.'
The Austrian Civil Code, 309, Wer eine Sache in seiner Macht oder
Gewahrsam hat, heisst ihr Inhaber. Hat der Inhaber einer Sache den
'

'

Willen, sie als die seinige zu behalten, so ist er ihr Besitzer.'

The French and Italian Codes are less clear. Code Civil, 2228,
while
2234; Codice Civile, 685, 2115. The tendency of the Codes,
is
retaining in terms the distinction between Detention and Possession,

to assimilate their legal results.

The explicit phraseology of the Draft Civil

Code

for

Germany,

797,

that 'Der Besitz einer Sache wird erworben durch die Erlangung der
thatsachlichen Gewalt uber die Sache (Inhabung) in Verbindung mit dem
Willen des Inhabers, die Sache als die seinige zu haben (Besitzwille),'
that
has given place in the Code as adopted, 854, to the mere statement
'Der Besitz einer Sache wird durch die Erlangung der thatsachlichen

POSSESSION.

much

given so

201

They granted

trouble to the civilians.

possessory remedies without scruple to persons

Roman law
custody

were

cattle

law

Salic

stolen,

ing any further interest in

him
it

person

only

the

entitled

and Bracton says

makes no

irrespectively

from whose
of

hav-

his

them, seems to have been

to

have

them

restored

to

that, in suing for stolen goods,

difference whether

the plaintiff or not,

person

the

chap. xi.

in

by the Inter-

have profited

never

could

Under the

dicts.

who

the

goods belonged to

provided only they had been in his

custody K

The theory

law at the present day

Possessory rights are,

dissimilar.

servants

of English

"
;

but,

with this

it

exception,

is

is

notEngllsk

true, denied to

the

common law

ignores the distinction between Detention and Possession,

Sache erworben.' Cf. art. 919 of the new Swiss Code:
Gewalt liber eine Sache hat, ist ihr Besitzer.' On
the question whether this 'actual control' must be 'subjective' as well
as 'objective,' see the remarks in L. Q. Rev. xiii. p. 338, upon M. R.
Salailles' work, De la possession des meubles, Etudes de Droit aUemand
et de Droit fran^ais, 1907.
' Dum tamen de custodia sua.'
Bract, fol. 151. Cited by Mr. Justice
Holmes, Am. Law Rev. u. s.
^ See
Dicey, Parties, pp. 335-358; Pollock and Wright, Possession,
Mr. Justice Holmes, Common Law, p. 227, thinks the rule exp. 59.
plicable only as a survival from the times when a servant was a slave,
since the servant has as much the intent to exclude the world at large
as the borrower.' But see Pollock and Wright, u. s. The non-attribution
of possession to servants is well established in criminal law, e. g. if goods
are stolen from a servant to whom they have been entrusted by his master they are alleged in the indictment to be 'the property,' i. e. in the
possession, of his master, though some doubts upon this point led to the
Statute 21 Hen. VIII. c. 7. (A new offence of embezzlement was created
by 39 G. III. c. 85 to meet the case of misappropriation by a servant of
goods delivered to him for his master, but of which the latter had not yet
taken possession) but there are cases in private law which can with
difficulty be reconciled with the rule as now stated, and suggest the distinction, said now to be obsolete, once dra^Ti between servants at home
and servants sent on distant errands. See Y. B. 21 H. VII. 14, pi. 21,
cited in Holmes, u. s., p. 226. Thus the master of a fly-boat hired at
weekly wages by a canal company was allowed to bring trespass for the
cutting of a tow-rope, the property of the company. Moore v. Robinson,
2 B & Ad. 817. Persons, such as guests at an inn, who have there the
use of plate and other objects, as bare licensees without bailment, have
no possession. Holmes, u. s. p. 226.

Gewalt

'Wer

iiber die

die tatsachliche

'

*^'

PRIVATE LAW: RIGHTS

202
CHAP.

XI.

'IN REM.'

persons in occupation

granting possessory remedies to

all

of land or having the custody

of goods.

Previously to

the invention in the thirteenth century of the writ 'de

eiectione

was regarded

the tenant of a farm

firmae,'

as

a mere baihff for the landlord, but by means of the writ

he acquired what in the phraseology of that day could

be described as a 'seisin' of his term\ and he alone can

now

bring trespass for interference with his possession".

similar right in the case of bailees of goods seems to

have a much older pedigree'.

says Blackstone,

'there

'In

these instances,'

all

property

a special quahfied

is

transferred from the bailor to the bailee, together with

And on

the possession.

the bailee, he

of

account of this quahfied property

may,

maintain an action against

The

such as injure or take away these chattels.

tailor,

the carrier, the innkeeper, the agisting farmer, the pawn-

may

broker, the distreinor, and the general bailee,

them vmdicate

in

their

own

all of

right this their possessory

interest *.'
possession.

Roman and

Alike in

Wrongful

in the

comman

law, a

mere

finder,

or even a wrongful taker, has a possession which will be

protected against a stranger; nor will such stranger be

allowed

to

Bracton,

allege

fol.

220.

superior

ius

tertii^

See Digby, History of the

unless

he can

Law of Real Property

ed. 4, p. 175 Maitland, on the Seisin of Chattels, L. Q.

^ Dicey, Parties, p.
334.
;

R.

i.

p. 333.

3 Holmes, Common Law, p. 166, citing Laband, Vermogensrechtliche

Klagen, 16, and Heusler, Gewere, 487, 492.
* 2 Comm.
453. He continues, For being responsible to the bailor, or
'

the goods are lost or damaged by his wilful default or gross negligence,
or if he do not deUver up the chattels on lawful demand, it is therefore
reasonable that he should have a right of action against all other persons
who may have purloined or injured them that he may always be ready
to answer the call of the bailor.' This reasoning, though found also in
Beaumanoir, xxx. i and in Y. B. 1 1 H. IV, seems to be erroneous. See
Holmes, Common Law, pp. 167, 170. It is probably derived from a misif

understanding of the remedies given in

Roman law

to certain bailees for

the protection of interests other tlian those resulting from bare possession.
The right of the bailee was
Cf. Inst, iv. 1. 14 and 17; Dig. xlvii. 2. 46.
held to be irrespective of his liability to the bailor in The Winkfield,
[1902] P. 42.

POSSESSION.

203

show that he was acting under the authority

of

the

chap. xi.

person having such a right*.

After being a topic of controversy between the Proculian

and Sabinian schools,

was

it

finally

determined in

Roman

law that only one person can possess the same object

same

the

at

apud duos esse

loco in

quo ego

videaris

^'

potest,

quam

possessio

ut tu stare videaris in eo

quo loco ego sedeo tu sedere

sto, vel in

The

eadem

'non magis enim

time,

strictness of this rule

seems not to have

been followed in the indigenous law of Germany^, and

was departed from

When

at an early date in the

law of England.

the tenant farmer acquired the writ of ejectment,

none the

his lord

less retained his possessory

Assize of novel disseisin^; and in the time of

we

had gained the

find that bailors

remedy by

Edward

III,

right to bring tres-

pass concurrently with their bailees against a third party ^

In modern times, at any rate, this right

would seem more

in accordance with

case of simple bailments,

at liberty to

Dig.

xliii.

i.

e.

Amory

to

any momenta

at

v. Delamirie,

Sm.

Dig.

xli.

2.

3.

s; of. xliii.

26.

is

When

L. C. 301; Buckley v.

Gross, 32 L. J. Q. B. 131; Dicey, Parties, pp. 334, 354, 356; Pollock

Wright, pp. 49, 148.
different parts or shares of a thing

the

those in which the bailor

resume possession

17. 2.

as

is restricted,

principle,

and

The possession by several of

a different question. Savigny, Be-

15. 4.
is

Puchta, Inst. ii. p. 564.

See authorities cited by Prof. Maitland, L. Q. R. i. p. 344, and the
Gernaan Civil Code, 868.
*
Poterit enim quilibet illorum sine praeiudicio alterius in seisina esse
eiusdem tenementi, unus ut de termino, et alius ut de feudo vel libero
tenemento.' Bracton, fol. 220. See Maitland, L. Q. R. i. p. 341. But
note that the landlord cannot bring trespass or ejectment during the
continuance of the term. Dicey, Parties, pp. 337, 489.
Y. B. 48 Ed. III. 20, pi. 8, 22. Ed. IV.
5, p. 16, cited in Holmes,
Common Law, p. 170. He thinks this an anomaly, p. 175. The reason
usually given] for it is that 'a right of immediate possession without
possession is sufficient.' Cf Smith v. Milles, i T. R. 480. So the purchaser
of goods may bring trespass before delivery, Dicey, p. 348; aliter as to
a purchaser of land before entry, Pollock and Wright, p. 28.
' Nicholls v. Bastard, 2 C. M. & R.
659; Dicey, Parties, p. 345.
sitz, 11;
*

'

Possessio

^ """"*

PRIVATE LAW: RIGHTS 'IN REM.'

204
CHAP. XI.

during the bailment the right of the bailee

against

the

is

good even

former can alone sue for any

the

bailor,

interference with his possession \

Reasons
for protecting

possession.

More than one motive may have induced the law to

give protection to possession.
The predominant motive
was probably a regard for the preservation of the peace.
'The ground of

tliis

says Savigny, 'and of

protection,'

this

condition similar to a right, has to be ascertained.

Now

this

ground

the connection between the above

lies in

condition of fact and the party possessing, the inviolability

of

whose person extends

to those sorts of disturbance

by

which the person might at the same time be interfered

with.

The

case occurs

when

the violence offered to the

person disturbs

or puts an end to possession.

dependent right

is

change

is

effected

his prejudice

and

its

in
if

or

condition

of

the violence extended itself

^'

be found, where anything so

expected, in a volume of
action,'

is

can

protection

'These rights of

of

the

in-

but some
person

to

the injury, which consists in the

consequences, this

restoration

case, violated,

this

the

the person,

violence against
all

not, in

An

to be wholly effaced in

only be
the

status

effected
quo,

to

by the
which

The same view is also to

abstract would scarely be

Meeson and Welsby's Reports.

said the Court of Exchequer

Chamber, 'are given in respect of the immediate and

present violation of possession, independently of
of property.

They

are an extension

of

rights

that protection

which the law throws around the person ^'

The suggestion

that possession

was protected because

Harper, 7 T. R. 9: 'It cannot be that two men can be

same time to maintain an action of trover for the same
goods.' Lord v. Price, L. R. 9 E.x. 54.
2 Savigny, 6, Perry's Translation (1843).
* Rogers v. Spence, 13 M. & W, 581 (1844).
*

Gordon

v.

entitled at the

POSSESSION.
most cases

possessors are in

which the doctrine

to the place

occupy in a body of
since

only comes

it

Savigny

law,

in question

granting of Interdicts,
'

rightful

owners \

hardly

is

chap.

of possession should Place of

is

opinion

of

that, i^^t1^^^

as a condition to the

9''?"*

mns.

belongs to the department of

it

By what has preceded, it will

appeared that we agree rather with

obligationes ex delicto.'

have

sufficiently

those who, like Alciatus, Halm, and Gans, class possession

among
The

the

'

iura in

re.'

orbit of the right

may be

inferred from a

the acts which are recognised as infringing

the

acts

known

so

as

might be

and 'conversion.'

'trespass'
consist

their

self-defence

to be 'converted'

Among

'trespass to

removal or injury, but

done in the exercise of a rightful

justified, as

distress,' or in

in

it.

list of Orbit,

English law are those long

recognised in

goods' would

'

while goods would be said

by any one who wrongfully assumed

to act as their owner.

The

'

ius possessionis

'

comes into existence on the occur- Com-

rence of such a combination of control and intention asg^"

is

demanded by

The
sition

a given system of law.

corporeal and mental elements of the act of acqui-

may

be separated, as where the former

by an agent and the

be exercised

latter

by

his principal

is

exercised

or both

may

by an agent, who has general authority

from, or whose

acts

are

subsequently ratified

by, his

principal \
Jhering, Ueber den Grund des Besitzesschutzes, ed. 2, p. 45. At p. 4,
he gives an exhaustive classification of the theories on this point.
According to his own opinion, Possession is 'cine dem Eigenthtlmer
zugedachte Beweiserleichterung, die aber nothwendigerweise auch dem
Nichteigenthiimer zu Gute kommt,' p. 45.
'

Savigny,

xi.

with legal history.

in accordance

As

205

26.

PRIVATE LAW: RIGHTS

206
CHAP.

The

XI.

Termination.

right of possession

by an express abandonment
effect

may

are defined
session.

be of course extinguished

by

The

cases in

this occurs

law ^

'

'

may be
which may

control which

exercised over advantages, short of

ownership,

be derived from objects.

right

way, an advowson or perpetual right of appointment

to a benefice,

and similar

possession,

the rules

for

own

right hand.

those

when law throws

fact of possession that protection

the possessor could previously have

his

to

called.

a great advance in civilisation

around the mere

will

susceptible of a quasi-

which are analogous

which govern possession properly so

It is

which

rights, the nature of

shortly have to be explained, are

Owner-

which

different rules in different systems of

The doctrine of possession has been extended, under

the name of quasi-possession,' or of possessio iuris,' to the

of

ship.

same

of the object, but the

be produced by tacit relaxation of corporeal

control or of intention.

Quasi-pos-

may

'IN REM.'

won

for

It is a still further

it

which

only by

advance when

law gives to a man that far ampler measure of right

over an object, quite irrespectively of his having any
actual,

known
Definitions.

even

or
as

'

control

constructive,

over

it,

which

is

Ownership ^'

The higher is no doubt a development of the lower right.

'Dominium rerum ex naturali possessione coepisse Nerva
filius ait

an

It is usually defined as a

'.'

object.

'

Das Eigenthum

plenary control over

ist eine totale

Herrschaft fiber

Thus Roman law, on grounds of policy, declined to treat the posse.-^sion

owner of a farm as ousted by wrongful occupation by an
intruder. It was a legal fiction that the possessor in such a case, though
dispossessed in point of fact, was not to be regarded as dispossessed till he
had received notice of what had occurred. Dig. xli. 2. 46; ib. 3. 7 and 8)
'

of tlie absentee

Savigny, Besitz, 33.

' So that Ulpian goes so far as to say
cum possessione.' Dig. xli. 2. 12. i.
>

Dig.

xli. 2. I. I.

Cf. Cic.

De

Of!,

i.

'

Niliil

7.

commune habet proprietas

OWNERSHIP.
eine Sache
et entier

\'

'

La

207

propriete est le pouvoir juridique plein

d'une personne

siir

une chose corporelle

;
'

'

chap.

Le

pouvoir de droit d'une personne sur une chose d'apres tous

buts rationnels

les

The

d'utilite possible,

right of ownership

inherents a sa nature

comparison with other rights over objects.

with the

maxim

'

sic

in

maniere

'le droit

la

pas

un usage prohibe par

may

It

also, as

'

it

therefore defined in the

is

de jouir et disposer des choses

plus absolue, pourvu qu'on n'en fasse

de

la

^^^ ^

such a way as not to interfere

with the rights of others, and

French Code as

In accordance

utere tuo ut alienum non laedas,'

must always be enjoyed

however, unlimited only in How

is,

we

ou par

les lois

les

reglements

'.'

shall see hereafter, continue to subsist

although stripped of almost every attribute which makes

valuable, in which condition

it

law as 'nuda

proprietas,'

it

is

described in

of a right thus wide, yet necessarily limited in

respects

and conceivably limited

haps never been suggested.

than to describe

it,

Roman

really satisfactory definition

It

in
is

many more,
difficult

with Austin, as a right

'

several

has per-

to do

more

over a deter-

minate thing, indefinite in point of user, unrestricted in

point of disposition, and unlimited in point of duration

Various attempts have been made to

powers

attributes or

an owner.

of

He

*.'

enumerate the Compois

said to have

rights, 'utendi,' 'fruendi,' 'abutendi,' 'fructus percipiendi,'

*

possidendi,'

'

alienandi,'

and

'

vindicandi.'

But what has

to be said with reference to the orbit, or contents, of the

*
2

Puchta, Inst. ii. p. 581.

Ahrens, Droit Naturel, ii. p. 143;

in re potestatem.' Inst.

ii.

cf.

'

Dominus incipit plenam habere

4. 4.

by the Codice Civile, art. 436; the Civil Code of

and the Swiss Code of 1912, art. 641. According to the
Civil Code for Germany, 903, Der Eigenthiimer einer Sache kann, soweit
nicht das Gesetz oder Rechte Dritter entgegenstehen, mit der Sache nach
Belieben verfahren und Andere von jeder Einwirkung ausschliessen.'
'

Art. 544, followed

Japan,

art. 30;

'

* Jurisprudence, ii. p.
477; cf. iii. p. 2. It is hardly necessary to refute
the answer given by Prudhon to the question propounded by the title of
his book, Qu'est-ce-que la Propriet6? (1840), viz. 'La propri6t6 c'estle
vol.' For discussions on the subject with a semi-socialistic tendency, see

Property,

its

Duties and Rights, essays by various writers, 1913.

rights,

xi.

PRIVATE LAW: RIGHTS

208

may

right of ownership

'IN REM.'

be conveniently arranged under

the three heads of possession, enjoyment, and disposition.

Of the right

1.

Posses-

than that

to

more need be said

vindicandi,' and that it is

possess,

little

includes the 'ius

it

sion.

inherent in ownership unless expressly severed from

as

is

when

the case

the owner has

let,

lent, or

it,

mortgaged

his property.

Enjoyment.

The

2.

and

right of enjoyment implies rights of user,

of acquiring the fruits or increase of the thing, as timber,

the young of cattle, or soil added to an estate by alluvion.

The

right

limited only

is

by the rights

of the State or

of other individuals ^

The
of

State

may

of course, as is

sometimes said by virtue

'dominium eminens,' take such portions

its

produce of property, or even of

may

think

fit

or

it

may

property

as

The

be diminished without compensation^.

growth

any particular use

of tobacco

upon land

rights of

may

State

of the property,

in

or the carrying on of noxious

the owner may

it

authorize undertakings in the

neighbourhood, whereby the value of the property

also prohibit

the

of

itself,

e. g.

can
the

England and Ireland',

trades

towns.

The

by those

of his

in

also be limited

The right of freely using one's own land although to the detriment of
is very amply recognised by English law (see Chasemore
V. Richards, 7 H. L. C. 349); but by Roman law, apparently, only 'si non
animo vicino nocendi, sed suum agrum meliorem faciendi' (D. xxxix. 3.
I. 12). Cf. Code Civil, art. 642 (new), and the Btirgerliches Gesetzbuch,
1

one's neighbours,

art. 226. So Scots law prohibits what is done in aemulationem vicini.

Ersk. Inst. ii. i. 2; but as to the limited application of this doctrine, see
Mayor of Bradford v. Pickles, [1895] A. C. at p. 587. Cf. Pollock, Torta,
ed. X. p. 160; Journal Comp. Leg. N. S. vi. p. 76 n.
* E. g. by vibration caused by trains passing over a railway made in
pursuance of an Act of Parliament, Hammersmith Railway Company
V. Brand, L. R. 4 H. L. 171. So also it was held in Vaughan v. Taff Vale
Ry. Co., 5 H. & N. 679, as to sparks from an engine; but compensation for
damage thus caused to agricultural lands or crops may now be obtained

under 'The Railway Fires Act,' 1905.

34, rep. as to Ireland by 7 Ed. VII. c. 3. On the
private property is affected with a public interest it
ceases to be iuris privati, see Lord Holt, De portibus maris, i Harg. Law
Tracts; and on the recent application of this principle in the grain 'ele'

By

12 Car. II.

principle that

c.

when

vator' cases, see

Munn

v. Illinois, 4

Otto 113.

OWNERSHIP.
co-owners,

if

the property

The owner

of strangers.

209

held jointly

is

of land,

or by those

instance,

for

may

chap,

be

restrained in the interest of neighbouring owners from

dealing with

it

in consequence

a right

another

and

this

either

may have been

conferred upon

or in consequence of the ordinary, or, as

sometimes

natural

'

called,

it

is

right of his neighbours not

'

have their land deprived of

to

some exceptional advantage, such as

of

way, which

of
;

entirely at his pleasure

accustomed support

its

from the land adjacent, to receive the water

of a stream,

or the like.

The

3.

right of disposition carries with

and

alteration or destruction,

Some

the right of Disposi-

it

also the right of alienatioa

The

objects are of course practically indestructible.

may

alienation
partial,

when

either be

a fraction of

for certain purposes is

of creditors, or in

Ownership

is

when

total,
it

the right

only, is transferred.

sometimes forbidden,

itself,

or

Alienation

e. g.

in fraud

mortmain.

exercised,

its

over physical objects only.

primary and

It

fullest sense, Objects

exercised, in

also

is

agi^ip^

secondary and conventional sense, over certain collections of

rights

which

of physical

it is

convenient to treat upon the analogy

objects.

In the primary sense of the term,

man may be owner of a house,

he may be owner of a patent for an
a

owned

is

in either case described

in the

secondary sense

invention.
as

'

The

property,'

object

which

is

defined by Mirabeau as signifying *un avantage confere

par
'

les

conventions sociales

property

'

The terms 'ownership and

V'

'

are sometimes also used in a third,

looser sense.

The

value of any claims which he

persons, after deducting the

Hist. Parlementaire

and

still

sum-total of a man's fortune, including

not only the objects of which he

1950

''

de

la

is

owner, but also the

may have

amount

of

any claims which

Revolution Frangaise,

against other

t. ix.

p. 290.

p 209

xl

PRIVATE LAW: RIGHTS 'IN REM.'

210
CHAP. XI.

might be made good against himself,

'

property,'

'

property

objects.

said to

is

will be desirable to

It

Tangible

and he

'

it

is

described as his

discuss each of these kinds of

every physical object that will answer the

un bien materiel sujet

au pouvoir immediat d'une personne ^.' Some things are

description of property, as being

in their nature incapable

most

cases,

water

which

Objects

Orbit.

own

separately.

'

It is not

1.

'

capable

are

upon various

explained

*.

of

as

has been

of a physical object

modified by the character of the object.

is

Among
known

Intangible

2.

We

is

in

is

to

it

be

infringed

English law as conversion, detinue,

and nuisance.

trespass, slander of title,

propert}'.

of course

away from

title

the acts by which his right

to

are

already

His right

him, nor impaired in value, nor shall his

are those

mankind.

all

general that the object shall neither be taken

weakened.

and, in

becoming property

principles,

owner

right of the

Air

of appropriation.

are for the free use of

divisible

The

'

have already mentioned that the idea of owner-

ship has been so far extended as to

The Roman use

make

it

applicable to

of the term res was equally ambiguous. Sometimes

the thing itself (res corporalis), sometimes a right over a thing, or
even to the performance of an act (res incorporalis). Cf. supra, p. loo.
'

'

'

it is

With the use of the term, as covering a mere right to performance, cf. the
Code Civil (Art. 529): 'sont meubles, par la determination de la loi, les
obligations et actions qui ont pour objet des sommes exigibles,' &c. and
the definition of 'Property' in 44 & 45 Vict. c. 41. i, and in 45 & 46
;

39. 2 (the Conveyancing Acts, 1881, 1882), as including 'any

and any thing in action, and any other right or interest.' Cf. also
the Bankruptcy Act, 1883, 46 & 47 Vict. c. 52. 168 (i). On the question
whether shares in a Companj' are things in action,' under the Bankruptcy Act, see Colonial Bank v. Whinney, 11 App. Ca. 426. A power of
appointment is not property, ex parte Gilchrist, 17 Q. B. D. 167 and 521.

Vict.

c.

debt,

'

Ahrens, Cours,

'

But
But

ii,

p. 117.

and infra, chap. xvii.

Todmorden Mill Co., 11 Q. B. Div.

see supra, p. 191,

see

Supra,

Ormerod

p. loi.

v.

155.

INTANGIBLE PROPERTY
certain closely coherent masses of rights

by a

211

which are thus,

legal fiction, treated, for certain purposes, as

if

chap, xi

they

were tangible objects \

In modern times the inventor of a

from the

State,

by way

of

has conferred upon society, and in

others

to

follow

his

privilege of using the

new

process obtains Patents,

recompense for the benefit he

example,

new

order to encourage

not

only an

exclusive

process for a fixed term of

years, but also the right of letting or selling his privilege

to another.

Such an indulgence

is

called a patent-right ",

and a very similar favour, known as copy-right,

to the authors of books,

and

a somewhat vexed question whether a

was

It

at

list

'

'.

in

It

and"^

'

is

to Trade-

ownership.

a series of judgments

1
The notion that nothing is property which cannot be ear-marked and
recovered in detinue or trover, may be true in an early stage of society,
when property is in its simple form, and the remedies for violation of it
are also simple, but it is not true in a more civilised state, when the
relations of life and the interests arising therefrom are complicated.'
'

J., in Jeffreys v. Boosey, 4 H. L. Ca. 815. But see contra Pollock

C. B. in the same case, and Windscheid, Pand. 168. Cf. Velasquez Ltd.
V. Commissioners oflnl. Rev., [1914] 2 K. B. 404, citing Dicey's Conflict of
Laws. On 'goodwill,' as a genus, of which patents, &c. are species, see
J. F. Isehn, in Law Quarterly Review, xiii. p. 156. A man has no property
in his name, see Du Boulay v. Du Boulay, L. R. 2 P. C. 430; Dockrell v.
Dougall, 15 Times Rep. 333; nor is any right of a peer to that incorporeal

Erie,

hereditament, his dignity, infringed by the user of his title by his divorced wife, now married to a Commoner. Cowley v. Cowley, [1901] A. C.
450. The Copyright Act, 191 1, i & 2 Geo. V. c. 46, repealing Acts from
1734 to 1889, consolidates the law of the subject, both national and international. On the defects of the law in 1901, see W. H. Draper, in 17
L. Q. R. 39-

See the Consolidating Patents and Designs Act, 1907, 7 Ed. VII. c. 29.
On the copyright retained in a letter by the writer of it, see Pope v.
Curll, 2 Atk. 342; Oliver v. Oliver, 11 C. B. N. S. 139; Macmillan v. Dent,
A painter's copyright in his pictures, under 25 & 26
[1906] I Ch. loi.
Vict. c. 68, was held not to be infringed by the exhibition of tableaux
*

Empire Co., [1894] 2 Ch. i;

nor by the publication of sketches of such tableaux, Hanfstaengl v.
Baines, [1895] A. C. 20; but see now s. i of the Act of 1911.

vivants reproducing their effect, Hanfslaengl v.

P2

'

has been

trade-mark

of intangible objects of

any rate so treated

granted Copy-

to painters, engravers,

sculptors, in the productions of their genius

be added to the

is

PRIVATE LAW: RIGHTS

212
CHAP.

XI.

by Lord Westbury, which,

He

says, for instance,

necessary for the

that

it is

plaintiff's

'

'IN REM.'

seems, are

it

good law.

still

Imposition on the public

plaintiff's

indeed

way

but in this

title,

is

only,

the test of the invasion by the defendant of the

right

property \'

of

It

is

described

also so

throughout the Trade Marks Act,' 1905 ^ as

'

it

had been

in

the French law of 1857 relating to 'Marques de fabrique

The extension

et de commerce.'

these

to

three rights

Patent-right

Monopolies,

lac.

c.

I.

comparatively recent date.

is

older than the Statute of

\ and copy-right

traceable previously to the

trade-marks were

ownership

of the idea of

of

England

in
2

is

Act

of 8

Anne,

is

obscurely

c.

19*,

but

protected in the nineteenth century.

first

Violations of this sort of property are described in English

law as infringements.'
'

With such

Franchises.

intangible property should probably also be

classified those royal privileges subsisting in the

known

a subject which are

in English

law as

hands of

franchises,'

Hallv. Barrows, 30 L. J. Ch. 204. Cf. Oakeyv. Dalton, 35 Ch. D. 700.

S Ed. VII. c. IS, consolidating the law of the subject. So too in the,
now repealed, 'Trade Marks Registration Act, 1875,' and in the relevant
sections, now also repealed, of the 'Patents, Designs, and Trademarks
Act, 1883.' On such right as a trader may have to an exclusive use of
his name, see Burgess v. Burgess, 3 D. M. G. 896.
' On letters patent by Royal Prerogative in England, see an Art. in
Law Quarterly Review, xii. p. 141. On the construction of certain letters
patent granted by the States General in 1630, see The Opinions of Gro*

'

tius,
*

De Bruyn, p. 115..
On the curious question of a copyright at common law, now excluded

by the Act of 191 1, s. 31, see the case of Jeffreys v. Boosey, u. s., which
decided, overruling Donaldson v. Beckett, 2 Bro. P. C. 129, against a
considerable weight of judicial opinion, unfavourably to the existence
any such

any rate since the Statute of Anne. Cf. the Report

Commission on Copyright of 1878, embodying a draft Digest
of the existing law upon the subject, by Sir J. F. Stephen. On the question of a common law cop5Tight in an orally delivered lecture, see

of

right, at

of the Royal

Abernethy v. Hutchinson,

D. 374; and Sime v. Caird,

on appeal from the Court

Hall

1 2

& Tw.

Pitman, 26 Ch.
which the House of Lords,

28; Nichols v.

App. Ca. 326,

in

of Session, held that the delivery of a Uni-

versity lecture does not divest the author of his copyright in it. Cf.
Dalloz, t. XI.P.2.P.187. On copyright in a report of a public speech, see

Walter v. Lane, [1900]

A. C. 539.

INTANGIBLE PROPERTY
such as the right to have

market, a

or

fau*

213
forest,

chap. xj.

free- warren or free-fishery.

The once well-known

'

law as

Bannrechte,'

German

described in

privileges

of having all the corn of the

e. g.

neighbourhood brought to one's mill to be ground, MUhlen'

zwang,'
'

the bread brought to one's oven to be baked,

all

and

Backofenzwang,'

the

belong

like,

same

the

to

category.

3.

still

bolder fiction than those just considered was Bonorum

familiar to the

Romans.

All that a given individual can

be said to be worth, reckoning together not only

ownership, but also the value of any claims

of

rights

all his

which he may have against others ('bona

have against him
be his

'

property,'

('

bona passiva '),

and he

is

may

whole complex mass of rights

rem and

in

owner

'

'

of the

in personam,'

'

'

deductions \

less

Such a
phrases

'

mogen.'
'

sometimes said to

is

said to be the
'

but

activa'),

deducting the amount of any claims which others

alles

totality of

bona,'

'

property has been described by the

patrimoine,'

'

avoir,'

estate,'

'

'

assets,'

The last-mentioned term has been

was uns zusteht oder gehort

"^

also as

' ;

'

'

Ver-

defined

as

der Inbegriff

der Rechte einer Person, die einen Sachwerth haben, oder

deren

Werth

sich in

Geld anschlagen

of property, should its subject die,

^

'

La notion de

Such a mass

lasst ^'

becomes a

la propriety est alors identifiee

'hereditas.'

avec

celle

de

I'avoir,

quoiqu'il faille toujours distinguer les biens materiels qui sont imm^diate-

ment dans notre pouvoir de ceux par rapport auxquels nous avons des
Bona intelliguntur cuiusque quae
droits
faire valoir.' Ahrens, ii. 121.
'

fi.

Bonorum appellatio, sicut

deducto aere alieno supersunt.' Dig. 1. 39. i
hereditatis, universitatem quandam ac ius siiccessionis et non singulas
Bona autem hie, ut plerumque solemus
res demonstrat.' Dig. 1. 16. 208.
dicere, ita accipienda sunt, universitatis cuiusque successionem, qua
succeditur in ius demortui, suscipiturque eius rei commodum et incommodum nam sive solvendo sunt bona, sive non sunt, sive damnum
habent, sive lucrum, sive in corporibus sunt sive in actionibus, in hoc
'

'

bona appellabuntur.' Dig. xxxvii. i. 3 pr. cl. 1. 16. 49.

So a contractual right to the transfer of suitable land in Roumania has
been held to be 'property.' Danubian Sugar Factories v. Inl. Rev.

loco proprie

Coynmissioners, [1901]
*

Roder,

ii.

p. 239,

Q. B., C. A., 245.

Puchta,

ii.

p. 302; cf. 578.

luiivGrsi"

tates.

PRIVATE LAW: RIGHTS

214

Although some few modes

CHaP. XI.

Commence-

ment

of

are applicable to

'IN REM.'
or

acquisition,

of

'titles,'

three classes of property, each class

all

has also a set of modes of acquisition appropriate to

the right,

may

It

itself.

be convenient to mention the special modes

those, namely,

which are respectively applicable

first,

to the

acquisition of physical objects, of groups of rights treated

as

they were physical objects, and of complex masses

if

and

of rights

Physical objects,

over
physical
objects.

tion.

res corporales,'

res

'

quae tangi possunt,'

original

'

or

'

'

derivative.'

Original acquisition takes place either with or with-

1.

out an act of possession.

With such an

I.

(a)

With possession.

'

are capable of being acquired in a variety of ways, which

are either

Original
acquisi-

duties.

'

Occupatio

'

act,

quod enim

to no one

occupanti

conceditur

animals

'

derelicts,

the right

thesaurus,'

i.

e.

'

gained by:

nullius est, id ratione natural!

Among

'

res

nullius

the property of enemies

must be remembered that the right

is

and a

vetus quaedam depositio pecuniae, cuius

non exstat memoria, ut iam dominum non

objects

wild

are

'

which on abandonment cease to belong

to their former owners

'

is

the taking of what previously belonged

by no means recognised

habeat^.'

It

such

of the finder of

Most

as unqualified.

systems of law hold that property taken from an enemy

vests primarily in
publicae,' a rule

the

which

nation,
is

'bello

cedunt

parta

rei-

the foundation of the law of

booty and prize; and the right to capture animals 'ferae

or to appropriate

naturae,'
qualified
(j8)

'

by the rights

Specificatio

'

much

usually

is

i.

e.

the

working up

new

of

There

product.

Dig.

Cf. A. G. V. Trustees of British

I.

3 pr.

Museum,

Djg

[1903] 2

jj

itself ^

materials

room

is

difference of opinion as to the cases in

li.

treasure-trove,

landowners and of the State

belonging to another into a

for

of

which

^i. i.

Ch. 598.

ORIGINAL ACQUISITION.
ovraership

may

thus be acquired by manufacture, and

a long controversy was

of the Proculian
'

(y)

215
chap. xi.

on between the jurists

carried

and Sabinian schools upon the subject *.

Fructuum

perceptio,'

e.

i.

the rightful takhig of the

produce of property by a person

who

not owner of the

is

property.

Lawful possession, continued for such periods as may

(8)

be recognised by law as sufficient for the purpose.

in the older

Roman

So,

law% the possession of an object which

had been acquired bona

and

fide

'

ex iusta causa

gave in

'

one or two years, according as the object was a moveable

or an immoveable, full ownership of
'usucapio.'

And

this title, practically

it,

by the

title called

which does not favour

so English law,

transmutes long possession of real

property into ownership, by bringing to an end the right

of the
it

owner;

for

by the Statute

&

W.

IV.

enacted that, 'at the determination of

is

limited

by

this

Act

c.

27.

s.

34,

the period

any person for making an entry

to

or distress, or bringing any writ of quare impedit or other

action or suit^ the right

and

title of

such person to the

land, rent or advowson, for the recovery whereof such

entry, distress, action or suit respectively

made

might have been

or brought within such period, shall be extinguished.'

This mode of acquisition, sometimes called 'acquisitive

Prescription,'

must be

carefully distinguished

tinctive Prescription,' or the

'

from 'ex-

Limitation of actions,' which,

as will presently appear, causes not a transfer of a right,

but merely the loss of a remedy.

2.

(a)

The

right

is

obtained without an act of possession by

'Accession,'

when

becomes also ow^ner

'

Settled

'

I. e.

of its accessory

by Justinian,

the owner of the principal object

Inst.

ii.

i.

'.

34.

as a rule twenty years, which period has been reduced

Vict. c. 57 to twelve years.

' It may be worth while to observe that

name of a title, but signifies the accessory

'

accessio

'

in

Latin

by 37 & 38
is

thing. Cf. Dig. xxxiv.

not the

2. 19. 13.

Without
sion.

PRIVATE LAW: RIGHTS

2l6

'IN REM.'

Immoveables may accede, or adhere, to immoveables, as

CHAP. XI.
is

when

the case

'

to another,

soil is
'

alluvio,'

and

'insula nata,'

its

bank

or an island

' ;

of a river

formed,

is

divided between the riparian pro-

is

prietors, or assigned to

or a river leaves

carried from one

avulsio

him

bed,

'

to

whose land

alveus derelictus,'

it is

nearest;

which

is

then

shared by the owners of the banks.

Moveables

may

accede to immoveables.

So beams and
it

by

except so far as they come within the

in-

other objects fastened into a house become part of

'

inaedificatio,'

dulgence granted by the law of 'fixtures'; and trees and

from the

crops become inseparable

are planted by

'

satio

or

'

'

plantatio

soil

in

which they

in pursuance of the

' ;

maxim quidquid plantatur solo cedit.*

Moveables may accede to moveables, as an embroidery
to a garment. On the other hand, proprietas totius navis
carinae causam sequitur*.' The rule and the exceptions
to it were discussed by the Romans under the heads of
'

'

'

scriptura,'
(/3)

'

pictura,'

partus ancillae,'

'

'

adiunctio.'

'Confusio' and 'commixtio,' which usually produce

joint-ownership.

Derivative
tion.

2.

Derivative acquisition

'

may

take place inter vivos or

In the former case,

upon death.

alienation,' or

'

it

is

often described as

conveyance,' and implies in

Roman law

the concurrence both of the alienor and the alienee.

omnibus

quae

rebus

dominium

transferunt,

oportet affectus ex utraque parte contrahentium

concurrence

which

in

it

is

'

contract,' in the

'In

concurrat

Such

wider sense of that term,

has been defined as 'the union of several

persons in a coincident expression of will by which their

legal relations are determined \

Dig.

'

Derivative acquisition of

vi. I. 6i.

7. 55. As to English law, infra, chapter xii.

Savigny, Obligationenrecht, ii. p. 7. Kant defines contract, in the
sense of conveyance, as Der Act der vereinigten Willktihr zweier
*

Dig. xliv.

'

'

DERIVATIVE ACQUISITION.

upon death takes place by legacy or by

single objects
'

21/

\'

donatio mortis causa

Roman

Alienation inter vivos required, according to

law,

not only the agreement of the parties, but also a delivery

'

of possession, *traditio.'

Traditionibus et usucapionibus

On

dominia rerum, non nudis pactis transferuntur.'

the

other hand, a mere delivery, without a valid accompanying

agreement, was not

'Nunquam nuda

enough.

transfert dominium, sed ita

causa, praecesserit, propter

traditio

venditio, aut aliqua iusta

si

quam

traditio sequeretur ^'

So

be by deed,

in English law, the gift of a chattel, unless it

must be accompanied by delivery of possession, and livery

was essential to pass a freehold estate in
of seisin
'

'

In the older French law, 'pour qu'une obligation

land.

transmit la propriete,

elle

devait etre suivie de la tradition.

Celui qui achetait une maison, par exemple, n'en devenait

proprietaire que
elle

si

du moment

livree

etait

une autre

pour se faire donner

lui etait livree;

personne

la propriete

cette propriete etait la tradition

As

maison

c'etait

le

moyen

d'acquerir

a general rule, however, in English, and,

also in

modern French law

property

is

complete.

*,

the

it

seems,

alienation of specific

effected as soon as the alienatory contract is

purchaser

becomes the owner

agreed

cette

L'obligation n'etait alors qu'un

personne qui I'acquerait.

titre

oCi la

with

the

of

who
it

chooses an article in a shop

from the moment that he has

shopkeeper

upon the priced

Special

formalities are, however, superadded to the consent of the

parties in particular cases.

Thus, according to the law of

Personen, wodurch uberhaupt das Seine des Einen auf den Anderen
Rechtslehre, Werke, vii. p. 71.
2 Dig. xli. I. 41.
1 Cod. 2. 3. 30.
* Code Civil, expliqu^ par Rogron, art. 711.
* Code Civil, 1583, Codice Civile, 1448. Scots law was modified in the
same direction by 19 & 20 Vict. c. 60, and is now assimilated to English

tibergeht.'

law by the Sale

'

GUmour

of

Goods Act, 1893, ss. 17,

Moo. P. C. 566.

v. Supple, 11

18.

chap. xi.

PRIVATE LAW: RIGHTS 'IN REM.*

2l8
CHAP. XI.

England, a grant of land must be under

assignment of a ship must be by

of sale.

bill

continent the presence of a notary public

to give validity to the act, or

a public office \

made

England

Ulpian

'

the

has to be registered in

it

determined effort has been recently

gives a

objects,

of

list

some

of

the

modes

of

acquiring phy-

which are peculiar to Roman law.

Singularum rerum dominia,' he says,

mancipation e,

'

usucapione,

traditione,

nobis adquiruntur
iure

in

cessione,

^'

adiudicatione, lege
Intangible
proper y.

On

often needed

is

to establish a system of compulsory registration of

title in

sical

and the

seal,

Such property as may be had

in inventions

and

in

works

recognised by law only after compliance with

^^ ^^^ j^

certain formalities,

which are intended both to bring to

a test the merit of the inventor or artist, and at the same

time to define the right for which protection

The inventor has

in

England

is

claimed.

to present a petition to the

Crown and lodge

a description of the alleged invention

at a public office.

After a certain time has elapsed and

opportunity has been given for objections to

letters patent

be made,

are issued, granting to the petitioner the

exclusive right of using his invention for fourteen years,

a term which

is

for the

manufacture of the

What

is

The patentee may

sometimes extended.

by a registered deed assign

described as

'

his right, or
article to

literary

may

which

and

it

grant licences
relates.

artistic

property

'

is

general acquired by producing and making public a

in

work

of literature or art, although

till

a copy of the

work

On Registration of Title in Germany and Austria-Hungary, see the

Reports presented to Parliament in 1896 [c. 8139].
^ By the Land Transfer Act.,
1897, 60 & 61 Vict. c. 65, amending the
Act of 1875, registration on sale may be made compulsory in any county
or part of a county by Order in Council, unless the making of such Order
is opposed as provided. An Order in Council has accordingly been made
which on January i, 1900, took effect throughout the county of London.
^ Reg. xix. 2; of. Varro, de R, R. ii. 10.
'

DERIVATIVE ACQUISITION.
has been deposited or registered in a public
in

most cases gives

it

no protection.

219
oflBce,

the law

A copy-right is

allowed

chap. xi.

not only in books, paintings, and sculpture, but also in

architecture, casts, engravings, drawings, photographs,

And

designs for articles, whether of ornament or utility.

the right

may be

assigned.

A trade-mark is
and

acquired by use followed by registration,

The law

capable of assignment.

is

foreign

recognise

will

marks

and

and

patents,

made

treaties are

of

many

countries

and

copy-rights

to arrange the

conditions

under wliich this favour will be granted.^

trade-

franchise

can be acquired only by royal grant, actual or presumed,

and may be assigned by deed.

Those complex masses

of

rights

and duties which are Complex

sometimes treated as property, grow up gradually round

a

man

They

as a result of the various circumstances of his

life.

are transferred from him, so far as they are capable

of transfer,

by some form of universal succession ^

Besides the

'

dispositive facts

'

which are thus proper

to Disposi-

each species of property, there are others of quite general

apph cation.
i.

e.

rights and
^^^'^s.

These are either voluntary,' or

'

'

they are the result of the act of at least one of the

parties concerned, such as purchase, or gift, or testament,

or are the result of causes external to the parties, such

as the decision

of a Court, or the operation of a rule of

law upon a given set of circumstances, such as bankruptcy,

marriage,

or

proximity

necessary to observe

of

how

It

relationship.

large a space

is

every system of law by the definition of

is

hardly

occupied

in

the right to

succeed to property enjoyed by the various classes of heirs

E. g. a Convention for an International Union for the protection of
was signed at Paris, on behalf of a number of
Powers, 20 March, 1883. Great Britain acceded to it 17 March, 1884.
Her accession to a Convention for an International Union for the protection of Literary and Artistic Works,' signed at Berne, 9 September,
'

of general

involuntary,' applica-

'

Industrial Property'

'

1886, was followed by the International Copyright Act, 1886,

seded and repealed by the Copyright Act of 191 1.
2 Supra, p. 160.

now super-

PRIVATE LAW: RIGHTS 'IN REM.'

220
CHAP. XI.

and next

of kin,

and how comparatively modern

right to defeat the expectations of such persons

away from them by

the property

As something has been

Divesti'

divestitive facts

death of

former chapter of

may be

it

of all kinds

here that property

the

will.

said in a

generally \

'

is

by leaving

sufficient to

add

lost not only by the

is

owner, but also by his ceasing to enjoy legal

its

recognition as a person

a consequence which, under some

systems, follows from 'entering into religion,' from conviction of serious crime,

from outlawry, and generally from

causes which produce forfeiture ^

by the various

not only

abandonment.

It

forms

It is of course lost

may

also be lost

alienation,

of

but by

by the destruction

of

the object owned.

The modes
need not be

of acquiring

tendency of which

The

and losing ownership vary,

with the progress of

said,
is

it

civilisation, the

generally towards their simplification.

attention of the student of Jurisprudence should be

mainly directed to those modes which he finds to be more

*

constant than the rest, most of which were recognised by

'

the
Modes
ship.

of

Romans

as being institutes of the

'

ius

gentium '.'

Ownership may be exclusive, or enjoyed

with

others, 'condominium.'

each of the co-owners

the property,

as

is

Cf. supra, p. 159.

may have
the

in

common

In the latter case, either

a quantitative share in

case with

English tenants-in-

'

Cf. supra, p. q6 n.

i.

may

perhaps be worth while to compare with what has been said

in the text the classification of the titles to property (things) which was
proposed by Bentham. He reduces them to the following heads:
I. Actual possession; 2. Ancient possession in good faith; 3. Possession
of the contents and produce of land; 4. Possession of what land supports
and of what it receives 5. Possession of adjacent lands 6. Ameliorations
of one's own property; 7. Possession in good faith with amelioration of
another's property; 8. Exploration of mines in the land of another;
9. Liberty of fishing in great waters; 10. Liberty of hunting upon
unappropriated grounds; 11. Consent; 12. Succession; 13. Testament.
Trait^s, par Dumont, t. i. p. 276.
2

It

''

lURA IN RE ALIENA.

221

common, or no quantitative shares may be recognised,

chap, xl

as in the Indian village communities.

In some systems a distinction

legal,

strictly

same

the

and the

beneficial,

object, a distinction

by the terms

'legal'

and

drawn between the

ownership of one and

is

expressed in English law

'equitable,'

and

Roman law

in

by Quiritarian and Bonitarian,' property.

'

'

'

One

or

more

of the subordinate elements of ownership, lura

such as a right of possession, or user,

out while the

elements of the

proprietas,'

right

in re

be granted

ownership, called by

residuary right of

Romans 'nuda

the

may

remains unimpaired.

The

which may thus be disposed

without interference with the right

itself,

of

in other words,

which may be granted to one person over an object of

which another continues to be the owner, are known
as 'iura in re aliena\'

The permanently important

*

Servitude

and

'

'

and

Superficies,'

'

Pledge.'

species of such rights

Two

others,

'

are

Classifica-

Emphyteusis

were peculiar to Roman law, and may

therefore be dismissed in a few words.

'

Emphyteusis

'

was the

the owner of a piece of land to use

petuity, subject to forfeiture

rent ('canon')

who was not Emphyhis own in per-

right of a person
it

as

on non-payment

of

a fixed

and on certain other contingencies.

The

position of the 'emphyteuta' presents obvious analogies to

that of a feudal tenant or an Indian ryot.

was the

right

which one person might have,

'

Superficies

in perpetuity

or for a very long term of years ^ over a building which.

For some interesting remarks upon the advantages derived from a

recognition of such 'iura,' see Sohm, Institutes, Transl., p. 157.

' In the latter case,
paying a 'solarium.' The 'superficiarius' has

not only detention of the buildings, but quasi-possession of the right over
them, which is protected by interdicts. Dig. xliii. 18. i. The 'Chijoken' (translated 'superficies') of the Japanese Civil Code, arts. 265-269,
defined as 'the right to use another person's land for the purpose of
owning thereon structures or plantations of trees or bamboos,' is a right

PRIVATE LAW: RIGHTS

222
CHAP. XI.

'IN REM.'

having' been erected on the land of another person, became,

upon the principle

quidquid inaedificatur solo

'

cedit,'

the

property of the owner of the land.

Servitudes.

We

have seen that the rights of the owner of a given

piece of property sometimes involve a restriction on the

what they will with their own.

unburdened by buildings is said
have a 'natural right' that no excavation shall be

rights of others to do

Thus the owner

to

of land

carried on either under

He

to fall away.

which reaches

or so near to

it

has also a

it

natural right

'

as to cause

land shall not be intercepted in

his

it

that a stream

'

its

course through the land of his neighbour \

The

'

earliest

servitudes

seem to have been

'

They derive their name

upon the landowner

tensions of such natural rights.

from imposing a sort

whose

upon the

neighbouring

'

plot, for

it is said,

praedium dominans,'

which

for

the

by a servitude

dominant tenement
is

it

the

the

'

'praedium

is

called

the land
serviens,'

These Servitudes, since they exist

'servient tenement.'

not

'

of

non personae sed praedia

benefits
'

burdened with

is

favour of his neighbour;

plot of land itself in favour

The land which

debent ^'
the

subjection

of

they restrict in

rights

or rather

artificial ex-

benefit of

any individual as such, but as

giving increased value to a given piece of land, are called

'real,'

seems

to

described,

or 'appurtenant.'

'praedial,'

have been

by way

given

to

contrast,

of

the
as

later

class

being

of
'

recognition

servitudes

personal,'

or

if not fixed by the parties, nor terminated by the

be fixed by a Court at not less than twenty or more

the duration of which,

superficiary,

than

may

fifty years.

The dissatisfaction

at being registered as

'

superficiarii

of foreign holders of perpetual leases

'

led to diplomatic correspondence

in 1903.

The French Code,

or Services fonciers
'

may
'

'

art. 639, includes these rights

enumerating,

arise, 'de la situation naturelle

Dig.

^^ii. 3.

34.

Cf. ib.

i.

15.

among

under 'Servitudes,'

the ways in which servitudes

des lieux.'

SERVITUDES.
*

in

which may be enjoyed by an individual,

gross,'

analogous
of these

ownership of land.

the

irrespectively of

such,

223

servitude, though

to

classes,

is

as

chap. xi.

right

not reducible to either

that which, in English law, the in-

may

habitants of a given place

have, by custom, to go

upon a neighbouring

piece of land at certain times for

a given purpose,

to hold horse-races or to dance

e. g.

on

the green \

Servitude has been defined as 'a real right, consti-

tuted for the

or

advantage of a definite person

exclusive

piece

definite

land,

of

by means

of

which single

discretionary rights of user in the property of another

belong to the person entitled ^'

Certain characteristics applicable chiefly to real servi-

and

tudes,

summed up

Roman law

the

most part

for the

precedes, are

Nulli res sua servit *.'

Servitus servitutis esse

Servitudes

be

'

ing

may

in

rural

'

non
or

'

f aciendo

urban

most important

non

est,

faciat

ut aliquid faciat quis,

non potest V

be classified in various ways.

positive,' consisting
'

from what

sed ut aliquid patiatur aut

'

easily deducible

the following passages from

Servitutum non ea natura

'

'

'

' ;

'

'

in patiendo,' or
'

continuous

apparent

division

is,

'

or

'

'

'

or

They may Classifica-

negative,' consist'

discontinuous

however,

into

'

Their

non-apparent.'

and

'real'

personal ^'

'
Cf. Mounsey v. Ismay, 3 H. & C. 486. According to recent views,
such customs are a survival of the old common use of the lands of a township, rather than an intrusion on the rights of the lord. Cf. Pollock,
Land Laws, p. 39; Wanvick v. Queen's College, Oxford, L. R. 10 Eq. 105.
* Von Vangerow, Pandekten, iii.
338.
* Dig. viii. I. 15.
As to the one exception to this rule, see Dig. viii.

S.

and

8.; viii. 2. 33.

Dig.

viii. I. 16.

'

'Servitutes aut personarum sunt, ut usus et ususfructus; aut rerum,

lb. viii. 3. 33.

ut servitutes rusticorum praediorum et urbanorura.'

Dig.

viii.

i.

i.

i.

^""

PRIVATE LAW: RIGHTS

224
CHAP. XI.
Real Servitudes.

A real

servitude

'IN REM.'

defined in the French Code as

is

un

charge imposee sur

heritage pour I'usage et

divided, although

law, or French, into

cally described, in the

former kind

piscary,' 'of turbary,'

of

e.

'

e.

i.

wood^

cutting

pascendi,'

character

profits

rights

of

owner

'common

certain

Of

this

of pasture,' 'of

of digging turves, 'of estovers,'

These,

calcis coquendae,'

are

remove

entitled to

is

'

Roman

the

like

'iura

harenae fodiendae V are

the benefit of agriculture.

for

'

implies that the

from the servient tenement.

objects

kind are the English rights of

i.

techni-

language of English law, as

the dominant tenement

of

what are

is

'

right of the

tangible

Such

distinction

and easements.'

a prendre '
Profits.

the

una

I'utilite

d'un heritage appartenant a une autre personne\'

servitudes may be
unknown to Roman

all

Of a somewhat different

'common

the

in

soil,' e. g.

of

quarrying, or digging for coal or minerals.

Easements.

That species

of real servitude for

which Roman law

has no distinguishing name, but which English law

an Easement,
'

as

is

defined in an ancient

work

calls

of authority

a privilege that one neighbour hath of another, by

writing or prescription, without

through

his land, or the like

profit, as

way

or sink

*.'

The more important easements

are rights of way, to

the use of water, to the free reception of light and air*,

the

support

Code

Civil, Liv.

'

to

'

of

ii.

buildings ^

tit. 4,

The Roman

distinction

'Des Servitudes et Services Fonciers.'

draw water is not a profit.

right to go on another's land to

Inst. ii. 3. 2; Dig. viii. 3. 1-6, 24.

This definition would however be misleadGoddard on Easements, p. 2.

* Now held by the House of Lords to be a right of enjoyment, not of
property, infringed only when the obstruction amounts to an actionable
nuisance. Colls v. Home & Col. Stores, [1904] A. C. 179. Of. Jolly v.
Kine, [1907] A. C. i.
8 The doubt which was entertained as to the possibility of gaining a
right by prescription to lateral support from land for land as burdened
*

Termes de

la ley, p. 284.

ing without explanation. See

22c

REAL SERVITUDES.
between

'

meaning

of

rural

and

'

servitudes, as to the precise

'

upon the general

enjoyment

law

English

urban

of

not

will

allow

that

d'etablir sur leurs

leurs proprietes, telles

pourvu neanmoins que

ment a un fonds

of

'il

creation

The

an

of

of

list

elastic,

est permis

proprietes,

and

aux pro-

ou en faveur de

servitudes que

bon leur semble,

les services etablis

ne soient imposes

en faveur de

et

the

Roman law was more

down

the French Code lays

ni a la personne, ni

suitability of the right

unknown

hitherto

analogous servitudes in

la

personne, mais seule-

pour un fonds, et pourvu que ces

services n'aient d'ailleurs rien de contraire a I'ordre public

Some

xl

land or of buildings respectively.

easement of a kind

prietaires

chap,

which more has perhaps been written than was

necessary, turned
for the

'

things are too trivial to be the object of a servi-

So in English law there can be no easement of

tude.

a fine view.

'

For

prospect,'

is

it

decided,

'

which

matter of delight and not of necessity, no action

stopping thereof

I'

Roman law was more

the pleasures of the eye

among
stroll,

although

is

lies for

indulgent to

refused to reckon

it

servitudes a right to gather apples, or to take a

or to picnic, in the grounds of one's neighbour ^

Real servitudes are usually acquired by grant, testament,

or prescription.

They may terminate

express release, of

in

consequence of

abandonment, or of a union

of

the

ownership of the dominant and servient tenements.

Rights of enjoyment exercisable by a given individual, Personal
as such, over the property of another, are
tudes.'

740.

personal servi-

They may be imposed upon moveable

buildings has been set at rest

by

'

as well as

v. Dalton, L. R. 6 App. Ca.

from buildings was allowed in

by A7igus

similar right to lateral support

Lemaistre v. Davis, L. R. 19 Ch. D. 281.

My. & K.

Keppel

Aldred's Case, 9 Rep. 576.

lb. viii.

V. Bailey, 2

535.

Code

Dig.

Civil, art. 686.

viii. 3.

15, 16.

I. 8.

8 'Servitutes aut personarum sunt

aut rerum.' Dig. viii. i. i.
Such servitudes, as being imposed upon a thing in favour of a person,
.

1950

tudes.

'

PRIVATE LAW: RIGHTS

26
CHAP. XI.

immoveable property
cattle, furniture,

and

'IN REM.'

not only upon lands, but also upon

slaves.

'Profits a prendre'

may

similarly, according to English

law, be enjoyed by an individual, apart from his ownership

of land

but an easement, according to the modern

which

tion of the right

can never be thus

Use.

'

identifies it

in gross

defini-

with a real servitude,

\'

The Romans distinguished two grades of such lights.

The lower, usus,' implied in strictness a user of the object
'

itself,

Usufruct.

without any advantage from the products of the object.

They defined the

higher,

'

ususfructus,' as

'

ius alienis rebus

utendi fruendi salva rerum substantia'; and allowed to

the
its

'

fructuarius

rights of enjoyment of the object and

'

products, which, as long as they lasted, excluded that

In several modern systems of law, the

owner.

of the

grant of a usufruct answers the purpose which

in English

law by the creation of a

English testator gives to

life interest.

is

attained

When

an

estate with remainder

life

Frenchman would leave the property to B subject

The Scots life-rent' in
to a 'usufruit' to A for life'^.
heritable objects or money, of which terce and curtesy
to B, a

'

'

'

are species,

is

of the

same nature ^

The servitudes recognised by Roman law under the

Habitatio and Operae servorum et animaUum
were somewhat abnormal species of usus.'
names

'

'

'

'

were called by the mediaeval jurists 'mixed,' to distinguish them alike

from real servitudes,' which are imposed upon a thing in favour of
another thing, and from 'personal servitudes,' which, according to this
terminology are imposed upon a person, a slave, for the benefit of another
'

person, his master.

3

1 See per Lord Cairns C, in Rangeley v. Midland Railway Co., L. R.

Ch. Ap. 306.
^ The French Code is so careful to prevent any revival of prae-revolu-

avoids recognising usufruct or any other rights as

The same feeling dictated art. 638, 'La servitude
n'6tablit aucune preeminence d'un heritage sur I'autre'; and art. 686,
against the imposition of servitudes ni ^ la personne ni en faveur de la
tionary ideas, that

it

'personal servitudes.'

'

personne.'
*

Ersk. Inst.

ii.

9. 40.

PERSONAL SERVITUDES.

--/

personal servitude, as originally conceived

of,

could

chap.

be enjoyed only over things which 'usu non consumuntur,' ^JJJ^ct

and which would therefore be capable, on the termina-

handed over

tion of the right, of being

to their proprietor

good condition as they were in when received.

in as

flock was, for this

purpose, regarded as an ideal whole,

capable of being restored as such, although the usufruc-

new

tuary had replaced some of the individual sheep by

ones

but wine, corn, dresses, and even money, since no

made

use could be

such objects without destroying

of

or spending them, were not allowed to be susceptible of

usufruct.

'

quasi-usufruct

of

'

such things was, however,

authorised by a Senatus-consultum under the early Empire

'not that this enactment created a usufruct, properly so
called,'

says Gains,

'

for the Senate

is

powerless to vary

natural reason, but a quasi-usufruct was introduced

an action was given for

The usufructuary
security that the

protection

its

perishable

of

at the proper time

safeguard the principle of the later

By

the French Code.

etabli sur toute espece

The

has

things

give

to

proper quantity, or amount, of them

shall be forthcoming

in

when

\'

and with

Roman law

is

581, 'I'usufruit

art.

pent etre

de biens, meubles ou immeubles.'

rights of a usufructuary, or other person enjoying

analogous advantages over property which after his

time, or at

some otherwise determined epoch,

to another person, v/hether

the

'

proprietaire,'

or

different systems

may vary

in detail

but the object of

who

from

it

ultimately.

it

'

Dig.

vii.

5.

2.

under

systems

as are not in-

consistent with the interests of the persons

to

all

has the immediate interest

in the property such advantages

entitled

life-

pass

such other person be called

Thej^

of law,

to give to the person

will

'remainder-man,' follow from

the

the nature of the case.

is

this

adopted

Acts which

Cf. Inst.

ii.

4. 2

are

who

will

be

detrimental

xi.

'

PRIVATE LAW: RIGHTS 'IN REM.'

228
CHAP. XI.

to such expectant

are sometimes described in

interests

English law as injury to the reversion.'

'

usufruct

Roman law

is

an interest for

did not allow

it

or for a less period.

life,

to be granted to a corporation

more than a hundred years, a period which

the French Code to thirty \

for
in

The usufructuary

is

entitled

the

to

reduced

is

fruits

of the

property ; whether natural,' as brushwood and the young

'

of animals, 'industrial,' as crops

as rent of land

and interest

to exercise the right

may

be

left

by

'

of

and vintages, or

He

money.

en bon pere de

The

f amille ^'

will or granted inter vivos.

times implied by law.

'civil,'

has, in general,

right

It is some-

So in France parents have the

usufruct of the property of their children

the age of eighteen ^

may be

It

let

they attain

till

or alienated.

It

comes to an end with the death of the usufructuary, or

other termination of the period for which

it

was granted,

with the destruction of the property over which

able,

and with a

'

consolidatio

'

with that of the usufructuary.

by wrongful

Certain rights

Reallasten.

user, or

to

a given piece of land.

as 'a

positive

the time being

dat, sed

may

also be forfeited

as

they impose

They

Reallasten

a duty upon

are not servitudes, because

in f aciendo,'

'

Reallast

fundus

is

acts.'

bound

'

is

debet.'

The owner

defined

of the land for

to perform these acts,

the maintenance of dykes

und

and many feudal

Sielrecht,'

*homo

Of such a nature are the payment

ground-rent,

Deich-

'

duty attached to a piece of land of periodically

performing

of

It

German law

resemble servitudes, because

the duty consists

enjoy-

by non-user.

known

'

it is

of the title of the proprietor

and

sluices,

incidents.

Code Civil, art. 619.

As to the right of a usufructuary, and a life-tenant, to cut great
timber, see per Bowen L. J. in Dashwood v. Magniac, [1891] 3 Ch. 307.
Code Civil, art. 384.
'

'

PERSONAL SERVITUDES.
Another

class of rights

229

which somewhat resemble

tudes are those which are enjoyed by hcencees.

'licence,' as

interest,

chap. xi.

q,^^^^^^^^-

has been authoritatively stated, 'passeth no

nor

alters, or transfers

property in anything, but

only makes an action lawful which without

unlawful

servi-

But

^'

company granted

canal

it

had been

to one Hill the

exclusive right of putting pleasure-boats on their canal.

Another person having put boats there was sued by

on the ground

owner

that, as the

Hill,

an estate may grant

of

a right to cut turves, or to fish or hunt, there was no

why he

reason

in question.

should not grant such a right as that

The Court however held

'A new

could be given.

ment

cannot,'

and pleasure

it

was

of the

of

it

down, 'be created at the

laid

owner

content to accept the

that no such right

species of incorporeal heredita-

of property, but he

estate

subject to the law.

will

must be

and the right to dispose

grantor

may

bind himself

by covenant to allow any right he pleases over

his

pro-

new incident so as
to enable the grantee to sue in his own name for an
infringement of such a limited right as that now claimed ^'
perty, but he cannot

The

*iiira in

annex to

it

re aliena' which have hitherto been con- pledge,

sidered are given with a single purpose.

to extend the advantages enjoyed

the bounds of his

of the

right
object,

same

own

property.

class

which

is

by a person beyond

But there

is

also

given, not with

this

but for the merely subsidiary purpose of enabling

the person to

whom

it is

granted to make sure of receiving

a certain value to which he

*

is

Their object

Thomas v. Sorrell, Vaughan,

is

351.

entitled;

if

not otherwise,

The license granted by the sale of a

ticket of admission to a place of entertainment includes a contract not to

revoke it, unless for misbehaviour. The old common law requirement of
a contract under seal to produce this result is no longer in force since the
Judicature Act, 1873, and a wrongfully ejected licencee is entitled {dubitante Phillimore L. J.) to damages for the assault. Hurst v. Picture Theatres, Ltd., [1915] I K. B. I (C. A.), overruling Wood v. Leadbitter, 13 M.

& W.
'^

838.

Hill V. Tupper,

H,

&

C. 121.

PRIVATE LAW: RIGHTS

230
CHAF. XI.

'IN REM.'

then at all events by means of the right in question.

The other rights 'm re ahena' enable the person entitled
to them to enjoy the physical quahties of a thing. This

which

right,

who

known

is

as Pledge, merely enables a person

from another,

entitled to receive a definite value

is

in default of so receiving

of the thing

The

which

right of sale

to realise

it

by eventual

be parted with separately in order

thus to add security to a personal obligation.

parted with,

by

as 'a right in rem^ realisable

by way

from

in personam^

sists

only as long as the right 'in personam' to which

it

is

accessory^; that the right extends no further than

is

necessary for the sale of the thing pledged, not to

;

and that the

the thing by sale

of

The

original owner.

perty of the person

it is

value

The

Purposes

may

sale

in

realisation

value

of the

an end to the

title

its

the

of

thing pledged need not be the pro-

who

including even

'in personam,'

by

puts

is

liable

usually a physical object,

re aliena,'

'

defined

this definition that the pledge-right sub-

use or possession

so

given to a creditor

a right

security to

of accessory

It follows

sale,

When

may be

a right of pledge, which

is

it

sale

one of the component rights of

is

may

ownership, and

it,

given to him in pledge \

is

which

a
last

it

personally.

may

Although

also be a

'ius

right of pledge, or a

in

right

case the realisation of

its

take place rather by receipt of payment than

^.

objects

aimed at by a law of pledge

are,

on the

one hand, to give the creditor a security on the value

which he can

of

rely,

which he

can readily turn into

money, and which he can follow even

On

in

the hands of

the comparative law of Pledge, see Prof. J. H. Wigmore, in

Harvard L. R. x. pp. 321, 389; xi. p. 18.
* This right need not arise out of contract, and it may consist in what
is called a natural obligation, a term which will be explained hereafter.
' ln"'order to cover these possible varieties of objects, Pledge has been
defined as 'das Recht an fremden Rechtsobjecten, sich ihren Werth in
Gelde (durch Verkauf oder auf andere Weise) zur Befriedigung einer
Forderung zu verschaffen.' Holtzendorff, Encyclopadie, Erster Theil,
*

'

'

p. 311.

PLEDGE.
on

third

parties

ment

of the thing in

other hand, to leave the enjoy-

the

him every

to give

the debt for which

mean time

the

facility

Probably the rudest method

the

creditor,

*fiducia'

of

the older

wadset, and such

thing

the

of

pledged.

that which involves an

is

from the debtor

accompanied by a condition for

upon due payment

transfer

must vary^

attainable,

actual transfer of ownership in the thing

to

Roman

such

law,

its re-

Such was the

of the debt.

the English

is

and

when

objects can best be attained, Varieties

which they are

some extent with the nature

to

it

chap. xr.

security shall have been paid.

it is

in

to its owTier,

disencumbering

for

The methods by which these

and the degree

231

Scotch Mortgage,

the

is

mortgage, of lands or

goods, at the present day, except in so far as

theory

its

has been modified by the determination of the Court of

Chancery and of the Legislature to continue, as long as

to regard the

possible,

mortgagor as the owner of the

Lord Mansfield was unsuccessful

property.^

ing to induce

Common Law

Courts of

the

in

attempt-

to take the

same view^
Another method, which must always have been practised, Pawn.
that in which the ownership of

is

with the debtor, but

creditor

'.

its

This was called by the

a rule the creditor cannot

thus in his custody.

is

he

is

way of interest, the arrangement

He had originally no power of

transferred to the

is

Romans

make use
If

remains

the object

possession

'

of the

pignus

*.'

to take its profits

is

called

sale

As

thing which

by

'antichresis.'

without

express

agreement, but this became customary, and was at least

presumed.
In vivum vadium, or Welsh mortgage, the creditor repays himself out
which then reverts to the debtor. Bl. 2
Comm. 157, but see Fisher, Mortg. 13. In mortuum vadium if the debt
be not paid by the time fixed, the property becomes absolute in the
mortgagee, except that, by the intervention of the Court of Chancery,
the mortgagor is still allowed during a further period an 'equity of
^ See Eaton v. Jacques, Doug.
redemption.'
455.
' Though he may sometimes receive it back again to hold
precaric*
* Ital.
pegno,' Fr. gage,' Germ. Faustpfand,' Engl. pawn.'
*

of the profits of the property,

'

'

'

'

'

;;

PRIVATE LAW: RIGHTS

232
CHAP. XI.

'

pignus,' or

may

pawn,

a judicial sentence,

'IN REM.'

from the execution of

result

ob causam iudicati .... pignoris iure

'

est"; but more

teneri ac distrahi posse saepe rescriptum

frequently

arises

from a contract, which

must be

systems

money upon pledge

some

under

The trade

writing I

in

lending

of

frequently placed under legislative

is

such as the Pawnbrokers' Acts in England,

restrictions,

and the laws regulating Monts de Piete

'

'

in

some countries

of the Continent.
Lii.

Another

right

pawn, depends upon

which, like

possession of an object,
of property, persons

is

not dissimilar to

on goods, and others, are said to have a

property so long as they are
that

to say, they

is

possession

lien

'

labour

on the

in possession of

still

have a right of retaining

their claims in respect of

till

Vendors

it.

who have expended work and

*

the

it

in their

it

have been

it

satisfied.

Lien must be allowed to be a real right, in so far as

redress

may be had

against any one interfering with

'a lien

it

'

by Lord Chief Justice Cockburn,

but, as has been said

a mere right to retain possession of a chattel,

is

and which right

immediately lost on the

is

being parted with.

pawnee with much more than

invests the

possession

In the contract of pledge the pawnor

this.

He

is

invested with a right to deal with the thing pledged as

his

own

if

the debt be not paid and the thing redeemed

at the appointed time*.'

Hypothec.

Yet another mode

of

creating a

security

by which not merely the ownership

its

possession

called

also

remains

with

by the Roman lawyers and

'hypotheca.'

Hypothecs

may

'

Cod.

Code

'

The person enjoying

arise

is

of the

thing but

the

debtor.

their

modern

This

is

followers

by the direct applica-

viii. 23. 2.

2074; Codice Civile, art. 1878.

it could maintain Trover.
Donald v. Suckling, L. R. i Q. B. 612.
Civil, art.

possible,

HYPOTHEC.
tion of a rule of law,

by

233

judicial

decision, or

hypothecs,'

probably

are

Roman law

heard of in

the

known on

'

They are

earliest.

which

England takes the form

in

chap, xi

tacit Tacit,
first

is still

the Continent and in Scotland under

old name, but

of

its

a right

Similar rights were subsequently granted

of Distress \

wives ^

to

agree-

connection with that right

in

of a landlord over the goods of his tenant,

well

by

Those implied by law, generally described as

ment.

minors \

pupils,

and

legatees \

over

the

property of husbands, tutors, curators, and heirs respectively ^

The

by which the praetor Servius

action

first

enabled Conven-

a landlord to claim the goods of his defaulting tenant in

order to realise his rent, even

the hands of third parties,

they had passed into

if

was soon extended

so as to

give similar rights to any creditor over property which

owner had agreed should be held

its

real

the

right

parties,

liable for a debt.

was thus created by the mere consent of

without any transfer of possession, which,

Roman

although opposed to the theory of

law, became

firmly established as applicable both to immoveable

and

Of the modern States which have

moveable property*.

adopted the law of hypothec, Spain perhaps stands alone

adopting

in

rule,

it

to

recognised

the fullest extent.

The

only in relation

it

rest have, as

to immoveables.

maxim

Thus the Dutch law holds

to the

habent sequelam,' and

French Code, following the

the

coutumes of Paris and Normandy, lays

'mobilia non

down

meubles n'ont pas de suite par hypotheque

''.'

that 'les

But by

of sale till 2 W. & M. sess. i. c. 5.

* Cod
vi. 43. i.
Dig. xxvii. 9. 3.
* As to similar rights for recovery of funeral expenses, wages of the
servants of a deceased person, &c., see Code Civil, arts. 2101, 2107.
*

Which however implied no power

'

Cod. V.

On

7. 9.
'

'

14. II.

the difference between 'pignus' and 'hypotheca,' see Dig.

2;1. 16. 238.

Code

Civil, art.

2119;

cf.

Codice Civile,

art. 1967.

xiii,

PRIVATE LAW: RIGHTS 'IN REM.'

234
CHAP. XI.

'Code de Commerce,'

the

though moveables, are

ships,

capable of hypothecation'; and in England what

mortgage, but

called

is

hypothec, of ships

essentially a

is

is

recognised and regulated by the Merchant Shipping Acts,'

'

must be recorded by the

under which the mortgage

registrar of the port at

So also

made
its

money

security for

itself is registered \

'bottomry,' the ship

of

lent to enable

to proceed

it

is

upon

voyage.

may sometimes become

Property

Judicial.

which the ship

the old contract

in

by a

subject to a hypothec

So under the older French law*;

judicial sentence.

but under the Code, the judgment must be entered upon

the register of

analogous

Roman

hypotheques

'

effects,

i.

had been gained by the creditor ^

it

hypothec

effects

presents

convenience, that

it

no change of ownership and leaves the debtor

in

It labours

possession.

lending

of the

It

the property

tion.

under the disadvantage

of easily

it

may be

by an agreement

effected

concerned without the knowledge of any

parties

else.

great

this

to a fraudulent preference of one creditor

itself

over another, since

Registra-

According to

law, no real right

possession of

it

English judgment has

but must be registered.

was gained over the property

judgment had been followed by execution,
e. till

till

one

An

*.'

also difficult

is

is

whom

the creditor to

for

make

offered as security to

certain that

has not been already encumbered.

The system
thekenbiicher,'

of

'

Registration,'

now

general

obviated these evils.

any

effect,

'

Inscriptions,' or

upon

the

Every hypothec,

'

Hypo-

Continent,

in order to

has

have

must be entered by the proper officer, and

till it is removed from the register.
Should

remains valid

'

Art. 190.

Pothier, Hypoth.

Art. 2134.

They were

Leo, Cod.

viii.

c.

i.

art.

17

&

ineffectually attacked
18.

n.

18 Vict.

c.

104.

2.

Cod.

by a constitution

viii. 23. 1.

of the

Emperor

HYPOTHEC.

235

a sale become necessary, this can no longer be effected by

chap. xi.

the creditor, but must be authorised by the Court.

Mortgage shares with hypothec the disadvantages which

result

from secrecy; and, so far as relates to land,

notorious that

'

attempts to establish in this country

all

encumbrances

register of

it is

'

have hitherto

failed \

Mort-

gages of chattels, effected by an instrument called a Bill

of

which

Sale,

conditional

is

right

in

to

effect
call

an assignment subject to a
a

for

re-assignment, although

not accompanied by a delivery of possession, were,

recently,

A hotel -keeper

might, for instance, mortgage the furniture

of the hotel, arranging that

it

should remain in the house,

so that he might continue to carry on the business.

the year 1854

Bill of Sale

has, however, been

it

Since one object

may

may be

'qui prior est

disregarding

all

order, even as

'

'

fix

the order in which

resort to the security.

rule

would be expressed by the maxim

tempore potior est iure';

to have been adopted in

'

necessary that the

successively pledged to several

becomes necessary to

The obvious

of a

Since

should be duly registered ^^

creditors, it

they

till

good as against other creditors, unless fraudulent \

pignus

'

Roman

considerations

law, to

and

it

seems

the extent of

other than chronological

between a creditor who had actual possession

and one who enjoyed merely a

E. g. 25 & 26 Vict. c. 53.

In which case they are void by i3Eliz. c.

5,

'

hypotheca *.*

and under the Bankruptcy

laws.
^ By
17 & 18 Vict. c. 36, which recites that 'frauds are frequently
committed upon creditors by secret bills of sale of personal chattels, the
holders of which have the power of taking possession of the property to
the exclusion of the rest of their creditors' and defines Bill of Sale' so
'

as to include 'assignments, transfers, declarations of trust without

transfer, or other assurances of personal chattels,

and also powers of

attorney, authorities or licences to take possession of personal chattels as

security for any debt.' These provisions were repeated and extended in

the
*

'

Bills of Sale Act,' 1878,

Dig. XX.

I.

10.

amended by subsequent

Acts.

Privileges,

PRIVATE LAW: RIGHTS 'IN REM.'

230
CHAP. XI.

To

this rule a

later

law

'

number

privileges,'

in

According to modern systems a pledge-holder

of date \

a 'privilege^'; but the distinction

with possession has

between

were made, called

of exceptions

which took precedence irrespectively

'

privileges

and

'

other

has

securities

almost

disappeared with the introduction of the system of regis-

which each charge takes rank only

tration, according to

accordance with the order in which

in

English equitable doctrine of

entered.

it is

The

tacking introduces another

'

'

exception to the chronological ranking of securities, by

uniting securities given at different times, so as to prevent

any intermediate purchaser from claiming a

or otherwise discharge, one lien, which

redeeming or discharging the other

subsequent to his

Transfer
and termination.

own

title

title to

redeem,

prior,

without

is

liens

which are

also,

^.

security is usually transferable only together with

the claim to which

it is

accessory.

The

by discharge of the claim to which

being released

by destruction

becoming owner

the creditor

right terminates

accessory; by

is

it

of the thing pledged

of the thing

or, if

by

the right

was limited in duration, by efflux of time

Under a system of registration, it is further necessary
that the charge be removed from the books.
*.

Immunity
from
Fraud.

VI. But one more antecedent right

for consideration.

It differs essentially

'

in

rem

'

from those already

described, in that while they are infringed only

done against the

will of the

loss.

See Code Civil, Liv.

A Privilege
'

own

is

ill.

i8,

Story, Equity Jurisprudence,

Code Civil, art. 2180.

is

a consenting

be induced

'Des Privileges et Hypotheques.'

defined in art. 2095.

lb. art. 2073; Codice Civile, art. 1958. 4.

Of.

is

It is the right not to

tit.

by acts

person of inherence, this

infringed while the person of inherence

party to his

remains

412.

IMMUNITY FROM FRAUD.

237

by fraud to assent to a transaction which causes one

damage.

Its

examination

the act by which

the nature of

of

Fraud may be

violated.

chap, xi

nature will be best understood from an

it

is

said to be the intentional deter-

mination of the will of another to a decision harmful to

his interests

by means

of a representation

true nor believed to be true

The

which

by the person making

is

neither

it\

essentials of a fraudulent representation, according Fraudu-

to English law, are that

with knowledge of
truth, or with
(3)

made

it^

It

its

it is

untrue in

(i)

niade pr^gjnta-

fact, (2)

untruth, or without belief in

recklessness as to its truth or falsehood,

upon

for the purpose of inducing another to act

seems not to be material that the maker

statement should

an interest in

its

know

it

of

the

to be untrue, or should have

being acted on, or have any wicked wish

its

Nor need the statement be addressed specifically to the person who suffers in consequence.
So the
directors of a company who, for the purpose of selling
to injure.

may be sued

shares, publish fraudulent representations,

by any one who, having been induced thereby to take

shares from the company, has lost

On
that

'if

it

upon himself

of facts to exist,

down

either with a

to represent a certain state

he does so at his

peril,

and

is

in

law guilty

be done

the truth of that which he asserts.

'Dolus malus'

is

cum

calliditas, fallacia,

of a fraud

own

he takes upon himself to warrant his

decipiendi causa,

if it

view to secure some benefit to himself, or

to deceive a third person, he

has been laid

a man, having no knowledge whatever upon the

subject, takes

for

money ^

the question of knowledge,

belief of

Although the person

quaedam

defined by Servius, 'machinatio

aliud simulatur et aliud agitur

'

alterius

by Labeo, omnis
'

machinatio ad circumveniendum,fallendum,decipien-

dum, alterum adhibita.' Dig. iv. 3. i.

^ Such a representation, apart from contractual relations, was first
recognised as actionable in Pasley v. Freeman (1789). 2 Sm. L. C. 74.
'

Aliter

H. L.

if

377.

the shares are bought in the market. Peek v. Gurney, L. R.

tions.

PRIVATE LAW: RIGHTS 'IN REM.'

238
CHAP. XI.

making the representation may have no knowledge

falsehood, the representation

its

been fraudulently made

'

'.

recent attempt to carry

bility for false

of

may, nevertheless, have

still

further the responsi-

The

statements has not been successful.

question raised was whether absence of reasonable ground

making a

for

itself

false

statement which causes damage

fraud,' or

'legal

is

in

is

only evidence from which an

absence of belief in the truth of the statement on the

part of the person making

may be

it

inferred.

In other

words, whether the actual state of mind of the defendant

material, or

is

The

it

is

enough

an ordinarily careful

such as
position

whether

would not have believed

latter

rule that

no

v.

in the

defendant's

to be true.

was reversed

Derry^^ but the decision

of Lords ^

which has thus re-estabUshed the

liability for deceit

made with an honest

It will

man

the statement be

view was taken by the Court of Appeal in

the case of Peek

by the House

if

can arise upon a statement

belief in its truth

*.

be worth while to indicate some of the more

usual forms of fraudulent representation.

I.

When

agent

of

man

another,

fraudulently represents that he

whereby a third party

is

suffers

the
loss.

For instance, a person pretends that he has authority

to order goods for another,

supplied

accordingly,

and the goods having been

and the alleged principal having

repudiated the transaction, the tradesman has an action

against the pretended agents

And

this

is

so even

if

' Evans v. Edmonds,

13 C. B. 777. Cf. Arkwright v. Newbold, 17
Ch. D. 320.
^17 Ch. Div. 54, and in the subsequent American case, Chatham
Furnace Co. v. Moffatt, 147 Mass. 403.
^
14 App. Ca. 337.
* The view of the Court of Appeal was strenuously supported by Sir F.
Pollock, L. Q. R. V. p. 410, that of the House of Lords by Sir W. Anson,
lb. vi. p. 72. The decision of the House of Lords gave rise to the Directors

Liability Act, 1890.

*

Randall v. Trivien, 18 C. B. 786. The more usual remedy in such a

IMMUNITY FROM FRAUD.

the allegation of agency be bona

must

that the loss, which

on him who has brought

believed

and acted on

fall

it

239

for it is

ficle^

equitable

on some one, should

chap. xi.

fall

about by an untrue statement,

as he intended

should be, as to

it

which he gave the other party no opportunity

of judging

for himself.

When

2.

Company,

of

false statements are

the

to

made

detriment

in the prospectus

persons

of

who

are

thereby induced to become shareholders.

When

3.

made

statements are

false

as to the credit

or honesty of third persons, such as customers or servants,

whereby

When

4.

he

5.

When

do an
6.

man who

single, induces

is

to

loss is occasioned to

has a wife living, pretending that

another

woman

to

marry him ^

a master, by show of authority, gets his servant

illegal act

When

tradesmen or employers ^

*.

dangerous

articles are

knowingly

out due notice to the bailee of their quality

7.

An

untrue warranty, knowingly superadded to a con- Warranty,

tract of sale ^

was at one time held

or no the vendor

was aware

well settled that no one

is

E.

is

now upon

& V.

301, 8 E.

Cf. Dig. iv.

1

to be actionable, whether

of its untruth
liable for

he believes, and has reason to

case

bailed, with-

*.

but

it

is

now

a statement which

believe, to

be true ^

the implied warranty of authority, Collen v. Wright,

& B. 674; Oliver v. Bank of England, [1902] i Ch. 610.

3. 8.

Pasley v. Freeman, u.

s.

Such statements must by 9 Geo. IV.

c.

14

be in writing.
^ Anon. Skin. 119. Statements as to a woman's chastity, false to the
knowledge of the defendant, who thereby induced the plaintiff to marry
her, have been held to be an actionable injury to the plaintiff. Kujek
V. Goldman, 9 Misc. 34 (New York, 1894).
'

Adamson

Williams v. E.

v. Jarvis, 4
I. Co.,

Bing. 72.
3 East, 192. Cf. Longmeid v. Holliday, 6 Ex.

766.
3. 37. On Warranties, v. infra, pp. 289, 309.
Williamson v. Allison (1802), 2 East. 446.
^ Collins V. Evans
(1844), in Ex. Ch., 5 Q. B. 820; Weir v. Bell,
D. 243. Peek v. Derry (1889), 14 A. C. 337.
*

Cf. Dig. iv.

Ex.

PRIVATE LAW: RIGHTS 'IN REM.

240

CHAP. XI.

When
implied.

Trademarks.

warranty

is

course

of

often

implied.

The

seller

by a trade-mark implies that

of goods distinguished

has been rightfully affixed to them, and a purchaser

it

who

induced to give a higher price for the goods than they

is

would be worth without the trade-mark has an action

The

deceit*.

mark
but

also

is

it

sometimes said to be founded on the

have already said upon

right

sion

of

is

one's

deceit,

be sufficient to refer to what

will probably

this

for

action given to the proprietor of the trade-

this subject in order to

we

show that

not a right to immunity from a perverwill

by

means

of

fraudulent

repre-

sentation ^

This

is

so even independently of the Trade-marks Acts.

Cro. Jac.

471.

submitted that not only are trade-mark cases, so

mark is concerned, mistakenly said to turn
upon fraud, but that a similar error has been made in such cases as
Collins V. Evans, u. s., and Butterly v. Vyse, 2 H. & C. 42. In the former
of these, a person who misinformed a sheriflf's officer as to the ownership
of goods, whereby they were wrongfully taken in distress, was held liable
'for the deceit' to their owner. In the latter, a builder was allowed to
get damages, 'for the deceit' against a person who had fraudulently
prevented an architect from granting a certificate, which was necessary
to enable the plaintiil to be paid for his work.
-

Supra,

p. 212.

It is

far as the proprietor of the

CHAPTER Xn.
PRIVATE LAW

We

now

have

arrived at a

company with that

parts

followers.

RIGHTS

'

IN

PERSONAM.

point where

of the

Roman

our method The

jurists

and

their adopted,

Adopting as the radical distinction of rights

that which depends upon the restricted or unrestricted

character of the person of incidence, they oppose to rights

*

in

rem

'

the topic of

are included

all

under which one term

personam,' whether prior to

Obligations,'

rights 'in

wrong-doing or arising out of it\

We

have ventured to pursue a different course.

upon

radical distinction of rights turns

not existing antecedently to wrong-doing.

Reserving

rights of the latter kind for separate treatment,

now engaged
only,
'in

in

the

examination

and having dealt with such

of

Our

their existing or

we

all

are

antecedent rights

of those rights as avail

rem' against the whole world, have next

to describe

* E.g.' obligamur aut re, aut verbis, aut simul utroque, aut consensu
aut lege, aut iure honorario, aut necessitate, aut ex peccato.' Modestinus,
in Dig. xliv. 7. 52. According to R. Zouche, 'causae ex quibus oritur
obligatio sunt contractus, delictum et officium. El. lurisprudentiae, iii.
i8. Cf, the more familiar list of the sources of obligation given in Inst,
iii. 132. The German Civil Code, Bk. ii, follows here the method of the
i

Institutes.
1950

PRIVATE LAW: RIGHTS 'IN PERSONAM.'

242
CHAP.

XII.

such of them as avail

'

in

personam

against ascertained

'

individuals \
It will

be readily understood that our

personam

in

tractu

'

and

'

'

Roman law
for

of

and

delicto,'

which

will correspond to the

quasi ex contractu
'

of obligations arising

Obliga-

antecedent rights

obligationes ex con-

obligationes ex delicto

law, while the

and

'

from breach

'

ex

quasi

of contract,

no technical Latin name, will

last there exists

correspond to the rights which

we

call 'remedial^.'

Although we propose to distinguish thus broadly

The Contion.

'

Roman

of

'

'

be-

tween topics which are more usually grouped together

under the head of Obligations,' we are none the
'

make

to

full

less able

use of the admirable analysis of the ideas

conveyed by that term, which has been so potent a factor

the history of legal speculation.

in

stantia,' says

Paulus in a well-known passage,

ut aliquod corpus nostrum

consistit

dandum

nobis obstringat ad

praestandum
'

obligatio

as

'

^'
'

better

Still

faciat,

aliquid

known

vel
is

'

non

in eo

sed ut alium

faciendum vel

the definition

of

vinculum, quo necessitate adstringimur

iuris

solvendae

alicuius

Obligationum sub-

'

secundum nostrae

rei,

In the fuller language

of

civitatis iura\'

Savigny, an obligation

is

'

the

control over another person, yet not over this person in all
respects (in which case his personality

but over single acts of

his,

would be destroyed),

which must be conceived

subtracted from his free-will, and subjected

or,

according to Kant,

as a

means

'

of as

to our will

^
'

the possession of the will of another,

of determining

it,

through

my

own, in accord-

Supra, pp. 144, 167.

Mr. Bishop published in 1889, at Chicago, a work entitled 'Commentaries on the non-contract law,' which term is explained to be equivalent to Obligationes ex delicto.'
^ Dig. xliv. 7. 3. pr.
On obligations as measurable in money, see Dig.

'

xl. 7. 9. 2.
*

Inst.

iii.

'

Cf.

13.

iiro<peiK6ft.evov.

ivox-fl

Theoph.

Obligationenrecht,

under the

title

'

iii.
i.

4(Tti Sfff/ihs 5i/fotou 5i'

ov tls avayKa^trai Kara rh

13.

p. 4.

Obligations are considered by

Rights to Services.'

Bentham

OBLIGATIONS.

243

An

ance with the law of freedom, to a definite act *.'

obligation,

as

one person

is

etymology denotes,

its

bonnd

is

tie

chap,

xii.

whereby

perform some act for the benefit

to

In some cases the two parties agree thus to

of another.

be bound together, in other cases they are bound without

In every case

their consent.

knot, and

untying,

its

duty, givmg rise to

So

cognition.

a person

if

ignorance that

is

^vill

it

is

who owes

wliich imposes

described,

'

a right of this

When
all

it

back.

the point of view oflurain

personam,
T
Jdescribed as an obhgation,

.,1

it,

is

ins in personam.'

The

difference

of

between

is

obvious enough.

man owns an

estate,

a general duty

is

laid

the world to refrain from trespassing on his land.

he contracts with a landscape gardener to keep his

grounds

in order for so

much

owes to the landowner a

owed

the duty

to

him by

a year, then the gardener

special duty,

over and above

the world.

all

practising in a town, while there

all

in

it

kind and of the kind discussed in the

preceding chapter

If

a debt pays

from the point of view of the person

inherence, as a

upon

tion.^^'

barred by the statutes of limitation,

Law

is

If a

surgeon

is

a duty incumbent on

not to intimidate patients from resorting to him, or

otherwise molest him in the exercise

there

Any

no general duty not

is

one

may

to

of

his

profession,

compete for his

practice.

legally estabhsh a rival surgery next door.

Suppose, however, that the surgeon has bought his business

from a predecessor, who,

in consideration of

paid, has covenanted not to practise within

of the

town

natural

incidentally receive legal re-

right which, looked at from

The
is

natural,' as opposed

'

called a

he will not be allowed to recover

the

the

ties

competent only to the

solutio,' is

what

obligation

'civil,'

Law which

the

it is

There are cases in which a merely moral A

same authority.
to a

'

in question.

bemg

well

twenty miles

Here the predecessor, beyond

Rechtslehre, Werke,

Ka

vii. p. 70.

'

244
CHAP.

XII.

PRIVATE LAW: RIGHTS

PERSONAM.'

'IN

and above the duties owed by others to his successor, owes

him the special duty of not competing with him by the
In the

exercise of his profession in the neighbourhood.

cases supposed,

tlie

landowner and the practising surgeon

have respectively rights

'

in personam,' against the gardener

and the retired surgeon, over and above the rights

'

in

rem

which they enjoy as against everyone.

Arise in
various

ways.

Most frequently antecedent

rights

as in the above cases, out of the

They are however

'

personam

in

agreement of the

arise,

'

parties.

some cause with which

often due to

In these cases, although

the parties have nothing to do.

the person of incidence has not undertaken a special duty

upon him,

as

if

ligeance between

Law

the

to the person of inherence, yet

two

duty

casts that

had so undertaken

he

it.

There

is

individuals, although the chain that

own

hands.

Every

one has, for instance, a right that public ministerial

officers,

binds them was not linked by their

such as

sheriffs, registrars, or

him

occasions arise entitling

Similar rights

to their services.

enjoyed against persons

positions,

postmen, shall exercise their

when

functions for his benefit

filling

'

in

certain

personam

'

are

private fiduciary

such as trustees, executors, administrators, and

So also against persons who happen

trustees of bankrupts.

to enter into certain transitory relations

with others, such

as persons to whom money has been paid by mistake,

or whose affairs have been managed by a 'negotiorum
gestor.'
Finally, against persons who occupy certain family

relationships to others,
vice versa against

May

be

e. g.

Antecedent rights

'

in

under two

^0 the investitive fact to

heads.

^^^ great
arise

classes.

out of

described

against wives and children, and

husbands and parents.

personam

Such

a contract.

'

are divisible, according

which they owe their

rights either

In

the

as rights 'ex contractu.'

origin, into

or do not

arise

former case
In

the

they are

latter

case,

since they arise from facts of various kinds to which

it

DOMESTIC.
pleases the

them

as

consider

Law

rights

the

245

to affix similar results,

'

ex lege

rights

and

'

wliich

it

arise

we

shall describe

chap, xil

be convenient to

will

thus

before

variously

treating of those which arise solely from contract \

I.

The

which we describe as arising

rights

'

ex lege Ex
'

lege,

were described by the Roman lawyers as arising quasi ex

'

contractu,'

We

and more simply, 'ex

causarum figurisV

variis

propose to subdivide them into four classes, which

we

shall distinguish as

iii.

the Meritorious;

1.

We

the Domestic;

i.

and

iv.

the

ii.

the Fiduciary;

Official, respectively.

have already discussed those rights

in rem,'

'

i.

e.

Domestic,

against the outside world, which arise from the family

relations,

and have stated how such

and termmate^; but from the same

also rights

'

in personam,'

i.

of one

e.

relations

commence

relations there arise

member

of a family

Rights of this sort are of a somewhat

against another.

undefined character, and their corresponding duties consist

often in life-long courses of conduct rather
acts

of

capable of

reducible to a

than

in lists

accurate enumeration; nor are they

money value \

In advanced systems such

* A distinction, which does not quite square with the above, is sometimes drawn between obligations which arise from certain positions,
obhgations d'etats,' Zustandsobligationen,' and those which arise from
certain acts, 'obligations d'affaires,' Geschaftsobligationen.' See now,
some interesting remarks by Mr. J. C. Miles in Jenks' Digest, p. 315.
'
Gaius, Dig. xliv. 7. i. pr. Windscheid, Pandekten, endeavours to
approximate them to contractual rights. They are sometimes, but
improperly, described as 'Quasi-contracts.' SeeRamm, Der Quasicontract,' Leipzig, 1882. See also A selection of cases on the law of Quasicontract,' by Prof. Keener, Cambridge, U. S., 1889. The author defines
'a quasi-contract right, or right of restoration,' as 'a right to obtain the
restoration of a benefit, or the equivalent thereof, conferred by the
claimant, but unjustly retained by the defendant'; stating that it may
arise from 'mis-reliance,' 'compulsion' or 'circumvention.' It is, however, obvious that the right of a cestui que trust against his trustee arises
in none of these ways. Chapter v of the Indian Contract Act deals with
'

'

'

'

'

'Certain relations resembling those created by Contract.' Cf. 30 L. Q. R.

242.
*

Supra, p. 174.

Cf.

Sohm, Institutionen

(Transl.), p. 278.

PRIVATE LAW: RIGHTS 'IN PERSONAM.'

246
CHAP. xii.

that rather

Husband
and wife

by law, and

rights are only to a limited extent enforced

may

It

by

self-help than

by permitted

judicial process.

appear questionable whether the rights of husband

^^^^ ^jl^

^^^^

1^^

reckoned among those which arise by

operation of law rather than out of contract.

submitted that this

status

indeed entered upon, in

is

It is

however

The matrimonial
modern times, in pur-

the true view.

is

suance of an agreement between the parties, accompanied

by

certain religious or civil formalities; but its personal

incidents

are wholly attached

to

it

by uniform rules

law, in no sense depending on the agreement of the

The

either at the time of the marriage or subsequently.

effect of the contract,

by law,

in

of

parties,

coupled with the other acts required

producing a status, to which rights of definite

kinds are incident, closely resembles that of a sale of

property.
act

is

when

In the one case, as in the other, the contractual

complete, so far as
the status

The

changed.

direct effects are concerned,

its

has been produced, or the ownership

necessarily resulting rights of the person

newly invested with the

status, or

newly become owner

of the property respectively, are the creatures not of the

will of the parties but of fixed rules of

husband and wife are summed up

of

The

law\

rights

French code

in the

as foUows: 'Les epoux se doivent mutuellement fidelite,

secours, assistance.

femme

la

d'habiter

Le mari

doit protection a la

obeissance a son mari.

avec

le

La femme

le

mari est oblige de

et de lui fournir tout ce qui est necessaire

vie,

femme,
obUgee

mari, et de le suivre partout ou

juge a propos de resider

de la

est

pour

selon ses facultes et son etat^.'

a husband according to

EngUsh

il

le

la recevoir
les besoins

The

rights of

law, as against his wife,

See the remarks of Hegel, Phil, des Rechts, 75, on the treatment by
Kant, Rechtslehre, Werke, vii. p. 76, of marriage as an obligatory
contract. The nature of marriage was discussed in Niboyet v. Niboyet,
L. R. 4 P. D. 9.
'

Code

Civil, arts. 212-214.

DOMESTIC.

247

seem to be that she shall associate with him, in default of

which he can petition for 'restitution of conjugal rights,'

and that she

shall not

commit adultery,

chap.

which case he

in

may, by obtaining a divorce, deprive her of any claim to

He might

his society or support.

formerly have chastised

her for levity of conduct, and in quite recent times was

allowed to restrain her personal liberty, but his right so to

do was

expressly negatived by a decision of the Court

first

Appeal in the year 1891*.

of

against her husband for

or for a divorce.
rights, is

party

may

wife also

petition the
'

and

Either

Divorce Division for a 'judicial

this relief

A parent acquires
may

rights ^'

decree for 'restitution of conjugal

may now be also obtained, but

summary jurisdiction

only by the wife, in courts of

he

petition

restitution of conjugal

no longer enforceable by attachment*.

may

separation

'

*.

on the birth of a child a

right,

which

enforce by moderate chastisement or restraint, of

controlhng his actions while of tender years.

Under some

systems a child has a right to be supported by his parents,

and a parent to be supported

by

his

Under

children.

the French Code, a necessitous son-in-law

may

insist

on

being maintained by his father-in-law^; but a judgment

in accordance with this

provision having recently been

obtained from the French Coui-ts, the American Courts

refused to give effect to

it

in the

United States, as being

contrary to the policy of the laws of that country

Jackson, [1891]

R.

On which

V.

see

Onne

Q. B. 671.

v. Orine, 2

Addams, 382. There seems

by which a wife might

existed in the old French law a proceeding

to

have

petition

'pour etre embesoignee.'

' In Weldon v. Weldon, L. R.
9 P. D. 52, the cases upon this subject
were reviewed, and an attachment was reluctantly granted by Sir J.
Hannen. By 47 & 48 Vict. c. 68 disobedience to an order for restitution of conjugal rights is no longer punishable by attachment, but is

a ground for judicial separation.

* Under the Summary Jurisdiction (Married Women) Act,
1895.
* Code Civil, art. 206.
*

Journal du Droit Int. Priv6,

t.

vi. p. 22.

Parent

xii.

'

PRIVATE LAW: RIGHTS

248

The

CHAP. XII.

Guardian

and ward.

relation of guardian

and

tion of that of parent

'IN

and ward
child,

and

PERSONAM.'
an

is

artificial imita-

entirely regulated

is

by law. Another artificial relationship, that of patronus

and libertus,' is now obsolete as is, for most purposes,
'

'

that of feudal lord and

Fiduciary.

vassal.

Express trusts were in

ii.

Roman law

an act of a testamentary character.

to the heir, or to a legatee, to

created only by

They were requests

hand over the

or portions of the property included in

it,

inheritance,

to the person

intended to be benefited, and were resorted to in order to

evade certain stringent rules which beset the institution

of a legal

heir

and the bequest

of

properly so

legacies

called.

may

According to the law of England, trusts

Trusts.

inter vivos

by testament, and

as well as

their

a curious one, beginning, like that of the

'fidei-

The Statutes

houses, led to the introduction of 'uses,'

to religious

to the use

'

particular device

uses

'

his

by

land to a friend to hold

of a monastery, the clerical chancellors giving

legal validity to the

'

is

Mortmain, passed to prevent the alienation of lands

which the grantor alienated

'

history

Roman

commissa,' with an attempt to evade the law.

of

be created

wish thus expressed.

was put a stop

to

by

Although
15 Ric. II.

this
c.

5,

continued to be employed for other purposes, having

been found more malleable than w^hat was

They

called,

by way

of contrast,

'the legal

many modes

of escaping the rigour of the law, that, after

several

estate.'

offered indeed

other statutes had been passed with a view of

curtailing their advantages, the 27 Hen. VIII.

that,

so

where any one was seised

c.

10 enacted

to a use, the legal estate

should be deemed to be in him to whose use he was seised.

The

statute did not apply to trusts of personal property,

nor to trusts of land where any active duty was cast

upon the
i.

e.

trustee,

nor where a use was limited upon a

where the person

'

in

use,'

whose favour a use was created

FIDUCIARY.
was himself to hold the estate
There continued therefore
else.

249

some one
number of eases

to the use of
to be a

in which, in spite of the 'Statute of Uses,' the

Chancery was able to carry out

its

chap.

Court of

policy of enforcing

what had otherwise been merely moral duties. The system

thus arising has grown to enormous dimensions, and trusts,
which, according to the definition

Lord Hardwicke,

of

are 'such a confidence between parties that no action at

law

will

lie,

but there
equity

of courts of

\'

is

merely a case for the consideration

are inserted not only in wills, but

also in marriage settlements,

arrangements with creditors,

and numberless other instruments necessary for the comfort

of famiUes and the development of commerce^.

Under

a system of trusts, the person of inherence,

'

fidei-

commissarius,' 'cestui-que-trust,' enjoys a right 'in personam'

against the person of incidence,

Very

similar

rights

are

'

fiduciarius,'

enjoyed

'

trustee.'

against

executors,

administrators, 'heredes,' trustees of bankrupts, and co-

Thus

proprietors.

a legatee

and a creditor

legacy and the

creditor of a

estate
of the

debt respectively by the executor.

The

bankrupt has a right against the trustee

bankruptcy to be paid out of the

in

of the

have rights to be paid the amount

of a testator

assets.

Co-heirs,

or other joint owners, irrespectively of partnership, have

rights

against one another for the due

management

of

the property; and similar rights result from the relation

of proprietor

In

many

and usufructuary, and from Bannrechte ^'

'

cases a fiduciary relation

is

implied by law. J^P^ied

trusts*

Thus, according to the law of England, where land

veyed on trusts not yet declared, the alienee

is

is

con-

a trustee

2 Atk. 612. For a number of attempts better to define a Trust, see

G. Hart in L. Q. R,, xv. p. 294.
' By 29 Car. II. c. 3.
9, an express trust relating to land must be in
writing. In Scots law a tnust is said to be of the nature of depositation.'
Ersk. Inst. iii. tit. i. 32, i. e. of a contractual character. So also trusts
are dealt with in American books on Contract. Cf. Pollock, Contract, ed.
*

W.

'

viii,
'

p. 220.

Supra,

p, 213; of.

Savigny, System,

iii.

p. 338.

PRIVATE LAW: RIGHTS

250
CHAP, xn.

for

So also the intending vendor of land,

the alienor.

an agreement for a

after executing

trust for the intending purchaser,

name property

is

It is

that a trust shall never

fail

maxim

acceptance

to recover

for

iniuria

it

fieri

'

trustee

'

having

whose

of another is

want

law

of a trustee.

neminem cum alterius

\'
Hence also
money under a mistake

est

back agam, a right which in English law

for

the

causeless

mistaken payer.

the

multitude of similar cases the

as

in

in

locupletiorem

expressed by saying that

is

and a person

it

the view expressed in the

of

one who has paid

the right of

holds

a principle of English

aequum

'lure Naturae

detrimento et

it,

above fiduciary relations are an obvious

of the

result of the

sale of

bought with the money

trustee for that other.

Some

PERSONAM.'

-IN

been 'received

receiver

is

In this and in a

money might be recovered

the

to

of the

use'

person

claiming it^

Men-

"^

iii.

Accordmg

person

who

to

Roman

law, a 'negotiorum gestor,' or

volunteered to render some necessary service

to property, or to a business, in the absence of its owner,

had a claim to be

compensated by the owner for the

trouble he had taken, and the owner had also a claim

for

any

which had resulted from the interference

loss

of the 'negotiorum gestor

^'

Of a similar character are

the rights given by English law to salvors of ships in

distress,

prize

by

to

recaptors

of

the enemy, and

ships
to

been made
who have suppUed

which have
those

necessaries to persons who, being lunatics

or in a state

1 Dig. 1.
17. 206; cf. Savigny, Obligationenrecht, i. p. 26. See also
Keener, Quasi-contract, pp. 19, 20, 24; Turner v. Webster, 24 Kansas, 38.
^ See the long note upon the common coimt for 'money had and
received' in BuUen and Leake's 'Precedents of Pleadings.' Cf. the
recognition in the U. S. of an equitable claim for improvements made
under a mistaken belief of ownership of land. Bright v. Boyd, i Story,

478,
*

So

Story, 608.
in Scots law.

Cf. infra, ch. xiv.

MERITORIOUS.

251

were incapable of entering into an agree-

of drunkenness,

ment.
A contract,' it has been said, may be implied by
law in many cases even where the other party protested
'

'

against

any

because

he ought to

The law says he did contract

contract.

have done

so.

On

that

ground

the creditor might recover against

supplied

necessaries

makes a contract

him when sober for

him when drunk
the law

to

for the parties

In a recent case, the

\'

Court, while justly complaining of the ambiguous use in

these cases of the term 'implied contract,' employed the

more objectionable term 'implied obhgationl'

The obligation attaches by express judicial declaration,
perhaps

whatever may be the ground

demnity,' says Bentham,

Grant

and he by

it,

a gainer

refuse

it,

'

is

it.

'This

title

it

furnished will

is

him who

Such a regulation

is

who need

the service.

It is a

man who

prudent regard to his own personal interest

not come into opposition with his benevolence.

precautions
the

must be observed

two

generosity

less

the power of rendering a burdensome service,

in order that a

of

be

receives the compensation than

promise of indemnity made beforehand to every

may

still

and you leave him who has done the

for the benefit of those

may have

to in-

founded upon the best reasons.

whom

service in a condition of loss.

for the benefit of

for

parties.

from

converting

exacting the price of

been accepted had

Secondly, not

to

First,

it

prevent

itself

service

not

arranging the interests

in

to

Three

hypocritical

tyranny,

into

and

which would not have

been

supposed

disinterested.

authorise a mercenary zeal to snatch

* Per Pollock, C. B., in Gore v. Gibson, 13

see^Baxter v. Portsmouth, 5 B. & C. 170.

M. & W.
As

623.

As

to lunatics,

by a
physician in an emergency, see Meyer v. Knights of Pythias (1904), 178
N. Y. 63. Cf. the liability of a husband for necessaries for a wife who
Wilson v. Glossop,
is wrongfully obliged to live separate from him.
20Q. B. D. 354.
2 Re Rhodes,
44 Ch. Div.

94.

to unrequested aid

chap.

xii.

PRIVATE LAW: RIGHTS

252
HAP. XII.

PERSONAM.'

'IN

rewards for services which the person obliged might have

rendered to himself, or have obtained elsewhere at a less

man
who cannot

to be

Thirdly, not to suffer a

cost.

by a crowd

of helpers,

overwhelmed

be fully indemnified

without counterbalancing by an equivalent loss the whole

advantage of the service

The

rule

of

\'

English law upon the

by Lord Justice

explained

to be forced

Bo wen:

upon people behind

There

maritime law

iv.

Official.

is

an exception to

man

by circumstances
on

of the

is

it is

private

against

his

proposition in the

community who becomes

upon a public

to call

official

entitled

to exercise

his behalf, acquires thereupon a right

personam' against such

in so far as

this

not

any more

^.'

Any member

his functions

are

'liabilities

their backs,

than you can confer a benefit upon a

will.

was thus

point

official to

enforceable

law

all

action

ministerial

agamst the

officers,

'

in

This right,
official,

Such rights are enforced

right.

English law against

by

that effect.

in

as collectors

of customs, registrars of births, bishops, lords of manors,

sherift's,

or postmen

but high

officials,

such as the Post-

master-General, are not responsible for the negligence of

their subordinates.

In

Roman

judge was
case

law,

a suitor

had

a right, enforceable by

The
suam fecerit,' and this was the
when he gave a wrong decision, either corruptly, 'si

action, that a

judge should decide his cause properly.

liable 'si litem

evidens arguatur eius vel gratia vel inimicitia, vel etiam

Dumont's Theory

of Legislation, Hildreth's translation, p. 191.

Falke v. Scottish hnperial Insurance Co., 34 Ch. D. 234. In the same
case, the L. J. criticises the note to Lampleigh v. Brathwaite in Smith's
L. C, which lays down that if a party adopts and enjoys a benefit, his
consent would be presumed. 'If that were the law,' he says, 'salvage
would prevail at common law as well as in maritime law, which it
certainly does not.'
' See Ashby v. White, i Smith, L. C.
*

OFFICIAL.
sordes

from

or

ignorance,

'

253
per imprudentiam V

licet

the law of England, however, no person

According to

holding a judicial

office,

be he judge, juryman, coroner, or

arbitrator, unless he exceeds the

bounds

of his authority,

for his judicial acts.

is liable

are

sometimes imposed on particular

classes of persons, in

which case any individual who has

duties

Special

a right to call for the performance of those duties possesses

a right 'in personam' against the

such performance
law, an

English

bound

is

innkeeper, having

upon

person

made incumbent.

whom

Thus, according to

room

in his

inn,

is

who is
and a 'common

to receive every well-conducted traveller

ready to pay for

entertainment ^

his

bound to convey all suitable goods for which

he has room and the carriage of which is duly paid.
Duties of this sort are often created by statute.
So, it
carrier' is

having been enacted that shipowners must keep medicines

on board for the crew,

suffers

sailor

who

sue for

the

was held that any

it

from a neglect

of

this

duty

may

damage he has sustained ^ Under the Lands Clauses

Consolidation Act, 1845, ^^^ similar statutes, a relationship of vendor and purchaser may be constituted without
the concurrence of the owner of the land,
of the

railway and other companies ^

suggested

probably

a person

is

Dig. V.

'

But

lapse of

to the class

unknown

any system

if

of

'

I. 15.

recognised,

consideration, but

law.

Dig.

'

'When
should

it

xliv. 7. 5.

Brown v. Brandt, [1902] i K. B. 696. A traveller may by

time become a mere lodger and lose his right to remain. Lamond

Couch

Cf

now under

see

Q. B. 541.
E. & B. 415; sed vide Atkinson v. Newcastle WaterEx. Div. 441.

V. Steel, 3

works Co., L. R.
*

exercise

desirability has been

danger, why,' asks Bentham,

in

V. Richard, [1897]
*

to

The

a right, which,

recognising

of

would belong
is

by the

compulsory powers conferred by these acts upon

Sir Edward Fry's Specific

Performance of Contracts, 3rd edit. p.

57.

chap. xn.

'

PRIVATE LAW: RIGHTS 'IN PERSONAM.'

254
CHAP.

XII.

mischief,

when

founded
on contract.

another from

to save

can be done without prejudicing himself,

it

as well as to abstain

Under the head

Torts

man

duty of every

not be the

from bringing

on him

it

of rights available against a definite

person, which person

specifically ascertained before

is

any

infringement of the right, one might be tempted to place

those rights the violations of which have sometimes been
called in English

law torts founded on

'

want

against surgeons for

and the

of skill,

contract.'

Actions

against carriers for

want

of

as

brought in pursuance of a right existing against

if

care,

persons pursuing
contract.

It

like,

have sometimes been treated

such vocations, independently of

has been said, for instance, that

'

any

the right

which a passenger by railway has to be carried safely

does not depend on his having

made

a contract, but that

the fact of his being a passenger casts a duty on the

Company

to

carry him

accepted view.

the

the

'

What

*,

custom of the realm,'

ticket

knows, or

is

'

would be

is called,
is

in the contract of carriage.

is

'

and

this

is

perhaps

The simpler view, and one which

does not lack authority

as contractual.

safely

presumed

to treat all such rights

with reference to carriers,

really a

Any

term implied by law

one taking a railway

to Ioioav,

what

interpretation

put by the law upon the agreement with the Company

into

which he enters by the simple act of taking a

He knows

that, in

return for his money, the

ticket.

Company

not only undertakes to put him into a train and to start

for its destination, but also undertakes to neglect

it

no

reasonable precautions for ensuring his safety during the

Works, i. p. 148.
Per Blackburn, J., in Austin v. Great Western Railway Co., L. R.
2 Q. B. 447. So in Ffoulkes v. Metr. Distr. Ry. Co., 5 C. P. D. 157; Taylor
V. Manchester, Sheffield and Lincolnshire Railway Co., [1895] i Q. B. (G.
A.) 134; Kelly v. Metr. Distr. Ry. Co., ib. 944; Turner v. Stallibrass, [1898]
I Q. B. 56; Sachs v. Henderson, [1902] i K. B. (C. A.) 616. Cf. Harvard
Law Review, ix. p. 215.
> E. g. Alton V. Midi. Ry. Co., 19 C. B. N. S. 213.
^

EX CONTRACTU.
journey.

what

through the

If,

Company

leg

much

as

him

contract with

as

By

sonam

'

fairly

say that the

guilty of a breach of their

he could.

most important

far the

class of rights

in per-

are those which arise from that particular species

which

is

called a

'

We

Contract.'

have already

explained that acts which are directed to the production

of a legal result,
sided,

sided,

when
when

'

Rechtsgeschafte,'

may be

the will of one party only

there

is

a concurrence of

is

either one-

active, or two-

two or more

wills

in producing a modification of the rights of the parties

concerned.

Such a two-sided

the creation of a right,

is

that term, in which

of

a
it

'

act,

having for

its

function

Contract,' in the widest sense

would include not only the

creation of rights 'in personam' but also assignments of

property, marriage,
rights

'

in

rem

and other transfers or creations

of

^'

^ Supra, pp. 123, 216.

So in English law 'contract of sale' is used to
describe both a sale out and out, or, as it is sometimes described, 'a
bargain and sale,' and a contract to sell. A similar ambiguity lurks
in the term 'marriage contract,' which may denote either the marriage

or a contract to marry hereafter. The term is sometimes employed in a very misleading manner. Thus, by 'The Married Women's
Property Act, 1882, it is provided that the word " contract " in this Act
shall include the acceptance of a trust, or of the office of executrix or
administratrix.' So it has been held that tlie incorporation of a College is
a 'contract,' and therefore, under the Constitution of the United States,
cannot be interfered with. Dartmouth College v. Woodward, 4 Wheat.
518. (On the attempts made by almost every State of the Union to
evade the rule thus laid down, see 27 American Law Review, p. 857, and
29 lb. p. 236. On Trusts in American textbooks, see supra, p. 249, n. 2.)
There is no contract to pay for the compulsory attendance of a child at
itself,

'

'

London School Board v. Wright, 12 Q. B. D. 578. 'A statute

wants all the elements of a contract, consideration and mutualas well as the assent of the party,' McCoun v. R. R. Co., 50 N. Y. 1 76.

school.

liability
ity,

On

chap. xu.

they had stopped their train

if

rest of the distance as best

of act

Company,

the

of

and had told him that he must accompUsh the

half way,

II.

may

broken, he

is

just

is

negligence

an accident occurs on the road, and the

called

is

passenger's

255

the necessity of acceptance for complete alienation in

Roman law,

Ex Con-

PRIVATE LAW: RIGHTS

256
CHAP.

Thus

XII.

Two
senses of
Contract.

if

man

'IN

PERSONAM.'

goes into a shop and buys a watch for

The watch-

ready money, a contract has taken place.

maker and

his

customer have united in a concordant

expression of will, and the result has affected once for

all

The customer has, according to English

law\ become owner of the watch, the watchmaker of
But suppose
its price, and the transaction is at an end.
their legal rights.

that, instead of the instantaneous sale of the watch, the

agreement had been merely for

day, in this case also there
to

which

it

gives rise

buy

to

not a vested right of ownership

is

an outstanding, or continuing, right in

in the watch, but

the customer

purchase at a future

its

a contract, but the right

is

the time and for the price

at

it

agreed upon, with a correlative right in the shopkeeper

to receive the price

the contract has given rise to

doing

its

force

is

In the former case,

due course.

in

rights

merely claims, or rights

be operative

We

Obligatory
contract.

till

are concerned

that narrower, and

which

tract,

in personam,'

the thing agreed upon

in

the

more

restricts

it

as gives rise to rights 'in

In this sense
of

several in

object

of

it

is

is

performed.

an

only with

sense of the term con-

personam

a two-sided act

^'

defined by Savigny as 'the union

an accordant expression of

creating

produces

which continue to

signify such

to

It

present chapter

usual,

in so

In the latter

case, the results of the contract are deferred.

'

and

'in rem,'

instantaneously spent.

will,

with the

between them^'; by

obligation

216. In English law acceptance is not necessary. See

Thompson v. Leach, 3 Mod. 296;
Baker's Case, 3 Rep. 25
Siggers v. Evans, 5 E. & B. 367; Standing v. Boxoring, 31 Ch. D. 283.
1 On the causes which led to the adoption of this rule, which seems

see supra, p.

Butler

&

not to have been fully established even in Elisabeth's reign, see Cochrane
V. Moore, 25 Q. B. D. (C. A.) 65.
' This is by some writers maintained to be the only proper sense of the
term, e. g. Vangerow, Pand. i. 121. An Obligatorischer Vertrag' is
sometimes also described as a 'Schuldvertrag.'
' Obligationenrecht, ii. p. 8.
Cf. Puchta, Inst. iii. p. 89.
'

OBLIGATORY CONTRACT.
an old
parties

English

authority

as

whereby something

'

quelque engagement "

by M. Ahrens as

exprime de plusieurs personnes a

un rapport

obligatoire sur

said

Vice- Chancellor

same

thing,

Kindersley, 'both

and each communicates

de creer entre
droit

^'

'

parties

When,'
the

will

his will to the other,

it

into effect, then

agreement or contract between the two

an

constituted

is

.'

an expression of agreement entered into by several,

It is

by which rights in personam

one or more of them.

are created available against

'

by Pothier

consentement

'le

I'effet

un objet de

with a mutual engagement to carry

is

between two

speech

to be done^';

is

convention qui a pour objet de former

as 'I'espece de

elles

257

'

contract can impose no liabilities

not a party to

originally acquired

wliich

may have

Nor, as a general

it.

under

it

upon any one who

rule,

by such an

can rights be

Any doubt

one.

existed as to the English law

point

was

since,

by a decision

set at rest,

to the effect that there

for holding that rights can be

this

is

no authority

acquired by third parties

under a contract unless by the creation

federal Courts of the

upon

one might have supposed, some time

of a trust ^

The

United States seem, on the whole, to

many

take the same view ^ but

of the States (though not

Massachusetts or Michigan) have followed with approval

a

New York

case,

which establishes an exception

to the

rule in favour of certam beneficiaries under a contract to

which they are not parties '

seem
1

to carry the exception

The Mirrour.

and a recent English case would

still

further ^

Oblig. art.

i.

Cours,

ii.

p. 226.

Haynes, i Dr. & Sm. 433.

B Tweddle v. Atkinson (1861), i B. & S. 393.
Of. Re Rotherham, Alum
and Chemical Co. (1883), 25 Ch. D. iii.
6 E. A. Harriman, Elements of the Law of Contracts (1896), pp. 215*

Haynes

v.

228.
^

Lawrence

v. Fox, 20

N. Y.

268.

On

this question, see the

German

Civil Code, 328, recognising the possibiHty of so framing a contract as

to give to a stranger to it a right of action for its breach. On the com-

parative law of this question, see S. Wilhston,in Harvard L. R. xvi. p. 438 The Satania, [1895] P. (C. A.) 248, [1897] A. C. 59.
1950

chap, xil

PRIVATE LAW: RIGHTS

258
CHAP. XII.
Cause and
effect.

necessary carefully to distinguish between the two-

It IS

sided

The

PERSONAM.'

'IN

and the

act itself

alone

act

is

results

which

to

the contract, the

quite a

different

gives rise.

it

resulting contractual

although, from

thing;

the

relation

is

want

an appropriate terminology, the two things are

of

sometimes confused with one

another in English law.

Thus we talk of 'assignmg a contract,' while what is

really meant is the assignment of the rights and Uabilities
which

arise

out of the contract.

Roman

law,

utmost

precision.

'

the two ideas

The

obhgatio ex contractu

Enforcement.

It has

'

In

is

one

of

with the

are distinguished

'contractus'
is

language

the

tiling,

the

another \

been paradoxically maintained by more than one

eminence that no assistance should be given

writer

of

by law

to the enforcement of agreements,

on the ground

that they should be entered into only with those whose

honour can be trusted; and the laws of Charondas and

of the ancient Indians are stated to
this

principle ^

maxim, 'pacta sunt

cripu} ofxo\oyi](ry

shall

^,

have proceeded upon

The contrary view, embodied

servanda,' Kvpia

c'l/at

tl

the

in
av

h-tpos

we

even apart from such solemnities as

have occasion shortly to mention, has,

it

is

hardly

necessary to say, long ago received the adhesion of the

civilised

'

world

*.

The lack of terminology to express this distinction must be responsible

for the English

barbarism a 'Contract of Record,' as descriptive of,

other things, a judgment. 'A judgment is a contract of the
highest nature known to the law,' Taylor v. Root, 4 Keyes (N. Y.) 335.
Cf. 3 Comm. 160. But 'a judgment is no contract, nor can be considered
in the light of a contract'; tor 'iudicium redditur in invitum,' Bidleson v.
Whytel, 3 Burr. 1545.

among

OvTOi yap TrapaxpVIJ-a KeXfvovcn SiS6vai Kal Kafxfiiivtiv, iav S( tjj in(rrf{>y,
ZIktiv, avrhv yap alrlav (hai r^s aSiK^as.
Stob. Flor., tit. 44. 21;
Strabo, xv. p. 709; cf. Arist. Eth. Nic. viii. 15. 6, ix. i. 9.
^

fhat

fii)

Demosth.inEuerg. p. 1162. Quid enim tam congruum fidei humanae

ea quae inter eos placuerunt servare?' Dig. ii. 14. i. Cf. Puffendorf, De Off. Hominis et Civis, i. c. 9. 3.
*
By the Constitution of the United States, no State shall pass
any law impairing the obligation of contracts.' Art. i. 10.
^

'

quam

'

AGREEMENT
The

State lends

259

force to assure the performance of

its

those promises of which

This

IN CONTRACT.

thinks

it

fit

chap,

xh

to take cognisance.

endeavours to do by putting some sort of pres-

it

sure upon the will of the promisor, which

therefore

is

indubitably so far subjected to the will of the promisee.

The

fact that the pressure thus applied

often

fail of

According to Mr. Justice Holmes, a

theory of contract.
contract

may

has given rise to an ingenious mversion of the

its effect

may

be regarded as 'the taking of a

risk.'

only universal consequence of a legally binding promise

that the law

is,

makes the promisor pay damages

promised event does not come to pass.

him

leaves

it

free

and therefore

contract
this

if

view

tracts

he chooses

is

But, as the

\'

compelled to admit,

In every case

free

able

for

break his

to

advocate of

people

make

con-

they usually contemplate the performance rather

than the breach'; nor can

it

be seriously maintained that

the performance of a contract

any other

of

when

'

^^^'^^y-

the

if

from interference until the time

fulfilment has gone by,

Mr. Jus-

The jjo^jj^gy'

'

legal

duty.

is

more optional than that

Libel or

assault, equally

breach of contract, are possible to any one

who

is

with
pre-

pared to be answerable in damages for the indulgence of

a taste for defamation or violence.

An

obligatory contract

agreement.

upon the

is,

as

we have

seen, a species of

But many agreements produce no

legal effect

relations of the parties one to another.

It will

more minutely

into the

therefore be necessary to enquire

characteristics of those consensual acts

which are recog-

nised by law as giving rise to obligations.

Savigny's analysis

by the majority

contract,

of

of the

more recent German

to the following effect.

is

The Common Law,

substantially

Its

accepted Savigny's

authorities, a contract,

constituent elements are,

In support of this view he cites, in HarBromage v. Genning, i RoUe Rep. 368;

but, said Bramwell B., 'a person contemplates the performance, and not
the breach, of his contract. He does not enter into a kind of second contract to pay damages.' Hydraulic Engineer.Co. v. McHaffie, 4 Q. B. D. 674.
*

vard L. R.

X. p. 462,

p. 301.

Lord Coke

in

S2

PRIVATE LAW: RIGHTS

260
CHAP.

xii.

he says

several parties,

(i)

(ii)

bestimmt gewollt haben),

agreement

an agreement of their

und zwar Beide

wills (sie miissen irgend etwas,

this

'IN PERSONAM.'

dasselbe,

a mutual communication of

(iii)

miissen sich dieser Uebereinstimmung

(sie

bewusst geworden seyn, das heisst der Wille muss gegen-

worden

erklart

seitig

seyn), (iv)

an intention to create

a legal relation between the parties S

In one point

Is con-

necessary?

criticism.

Is

only

does this

there be, as

wills to a single,

we

Savigny puts

it,

'a union of several

whole and undivided will ^

'

Or should

not rather say that here, more even than elsewhere,

the law looks, not at the will

voluntarily manifested

does

it

to

not entered

is

the parties are really at one?

into unless the wills of

Must

seem open

analysis

the case that a contract

it

so

to

'

but at the will as

itself,

When the law enforces contracts,

prevent disappointment

expectations, which, though

well-founded

of

they usually arise from ex-

pressions truly representing intention, yet

may

occasionally

arise otherwise.

for instance, one of the parties to a contract enters

If,

into

it,

solved

and induces the other party

all

to enter

into

it,

re-

the while not to perform his part under

it,

the

contract will surely be good nevertheless.

Not only

the dishonest contractor be unable to set up

will

his original

dishonest intent as an excuse for non-performance, but

should

any change

from

he,

desirous of enforcing

of

circumstances,

the agreement

against

become

the other

party, the latter will never be heard to establish, even

were he

in a position to

at the time

were not

it

The

when

it

is

System,

Ibid. p. 309.

'In

9,ffectus

the parties to

to the current of

from Javolenus* to the writers

iii.

made

really of one mind.

This view, opposed as

older

do so by irrefragable proof, that

the agreement was

p. 308.

of

recent

authority
textbooks,

Cf. infra, pp. 266, 276.

''Cf. supra, p. 119.

omnibus rebus quae dominium transferunt, concurrat oportet

ex utraque parte contrahentium.' Dig.

xliy. 7. 55; cf. xiv. i. 3.

AGREEMENT
was

IN CONTRACT.

originally put forward with

some

now restated with more confidence,

who were at first decidedly opposed

diffidence.

It is

since English friends

to

truth, while a similar view, after

its

261

are converts to

it

havmg

been, as

it

seems, for some years academically debated in Germany,

has definitely come to the surface in the important work

of Professor

once raised

Leonhard\

Indeed when

how

hard to see

it is

the true consensus of the parties

of law,

it

is

the

question

is

can be supposed that

within the province

which must needs regard not the

will itself

but

the will as expressed by one party to the other ^ taking

care only that the expression of will exhibits all those
characteristics

of

a true

act

which have already been

enumerated ^
Der Irrthum bei nichtigen Vertragen, Berlin, 1882-83; and now
La substance des obligations dans le droit int. priv6, 1906-8,
which my attention has been called by Dr. T. Baty. Of. Rev. Droit

J. Jitta,

to

See also O'Donnell v. Clinton, 145 Mass.

that 'assent, in the sense of the law, is a matter
of overt acts, not of inward unanimity in motives, design, or the interpretation of words'; and two articles by Hartmann, in the Archiv fiir
Int., igo6, p. 601; 1909, p. 105.

where Holmes

461,

J. saj's

civilistische Praxis, Bd. 72, p. 161, and Bd. 77, p. 161, citing Fichte,
System der Sittenlehre, p. 383. Cf. the following remarkable passage
from Dr. Adam Ferguson's Institutes of Moral Philosophy, ed. 1800, p.
155 'An action of any kind performed with a view to raise expectation, or
by which it is known that expectations are naturally raised, is sufficient
to constitute a contract.' Cf. Bramwell B. in Browne v. Hare, 3 H. & N.
:

atp. 495^ Sir W. Anson, Contract, ed. xiii. p.

5 n., in discussing the views of
the present writer upon this question, holds that 'the law does require the wills of the parties to be at one, but that when men present
all the phenomena of agreement, they are not allowed to say that they
were not agreed.' Sir F. Pollock, Contract, ed. viii. pp. 5 n., 9 n., explains the intent of the parties as such an intent as a Court of Justice
can take notice of.' If A,' he continues, being a capable person, so bears
himself towards B that a reasonable man in B's place would naturally
understand A to make a promise, no further question can be made about
what was passing in A's mind.' Cf. Professor Langdell, Summary, 180:
'Mental acts, or acts of the will, are not the materials out of which
promises are made. A physical act on the part of the promisor is indis'

'

'

'

'

pensable.'
' Supra, p. 107.
So the innocent holder of a bill of exchange cannot
recover its value from one who, without negligence on his part, has
endorsed it, on being assured that it was a guarantee. Foster v. Mackinnon, L. R. 4 C. P. 711.

PRIVATE LAW: RIGHTS

262
CHAP.
for dis-

senting

from

An

XII.

Reasons

'IN

PERSONAM.'

adequate discussion of the question whether a con-

demand

tract can be said to

of wills,

would be out

for its validity a true union

of place in the present work,

which

it.

can attempt only to indicate the nature of the problem

and the general character of the arguments by which one

or other solution of
of systems

ambiguous, nor

is

may

be supported.

The language

law upon the point

this to be

new

practically a

is

it

positive

of

one.

wondered

The

at.

generally

is

The question

process of giving effect to

the free acts of the parties to a contract, rather than

to the fact that certain rigidly defined formalities have

been complied with, has lasted so long that legal speculation

has only recently begun to analyse the free act
its

two

and

factors of

itself into

an inner will and an outward expression,

dominant place

to assign to one or to the other a

in

the theory of contract.

Roman
law.

Just as the

terms

Romans

used, without analysing them, the

'sententiaV

'consensus,'

'velle,'

so

the

modern

Codes, though some appear to look rather to the inner

will^ others rather to

its

outward expression ^ as a rule

is

capable of being interpreted in

employ language which

either direction.

The same may be

English
cases.

said of the English cases.

In these

one constantly meets with such phrases as 'between him

and them there was no consensus

they never intended to deal
*

See Leonhard,

mann, as

i.

p.

1 1

*
' ;

of

mind,' 'with

him

but one also meets with

but on the other hand Windscheid and

Zitel-

cited, swpra, p. 120.

^ E. g. the Code Civil, art. 1109;

the Codice Civile, arts. 1098, 1114;
the Codes of Prussia, 4, 52-56, 75-79; of Saxony, 91, 95, 843, 844;

and
'

of Zurich, 926.

E.

g.

the Austrian Code, art. 871; the Swiss Code Federal des obligathe Civil Code for Germany, 116, as compared with the

tions, art. i;

draft Code, 77, 95-100; as to which see Prof. R. Leonhard, in the

Jahrbuch der internationalen Vereinigung fiir vergl. Rechtswissenschaft,
1897, p. 54.
*

In Cundy

v.

Lindsay, L. R. 3 App. Ca. 459. Cf. per Bowen, L.

i Q. B. 269.

Carlill V. Carbolic Smoke-ball Co., [1893]

J.,

in

AGREEMENT
much

L\

CONTRACT.

263

that supports the view of the question which

may

venture to hope

commend

ultimately

we

chap.

xii.

to the

itself

Courts as being at once the most logical and the most

The

favourable to the interests of commerce.

which

in

view

this

may

with that of Pickard

principle

be traced

v. Sears^

may be

class of cases

said to

commence

decided in 1838 \ and the

which they involve was thus stated by Chief

Baron Pollock

1859: 'If any person, by a course of

in

conduct or by actual expressions, so conducts himself that

another

ment

may

reasonably infer the existence of an agree-

or licence, whether the party intends that he should

do so or

not,

language, or

it

has the effect that the party using that

who has

so conducted himself, cannot after-

wards gainsay the reasonable inference

his

words or conduct'.'

held

in

187 1

the

in

Still

clearer

to be

drawn from

was the language

when

case of Smith v. Hughes^^

Mr. Justice Blackburn said:

whatever a man's

'If,

real

may be, he so conducts himself that a reasonable

man would believe he was assenting to the terms proposed

intention

by the other party, and that the other party on that

belief

enters into the contract with him, the

conducting himself would be equally bound as

intended to agree to the other party's terms

In other words
the part of one

the legal meaning

man

contract with him,

is

of

man
if

thus

he had

\'

such acts on The newer

as induce another to enter

mto a

not what the former really intended,

6 A. & E. 475; cf. Freeman v. Cooke, 2 Ex. 654.

Cornish v. Abington, 4 H. & N. 549.
L. R. 6 Q. B. 607. Cf. Carr v. London and N. W. Ry. Co., L. R. 10 C.
P. 317. In Scott V. Littledale, 8 E. & D. 815, the contract was held good,
although the vendor had by mistake shown a wrong sample. See also
Leake, Contract, p. 12.
* Dr. E. Schuster, in a vtry able article
Der Vertragsschluss nach englischem Rechte,' in the Archiv fiir Handels- u. Wechselrecht, xlv. p. 324,
seems to think that according to these cases it is necessary that the
expression of will should be accompanied with an intention that it should
induce the other party to act, and that the other party should, with
^

'

a knowledge of this intention, undertake so to act.

PRIVATE LAW: RIGHTS

264
CHAF.

XII.

'IN PERSONAM.'

nor what the latter really supposed the former to intend,

reasonable man,' i. e. a judge or jury,
what a
upon
such acts \ This luminous principle at
would put
once sweeps away the ingenious speculations of several
generations of moraUsts^ while it renders needless long
lists of subtle distinctions which have been drawn from
'

but

decided cases'.
supported by
IS

rules as
to corre-

spondence

and

what may be
called the objective theory of contact are confirmed by
the generally received rules as to contracts made by post

The truth and

practical importance of

where the question, whether or no the contract

agency

we

turns, as

shall see \ not

of the parties,

but on the fact of their having exchanged

expressions of intention

the

liability

and by the law

empower

is

Nor

con-

sistent

is

the well-established effect of

error

'

what

in preventing a contract

his agent to act

such error

is

present,

apparent

agreement

known

is

as 'essential

from coming into existence.

it

is

no doubt true to say

non videntur qui errant consentire

the

since

revoked the agent's authority ^

doctrine of
mistake.

When

there any inconsistency between this view and

with the

'

Agency

merely so long

but also so long as he has not, to the knowledge

of third parties,

and

of

of a principal continues not

as he continues mentally to
for him,

made,

is

on the coincidence of the wUls

may be

'.'

All liability under

repudiated, and any

may well

be in contracts that a man may be bound to a meaning

his.' Leonhard, i. p. 119. Cf. Lord Selborne's statement that 'the doctrine of reputed ownership does not
*

'

It

which demonstrably was not

require any investigation into the actual state of knowledge or belief

of creditors, or of the outside world, 'as to the position of particular
goods. It is enough for the doctrine if those goods are in such a situation
as to convey to the minds of tb.ope
tation of ownership.'

Ex

who know

their situation the repu-

parte Watkins, L. R. 8 Ch. Ap. 528.

Cf.

Kansas, 38. On the difference between the views

of the author and Sir W. Anson, see the latter's Contract, ed. xiii.
p. sn.
2 E. g. Grotius, De I. B. et P. iii. 23. 4; Paley, Moral Phil. vol. i. c.
5;

Turner

Austin,

v. Webster, 24

ii.

p. 123.

See, e. g. Anson, Contract, ed.

See Drew v. Nunn, 4 Q. B. D. 668, and cf. infra, p. 273.

Dig. 1. 16, 1x6; xliv. 55, 57. Cf. supra, p. 118.

xiii.

p. 153.

Infra, p. 269.

AGREEMENT
payments made

But we

in

IN CONTRACT.

pursuance of

may be

it

which, as has been well observed,

circumstance
to

recovered back.

shall find that even here the failure of the contract

due not to the psychological fact

is

265

of

the circumstances

is

mistaken

is

may

be reduced

such

a cargo of corn, supposed to be on

it

under

as

meaningless, either from referring to

an object not in existence, as in the case of the

while in reality

belief,

a mere 'dramatic

but to other causes, which

The language employed

(i)

two.

is

its

sale of

homeward voyage,

had become so heated that

it

had been

unloaded and sold^; or from ambiguity, as in the case

of the sale of a cargo of cotton 'to arrive ex Peerless

from Bombay,' whereas there were two

ships, either

which would have answered the description^.

true meaning of the mistaken party
to the other party.
in persona,'

'

is,

(2)

or might be,

of

The

known

This will cover the cases of 'error

in corpore,'

'

in negotio,' &c., as, for instance,

the case where a customer sent an order for goods to a

tradesman with

whom

he had been accustomed to

but who had disposed of his

deal,

business to a successor,

who, having supplied the goods without any notification

of the change,

The question

was not allowed

to recover their price \

in these cases should always be:

was the

expression of one party such as should fairly have induced

the other to act upon it?

^

Holmes

Common

Law,

If so,

but not otherwise,

it is

p. 308.

Couturier v. Hastie, 5 H. L. 673. 'Domum emi cum earn et ego et

venditor combustam ignoraremus. Nerva, Sabinus, Cassius, nihil venisse,
quamvis area maneat, pecuniamque solutam condici posse aiunt.' Dig.
'

xviii. I. 57.

inteUigi.'

Cf.

'Nee emptio nee venditio

sine re

quae veneat potest

lb. 8 pr.

Raffles V. Wichelhaus, 2

H.

&

C. 906.

The judgment

in this case

merely supports the plea, which sets out the facts and avers a diflference
Cf. 'si Stichum stipulatus de alio
of intention between the parties.
sentiam, tu de alio, nihil actum erit.' Dig. xlv. i. 83. i.
* Boulton v. Jones, 2 H. & N. 564; Boston Ice Co. v. Potter, 123 Mass.
28. In such cases, as Leonhard says, 'the essentiality of error depends
entirely on the question whether the absence of error is made a cognisable
condition of the transaction.' Irrthum, ii. p. 586.
6 Professor Ashley, of New York, in his Law of Contracts, 191 1, sug-

chap. xn.

PRIVATE LAW: RIGHTS

266
CHAP.

XII.

PERSONAM.'

'IN

in the interest of society that the loss should fall

upon

the former.

We

Elements of a
contract.

shall therefore treat of the constituent elements of

a contract as being

i.

several parties

by which they express

agreed upon which is both

a two-sided act

ii.

agreement;

their

and

possible

iii.

legal;

a nature to produce a legally binding result

a result as affects the

another; also,

some

or

fact

The very
least two

Parties.

i.

vi.

the

of

relations

v.

matter

of

iv. is

and such

parties

one to

very generally, either a solemn form,

which affords a motive

idea of a contract

for the agreement.

demands

for its formation

parties, a 'promisor' and a 'promisee,' who

at
in Roman law are described as 'debitor' and 'creditor';
which terms have however a more general application.

So

it

has been held that where one and the same company

had two departments, one

annuities, an insurance

for

effected

insurance

by the

'

being,'

incerta persona,'

but the offer

e. g.

may

'

a lost purse, whoever he

tractors.

the secretary for the time

be, in the first instance,

an unascertained member of a
Joint con-

latter

may

for

department

The promisee must not

with the former was a nullity \

be an

and one

class,

made

to

to the finder of

e. g.

be^.

There may be more parties than one to either side of a

contract, ' plures

rei,'

'

joint contractors

' ;

and these

are, ac-

cording to the position which they occupy, either 'correi credendi,' 'joint creditors,' or 'correi debendi,'
gests the desirability of adding here the

known
*

Grey

111.

joint debtors'.'

words 'and ought he to have

that the other might reasonably act upon

Daggett, 74

'

it?', citing

Reeply

v.

263.

For a discussion 'iiber die Theorie des

the case of an agent contracting with himself as

v. Ellison, i Giflf. 438.

Selbstcontrahierens'

(i.

e.

a stranger), see Umberto Pranzataro, in the Transactions of Int. Vereinigung fiir vergl. Rechtswissenschaft, &c., 1902, No. 6.
* Such a proposal is called in German 'Auslobung.'
The same principle applies to the offer of a prize, to announcements in railway timetables,

On

sales by auction.
the vexed question of the true nature of a correal obligation, see

and to

OFFER AND ACCEPTANCE.

The two-sided

ii.

an

consists of

expressive of

act,

offer,

'

poUicitatio

acceptance on the other

267

side,

One party expresses

^.

This

agreement.

on one

chap. xn.

and an^^''^^

his readi-ance.

ness to be bound to a performance, and the other side

An

expresses his acceptance of this readiness.

no

off er creates

are as follows :

The

rules

upon

this subject

The acceptance must unconditionally correspond toUncondiAn expression of readiness to buy a horse for
pounds is no acceptance of an offer to sell the horse

1.

the

liabilities

unaccepted Accept-

offer.

fifty

for sixty

pounds *.

The aceptance must be contemporaneous with theContemoffer, which may therefore be withdrawn at any time
2.

before

it

has

So

has been accepted.

a bidder at an auction

*An

fallen.

is

auction

it

has been held that

not bound
is

the

till

hammer

not inaptly called a locus

Every bidding is nothing more than an

on one side, which is not binding on the other

poenitentiae.
offer

side

till it is

assented to ^'

Several subordinate questions arise with reference to this

rule,

some

(a)

of

How

them giving

revoked remain open

sense,

rise to

very

fine distinctions.

long does an offer which has not been expressly Tacit

It is in

and has been so

accordance with

held, that

an offer

is

remain open only for a reasonable time".

Savigny, Obligationenrecht,
sus
^

vii;

Sohm, Institutionen

The German

23; Moyle, Institutes of Justinian, excur(Transl.), 61; Hunter's Roman Law, p. 590.

'PoUicitatio est solius oflferentis promissum.'

An

common of offer,

intended to

Dig.

2.

12. 3 pr.

may

sometimes be confused with an enquiry

about an offer, 'Aufforderung zu einem Antrage.' Vang. Pand. 603.
So an 'offer to be bound' with an 'offer to negotiate'; see Bowen, L. J.
in the Smoke-ball case, u. s.
* 'Ex nuda poUicitatione nulla actio nascitur.'
Paul R. S. v. 12. 9.
But some curious exceptions to this rule were recognised in Roman law.
Dig. 1. 12. As to the effect of an unaccepted offer by deed in English law,
^

offer,

'Antrag,'

see infra, p. 279.

* A reply to this effect would amount to a rejection of the offer and the
making of a counter-offer. Hyde v. Wrench, 3 Beav. 334. So the civil
^ Payne v. Cave, 3 T. R. 148.
Code for Germany, 150.
^

Meynell v. Surtees,
L. R. i Ex. 109.

fiore,

Jur.

N.

S. 737; of.

Ramsgate Hotel Co.

re-

v.

Monte-

PRIVATE LAW: RIGHTS

268
CMAP. xn.

Commercial Code keeps an

distance open only

PERSONAM.'

'IN

offer

made

an answer to

till

to a party at a

could have been

it

received in due course \

Revocaby

tion

death.

(13)

an

Is

revoked by the death before

offer

accepted of the person

mere
(y)

who makes

view as to

difference of

fact of death,

this

that

(S)

Contracts

by correspondence.

on

acting
^

sometimes imply

enough without

be

When

of intention

the parties are at a distance,

the expression

is

by either party, or the communication

of such

an expression to the other party, to be regarded?

diflBculty,

some

every case to the

notified in

proposal will

the

is

from the

to the acceptor^.

offeror; or does the nature of the offer

notification

has been

There

it?

result following

uncommunicated

Must acceptance be

it

which continues

to the present

day

This

to exercise the

ingenuity of the Courts and divide the opinions of jurists,

was perceived and discussed by the

on the

civil

law^

acceptance of an

an

either of

It

offer,

offer or of

theorie

to the

'),
'

it is

the

'

enough

commentators

with reference to

chiefly

but also with reference to revocation

an acceptance.

subject are classified by

According to

arises

earliest

German

The views upon the

writers under three heads.

Aeusserungstheorie
if

an acceptance

is

'

('

Declarations-

posted

according

Empfangstheorie,' the acceptance must reach the

Handelsgesetzbuch, art. 319. For a decision under this article, see

No. 60. So the German Civil Code, 147. A promise by the offeror to keep his offer open for a reasonable, or any, time,
would be void in English law from want of consideration.
2 The Indian Contract Act requires communication.
In English law
the mere fact seems to be sufficient. See Dickenson v. Dodds, L. R.
2 Ch. D. 475. Some authorities would deny the existence of a contract,
but would indemnify an ignorant acceptor. Windscheid, Pand. 307.
Of. the German Civil Code, 153.
* As e. g. in Carlill v. Carbolic Smoke-ball Co., [1893] i Q- B. 256.
Cf.
German Civil Code, 151.
* On 1. I of the title 'De Contr. Empt.'
(Dig. xviii. i), Accursius
writes: 'Item quid si antequam literae vel nuntius ad eum perveniant
venditor renuntiat? Quidam dicunt non valere contractum. Sed Aid.
dicit tenere, quod puto verum.'
1

Seuffert, Archiv. xxix.

OFFER AND ACCEPTANCE.

offeror

according

while

'

('Rescissions-,'

actually

come

to

Agnitions-,'

to his

'

the

'

269

Vernehmungstheorie

Recognitionstheorie ')

knowledge \

The French

it

'

chap.

must

authorities

are similarly at variance, Merlin, for instance, holding that

the contract

complete on acceptance, Pothier that the

is

known

acceptance must become

to the other party

English Courts, after a period of uncertainty, seem

The

^.

now

to

have arrived at conclusions which may be shortly stated as

follows

An

offer is irrevocable after it

Acceptance must be no merely mental

cation to the proposer, which

made by

fail

act,

but a communi-

may however

posting a letter containing

be delayed ^ or even

has been accepted.

it

be

suflBlciently

^ although this letter

altogether to reach

its

destination

revocation of an offer, despatched before, but reaching

the acceptor after, the posting of the acceptance comes

too late^

revocation

of

an acceptance, posted

after,

but reaching the proposer simultaneously with, the acceptance, probably prevents the formation of the contract l

Our

judges,

it

will be observed, refuse to give effect to

an expression of intention by one party unless actually

communicated

to the other, except that, in the case

of

an acceptance only, they hold the posting of an acceptance

1 Windscheid, Pandekten,
306; cf. Vangerow, Pand. 603; Baron,
Pand. 212. For a full and interesting discussion on the several theories
of dichiarazione, spedizione, and recezione, see the Report upon the draft
Code of Commerce, presented in 1878 to the Italian Senate by the Minister of Justice, Mancini, pp. 1 15-143.
Cf. Dalloz, 'Obligations,' No. 98.
* Brogden v. Metropolitan Ry. Co., 2 App. Ca. 691.
The despatch of
a telegram has the same effect, Cowan v. O'Connor, 20 Q. B. D. 640.

Adams

v. Lindsell,

B.

&

Aid. 681.

H. L. Ca. 381 Household Fire and Carriage Co.

V. Grant, L. R. 4 Ex. D. 216, where see the dissenting judgment of Bramwell, L. J. Cf. Tayloe v. Merchants Fire Insurance Co., 9 Howard S. Ct.
Rep. 390.
8 Byrne v. Van Tienhoven, $ C. P. D.
344; Henthorne v. Fraser, [1892}
2 Ch. (C. A.) 27.
^ Dunmore v. Alexander,
9 Shaw & Dunlop, 190. Cf. Handelsgesetz*

Dunlop

buch,

V. Higgins,

art. 320.

xii.

PRIVATE LAW: RIGHTS

2/0
CHAP. xn.

'IN

PERSONAM.'
They do not

equivalent to such communication.

to be

attribute a similar effect to the posting of a revocation.

Those foreign

may

who, insisting upon a truly con-

jurists

tinuing consensus of

revoke at any

the parties, think that a proposer

moment

before the acceptance reaches

him, grant to the acceptor of a contract which

to

fail

he

come

any

into being an indemnity for

may have

sustained by the proposer's

'

may
loss

thus

which

culpa in contra-

hendo S'

The
codes
3.

topic

is

dealt

with

several

in

of

the

modern

^.

There are circumstances which, while they do not,

like those already

mentioned, by negativing the presence

what

is often described as a consensus ad idem^ but

would be more accurately described as a concordant ex-

of

pression

yet

initio^

the

of

will,

render the

apparent

operate as flaws in

resulting

who is disadvantaged by
Where one party has been

is

not permitted to hold

The

rhetorical phrases

vendor are not necessarily fraudulent,

obligat,'

nor

is

the

of

it^

the other party to his bargain \

mendatio non

option

guilty of fraudulent mis-

representation or concealment, he

of a

formation, rendering

obligation voidable at the

party
Fraud.

its

contract void ab

'

simplex com-

the contract voidable unless

32; Windscheid, Pandekten, 307.

Indian Contract Act, 4; Handelsgesetzbuch, art. 318-321; the
Italian Codice di Commercio, art. 35; the Swiss Code Federal des Obligations, arts. 5-8; the German Civil Code, 147-153; the Japanese Civil
Code, arts. 526, 527. For recent American cases, see C. Noble Gregory,
*

Pothier, Contr. de Vente,

American Law Register, 1900.

On the distinction between void and voidable acts, of. supra, p. 124.
The French and Italian Codes seem to give to 'essential error' no
higher effect upon a contract than they attribute to fraud and duress.
Plato mentions duress, fraud and haste, as grounds for avoiding a conin

tract.

Crito, 52 E.

German Civil Code, 119. An 'exceptio doh mah' was

mitted to actions upon formal contracts in the time of Cicero.
as an infringement of a right 'in rem,' v. supra, p. 236.
*

Gf.

first

On

per-

fraud

FLAWS

IN CONTRACT.

271

has been materially induced by the misrepresentation,

it

The fraud

of an agent will be

although the latter

English

recent

imputed to

may have

cases

it

his

acted with bona

been

has

held

chap. xii.

principal,
fides.

that

In

innocent

misrepresentations are ground for setting aside a contract

which they have

induced,

undue

influence

'

or

What

performance of it\
is

for

refusal

known
to make

is

also held

of

specific

English law as

in

a contract voidable.

This consists in acts which, though not fraudulent, amount

to an abuse of the

power which circumstances have given

to the will of one individual over that of another.

In

some

or

such as that of

relations,

solicitor

and

client,

parent and child, the existence of this exceptional power

often presumed, but

is

proved

existence

its

is

capable of being

in other cases also^.

Duress, which

another ground on which a contract Duress,

is

voidable, consists either in violence to the person, or

is

same character, 'duress per

in threatened violence of the

minas.'

It will

not be enough

if

the safety of a man's

house or goods only be threatened ^ and the fear caused

must

may
non

been

be, as has

befall a constant

'

said,

man

not a vain fear, but such as

'

'

vani timoris iusta excusatio

est*.'

According to English law the fraud or duress

party has no effect upon a contract;

and

of a third

this

is

the

generally accepted rule as to frauds though not as to

duress

Redgrave v. Hard, 20 Ch. D.

On

i;

Neivbigging v.

Adam, 34 Ch. D.

the doctrine of 'laesio enormis,' as applied in the contract of sale,

V. infra, p. 288.

Code

Aliter

Dig.

'

Though

1.

Civil, art. iiii;

17. 184.
it is

criticised

see Dalloz, Repertoire,

'

art.

Dig.

in I.

iv.

2.

9.

Codice Civile,

art. 11 12.

Cf. supra, p. 108.

I,

s.

ib.

by some commentators on the French Code:

v. 'Obligation.'
14.

3;

Code

Civil, art.

iiii; Codice Civile,

PRIVATE LAW: RIGHTS

2/2

'IN

PERSONAM.

Mode

The expression of agreement may be in

by words, or by signs, or merely by a course

sion.

in

CHAP.

XII.

of
expres-

4.

which

an old

last case it is called

case, it

acceptance,
for

was

an 'implied contract V In

with reference to an unexpressed

said,

your having

'

writing, or
of conduct

it

in

own mind is nothing,

of man is not triable,
know what the thought

your

law that the thought

it is trite

for even the devil himself does not

man isV

of

must be expressed by the

It

but in developed systems of law

parties to one
it

is

another:

not necessary that

the parties shall be face to face at the time.

They may

communicate, for the purpose of contracting, as well as

for the purpose of otherwise affecting their legal relations,

May

be by

agent.

by

letter, or

by telegraph, or by means

or other go-between.

This go-between,

with a certain amount of discretion,

is

of a

messenger

when

entrusted

called an

agent,

by virtue of the authority, or

him by his principal ^ The giving

or mandatory, and he acts

'mandate,' confided to
of this

authority on the one hand, and

its

acceptance on

the other, constitute a special contract, resulting in mutual

rights

and duties between the principal and the agent,

which

will

have to be discussed hereafter.

We

are

now

only concerned with agents as being, for the purposes of

1 It is necessary carefully to distinguish from this appropriate use of

the phrase, its use as descriptive of terms imported into a contract by the
law {supra, p. 2^1, infra, pp. 289, 290), or of a transaction to which the law
chooses to attach the consequences of a contract, although it is nothing

of the kind {supra, p. 244).

*

Per Brian, C.

J., 1 7

Ed. IV. quoted by Lord Blackburn in Brogden v.

Metropolitan Railway Co., L. R. 2 App. 692.

^ Supra, pp. 116, 122.
The distinction between Agency and Service is
said to be that the former relates to transactions of business with third
persons, the latter to action upon or about things: Mechem, Agencj', 2;

has accordingly been held that a Telegraph Company is not

its telegraphist.
Western Union Tel.
Co. V. Wofford, 74 S. W. Rep. 943, cited in Michigan Law Review, ii.
p. 139. An agent need not be sui iuris, Co. Litt. 52 a, Code Civil, art.
1990. On 'agency by necessity,' see Anson, Contract, ed. xiii. p. 384.

and

it

responsible for the knowledge of

AGENCY
all

IN CONTRACT.

273

contracts alike \ capable of giving binding expression

Each party

to the will of their principals.

may be

represented by an

universally

agent.

It

received maxim, that a person

at the time

authority to act for another,

who
may be

retrospectively

agent by subsequent ratification.

his

retrotrahitur et

An

mandato

may

agent

priori

is

'Omnis

had no

made

ratihabitio

aequiparaturV

general be appointed without

in

any Authority

formality, though in English law an agent to execute a

deed must be appointed by deed, and for the purpose of

bindmg

his principal

under the Statute

of Frauds, sections

must be appointed in writing. Agency may also

be implied from the acts of the principal, on the ground
and

that

2,

if

one person by his acts represents another person

to be his agent, he

into

ought to be Uable upon the contracts

which third parties may enter on the

a representation.

habit of ordering

servant, for instance,

faith of

who

is

such

in the

goods for his master on credit,

may

continue to bind his master after his authority has been

withdrawn, with reference to third parties who have had

no notice

such withdrawal.

of

for the

good

of the ship.

mere necessity does

a railway company

who has been

to

So the master of a

an agent to pledge the credit

in emergency,

is

called

not,

It has

in

of his

sliip is,

employer

however been held that

general, create

agency;

so

not liable for the fees of a surgeon

in

by one

of

their station-masters

attend to the sufferers from an accident*.

wife,

merely as such, has no authority to bind her husband's

credit

and

it

has been held accordingly that a prohibition

^ Except the
contract of marriage.' The ratification of the promise of
an infant could not however, under Lord Tenterden's Act, be made by
an agent.
* Of. Bird V. Brown,
4 Ex. 798; Fleckner v. U. S. Bank, 8 Wheaton,
363; and it seems that an unauthorised acceptance may be ratified even
after the withdrawal of the offer. Bolton v. Lambert, 41 Ch. D. 295.
' Cox V. Midland Railway Co.,
3 Ex. 268. On services rendered, e.g.
by physicians, without request, see Quin v. Hill (N. Y.), 4 Dem. 69;
Meyer v. Knights of Pythias, 178 N. Y. 63.
'

1950

chap, xil

to a contract

^Sent.

PRIVATE LAW: RIGHTS 'IN PERSONAM.'

274
CHAP.

XII.

to her to order goods,

tradesmen,
for her

is

though iincommimicated to her

husband from

sufficient to relieve the

purchases, not

Hability

made from persons induced by

his previous conduct to suppose that she

is

acting by his

authority \

The authority

of

an agent

is

terminated, in English law,

by the death, or bankruptcy, and perhaps by the lunacy,

of his principal.

Before 1883 also

by the marriage

of

a principal who was a woman.

Agents are said to be

Agents,

'

general

'

when

their authority

defined by their character or business, as in the case

and

^^

general.

^f factors, brokers, or partners

authority

No

is

limited

or

by the terms

'

special

when

'

their

of their appointment.

private instructions, contrary to the usages of a general

agent's business, will limit the Hability of his principal.

from the nature

It follows

by an agent

who

of agency, that a contract

regarded as the contract of his

made

principal,

alone therefore can as a rule sue or be sued upon

The

it.

is

agent, having done his part

by acting

as the

The fraud

intermediary, drops out of the transaction ^

of

an agent will render voidable the contract of his principal.

In

marme

insurance the Insured

non-disclosure of facts

unknown

may be

fraud or negligence of the agent through

effected the insurance, they

responsible for

to himself,

but for the

if,

whom

he has

ought to have been known

19C.B., N.S. 628. The principle of this case was

by the House of Lords in Debenham v. Mellon, L. R. 6 App.
Ca. 24. Where the dealing is, as a fact, authorised by the husband, the
tradesman's ignorance of that fact will not enable him to treat the wife
as having acted 'otherwise than as an agent,' under the Married Women's
Property Act, 1893. Paquin v. Beauclerk, [1906] A. C. 149. But a husband is liable (quasi ex contractu) for necessaries supplied to a wife whom
1

Jolly V. Rees,

affirmed

he has wrongfully deserted, as being his 'agent of necessity.' Eastland

v. Burchell, 3 Q. B. D. 436. Cf. supra, p. 251 n.
2 For a list of the exceptions, real or apparent, to this rule recognised
in English law,

and a discussion

of the difference

between disclosed' and

'

'undisclosed' principals, see Dicey's Parties to an Action, pp. 134-143.

AND LEGALITY.

POSSIBILITY
him

to

If

man

275

avowedly as the agent of

contracts

chap, xii

another, though without authority, neither can be charged

upon the

contract, but the pretended agent

liable for

is

the deceit ^

"The matter agreed upon must be at the time of the

iii.

agreement both possible and legally permissible

said to be impossible, not only

is

concedit,'

because
cost,

but also

it

e. g.

if it

*quod natura

a sale of pork or wine

and the law

of 'marriage

is

called

imports to have

contract to do an

is

equally void.

But

a very unruly horse

'
:

You

Mohammedan

assigning

the

'

and

doctrine

this

because,

if

there

have the utmost liberty

voluntarily, shall be held sacred,

of justice.

has

and

is

is

been^*^^'
Sir

void as

one thing

requires,
of

and that their contracts, when entered into

by courts

of

to Public

a recent case

in

which more than another public policy

shall

salary

are not to extend arbitrarily

those rules which say that a given contract

being against public policy

men

So

Such contracts are sometimes said

G. Jessel observed

that

to be

will not enforce a contract

brokage*,' or for

officer.

be 'against public pohcy.'

'

non

void according to

England

of

known

is

if it

by law

act illegal because prohibited

a public

thing leLtity.

fieri

can only be accompUshed at an unreasonable

the recovery of a ring which

lying at the bottom of the sea; or

Possibil-

be practically out of the question,

a legal effect unkno\^'n to the law.

law *

^.

shall

it

is

contracting,
freely

and

be enforced

Therefore you have this paramount

public policy to consider, that

you

Blackburn v. Vigors, 12 App. Ca. 531.

'

Cf. supra, p. 238.

are

not

lightly

to

Inst. iii. 19. I.; Dig. xliv. 7. 31, xlv. i. 35; German Civil Code, 306-9.
So Agesilaus maintained, with reference to an unjust promise, Xefa n4v,
u)fio\6ytjaa 5' oH. Plut. Apoph. Lac. p. 208 c.
* Hiddyah, ii. p. 429.
^ Cf. Cod. V. I. 6; Dig. xlv. i. 134'

'

PRIVATE LAW: RIGHTS 'IN PERSONAM.'

276
CHAP.

XII.

interfere with freedom of contract \' It

observed that a wide application

French law that a contract

of

(the

'

cause

quand

')

declaring

morals

Producing
legal
effects

ilhcite,

and to the

'

quand

est contraire

elle
'

public

'

is

'

null

must however be

given to the requirement

shall

have a

elle est

'

cause

licite

prohibee par la

aux bonnes moeurs, ou a

article of

all juristic

'

is

acts

the

German

loi,

I'ordre

Civil

Code

which offend against good

*.

The agreement must purport to produce a legally

Thus the acceptance of an invitation to

iv.

binding result.
dinner, or an

engagement to take a walking tour with

a friend in Switzerland, are

on the

V.

re-

lations
of the
parties.

must be

It

upon the mutual

of a nature to

produce a binding result

relations of the parties

from the agreement

of directors,

no contracts \

of

therein differing

a bench of judges, or of a board

which has no reference

the relations of

to

the judges, or of the directors, one to another.

Form

or

'causa.'

vi.

No system of law will

enforce as a contract any trans-

action which does not exhibit all of the five characteristics

already described.

Even when

these are

transaction will generally be treated as a

unless

it

is

either

effected in

'

all

present, the

nudum

pactum,'

with

certain

compliance

L. R. 19 Eq. 465. Cf. Janson v. Driefontein Cons. Mines Co., [1902] A. C. 484. But see Re Beard, [1908] i Ch.
383; Spiers v. Hunt, ib. i K. B. 720; and, with reference to voting in
1

Printing

Company v. Sampson,

Parliament as directed, in consideration of a salary, Osborne

v.

Amalg.

Soc. of Ry. Servants, [1910] A. C. 87.

^ Code Civil, 1108.
Cf. Codice Civile, 1122.
Cf. supra, pp. 256, 262.

'

Ib.

Biirgerliches Gesetzbuch, 138.

133.

See also the English Cases collected

Mr. Jenks' Digest of English Civil Law (1905), arts. 95, 96.
'
Verborum quoque obligatio constat si inter contrahentes id agatur:
nee enim si per iocum puta, vel demonstrandi intellectus causa ego tibi
dixero "Spondes?" et tu responderis "Spondeo," nascetur obligatio.'
in

'

Dig. xliv.

German

7. 3.

Cf. CarlUl v. Carbolic Smoke-ball Co., [1893] i Q. B. 256;

For a criticism on 'unreal consideration,' see

Civil Code, 118.

Col. L. R. 1907, p. 447.

FORM.
prescribed formalities, or

which the Roman

fact,

is

277

the result of some underlying

*

jurists called

chap. xu.

First as to

causa.'

superadded formalities \
It

I.

controversy whether

of

a topic

is

formal' or Form.

Roman

informal' contracts are historically the earlier.

legal

speculation

seems to have derived the informal

which were attributed to the 'ius gentium,'

contracts,

from a primitive state of nature, formal contracts being

regarded as later in date, because resulting from the
idiosyncrasy of the

Roman

people.

Recent investigators, after examination of a far wider

range of facts than was formerly accessible, are led to
the conclusion that
is

complexity, rather

than simplicity,

primitive customs,

the characteristic of

and that the

consensual kernel of contract has only gradually dispensed

with the husk of ceremonial with which during long ages

it

was almost
view

this

whether

letting

evidence
it

in

may

support

of

be questioned

adherents have sufficiently noticed the fact

its

that such

The

identified.

very strong, though

is

everyday use as

bailments of

seem

to

pledging

and

have been made in very early times with

no more formality than the mere transfer of the possession

an

of

object,

the

ownership

which was

of

probably

notorious.

solemn form, be

tages. In the

It

observed, has two disthict advan- Advan-

first place, it

prevents the bargain from being

rashly struck; and in the second place,

it

facilitates

the

what has occurred. The formal contract of the

best ages of Roman law was the stipulatio,' or solemn
proof of

'

question and answer, imitations of which

the Marriage and Baptismal Services

in

Church.

This, according

were popularised by

Sir

may

be found

of the

English

to many writers, whose views

Henry Maine ^ must have been

more formal ceremony in which the

solemn words were accompanied by the symbohc weighing

a relic of

still

Cf. supra, p. 122.

Ancient Law,

p. 320.

PRIVATE LAW: RIGHTS

278
CHAP. xu.

of pieces of

and

'IN

PERSONAM.'

copper in the presence of a balance-holder

five witnesses

but Mr. W. A. Hunter has well explained

the reasons for thinking that the ' stipulatio

dent

of,

and as old

as,

the

mancipatio

'

itself

'

was indepen-

'

became

It

'.

draw up a written memorandum, 'cautio,' of

the stipulation, and this was held to be presumptive
evidence that the contract had been entered into. The
usual to

which originally prevented a stipulation from

restriction

being entered into by means of an agent was done away

with in the later

Among

Varieties
it

legislation.

the Teutonic conquerors of the

Roman

empire,

seems that such contracts only were recognised as were

either accompanied

by means

into

gelobniss,'

by a bailment,

of a formahty,

consistmg

'

'

re praestita,' or entered

fides facta,'

in the delivery of

Wette,'

'

Treu-

This was represented in later times

or similar object^.

by a shake of the hand,

'

Handschlag,'

'

payment was represented by the Denier a

'

Handsel.'
Dieu,'

'

Part

Paumee,'

Weinkauf V

'

or

'

a wand, 'festuca,'

Besides these methods the old French customary law

recognised also obligation by a writing under seal*.
also the

most solemn form known to the law

document sealed and

is

a deed, or

if

thus entered into

Roman Law,

summary

p.

delivered.

of

An

So

England

agreement

called a 'specialty contract,' while

is

536. Cf.

of the various views

Sohm, Institutes (Trans!.), S 12. For a

upon the subject, see Muirhead, Historical

Introduction, ed. Goudy, p. 214.

^
See the references to Sohm's 'Eheschliessung' and 'Lex Salica,' contained in two articles by M. Esmein, sur les contrats dans le trfes-ancien
'

droit fran^ais,'

Nouv. Rev. Hist, de Droit, &c.,

t.

iv. p. 656, t. v. p. 21,

whence are derived several of the statements in the text. See also Essays
in Anglo-Saxon Law, p. 1S9 and now Pollock and Maitland, History of
English Law, ii. p. 183. Cf. Holmes J. in Harvard Law Review, xii. p. 445.
'
Statuimus quod omnis emptio et venditio rata sit et fim^a perpetuo,
;

'

si

cum denario Dei iuridico et recepto.' Stat, municip. de la

de Salon (1293). 'Emptio vel venditio non valet sine palmata, vel

facta fuerit

ville

sine solutione pretii peculiari vel universali, vel sine

Cout. de Montpellier, cited by M. Esmein.
*

Beaumanoir, xxxv.

i.

rei traditione.'

CONTRACTS UNDER SEAL.

made

if

or

any other way, even

in

law enforces a

lookhig behind

to

it

into the motives

'

inquire

which caused

both stipulations and deeds

ground

fraud, mistake, or

of

as

also,

is

it

specialty

there

is

some authority

irrevocable, although

to be

made
The

duress ^

wise than by deed

less

'

chap,

m,

','

without

although

on

the

parties are

denying

the

truth

seals,

and

an offer by deed

has not been accepted by the

Certain agreements cannot be

other party ^

be impeached

for saying that

it

simple

stipulatio

of the statements to which they have set their

is

'

equitableness, or

its

it

'estopped' from

said,

'

contract,'

into

may

it is

As Roman law enforced

parol contract.'

so English

in writing,

279

made

other-

*.

solemn formality consists in the reduction of Writing.

a bargain to writing ^

Roman

law, and

exchange and promissory notes of

modern

The chirographa and

'

the

bills

'

of

'

syngraphae

'

of

The novel doctrine, that a stipulation needs a

causa,' is combated by
Savigny, Obligationenrecht, ii. pp. 249-266.
For a time, a man was bound by his seal although it was affixed
against his will.' Holmes, Common Law, p. 272, citing Glanville, Britton,
and other early authorities. In many States of the United States it is
held that a mere flourish of the pen is a sufficient seal, and in some of
them the distinction between sealed and unsealed instruments has been
expressly abolished, lb. p. 273.
' Xenos V. Wickham, L. R. 2 H. L. 296, in which some earlier cases are
cited. It may however be hoped that this case will some day be explained away. The doctrine to which it gives countenance has, not
'

"^

'

unnaturally, been stigmatised as 'ein juristisches Monstrum,' Schlossmann, Der Vertrag, p. 1 50, cited by E. Schuster, Archiv fiir Handelsrecht,
xiv. p. 21.

has been given as the reason of the sufficient character of a deed

'imports consideration.' The statement is artificial on the face of
it, and becomes doubly so when we remember that deeds were binding
before the doctrine of consideration had been worked out. See Sir
*

that

It

it

72. The necessity for a seal, as between

seems, abolished in the State of Iowa.
6 The Schtar, a public act, signed by the parties and at least two witnesses, according to Jewish law takes precedence of antecedent informal
contracts, and binds the debtor's property in the hands of a purchaser.

W. R. Anson, Contract, ed. xiii. p.

individuals, has been,

L. Auerbach,

Das

it

jiidische Obligationenrecht,

Bd.

i.

187

1.

Bills of
P Y p h ATlff ^

PRIVATE LAW: RIGHTS

280
CHAP.

XII.

Europe, must be

made

at all

but

be entered into

by

positive

PERSONAM.'

'IN

made in this way, or they could not be

many agreements which might very well
by word of mouth have been rendered

enactment void unless embodied

by, a written document.

in,

or evidenced

This has of course been done with

a view to guard against deception and disputes.

L'Ordonnance d
Moulins.

freedom

Increased

increasing difficulty

contracting

of

been made or not.

leads naturally

to

deciding whether a contract has

Hence

in

France the Ordonnance

de Moulins, 1566, 'pour obvier a

la multiplication des faits

que Ton a vu ci-devant tre mis en avant en jugement,

a preuve de temoins

sujets

adviennent

The
Statute of
Frauds.

'

Statute of P^rauds,' passed

fraudulent practices,

upheld

be

to

provided that

involutions

et

de

by witnesses when the matter

Hence

100 francs \

dispute exceeds

in

inconvenients

plusieurs

prohibits proof

proces,'

reproches d'iceux, dont

et

'for

the

also the English

prevention of

many

which are commonly endeavoured

by perjury and subornation

no contract

the

for

sale

of

perjury,'

goods

of

for

the price of ten pounds or upwards, should 'be allowed

to be

good'

unless

there

should

be

part

dehvery of

the goods, or part payment of the price, or some note

or

memorandum

in

writing of

bargain

the

signed by the parties, or their agents ^

Statute,

'

no action

shall be

brought

makes an executor personally

'

Cf.

Code

Civil, arts.

1317, 1322, 1341;

the same

or guarantees the

debt or default of another, or creates a

'

made and

on a contract which

liable,

sideration of marriage, or relates to

By

liability in con-

an interest in land.
Biirgerliches Gesetzbuch,

126-128.

This section lias been repealed by the Sale of

reproduced, with slight variations, in s. 4 of that
Act, as follows: A contract for the sale of any goods of the value of ten
pounds or upwards shall not be enforceable by action unless the buyer shall
accept part of the goods so sold, and actually receive the same, or give
something in earnest to bind the contract, or in part payment, or unless
some note or memorandum in writing of the contract be made and signed
by the party to be charged or his agent in that behalf.' On the effect of
^

29 Car. II.

c. 3. s. 17.

Goods Act, 1893, but

is

'

this 4th section, see L. Q.

R.

xiii. p.

298,

INFORMAL CONTRACTS.
or

is

281

not to be performed within a year, unless

some memorandum or note

thereof, shall be in

'

it,

or

chap, xil

writing,

and. signed by the party to be charged therewith,' or by

An

his agent ^

acknowledgment

statutes of limitation

must

by the

of a debt barred

also be written

and signed ^

Besides such agreements as were fortified by special Cause,

2.

formalities, the earlier

Roman law

recognised, as legally

enforceable, only eight informal contracts, four of which,

loan for consumption, loan for use, deposit and pledge,

were accompanied by a bailment; while the other four

sale,

agency, and partnership

letting,

pensable transactions of

related

to indis-

every-day occurrence.

Certain

other agreements, though never dignified by the

were

contracts,

in later times enforced as

All of these were accompanied by a

'

mark by which an

name

was

was no 'causa' continued

and agreements where there

'nuda

to be treated as

tinction

narrow

between contractus

'

29 Car. II.

9 Geo. IV.

^,

Law \

partly

the nations of the continent

definition of

'

'

no

of the obligation of a promise charac-

Teutonic races

early ignored the

pacta,'

plea,

*.

Partly under the influence of the Canon

teristic of the

though

effect only

in

on which, though they might be ground for a

from the strong sense

'.'

arbitrarily defined class of agree-

ments was distinguishable

action could be founded

of

pacta vestita

causa,' which,

often consisting in part performance,

the

'

'

'

causa

'

and the

dis-

and nuda pacta which they

'

'

c. 3. e. 4.

c. 14. s. I

19

&

20 Vict.

c.

134; Allg. Landrecht, i. tit. v. 131.

' This term seems to have been invented

97. s. 13. Cf.

Code

by Azo, who says

Civil, art.

si quidem
pactum fuerit nudum, propter nimiam frigiditatem parere obligationem
non potest, nisi mirabiliter hoc in quibusdam casibus accidat, ut in
donatione,
si autem non fuerit nudum, sedvestitum, actionem parit,
sic enim ei nomen recte impono.' Summa Cod., de pactis, fol. 67.
.

'

* 'Sed
cum nulla subest causa, propter [praeter?] conventionem, hie
constat non posse constitui obligationem igitur nuda pactio obligationem
:

non
'

parit, sed parit exceptionem.' Dig.

ii.

14. 7. 4.

See cc. I, 3 X. de pactis.

Heineccius, Elem. luris. Grermanici, Lib.

ii.

tit. 12,

33.

PRIVATE LAW: RIGHTS

282
HAp.

XII.

found

in the writings of the

Beaumanoir could assert, towards the

century

'
:

PERSONAM.'

'IN

Roman

Toutes convenences font a

'

In Franc

lawyers.

close of the thirteenth

por ce dit on

tenir, et

" covenence loi vaint \" exceptees les convenences qui sont

malveses causes

fetes por
*

'

and

it

was an old saying

verba ligant homines, taurorum cornua funes.

cornu bos capitur, voce ligatur homo

hommes par

'on he les bceufs par les cornes et les

law that every permissible agreement

legally binding^

is

subject only to the proviso that every agreement

have a
far

'cause,' the precise

from

clear to the

The Dutch
asserting

meaning

of

must

which seems to be

French commentators themselves*.

writers take a similar view

that 'ex

les

been settled in French

It has, accordingly, long

paroles ' ^

'

nudo pacto

Paul Voet roundly

oritur

actio

'Causa'

(oorzaak) signifies, according to these writers, nothing

more

than a reasonable and permissible ground for the consent

of the parties.

curious divergence of opinion

upon the

point has, however, manifested itself between courts administering the

Roman-Dutch law

in British possessions.

The

courts of the Transvaal ^ Ceylon \ and British Guiana

adhere to the view, held also

Cape previously

the

at

1874 ^ that any agreement founded on

to

oorzaak,'

which

is

also a

'

causa legitima,'

is

'redelijke

legally binding.

*
Beaumanoir, says M. Esmein, knowingly puts a new meaning on this
phrase, which in the Assize of Jerusalem merely approves of assignment
inter vivos of property to which the assignor's heirs would be entitled on

Nouv. Rev. Hist, de Dr. Fr. et Etr.

Les Coutumes du Beauvoisis, xxxiv. 2.

his death.
^

t.

iv. p. 683.

' Loysel,Inst. Cout. liv. iii. tit. i, r^gle 2.

He continues: 'autant vaut
une simple promesse ou convenance que lesstipulations du droit romain.'
* Code Civil, arts. 1108,
1131; Pothier, Oblig. art. 42. But see Dalloz,
s. v. 'Obligation,' No. 498, where we are warned against taking 'cause'

to be equivalent to motif,' to
'

'

pourquoi,' or to 'objet.'

Ad.

Roodt v. Wallach (1904), 21 Trans. L. R. 137.

Lipton V. Buchanan (1904), 8 New L. R. (Ceylon), 49.
De Cairos bros. v. Gaspar, in S. Africa L. J., xxi. 1905. P- 347Ijouisa van den Berg (1830), i Menz. 472 Jacobson v. Norton, 2 ib. 221.

^
*

Inst.

iii.

14. 5.

CAUSA.

283

while the Supreme Court of the Cape Colony has laid down,

modern

in a long series of

the

causa ' must be equivalent to the

'

tion

cases, that, except for a

'

of English

The binding

valuable considera-

'

mere agreement, which

the Considera-

in

Bracton was unenforceable in the Civil Courts*'*^"'

days
'nisi

aliquando

by the law

de

gratia ^

be under

it

authority,

seal,

has

It

although

is,

by the law

engagements,

for

been

that,

man

limited

is

way

another

in

England; which recognises no promise,

of

sideration ^'

every

which there

laid

'it

is

is

down by

no

the

'

con-

highest

undoubtedly true that

of nature,

bound

to fulfil his

equally true that the law of this country

it is

suppUes no means nor affords any remedy to compel the

performance of an agreement made without

All contracts

sideration.

are by the

sufficient con-

laws of England

distinguished into agreements by specialty and agreements

by parol

nor

writing.

in

ties,

Du

is

If

there any such third class as contracts

they be merely written and not special-

they are parol, and a consideration must be proved *.'

Alexander

v. Perry,

Buchan. 1874, 59; Tradesmen's Ben. Socy.

Malan

v.

Foord's Sup. Ct. R. 94;

Col. Socy. V. Davidson, Buchan. 1876, 131; Scott v. Thieme, 21 Sup. Ct.
R. 370; Mtembu v. Webster (1904), 22 ib. 323. I am here much indebted
for information and references to cases to the Hon. Sydney T. Jones,
Preez, 5 Sup. Ct. R. 269;

v. Secretan,

lately Judge-President of the E. Districts Court.

* Fol. 100 a.
Cf. Glanville, liv. x. c. 18. On the early jurisdiction of
the Court of Chancery in matters of contract, see an article by Mr.

Holmes

R. i. p. 171.
has been said, 'everything is form which the law
requires in order to make a promise binding, over and above the mere
expression of the promisor's will. Consideration is a form as much as
a seal.' O. W. Holmes, Common Law, p. 273. Cf. the dictum of Lord
Mansfield, 'I take it that the ancient notion about the want of consideration was for the sake of evidence only,' in Pillans v. Va7i Mierop, 3
Burr. 1663. In Harvard L. R., xiii. p. 448, Holmes maintains that, even
in Blackstone's time, 'consideration' had not been generalised from the

Justice
*

in L. Q.

'In one sense,'

it

accumulating instances in which the need of

Pollock, Contract, ed.
*

chap, xir

donatio,'

law \
force of a

of

unless

'

Rann

v.

it

was recognised. Cf now

.

viii. c. 4.

Hughes, 8 T. R. 550. After this decision

it

was impossible

PRIVATE LAW: RIGHTS 'IN PERSONAM.'

284
HA?. xn.

'

consideration

has been explained to be

'

'

any act

of the

from which the defendant, or a stranger, derives

plaintiff

a benefit or advantage, or any labour, detriment, or

convenience sustained by the

detriment or inconvenience

plaintiff,

may

be,

if

in-

however small the

such act

is

per-

suffered by the plaintiff with

formed, or inconvenience

the assent, express or implied, of the defendant, or, in the

language of pleading, at the special instance and request

the defendant

of

which

is

dealt with

in great detail

The

^'

topic

consideration

of

most

On

the one hand,

not necessary that the consideration be adequate

where a person had undertaken gratuitously

another, and

one

upon the subject may,

of the rules

however, be reduced to two principles.

it is

is

by the English and American Courts

deposit

in

so

to carry for

certain hogsheads of

cellar,

brandy, and he, or his servants, so carelessly performed

the brandy

promise that some of

his

was

lost,

it

was

held that the owner trusting him with the goods was a

him

sufficient consideration to oblige

ment ^

and when,

weigh two

to

to a careful

manage-

in consideration of receiving permission

boilers, a

promise was given that they should

be returned in good condition, the permission was held

On

to be a sufficient consideration ^

must have some

consideration
fore,

Past conera ion.

to

infl^giicing

and a past

value.

fact,

to admit of exceptions to the rule, as

('

good

may

is

no

be an

consideration,
'), i. e.

an act

had been suggested by Lord MansAs to negotia-

supra, in favour of written mercantile contracts.

Per Tindal, C.
Misa, L. R. 10 Ex.
^

criticised

Laythoarp

J.,

xii. 73,

v. Bryant, 3 Scott, 238.

270.

Cf. Currie v.

162.

Coggs V. Bernard,

Law, pp.
'

it

executed

ble instruments, however, see Anson, Contract, ed.

promise, there-

although

motive, can never be a

which must always be either present

field, u.

an already existing legal duty

perform

consideration

the other hand, the

The

Smith, L. C.

On

this case see

Holmes,

Common

upon which it proceeds has been acutely

by Professor E. Grueber in the L. Q. R. ii. p. 33.

196, 292.

principle

Bainbridge v. Firmstone, 8 A.

&

E. 743.

RIGHTS RESULTING FROM CONTRACT.

or forbearance given for a promise, or future
i.

e.

a promise for a promise \

It

('

285

executory

has indeed been

'),

chap, xri

truly-

observed that a consideration must always be present, since

a future, or ' executory,' consideration consists in a present

promise of the one party to do something in return for

the present promise of the other party.

In

addition

to

the

requisites

insisted

on by law as Modes

of
'

the validity of a contract, other modes of ening\

strengthening its obligation have been resorted to by the ^'^*^^^^"

essential

to

contractors themselves.

Some

of these are

of a super-

natural character, consisting in oaths, by which the Deity

as

is

it

were made a party

to

They

the bargain.

are

sometimes taken in consecrated buildings or in the pre-

The desired

sence of sacred objects.

now more

ordinarily produced

effect

is

by getting third

however
parties to

guarantee the contract, or by giving property by

security for its due performance

way

of

^.

Supposing a contract to have been duly formed, what Rights re

is its

result

An

obligation has been created between the froirTa

contracting parties, by which rights are conferred upon

the one and duties are imposed upon the other, partly
stipulated for in the agreement, but partly also implied

by law, which,

as

Bentham

observes, 'has thus in every

country supplied the shortsightedness of individuals, by

doing for them what they would have done for themselves,

if

nature^.'

had anticipated the course of

The character of those rights and liabilities

their imagination

depends of course in each case upon the special character

of the contract.
supported by the case of Lampwhich is adopted by
the Indian Contract Act, 25, see Anson, Contract, ed. xiii. p. 122, and
the remarks of Bowen, L. J., in Stewart v. Casey, [1892] i Ch. 104.
1

On the alleged exception to this rule,

leigh v. Braithwait (i6i6),

^
*

Hob.

105, the principle of

Vid. supra, p. 230; infra, pp. 307, 308.

Works, iii. p. 190. Cf. Hoadley v. Madeane, 10 Bing. 487.

^"*^^^*'-

CHAP.

PRIVATE LAW: RIGHTS

286

PERSONAM.'

'IN

many different prin

With reference, for instance, to
The number of parties on either side, they are 'joint'

Contracts have been classified upon

XII.

Possible
principles
of classification.

ciples.
(i)
'

or

several

(2)

'

Both

parties,

or only one, being bound to a

per-

formance, they are 'unilateral^' or 'bilateral' ('synallag-

matic ')
(3)

bemg

Special solemnities

their formation, they are

(4)

principal
(s)

'

or

'

Their

gratuitous
(6)

or

'

or

formless

'

some other

being

object

own

for

'

account, or

contract, they are

or

'

onerous

hberality, or

they are

gain,

'

Their being accompanied or not being accompanied

consensual

(7)

formal

'

accessory '

'

by the delivery
'

or not being required

Their being entered into on their

necessarily presupposing
'

'

an

of

object,

they are 'real' ('bailments")

'

Their depending or not depending upon an uncertain

event, they are

'

aleatory

'

or not

(8)

Their being conditional or unconditional.

(9)

They may

also be classified with reference to the

particular kind of benefit promised,

e. g.

exchange, ren-

dering of services, &c.

Neglect of
classifica-

tion.

INIost

Codes go through the heads of contract

seriatim,

without attempting to arrange them upon any principle.

The order
following:
use, loan

of

the

French

marriage, sale,
for

Code,

letting,

for

instance,

partnership,

consumption, deposit, wagering

the

is

loan

for

contracts,

mandate, suretyship, compromise, pledge, antichrese, hypohardly an advance

theque".

This

contracts

incidentally given

is

Ex

Cf. infra, p. 298.

by

upon the

Aristotle,

viz.

list

sale,

of

loan

'uno latere constat contractus.' Dig. xix. i. 13. 29.

Can there be a bailment without contract? See
the cases cited in Pollock and Wright, Possession, p. 41 n.
Code Civil, arts. 1387-2203.
Cf. the German Civil Code, 494-779*

CLASSIFICATION OF CONTRACTS.
money,

of

loan

security,

deposit,

use,

for

287

letting

for

chap. xm.

hire \

however, not only possible, but instructive, to group

It is

the various contracts according to their natural

which we

shall

may

Contracts

which

now endeavour

to

affinities,

do^

be divided, in the

are 'principal,' that is to say,

first place, into

those Classifi-

which are entered into^Qp^gj

without an ulterior object, and those which are 'accessory,'

1.

which are entered into only

e.

for the better carrying out

of a principal contract.

Principal contracts

I.

according

use

iii.

marriage

may

object

as their

iv.

be subdivided into six classes.

is,

i.

service

alienation;
v.

permissive

ii.

negative

service

Principal
^^^ ^^^'

'^'

vi.

aleatory gain.

An

i.

on one

may be a mere act of liberality Alieuatory.

may intend by means of it to

alienatory contract
side, or

each party

secure some advantage for himself.

is

a contract to give

contract to give

rigidly defined cases.

into

by deed,

though

solidi

if

In

*.

it

in the latter, a contract to exchange.

is

usually enforceable only in certain

Thus

in

England

it

France before a notary

may be made by word

it

registered

in

In the former case

of

must be entered
in

Roman

mouth,

it

law,

must be

dealing with a value exceeding five hundred

Roman law and

the derived systems ungrateful

conduct on the part of the beneficiary would be ground

a

for

rescission

restrained by the

of

the

gift.

Liberality

is

also

claims of the family, or the

often

creditors,

Eth. Nic. V. 2. 13. Other divisions will be found in Paley, Moral

i. p. 161; Hegel, Phil, des Rechts, p. 119; Trendelenburg, Naturrecht, Th. ii. 105; Jhering, Der Zweck im Recht, i. p. 32.
' The need of some reasonable grouping may be inferred from the fact
that Mr. Story, jun., in his well-known work on Contracts, vol. i. p. 75,
divides them into i. bailments, 2. sale and warranty, 3. guarantee,
4. between landlord and tenant, 5. between master and servant.
'

Phil.

Code

Civil, art. 931.

Inst.

ii.

7.

2.

Liberali^^^'

PRIVATE LAW: RIGHTS

288
CHAP.

XII.

PERSONAM.'

'IN

Thus, according to the French Code, the

of the giver.

more than

father of one child cannot give

fortune to a stranger \ and

a 'voluntary'

half of

his

alienation

is

not allowed by the law of England to defeat the claims

of creditors^-

marriage, which

Gifts in contemplation of

language of English law, a

'

valuable

'

is,

in

the

consideration, are

The rules therefore

husband by means
and the presents made to the wife

not considered to be mere hberalities.

which regulate the presents made

of the

Roman

by means

of

'dos,'

to the

an English jointure, or marriage settlement,

are not those which would regulate merely 'voluntary'

agreements.

The

Exchange.
Barter.

tion,

earliest

form

Barter,

is

in

of

Exchange, or commutative aliena-

which one commodity

given

is

for

So the Greeks before Troy are represented as

another.

bartering brass, iron, hides, oxen, and slaves for wine

The exchange

of commodities for a price in

superseded this ruder form of deaUng,

facile concurrebat,
Sale.

ut

cum

'

tu haberes quod ego desiderarem,

was

different contract

The

for sale, 'emptio venditio'\'

'

an agreement

merx,' in consideration

payment, or an undertaking for the future payment,

a price in money,

of

from an agreement

latter is

for the future transfer of property,

of the

After

Roman

an agreement for barter,

finally settled that

was a

Sale.

of the

is

a long controversy between opposing schools

'permutatio,'

money, which

quia non semper nee

invicem haberem quod tu accipere velles

jurists, it

'.

'

When

pretium.'

utterly short of the true value of

contract

is,

of 'laesio

'

Code

II. vii.

under some systems,

the

the price

thing

rescissible

sold,

falls

the

on the groimd

enormisV

Civil, art. 913.

472.

Dig. xviii.

i.

r.

13 Eliz.

c. 5.
*

Inst.

iii.

23.

This doctrine originated in 285 a. d., when a Rescript of Diocletian

and Maximian ordered that a sale of land for less than half its value
should be rescissible, unless the purchaser should elect to pay a fair
'

'

ALIENATORY CONTRACTS.

289

upon contracts

Special formalities have been imposed

the sale of certain kinds of property, such as

by Roman law, and

'

pounds or upwards

of ten

and goods

real property,'

by the law

'

Anglo-Saxon laws directed every

to

chap, xn,

of the value

The

of England.

sale

for

res mancipi

be contracted

before credible witnesses, and prohibited the sale of any-

thing above the value of 2od. except in

market

overt.

Subject to the observance of such formalities, where required, the contract

upon

at the disposal

bound

is

of the

when

complete

and the vendor

bound

is

who

vendee,

is

sale

was on

credit.

usually protected by being given a 'lien'

upon moveable property

session of

agreed

is

then immediately

is

to pay the price, unless the

The vendor

the price

place the property

to

it till

sold,

the price

gives this further protection,

a right to retain pos-

e.

i,

paid ^

is

known

The law

England

of

as the right of

page in transitu,' to the unpaid vendor, that he

'

stop-

allowed,

is

even after he has parted with the possession of the goods,

while they are

still

in transit

vendee, on hearing of the

reclaim

There

and not delivered

insolvency of

them and determine the

is

much

the

to the

latter,

to

contract.

divergence of view

between different Warran-

systems of law as to the extent to which a vendor impliedly warrants his title to the property sold or its quality.
*

The

guarantee,' says the

owes to the vendee

place, the peaceable

is

French Code, which the vendor

'

twofold.

possession

It

regards, in the first

of the thing sold, in the

second place, the latent faults of the thing, or

price.

Cod.

iv. 44.

2.

For the application of the principle

codes, see Holzendorff, Rechtslexicon,

ii.

p. 623.

It is

its

in

red-

modern

excluded in com-

286, and was abolished

Cape Colony by Act No. 8, 1879, 8. For a note of a recent case in
British Guiana, see Journ. Comp. Leg., N. S., xii. p. 506.

mercial transactions by the Handelsgesetzbuch,

for

Supra, p. 280 n.
On the actual transfer of ownership, vid. supra, p. 216.
' This was unnecessary in Roman law, where, unless credit was given,
no property passed before payment.
^

1950

IJ

^^^'

';

PRIVATE LAW: RIGHTS

290
CHAP. xu.

hibitory vices

This

\'

Roman

the rules of

general correspondence with

in

is

PERSONAM.'

'IN

law, according to which the vendor,

though he did not undertake to make the purchaser owner

him against being

of the property, did guarantee

from it^ and also against

all

evicted

latent defects in the thing

on discovery of which the purchaser might proceed

sold,

him by the

against

the contract, or

'

redhibitoria,' for rescission of

quanti minoris,' for proportional reduction

The law

of the price-

vendor,

'

actions

England

of

general principle being

its

reference to quality, the

more

lenient to the

title

was

principle are

at one time held to be

implied by a feoffment, and the use of the words

give

'

or

'

in a conveyance

With

caveat emptor.'

exceptions to this

A warranty of

very few.

is
'

was treated

'

grant

as equivalent to a

covenant for quiet enjoyment, but this construction has

been negatived by a modern Act of Parliament ^

rules as to

or quality

use.

sale of goods

Goods Act, 1893

of

For

imphed warranties, and

on a

in the Sale

*.

sumption, 'mutuum';

2.

Loan

for

use,

i.
'

Loan

for con-

commodatum

'

Letting for hire, 'locatio conductio.'

3.

Mutuum,

conditions, as to title

have been codified

Contracts for permissive use are

ii.

The

things

Loan
'

for

consumption takes place when money or

quae pondere, numero, mensurave constant,' some-

times called

'

res fungibiles ^' are given to a

man on

the

understanding that he shall on a future day return to the

giver,

not

necessarily

equivalent in kind.
'

Art. 1625.

'

the

Since

things

themselves, but

their

the object given becomes the

& 9 Vict. c. 106. s. 4.

56 & 57 Vict. c. 71. ss. 12-15. On

'

Dig. xxi.

2. i.

differences between English

and

Scots law (the latter not distinguishing between warranties and conditions), see Col. L. R. viii. p. 82, and Juridical R. xv. pp. 50, 397, xvi.
p. 406.
* Supra, p. 106.
The various theories as to the true meaning of these
distinctions are exhaustively discussed in 'Les choses foiigibles et les
choses de consommation,' par E. Roguin, Lausanne, 1892.

CONTRACTS FOR USE.

291

property of the borrower, the contract might be regarded

as one of alienation.

however

It is

chap.

xii.

practically one for use

only, since either the identical object, or a similar object,

has to be returned to the lender.

many

course

Thus money

forms.

The contract
at a banker's

takes of
is

a loan

consumption to the banker, to be returned when, and

for

The loan is, as a rule,

gratuitous, interest not being usually due upon it, in the
absence of special agreement.
The highest amount of Usury.
interest which may be agreed upon has very generally
as, it

called for

is

by cheques.

been fixed by law; but the inefficacy of thus attempting

protect borrowers

to

against

extortion

was thought

to

have been established by Bentham, and the English usury

laws were repealed by a Statute of Victoria \

The

sole

liability

for

duty

the borrower, in the absence of any

of

interest,

return objects of the same

to

is

quantity and quality as those which he has received, and

no excuse will avail him for the non-performance of

this

duty.
2.

In a Loan for use, wliich

the duty of the borrower

lent,

and to use

it

in the

the terms of the contract.

for ordinary

wear and

since the contract

rally expected to
3.

Lettmg

is

is

essentially gratuitous, Commoda-

to return the identical thing

is

meantime

He

tear,

is

in accordance

with

not generally responsible

nor for loss by

theft,

but,

wholly for his benefit, he mil be gene-

bestow great care upon the thing.

differs

from Loan

for use in being for the Letting,

advantage of both parties, smce the hirer pays a rent,

'merces,' to the latter ^
* 17 & 18 Vict.
1900 and 191 1.

c. 90.

hirer therefore

See, however,

is

not bound,

now 'The Money-lenders

Acts,'

Roman law included not only the hiring of

but the hiring of services, 'operarum' (which we
shall treat separately), and agreements for the doing of a given piece of
work, 'operis.' With reference to this last-mentioned appHcation of the
contract, the usual terminology is inverted. The person for whom the
work is to be done is the 'locator,' the person who undertakes to do it is
2

Under

'

locatio conductio '

the use of a thing,

the

'

"'

'rei,'

conductor.' Cf.

Code

Civil, art. 1708.

U2

PRIVATE LAW: RIGHTS

292
CHAP.

XII.

in the

absence of express stipulation, to exercise the same

care as

PERSONAM.'

'IN

expected from a borrower.

is

lease

of

lands

is

accompanied by greater

usually

formalities than a letting of moveables.

three years,

it

Different views are taken of

sub-let

more than

the right of the hirer to

of the effect of the accidental destruction during

the term of the thing let;

the purpose for which

of landlord

and tenant

hired

it is

shall prove suitable for

of the respective rights

improvements effected

in the case of

latter, especially as to

which English law

the extent to which the

of

thmg

lessor guarantees that the

by the

If for

must, according to English law, be by deed.

calls

those additions to a building

'fixtures,'

and with regard

to

'emblements,' or crops annually produced by the labour

the cultivator ('fructus

of

'fructus naturales'), which

industriales,'

as

opposed to

may be growing on

the land

at the expiration of the tenancy.

To marry.

iii.

Engagements

to marry,

tinguishable from marriage

'

sponsalia

itself.

\'

are easily dis-

Just as an agreement

for sale gives rise only to personal claims, while

an actual

conveyance creates new real rights, so an engagement

de

is

a contract 'per

verba

personam' to

fulfilment at the appointed time, while

marriage

is

creates a

'

its

futuro,'

creating a right 'in

entered into 'per verba

de

praesenti,'

and

The former is a true obligatory contract

which we are now considering. The latter

status.'

such as those
is

a contract only in that wide sense of the term in which

it

may

be applied to any agreement affecting the legal

rights of the parties, but leaving

no outstanding claims

between them ".

Betrothal

and mar-

This

theory,

developed

by the canonists from

the

riage.
1

'

Sponsalia sunt mcntio et repromissio nuptiarum futurarum.' Dig.

xxiii. I. I.
'

Supra, pp. 123, 246. The canonists distinguish 'sponsalia de futuro'

from 'sponsalia de praesenti' (marriage).

(betrothal)

'

CONTRACTS TO MARRY.
doctrines

Roman

of

293

law, has at length superseded the

chap. xii.

more im-

the Teutonic races which attached

theory of

portance to the betrothal than to the subsequent wedding.

Betrothal, 'Verlobung,' seems to have been a sale of the

woman by

her guardian for a 'pretium puellae,' 'Mund-

This came to be represented by a

was not paid over till the wedding, Trauung,'
In later times the betrothal was
took place.
'

schatz,' or

Witthum.'

handsel, and
actually

'

own

the woman's

act,

and the handsel was payable to

herself ^

The

between sponsalia
'

distinction

'

and

'

matrimonium

'

Clandes-

some extent obscured by another which regular

^^"^*ses.
divides actual marriages into 'clandestine' and regular.'
A clandestine marriage is one which rests merely on the
been

has

to

'

agreement of the

parties.

Roman law

from

monium,' though
because not

them

as

the

valid,

maxim

that 'consensus facit matri-

stigmatised such marriages as irregular,

it

made

The Christian Church, adopting

'in facie ecclesiae,' nevertheless

till

the

Council

marriages to be void unless

a priest and witnesses.

and

after

it

of

made

Trent declared

all

presence

of

in

the

Before the time of the Council,

France and England,

in countries, such as

where the decree

upheld

in question

was not

parties to a clandestine marriage

'

received, either of the

per verba de praesenti

could compel the other, by a suit in the ecclesiastical court,

to solemnise

it

in

that the English

due form.

It

has been judicially stated

common law never

recognised a contract

'per verba de praesenti' as a valid marriage

been duly solemnised ^ although

name

of a

'

it

recognised

it,

till

it

had

imder the

pre-contract of marriage,' a term which' covered

also promises 'per verba de futuro,'

down

to the middle

of the last century, as giving either of the parties a right

See Baring-Gould, Germany, Present and Past, p. 98, citing Fried-

berg, Verlobung

und Trauung,

R. V. Millis, 10 01.

&

1876.

Fin. 655.

PRIVATE LAW: RIGHTS

294
CHAP. xn.

PERSONAM.

'IN

and as impeding

to sue for celebration,

his or her

marriage

with a stranger to the contract \

Tlie action
for breach
of promise.

It

much

has been

marry 'per verba de

discussed whether an engagement to

futuro,' as distinguished

from an actual

marriage, ^vhether 'clandestine' or 'regular,' ought to be

enforced by law.
in Latium,

seems to have been the old practice

It

and probably

Rome,

also at

for the father of

a girl to enter into a stipulation with her lover on which

he could bring an action '.

'

According to later

Roman law

sponsalia ' were entered into without any formalities, and

by

could be repudiated at will

either

party, though

if

'arrhae' had been given, the party which broke off the

match would

twice the

lose

be remembered that marriage

amounts

canon law by

ecclesiastical censures,

by the Court

of

Chancery *.

seem

in the reign of

promise
tion,

'

to

have

Charles

first

gained a footing in England

when

I,

it

be

made

It is recognised

was held that the

it
'

'

continental law admits

action.

which would be helped

Actions for breach of promise

good and not merely a

and that whether

Modern
an

is

must however

Promises to marry were enforced under the

equal ease.

of marriage

It

could be dissolved with

itself

to a

spiritual

man

considera-

woman

^.

very sparingly of such

by the Prussian Landreeht',

but expressly denied by the Code of Italy ^

These consequences were removed by 26 Geo.

Gell. iv. 4; Dig. xxiii.

i.

'

or to a

In the silence

II. c. ^2.

2.

desponsatae renuntiare conditioni et nubere alii non prohiOf. Frag. Vat. 262; Cod. Theod. iii. 5; Dig.
i. i.
xxiii. I, xxiv. 2. 2. 2. According to Paulus, 'inhonestum visum est vinculo poenae matrimonia obstringi, sive futura, sive iam contracta.' Dig.
^

'Alii

bentur.' Cod. v.

xlv:
*

I. 134 pr.
Deer. Greg.

for these
infra, p.
'

lib. iv. i.

10; Ayliffe, Parergon, p. 250. I am indebted

of Lincoln's Inn. Cf.

two references to Mr. W. F. Webster,

324 n.

Roll. Abr. 22;

Bulstr. 48.

In Wilson

(C. A.) 729, breach of a promise of marriage

v. Carnley, [1908] i

K. B.

made by a man known to the

promisee to be already married was held not to be actionable, on grounds

of public policy.
6

Th.

ii. tit.

I. ss.

75, 82.

Art. 53.

CONTRACTS FOR SERVICES.

of the

2Q5

French Code, the courts have expressed contradictory

chap. xn.

views upon the subject, but, according to the better opinion,

interference with the freedom of matrimonial choice being

contrary to public policy, no

action

will

and German codes contain express provisions

The more important contracts

iv.

care- taking;

2.

for partnership.

6.

to this effect ^

for services* are

fordoing v/ork on materials;

professional or domestic services

for

4.

unless the

lie

has sustained a 'prejudice reel V and the Austrian

plaintiff

may

Service of any kind

i.

for For
;^^^^*'^'

for agency

5,

for carriage

3.

be to be

rendered either gratuitously or for reward, the responsibility

undertaking to render

of

it

being considerably

Thus the

greater in the latter case than in the former*.

contractor

gratuitous

English law, not liable for

in

is,

an omission to perform, and

liable

only for gross negligence

in performing.

Gratuitous care- taking of an object,

I.
*

deposit,' is well defined as

'

be kept by the bailee without reward.'

'

sequestratio

'

and the

'

disputed,
tlie

is

when an

decision of the dispute

object,

by the

i.

e. it is

the

the latter,

to

neces-

The
which is

civilians

right

'

tlie

deposit

Care-taking

for

is

which

reward

by warehousemen, wharfingers,

held that the remedy,

and not under

when

as fire or shipwreck,

the depositor no choice.

exercised, for instance,

is

this contract,

placed in the custody of a third party, pending

made under circumstances, such

leave

Of

called Deposit.

of goods to

depositum miserabile,' or

sarium,' are recognised as species

former occurs

commonly

naked bailment

if

any,

is

under

art.

1382 of the Code,

art. 1142.

Austrian Code, arts. 45, 46; German Civil Code, 1297-1300.

On the question, 'who is a servant?' see Pollock, Torts, ed. x, p. 84.
Cf. Simmons v. Heath Laundry Co., [1910] i K. B., 543, United Meth. Ch.
Ministers, in re, 28 T. L. R. 539.
* On contracts of service as affected by such provisions as those of the
Code Civil, arts. 1 133, 1 135, and of the Biirgerliches Gesetzbuch, 138, see
V. Brants, Le salaire usuraire devant la loi et les juges allemands, in the
Bulletin de I'Acad^mie Royale de Belgique (Classe des Lettres, &c.), 1905,
*

P- 730*

Dig. xvi.

3.

i;

xxiv. 3. 22;

Code

Civil, arts.

1947-1963.

PRIVATE LAW: RIGHTS

296
CHAP.

XII.

'

the

rooms

cloak

railway

of

'

companies,

The very

and inn-keepers.

keepers,

PERSONAM.'

'IN

livery-stable

extensive liabilities

attaching to the last-mentioned class of depositaries by

the English

modern Act
Work on
materials.

2.

common law have been much reduced by

of Parliament \

work upon

gratuitous contractor to do

belonging to the other contractor

usually liable only

is

for gross negligence in the doing of

be for reward, each of the parties

materials

If the contract

it.

responsible to the

is

English

other for the exercise of a high degree of care ^

law gives to the person who does the work a

the article upon which he has done

paid for his trouble ^

it

till

'

lien

'

he has been

gratuitous agreement to do

upon materials belonging

of another, would amount

upon

work

to the contractor, for the benefit

to a promise to give

an

article

If the work is to be done for reward, as

as yet unfinished.
when a builder undertakes to construct a house or a tailor
to make a coat, it may be questioned whether the contract
is

Carriage.

one of

3.

sale, or for

the performance of services

land or by

sea,

responsibilities

of

conveyance by

the

of

persons

liability of

Carriers

duty to carry, share many of the

depositaries,

respect

in

keepers,

relate to

and to goods or to passengers.

of goods, besides their

The

may

contract of carriage

*.

of

and

especially

of

inn-

property confided to them.

all

these classes in

Roman

law was introduced by the Praetor's edict: 'nautae, caupones, stabularii, quod cuiusque salvum fore receperint,
According to
nisi restituent, in eos indicium dabo'^.'

26 & 27 Vict. c. 41This contract is narrower than 'locatio conductio operis,' which
covers not only agreements for working upon materials, but also for
doing any definite piece of work, such as navigating a ship from one port
1

'

to another.

Supra, p. 232.

Inst.

B.
'

&S.
Dig.

iii.

Dig.

24. 4;

xviii.

i.

65, xix. 2. 22. 2.

Gf. Lee v. Griffin,

272.
iv. 9. I. pr.

Cf.

an

art. in L.

Q. R.

xii.

p. 118.

CONTRACTS OF CARRIAGE.
English law, a

'

common

carrier

bound

is

'

297
to take all

goods of the kind which he usually carries, unless his

conveyance

may

but

He

full,

is

charge

or the goods be specially dangerous;

diiferent

rates

to

different customers.

supposed to warrant 'safely and securely to

is

and so

said to be

'

an insurer against

carry,'

not
immediately caused by " the act of God ^ " or the king's
is

enemies.'

He

thus

is

even

responsible,

though he

By

robbed, or the goods are accidentally burnt.

legislation

right

his

much

notice has been

he

curtailed

no longer to be

is

limiting

of

liable

his

liability

while,

loss

all

is

recent

by public

on the other hand,

for the loss of articles the

sum

value of which shall exceed the

of 10, unless the

sender has declared their value and paid a higher rate

for their

may

carrier

but

carriage

such

still

An

accordingly^.

hmit

his

contract,

if

ordinary

liability

by a

made by

common

special contract,

railway or canal

company, must not only be signed by the sender, but

must

also be such as

and reasonable.

And

the Courts will

a railway

is

hold to be just

not allowed to charge

different rates to different customers ^

The

carriage of goods

Special contract

enemies.

from liabihty
His

usually regulated by a

is

between the ship-OAvner and the freighter

called a 'charter party,'

relieved

by sea

liability

by which the owner

for the act of

is

God and

generally
the king's

has also been limited by English

statute law to the value of ;^8 per ton of the ship's ton-

See the remarks of Sir F. Pollock, Contract, ed. viii. p. 436, on 'Act
which he is unable to define more precisely than as 'an event
which, as between the parties, and for the purpose of the matter in hand, cannot be definitely foreseen or controlled.' Cf Bailey v. De Crespigny, L. R.
4 Q. B, 185. 'Vis maior,' saj^s Gains, 'quam Graeci OeoO jS/ov appellant,
non debet conductori damnosa esse, si plus quam tolerabile est laesi
fuerint fructus.' Dig. xix. 2. 25. 6. As to the objective and subjective
meanings of 'vis maior,' see L. Q. R. xii. p. 120.
2
II Geo. IV. and i Will. IV. c. 68.
' See 17 & 18 Vict. c.
31; 36 & 37 Vict. c. 48; and 51 & 52 Vict. c. 25.
*

of God,'

chap.

xii.

PRIVATE LAW: RIGHTS

298
CHAP.

XII.

nage \ nor

is

PERSONAM.'

'IN

he responsible for loss by

nor for very

fire,

valuable articles unless declared and paid for specially I

The payment

made by the sender

to be

the owner of the ship

is

called

'

of the goods to

freight.'

Carriers of passengers do not insure their safety, but are

usually liable for injuries caused to them by neglect or

The

unskilfulness \

liability of

a gratuitous carrier would

be similar to that of a gratuitous depositary *.

Professional
service.

Each

4,

of

the heads

of

service

considered

hitherto

implies a 'bailment,' or handing over of an object with

reference to which

some work

is

to be done.

and domestic services no bailment

sional

is

In profespresupposed,

the undertaking being merely for the performance by one

party of certain acts for the benefit of the other.

an undertaking

Roman law

as

'

for

reward

is

locatio conductio operarum.'

professions

of

certain

be

of too liberal a

Such

described in the language of

The

exercise

was thought by the Romans

to

nature to be capable of leading to a

compensation in money recoverable by judicial process.

Advocates, teachers of law or grammar, philosophers, surveyors,

and others were accordingly incapable

for their fees ^

under English law to

College chooses to

physicians also

'.

of suing

similar disability attaches to barristers

this

day^ and, so long as the Royal

maintain a l)y-law to that

Those Mho thus give

their

effect, to

aid gratui-

tously are, as a rule, free from liability for the negligent

performance of their self-miposed task

1

See

now the Merchant Shipping Act,

lb.

s.

1894, 57

but a professional

&

58 Vict.

c.

60.

s.

503.

502.

See E. I. Ry. Co. v. K. Muckerjee, [1900] A. C. 396.

For the view which would treat the liability of carriers, &c., as
existing apart from contract, v. supra, p. 254.

Non crediderunt veteres inter talem personam locationem et conductionem esse, sed niagis operam beneficii loco praeberi: et id quod
datur ei ad remunerandum dari, et inde honorarium appellari.' Dig.
'

'

xi. 6. I pr.

Wells v. Wells, [1914] P- (C. A.), 157.

See 21 & 22 Vict. c. 90. s. 31, now superseded by 49
6; Gibbons v. Budd, 2 H. & C. 92.

s.

&

50 Vict.

c.

48.

DOMESTIC SERVICE.
person, employed for reward,

he

299

held to guarantee that

is

chap. xn.

reasonably skilful and competent, and can recover

is

nothing for unskilful work \

The

position of a domestic servant

which

of the status of slavery out of

everywhere been developed ^

to his

exhibits traces Domestic

still
it

servant

undoubtedly has

is

usually entitled

wages although prevented by sickness from doing

The

his work.

rule of English

law that a master

general liable for injuries which his servant

in the course of his

negligence of

employment or which

applied to the working

of

railways, to a good deal

5.

We

rights

by

of

not in

sustain

from the

arise

fellow-servant has led, especially

been modified

is

may

when

large undertakmgs, such as

hardship, and has recently

''.

how far the Agency,

may be affected

have already had occasion to consider

and

liabilities of

their contract being

an agents

The

rights

contracting parties

made through
and

the intervention of

liabilities

in

question were

those of the principal contractors, as against one another,

or of the agent in those exceptional cases in which, by the
force of circumstances, he himself acquires the rights or

The questions which

incurs the liabilities of a principal.

thus arise out of contracting by agency are of a wholly

different character

tract of agency,'

This

which

his agent.

rius,' is to

is

the topic

now

'

the con-

to be discussed.

a species of contract for services, which

The undertaking

is

entered

of the agent,

'mandata-

represent his principal, 'mandans,' in dealings

with third parties

1

is

arise out of

not between two principals, but between a principal

into,

and

is

from those which

'.

Cf. Grill V. Genl. Iron Screw Colliery Co., L. R. i C. P. 612.

contract to serve during one's whole Life a particular master

allowed by English law.

Wallis v. Day,

M. & W.

273,

Sm. L. C.

361.
* Supra, p. 272.
Supra, p. 156.
Agency, if undertaken for the benefit of the principal, is, in the
language of the civihans, 'mandatum simplex'; if for the benefit of

'

PRIVATE LAW: RIGHTS

300
CHAP.

Growth

The

xii.

of

possibility of

PERSONAM.'

'IN

such a representation seems to be

admitted only in developed systems of law.

Roman law

man

In the older

could be represented in dealings with

others only by persons

'

in his power,' such as a slave or

unemancipated son, and only by such of their acts as were

for his advantage.

The

contractual agency of a stranger

was only gradually introduced, and was long recognised

only as a

gratuitous

act

The

Paulus',

merces,' says

was obliged

gratuitous,

in default

was not only

punished with infamy.

was bound only

curred

to the

the

mandatarius,' though thus

the

in

execution

highest degree of

liable for

of

and

care,

damages, but was also

His principal, on the other hand,

him

to indemnify

for

payment might indeed be

mandatary

name

ex

officio

any

liability

in-

or expenses incident to, the execution of the

in,

contract.

'

to exhibit

voluntary promise the

his

'Originem

friendship.

of

atque amicitia trahit: contrarium ergo est

officio

for his service, but

of a 'honorarium,'

specially

promised

was disguised under

and could be recovered only

under an exceptional procedure.

The importance
'

as

of agency, defined

by the French Code

an act by which one person gives to another the power

to do something for the principal

and

in his name','

has

greatly increased with the development of business transactions.

The presumption, according

favour of

to

the

Code,

is

in

being gratuitous, but English law, in the

its

absence of evidence of a contrary intention, would imply

a promise of reasonable remuneration.

Under any system,

the principal will doubtless be held to guarantee the agent

and the agent

against expenses

and personal

will be obliged to

conduct the business of his principal

with

care, and, as a rule,

not to delegate

a third party, 'mandatum qualificatum.'

cessic' Cf. Gliick, Pand. xv. p. 290.
'

Dig. xvii.

'

Art. 1984;

I.

I.

cf.

liability,

It is

4.

Code de Commerce,

art. 91.

its

management

then a species of 'inter-

THE CONTRACT OF AGENCY.

The contract must

to another.

30T

some purposes be

for

chap.

xii.

entered into in a special form, as by a 'power of attorney,'

The

or before a notary.

from

it

by the death
by

and

rights

habilities

which result

are terimnated, subject to certain qualifications,

or bankruptcy of either principal or agent;

efflux of time,

when

a period

fixed for the perform-

is

ance of the act to be done by the agent

of the act

by revocation

of authority

by performance

on the part of the

by renunciation of the commission on the part

principal;

of the agent.

Agents are

of various

Among

classes.

the more im-

portant classes recognised by English law are

who

factors,'

Classes of
^sents.

They
them
mere mediums of

are employed to sell goods for their principal.

have actual possession of the goods, and usually

own name

their

in

'

'

Brokers

'

are

communication between buyer and

sell

'Del credere'

seller.

agents for the sale of goods, in consideration of a higher

payment than
the

of

usual,

person to

become responsible

whom

they

sell

seller,

Auctioneers,

down they

are

become afterwards agents

for

although before the goods are knocked

agents only for the

for the solvency

them.

the buyer also.

6.

"When

several

persons

unite

for

purpose

the

ofpartner-

carrying on business in common, which

is

upon the terms that each

be an agent for

all

the rest, the contract

of
is

them
called

shall

usually done

partnership, 'societas,'

and takes various shapes, according to the business conIt is defined in the French Code as 'a contract
by which two or more persons agree to place something

templated.

common, with a view

in

result

By

^'

defined as

'

common with

is

a view to profit V

till he was
do so by the Factors Acts,' consolidated in 1889.
^
Art. 1832.
I. Companies are afterwards excepted.

factor could not pledge the goods entrusted to him,

empowered
^

which may

the relation which subsists between persons

carrying on business in
^

of sharing the profit

'the Partnership Act, 1890,' the contract

to

'

P'

PRIVATE LAW: RIGHTS

302
CHAP.

XII.

PERSONAM.

'IN

In the widest sense of the term, a partnership might b

'universorum

bonorum,' relating to

ex

quaestu veniunt,' relating

business

dealings

the property of

all

the partners, howsoever acquired; or

'

universorum quae

only to

generally;

or

'

made

profits

negotiationis

in

alicuius,'

relating only to the profits of a particular undertaking \

The contract must be

law,

to the English

law as

to

is

have

An

void^

if

according

the profits, though the other

all

partnership

not

is

it

agreement that one

Roman law
may of course

share in the losses, called in

is

fr.,

to contracts generally,

to be performed within the year.

partner

French

in writing, according to

relating to a value greater than 150

if

is

to

leonina societas,'

'

be for hfe or for

a definite time.

terminated by mutual consent,

It is

no

definite period,

by the retirement

or,

formed

if

for

of one partner, even

against the wish of the others, by efiiux of the time for

which

was formed, by the death or bankruptcy

it

of the partners,

and by some other causes

'.

of

any

In derogation

of the ordinary rules as to survivorship in joint tenancy,

English law recognises that in partnership matters 'ius

accrescendi

partner

for careful

right of

'

locum non

mercatores

inter

management.

contribution,'

'

On

Each

habet.'

account to the others and

liable to

is

is

responsible

the other hand, he

has a

regress,' against the other partners,

to be indemnified for liabilities incurred for their

common

advantage.
Classification of

partnerships.

the French Code of

nom

which

classification of trading partnerships

coUectif,'

i.

e.

Commerce

divides

them

into

'

liability

'
:

due to

societes en

carrying on business under the

the partners, with unlimited

is

name

societes en

of

com-

mandite,' in which, besides the ostensible and fully responsible partners, there are others
'

Dig. xvii.

2.

'

Dig. xvii. 29.

'

Dig. xvii.

2.

5; cf.
2.

63.

whose

Code

liability is limited to

Civil, arts.

1835-42.

THE CONTRACT

OP'

PARTNERSHIP.

303

money which they have placed in the concern and

societes anonymes,' which bear a name indicating merely

the
'

the nature of the undertaking, can be formed only

chap. xn.

^\'ith

the sanction of the Government, and are wholly carried on

by means of a capital divided into equal shares,

beyond the amount

They

risk.

of

are, in effect,

Different views

companies with limited

taken

are

'

actions,'

which the shareholders incur no

of

liability \

question whether an

the

executory contract of partnership should be enforced by

law; whether, that

is

to say,

become a partner against

to

for refusing to

V.

become

any one should be obliged

mulcted in damages

his will, or

one.

Contracts for negative services,

which one party For

promises to abstain from certain acts, are somewhat grudg- gen^ce.^

ingly recognised by law, as interfering with freedom. So,

although English law will recognise as valid an agreement

not to marry a specified person,

it

will refuse to enforce

a general covenant not to marry, as

policy.

promise whereby a

man

is

bemg

against public

restrained altogether,

or within very wide limits, from carrying on his profession

or trade has

the restriction

been held to be similarly void; but unless

is

unreasonable, or against pviblic policy ^

the tendency of recent cases

Code de Commerce,

German law

art. 19; cf

is

to

uphold it^

Handelsgesetzbuch,

arts. 15,

&c.

The

which
limited, and the partners have the

of 1892 permits the establishment of partnerships in

the liability of all the partners is

novel power of calling up additional contributions, not for the satisfaction of creditors, but to increase v/orking capital. See L. Q. R. ix.
p. 62. As to Companies, v. infra, Chapter xiv. The English law of
partnership was codified, as it then stood, by the Partnership Act, 1890,
S3 & 54 Vict. c. 39. The partnership en commandite, long previously

and in America (see Pollock's Essays in

Jurisprudence and Ethics (1882), p. 100), was introduced into English
law by the Limited Partnerships Act, 1907, 7 Ed. VII. c. 24.
received on the continent

Cf. supra, p. 275.

See Rousillon v. Rousillon, 14 Ch. D. 35; Dawes v. Davies, 36 Ch. D.
i Ch. 630, [1894]
3S9; Maxim-Nordenfelt Gun Co. v. Nordenfelt, [1893]
*

PRIVATE LAW: RIGHTS

304
CHAP

xii.

Aleatory.

vi.

An
loss,

PERSONAM.'

aleatory, or wagering, contract

French Code

and

'IN

as

'

one the

whether for

effects of

all

defined in the

which, as to both profit

the parties, or for one or several

depend on an uncertain event \'

of them,

is

This description

includes agreements of very different kinds.

Wagers.

i.

Bets and stakes are, as a

modern systems

of law'.

have been maintained

in

rule,

not enforced under

At one time an

action could

England upon a wager, not

contrary to public policy, or immoral, or offensive to the

feelings or character of third parties;

action were

restricted

by successive

but such rights of

statutes,

provided by a statute of Victoria that

till it

was

contracts or

'all

agreements whether by parol or in writing, by way of

gaming or wagering,
enactment

is

shall

be

null

and

void'.'

however expressly declared not

This

to apply to

any subscription or contribution for any plates, prizes,

or sum of money to be awarded to the winner of any
lawful game, sport, pastime, or

exercise.

The French

Code, in refusing any action for a gaming debt or the

payment
'les

of a bet,

makes a

similar exception in favour of

jeux propres a exercer au

a pied ou a cheval,

les

fait

des armes, les courses

courses de chariot, le jeu de paume.

A. C. 535. For a table of cases in which this has been done, see Pollock,
Contract, ed. viii. p. 379.
1
Art. 1964. This definition is criticised by Sir W. R. Anson as being
wide enough to include any agreement in which the profit and loss of
one party depended on a contingency. He observes that, to constitute
a wager, the parties must contemplate the determination of the uncer*

tain event as the sole condition of their contract. One may thus distinguish a genuine wager from a conditional promise or guarantee.' Contract, ed.

xiii.

p. 219.

German Civil Code,

on games were generally forbidden

(' praeterquam si quis certet
hasta, vel pilo iaciendo, vel currendo, saliendo, luctando, pugnando, quod
virtutis causa fiat.' Dig. xi. 5. 2), reduced by Justinian to five in number.
Money paid by the loser could be recovered by him, or should he decline
to sue for it, by the public authorities of the district. Cod. iii. 43.
' 8 &
9 Vict. c. 109. s. 18. By 55 Vict. c. 9, payments made by an
agent in pursuance of such contracts cannot be recovered from his
2

Cf.

by Roman law, subject

principal.

762. Bets

to certain exceptions

ALEATORY CONTRACTS.
m6me

jeux de

et autres

du corps

et a I'exercice

305

nature qui tiennent a I'adresse

Some

\'

chap. xu.

gaining contracts have

been declared not only void but also

illegal'',

and the

difference in the character of the contract leads to different

money

rules as to the recovery of

lent to enable

made, or paid mistakenly in pursuance of

England ^

2.

Lotteries are illegal in

3.

Wagering contracts on the

now

void and penal by an Act,

to be

it

it.

LotteriM.

price of stock

repealed, passed

were made Stock'

to prevent ^

^^'

the infamous practice of stock- jobbing*.'

An

4.

agreement to pay an annuity so long as a given Annuitiw.

individual shall Uve, 'rente viagere,' whether the indivi-

dual in question

is

a party to the contract or not, will

generally be supported.

Code,

time

when

made and

it is

be void, under the French

It will

the person on whose

if

depends

life it

dies of the

same

is ill

at the

illness

within

twenty days ^

Loans to a shipowner, to be repaid only in case

5.

Of such a nature are P^^"^'^-

successful termmation of a voyage.

known

the contracts

'

as

of theNautica

traiectitia,'

or *nautica, pecunia,'

They
by way of

'prSt a la grosse,' 'bottomry,' and 'respondentia.'

been

always

have

allowed

to

be effected,

compensation for the risk run by the lender, at an extraordinary rate of interest,

Insurance

6.

sideration of

is

'

nauticum

a premium, engages to indemnify another

against a contingent loss, by

compensation
the loss
*

>

is

foenus.'

a contract by which one party, in con- insurance,

if,

making him a payment in

which

or when, the event shall happen by

to accrue.

Marine insurance,' according to an English

Code

Civil, arts.

1965-7.

The German

absolutely.
'

E. g. by 5

By

10

Geo.

&

& 6 W. IV. c. 41W. III. and later

II

II. c. 8,

Acts.

repealed by 23 Vict.

Ckxie Civil, art. 1968.

1950

c. 28.

Civil

statute, is of Marine.

Code, 762, avoids

PRIVATE LAW: RIGHTS

3o6
CHAP. xn.

PERSONAM.'

'IN

immemorial usage, by means whereof

it

'

upon the

cometh to

pass,

or perishing of any ship, there followeth

loss

not the undoing of any man, but the loss lighteth rather

upon many than heavily upon few\'

easily

known

are

the contract, or

'

policy,'

engaging to bear a certain pro-

may

portion of the whole indemnity, which

which

ship, to the freight

board.

The insurers
them signs

as 'underwriters,' because each of

They

it

apply to the

to earn, or to anything

is

are usually liable in case of the loss, either

total or partial, of the ship or cargo,

by any

peril of the

sea during a given voyage, to the extent of the

loss,

and also

pelled to
'

Fire and

'

fire

insurance

of

'salvage,'

avaries grosses

Loss occasioned by
'

0A\aier's

any payments he may have been com-

for

make on account

general average,'

by

on

'

fire

way

or by

of

on land

and damage

indemnified against

is

of other kinds,

e. g.

to

crops by bad weather or to glass by hailstones, recently

also against certain liabilities of employers,
'

contracts.
late years

Life insurance

by contracts

or accident.

compensation in case of

right of insuring without any interest in

the risk insured against ', but a

insurances of other kinds in

recovered under

insurance differs from

life

the

amount which can be

Policies of insurance against fire or

it.

marine risk are contracts to recoup the

may

sustain from particular causes.

made good

'

43 Eliz.

c.

illness

has been thought proper to restrict by

It

legislation the

for

by analogous

has similarly been imitated of

'

aliunde, the

loss

When

companies are not

which parties
such a

loss is

liable for a loss

12.

See'now the Codifying Marine Insurance Act, 1906/ 6 Ed. VII. c. 41.
Of recent years attempts have been made towards the unification of the
maritime laws of the world, and the International Maritime Committee'
has prepared draft codes dealing with different branches of the subject,
upon which draft conventions have been founded by diplomatic con'

'

'

ferences held at Brussels in 1905 and 1909.

'
E. g. 19 Geo. II. c. 37; 14 Geo. III. c. 48.

ACCESSORY CONTRACTS.
which no longer

uch

exists

Many

II.

ship;

to be merely ancillary to another

is

more important

Indemnitj^;

2.

Account stated;
Suretyship,

caution,' is

Pledge;

3.
7.

4.

^^^ ^^^

when

guarantee,

or

master, though

in French,

gave

it

in

stipulation,

be

it

in

In

one.

It

'.

The

it

Darrell v. Tibbitts,

Supra,

is

under

was made

less than,

that the liability of

but cannot exceed, that of the

Under some systems

may be

it
e.

g.

passes,

it

under

contract of surety-

As between the
what acts on

asked,

giving time to the debtor,

surety from his liability; whether the

on the creditor bringing his action in

the first instance against the principal debtor,

'

not himself

is

contract

Roman law

maxim

is

the part of the creditor,

insist

fideiussio

in English law, a guarantee of

does not pass, to his heirs.

may

'

England, by the Statute of Frauds,

surety and the creditor,

surety

is

mcapable of being

is

ship raises three classes of questions.

will discharge the

subsidiary

is

a minor, by which he

and

principal debtor.
it

sometimes legally

is

law, support a

enforced by action

in writing.

may

it

only to a natural obligation,

rise

Roman

some systems a formal

others

French Surety-

promise made by a slave to his

though not

made by

may be

the surety

in

Although thus

of another.

other words

would nevertheless,

must be

Surety-

Ratification;

5.

intercessio,'

'

the obligation to which

merely 'natural,' in

a promise

i.

a collateral engagement to answer for the^

judicially enforced ^

bound,

species are

Warranty;

entirely subsidiary in its nature,

binding

by

chaf. xii

For further assurance.

debt, default, or miscarriage

and

no

Of such contracts, which may properly be described

right.

I.

is

contracts are entered into for the purpose of Accessory

as 'accessory,' the

'

but in a hfe policy there

provision \

creating a right which

6.

307

'

beneficium

Q. B. D. 560.

p. 243; infra, pp.

317

n.,

346 n.

X2

Code

Civil, art. 2012.

^^"

^'

PRIVATE LAW: RIGHTS

308
CHAP.

XII.

orclinis

'

whether each

PERSONAM.

'IN

several sureties

of

for

liable

is

the whole debt, 'in soliclum,' or only for a proportionate

share of

the former

regress

against

'

As between

The

others ^

by

nity.

far

necessary to determine

'

contribution

for
'

how

which

from the

surety to the creditor terminates

liability of a

the principal obligation by the

a discharge either of

2.

it is

entitled to

is

debtor, or of the guarantee

Indem-

how

the creditor

of

them who discharges the debt

of

a surety

questioned

beneficium cedendarum actionum,' or to

him on an implied contract of indemnity.

are jointly liable

all

may be

'

several sureties,

any one

far

it

entitled to the remedies

is

against the latter,

'

As between

'beneficium divisionis.'

it,

and the defaulting debtor,

by one

of his co-sureties.

promise to indemnify, or save harmless, the promisee

from the consequences

may

of the promisor,

of acts

done by him at the instance

It is implied

be express or implied.

not only between principal and surety, and, in some systems,

between one surety and his

contract of agency.

The

co-sureties,

but also in the

principal promises

by implication

to indemnify his agent, except in the performance of illegal

acts, as to

which

it is

maxim

that

'

there

is

no contribu-

tion between wrong-doers.'

Pledge.

3-

The contract

of Pledge, besides

giving

have seen, to a peculiar species of right

Mn

rise,

The debtor

rise also to rights 'in personam.'

as

we

rem*,* gives
is

entitled

not only to have the thing pledged re-delivered to him,

on the due payment of his debt, but also to have

preserved with reasonable care in the meantime.
it

may

claim

Whether

be used by the creditor will depend on the terms

of the contract.

he

it

to

The

creditor,

on the other hand, can

be indemnified against any expense to which

may be put

in taking care of the pledge.

^ Introduced by
Justinian, Nov. iv. i. It is'unknown to English law.
Ranelagh v. Hayes, i Vernon, 189; Smith v. Freyler, 47 Am. Rep. 358.
^ The English doctrine
of contribution between co-sureties was im* Supra, p. 230.
known in Roman law.

ACCESSORY CONTRACTS.
4.

been

"Warranty has

defined

as

309
'

an expiess or

implied statement of something which the party undertakes shall be part of the contract

and, though

of the contract, collateral to the express object of

the one hand,

it

is

xii.

'^"^'^^y*

part

On

it \'

a term added to a contract, and

chap.

must

mere representations made

therefore be distinguished from

with reference to the matter of the contract, but forming

no part
hand,

it

of the

agreement of the

the other

not so intimately connected with the contract

is

as to be a

'condition precedent' to the contract coming

into operation.

It

may

be broken and give rise to a right

damages, without producing any

of action for

the contract to which

On

parties.

it is

effect

upon

annexed \

warranty refers most usually to

title

or to quality,

and, though most frequently accessory to a contract of sale,

is

added to other contracts,

also

for instance to a letting

for hire ^
5.

Ratification

upon himself

of

is

the adoption by a person as binding

an act previously done by him, but not

so as to be productive of a subsisting legal obligation, or

done by a stranger having at the time no authority to act

as his agent.

The

ratification of a contract

limitation
original

must

in

barred by the statutes of

England be

contractor, or

his

in writing, signed

agent

modern Act of Parliament has made

duly
of

by the

authorised

*.

no effect any promise

1 Lord Abinger, C. B., in Chanter v. Hopkins, 4 M. & W. 404.

Cf.
Behn v. Burness (i860), 3 B. & S. 751. Sir W. R. Anson, Law of Contract, ed. xiii. p. 368, in commenting on this case, distinguishes no less
than six senses in which this term is employed by English lawyers.
2 For the purpose of the Sale of Goods Acts, 1893, a 'warranty' is
defined, s. 62, as 'an agreement with reference to goods which are the
subject of a contract of sale, but collateral to the main purpose of such
contract, the breach of which gives rise to a claim for damages, but not
to a right to reject the goods and treat the contract as repudiated.'
* Cf. supra, p. 240, as to an implied warranty of authority as an

agent.
*

9 Geo. IV.

c. 14. s. I

19

&

20 Vict.

c.

97.

s.

13.

Ratifica-

PRIVATE LAW: RIGHTS 'IN PERSONAM.'

3IO
CHAP.

XII.

made by a person of full age to pay any debt contracted

by him during infancy, or any ratification made after full
age of any promise or contract made during infancy \
The contract of a stranger can be adopted by a course
by words or writing, but can be

of action, as well as

adopted only by one on whose behalf

it

agent must have intended to act for the person

subsequent ratification becomes his principal.

Account
stated.

Akin

6.

'

tua contemplatione gestum

erat, sed

who by

Ratihabitio,'

tuum negotium quod ab

says Julian, 'constituet

tuum non

The

was made.

to ratification are the

constitutum ' of

'

initio

^'

Roman

law, and the promise of repayment which English law

impUes on an

'

account stated

The

promissory notes.

' ;

as are also

contract in

all

I.

O. U.'s and

these cases

is

super-

added to a pre-existing contract by way of strengthening

it

may

so that the creditor

claun, or

way

rely either

upon the new claim thus

receive

more than the sum

upon

For
further

assurance

Conveyances

7.

like,

which are

'

upon the new

legally enforceable ^

and other instruments,

for further assurance,'

fre-

and the

strictly accessory to the principal contract

which they are inserted.

in
Transfer

land,

of

quently contain covenants

was not

no

There

originally due.

are cases in which the creditor can recover

contract, although the old one

his original

created, but can in

number of rights 'in rem' are

untransferable, and this is still more usually the case with
rights in personam.' The transfer of these, when it takes
place at all, takes place either by act of law or by act

.We have seen

that a

'

'

'

'

of party
^

37

&

*.'

38 Vict.

c.

62.

An

infant borrower

is

not estopped from relying

upon the statute from the fact that he obtained the loan by a representation that he was of full age. Levene v. Brougham, (C. A.) 25 J. L. R. 265.

He

will

not be ordered to

make

restitution of property so fraudulently

obtained, the cause of action being in substance ex contractu. Leslie v.

Shiell, [1914] 3

K. B. 607 (C.

A.).

Dig.

'

See Chitty, Contracts, ed.

Supra, p. 159.

iii.

5. 6. 9.
xii. p.

112.

TRANSFER.
Certain

i.

sets

of circumstances

311

by law

are invested

with the attribute of effecting a transfer of rights

sonam,' and sometimes also of the corresponding
to

new

chap. xn.

in per- ^^ ^^^ ^^

liabilities,

persons of inherence and of incidence respectively.'

So in English law, most of the rights and

a

'

woman

liabilities of

passed on marriage tUl lately to her husband;

those of a deceased person pass to his heir, executor, or

administrator, or to a judicial functionary

those of a

On

bankrupt to his trustee in bankruptcy.

the death of

one of several joint contractors his rights and

liabilities

pass, not to his personal representative, but to the surviving

contractors.

and

must however be remarked that

It

arising

liabilities

rights

from family relations or which are

closely connected with the personal characteristics of either

party, such as those arising out of a promise to marry, or

to use surgical skill, or to paint a picture, are not thus

transferred

The

ii.

by act

'

indeed

more

flatly

'Obligations,'

common law
to

right in personam '

by the older

new

^
'

and

it

was an axiom

and
of

creating a

It

is

law.

admit of

of the English

from

is

the

new

this rule led

no doubt possible by

concerned to substitute a
in

new

debtor or

place of the person of inherence or of

incidence as the case

tinction

of

that 'choses in action are not assignable.'

all

process,

by act

theories

says Gains, 'however contracted,

gradual relaxation.

creditor

'

of by act of
^'
Its possibility P*^

restricted application.

practical inconveniences resulting

its

consent of

is

'

denied

nothing of the sort

The

law V

transfer of a

party,' is of still
is

of

may

be.

This

is

however a cumbrous

obviously not an assignment, but an exoriginal

right,

followed

by a contract

right in substitution for the old one.

an example of what the Romans called 'novatio*.'

It

The

1 21 & 22 Vict. c. 95. s. 19.

As to the effect of 60 & 61 Vict. c. 65, 'An
Act to establish a Real Representative, &c.,' supra, pp. 162, 164 n.
' Inst. ii. 38.
2 Wills V. Murray, 4 Ex. 866.

'Novatio est prions debiti in aliam obHgationem, vel civilem vel

PRIVATE LAW: RIGHTS

312
CHAP.

XII.

step towards

first

the assignment of an obligation was

taken by allowing a stranger to

upon

name

in the

it

in

was held

Roman law

as

'

the

under

assignee

it,

and

This was the process

The assignor

cessio actionum.'

to be a trustee for the

constituted

to bring an action

it

of the party entitled

to retain the proceeds for himself.

known

PERSONAM.'

'IN

or to have

assignee,

agent for the purpose of

his

The Enghsh Court of Chancery, followRoman law\ went so far as to allow the

bringing actions.
ing the later

assignee to sue in

his

own name, provided

that he had

given consideration for the assignment, and that the debtor

had had notice

of

it,

subject however to

would be good against the assignor

Court of Judicature Act,

1873,'

by writing under the hand

to be

by way

'

all

defences which

Under the

Any

'

Supreme

absolute assignment,

of the assignor, not purporting

any debt or other

of charge only, of

legal

chose in action, of which express notice in writing shall

have been given to the debtor, trustee, or other person

from

whom

assignor

the

receive such claim

and be deemed
all equities

to

or

would have been

debt or chose

entitled

to

action, shall be,

have been, effectual in law, subject to

which would have been

over the right of the assignee

entitled

to

priority

had not passed,

this act

if

and transfer the legal right to such debt or chose

from the date of such notice '.' Similar provisions
are contained in several continental codes \ and contractual
to pass

in action

made

rights of certain special kinds have been

by

statute, such as, for instance, rights arising

of

marine and Ufe insurance,

lading'.

The

assignee, be

it

bail

bonds,

observed, in

naturalem, transfusio atque translatio, hoc est

causa ita nova constituatur, ut prior perimatur.'
Inst.
1

iii.

29. 3.

Cf.

German

Cod. iv. 39. 7.

See Lord Carteret

tract, ed.

xiii.

p. 275.

cum

assignable

on

and
all

policies
bills

of

the cases

ex praecedenti

Dig. xlvi.

2.

i;

of.

Civil Code, 414-419.

v. Paschal, 3 P.

Wms.

36

199. Cf.

&

Anson,

Law of Con-

37 Vict. c. 66, s. 25, 6.

376-444; Austrian Code,

* E. g. in the Prussian Landrecht, i. 11. ss.

ss.
1394-1396; German Civil Code, 398-413.
' Savigny, Oblig. ii. p. 112, truly observes that ordinary shares in

TRANSFER.
hitherto mentioned takes

313

subject

to

were available against the original

subject to other drawbacks.

defences which chap.

all

and sometimes

creditor,

Only one

class of obligations Negotiable

instrii"

heard of in ments.
the product of the wide

can be said to be fully assignable.

the fourteenth century, and

is

It is first

What

extension of modern commercial transactions.

are

called 'negotiable instruments,' or 'paper to bearer,' such

as

bills of

from hand
giving

exchange, or promissory notes, do really pass

to

hand, either by delivery or indorsement,

if

the paper

is

held

unaffected by flaws in the

It

bona fide

title of

has been acutely remarked

a negotiable instrument
fact

against

the

essential,

and

to each successive recipient a right

debtor, to which no notice to the debtor

which,

a material object,

is

due

is

and

for value, is

intermediate assignors*.
the assignability of

that
to

its

and so capable

being in point of
of

actual deUvery.

The written document is thus, as it were, the embodiment

of what would otherwise be an intangible, and therefore
untransferable, claim

*.

Liabihties do not, as

ment.

Under

a rule, pass

a contract,

it is,

by voluntary assign-

for instance, said to be only

reasonable that the creditor should continue to have a

right to the benefit he contemplated from the character,
credit, or

It

substance of the person with

was however a

rule of English

whom

he contracted.

common law

that certain

covenants between landlord and tenant, which are said to

touch the land, should 'run with the land,' so that an

the term,'

'assignee of
transfers his

upon them,
and

as

lease,
if

i.

e.

a person

to

whom

a tenant

can not only sue, but also be sued,

he were the original

liabihties, in respect of these

xii.

lessee.

Like rights

covenants, have been by

companies are not obligations but parts of ownership, producing therefore not interest but dividends. So it has been held by the Court of
Appeal, diss. Fry, L. J., that shares before registration were choses in action, but afterwards property. Colonial Bank v. Whinney, L. R. 30 Ch. D.
261, reversed in H. L., 11 App. Ca. 426.
^ On the difference between 'negotiability' and 'assignability,' see
Anson, Law of Contract, ed. xiii. p. 286.
* Savigny, Oblig. ii.
p, 99. Of. Colonial Bank v. Whinn&y, u. s.

;;

PRIVATE LAW: RIGHTS

314
CHAP.

XII.

made

statute

to attach to the person

hmdlord,

rights of the original

PERSONAM.'

'IN

who

or, as

he

succeeds to the
'the

is called,

assignee of the reversion*.*

We

Extine-

some

have already had occasion to mention incidentally

modes

of the

in

contracts

particular

which the obhgations resulting from

are dissolved.

It

will

however be

necessary to consider, from a more general point of view,

^'
the circumstances which terminate rights 'in personam

They may perhaps be

heads

ormance,

Performance

i.

ii.

the

following

Events excusing performance

;

iv.

Release of performance

Non-performance.

v.

by per-

Substitutes for performance

iii.

under

classified

Performance of the acts to which the person of

i.

cidence

obliged

is

is

the natural and

in-

mode by

proper

which he becomes loosed from the obligation of performing

them I
Performance by a third person
so a debt

was

in

the amount by

Roman law
a

is

sometimes permissible

extinguished on payment of

stranger, even

without

the

debtor's

knowledge *.

by events,

ii.

Events excusing performance.

perform^

^-

^'^^

ance.

^ general rule, at

sequent impossibility'

is

any rate

no excuse

in

'

32 Hen. VIII.
"Solutionis

factam.'
'

c.

Dig. xlvi.

By performance, and by some

Dig. xlvi.

3.

quoquo modo

3. 54.

sureties) liberantur.'
*

34; 44 & 45 Vict. c. 41. ss. 10, 11.

pertinet ad omnem liberationem,

verbum

law, 'sub-

for non-performance*;

but to this there are several exceptions

'

Enghsh

Dig.

23; Inst.

1.

other facts, 'etiam accessiones

(i.

e.

43.

iii.

29 pr.

Tlie nile in English law

is

said to

be otherwise. Jones v. Broadhurst, g C. B. 173.

Paradine v. Jane, Aleyn, 26, where it was held that 'when^a party,
by his own contract, creates a duty or charge upon himself, he is bound
to make it good, if he may, notwithstanding any accident or inevitable
necessity, because he might have provided against it by his contract.'
For the rule in Roman law, see Inst. iii. 29. 2. For the American cases,
see F.G.Woodward in Columbia L.R.i. p. 529. Cf, Germ. Civ. Code, 323.

EXTINCTION.

When

(a)

the act due

3*5

intimately dependent on the

is

party, the right, or liability, to its

individuality of either

performance must necessarily be extinguished by his death.

It

would be obviously absurd

to

make

the executors of

the Admirable Crichton responsible for his non-performance

Raphael for his

inability

Transfiguration.'

tSerious

of a contract to marry, or those of

to return to

may have

illness

When

(b)

life

and

finish the

'

a similar effect \

the performance has reference to a specific

thing, its destruction, without fault of

an end to the

of public entertainment

day, before which

from

free

it

had agreed to

let it

of a place

on a certain

was burnt down, they were held

to be

engagement ^.

A failure in the occurrence

(c)

to

their

the parties, puts

So when the proprietors

right.

of the event with reference

which the contract was entered into '.

(d)

change in the law, or the outbreak of war between

the countries of the contracting parties,

may

make performance a 'legal impossibility.'

2. Under the old Roman law all claims

against a

familias
nutio,'

'

were cancelled by even a

'

minima

operate to

'filius

capitis dimi-

such as he sustained in passing by adoption from

one family to another.

'

3.

Confusio,' or

'

merger,'

of the characters of debtor

i.

and

e.

the union in one person

creditor, is

sometimes held

to extinguish, sometimes only to suspend, the operation of

the right*.

Bankruptcy has already been mentioned more than

4.

once as one of the events which give rise to a universal

succession*.

An

order of

Discharge

has

1 Farrow v. Wilson, L. R. 4 C. P.
744; Robinson
Ex. 269. Cf. infra, p. 333.

the

Davidson, L. R.

3.

107.

Taylor v. Caldwell, 3 B.

&

'

Krell V. Henry, [1903]

K. B. 740; C. S. Co-op. Soc.

Nav.
*

S. 826.

Cf. Dig. xlvi.

v. Genl.

Steam

Co., ib. 756.

Code

Civil, art. 1300; Dig. xvi. 3. 107.

of

v.

effect

'

Supra,

p. 161.

chap.

xii.

PRIVATE LAW: RIGHTS

3i6
CHAP.

XII.

PERSONAM.'

'IN

freeing the bankrupt, either wholly or partially, according to

the special provisions of the law under which he

the claims to which he was previously
5.

The

lives,

from

liable.

judicial rescission of a contract, or a decree of

'restitutio in integrum.'
6,

The

rium)
Substi-

Among

iii.

tutes.

postponement of performance (moratoperformance, the following

substitutes for

more important.

are the
Tender.

legislative

^.

'Tender,' 'oblatio,' of the precise

1.

by payment into
'

amount

due, followed

Roman and French law by

court,' or in

the hands of a public

'depositio,' or 'consignation,' into

even before any action has been brought \ either

oflBcer,

extinguishes or suspends the debt.

Compromise

2.

'

Compromise,'

'

transactio,'

which may be analysed

into a part payment, coupled with a promise not to claim

the residue, can only operate as a discharge of the whole

debt

when

the subsidiary promise

is

or under such circumstances, that

made
it

in such a form,

might equally well

have been a good discharge without any part payment.

So in an old English case

sum on

of a lesser

it

was resolved 'that payment

the day, in satisfaction of a greater,

cannot be a satisfaction to

When

sum.
the

plaintiff

Datio in
solutum.

the whole

acceptance of

3.

It

Roman

sum

parcel

the plaintiff
is

by no intendment

due,

can be a

for a greater

satisfaction

to

the

V
was long debated but

finally

admitted

by the

lawyers that a 'datio in solutum,' or giving

and

acceptance of something other than the thing due, and in

E.

Cod.

g.

by

&

Geo. V.

c. 5.

iv. 32. 19, viii. 43. 9;

Code

Civil, art. 1257.

Pinnel's Case, 5 Rep. 117. Cf. Foakes v. Beer, 9 App. Ca. 605; Good
V. Cheeseman, 2 B. & Ad. 335. The Supreme Court of Mississippi in 1897
deliberately departed from Pinnel's Case, in Clayton v. Clark, 74 Miss.

499.

'accord and satisfaction,' the Author may perhaps

Essay on Composition Deeds, Chapters ii. and iii.

On the theory of

refer to his

SET-OFF.
place of
it
'

discharges the obhgation \

it,

down

laid

is

that

full satisfaction of

this is

So

were not

Enghsh law
in

the money, and the other receiveth

it,

he had received

if

money, though the horse or the other thing

of

of the twentieth part of the value of the

money, because that the other hath accepted

of

satisfaction
4.

sum

in full

it

*.'

'Set-off,'

by Modestinus as Set-off.

defined

compensatio,'

'

'debiti et crediti inter se contributio

has been sometimes

','

regarded as rateably extinguishing a claim 'ipso

sometimes only as foundation for a

may

chap.

creditor

any such other thing,

silver, or

good enough, and as strong as

sum

in

debtor pays to his

if

cup of

a horse, or a

the

317

give regard in awarding judgment

The French Code

sued upon.

lays

compensation s'opere de plein

iure,'

which a Court

plea, to

the claim be

if

down broadly

that ' la

even without the

droit,'

knowledge of the debtors, and that the two debts cancel

each other rateably, from the

moment

that they co-exist

*;

was only very gradually approached by the

Roman lawyers . The applicability of set-off has always
a view which

been limited to debts of a readily calculable kind", and

between the parties in the same

unknown

to the English

common

grafted for the first time by

5.

The

is

Geo.

new

substitution of a

by mutual consent

rights.

law,

The doctrine was

upon which it was

II. c. 22.

obligation for the old one Substi-

a species of that

mode

of discharging

an obligation known to the Romans as novatio.'

'

iv.

The mere agreement

of the liability

Roman law was

in the

same manner

iii. 16S; Cod.

Co. Litt. 212. a.

Art. 1290.

Gai.

merely natural

xl. 7. 20. 2.

'

parties to a discharge Release,

sufficient.

The

principle of

that every contract should be dissolved

of the

not always

is

in

viii.

'

which

it

had been made.

'Nihil

43. 16.
'

Dig. xvi.

Inst. iv. 6. 30;

2.

i.

obligation could be set off in

Cf. supra, pp. 243, 307.

Cod.

iv. 31. 14.

Roman

law.

Dig.

xii.

PRIVATE LAW: RIGHTS 'IN PERSONAM.'

3l8

tam naturale

est

quam

eo genere quidque dissolvere quo

colligatum est, ideo verborum

obligatio

verbis tollitur;

nudi consensus obligatio contrario consensu dissolvitur

So an obligation arising out

of 'stipulatio' could

extinguished by an equally solemn

which was at a

later period

'

acceptilatio,' a

\'

only be

method

extended by the ingenuity

of the praetor Aquilius to the release of obligations of all

sorts

In the time of Gains there were certain obligations

^.

which could be released only by means

of a feigned pay-

ment accompanied by the ancient ceremony

et libra ^'

merely consensual contract,

if

of the

'

aes

wholly un-

executed, could be discharged by the mere agreement of

the parties, but after part execution such an agreement

could amount only to a 'pactum de non petendo,' which

might be a good plea

but

left

Under English law

still

an action upon the obligation,

to

itself still in force.

the obligation

a contract

made under seal must, if

manner \ The effect of a

executory, be discharged in like

mere agreement to discharge a consensual contract depends

upon the doctrine
be

of 'consideration,'

If

such a contract

executory, the mutual release from

still

its liabilities is

a good consideration to each party for surrendering his

rights

under

it.

If it

has been executed on one

side, it

can

be discharged only by an agreement founded on some new

consideration, or by a deed, which is sometimes said to
'

import a consideration

The

^'

rule does not

however apply

to a discharge of promissory notes or bills of exchange,

which doubtless owe their immunity from

their origin

Dig.

1.

from the law merchant

17. 35.

'

Inst.

iii.

to deriving

it

^.'

29. 2.

'

Gai.

ill.

173.

See Steeds v. Steeds, 22 Q. B. D. 537. A contract which under the

Statute of Frauds has necessarily been made in writing may, it seems,
be rescinded without writing, but an unwritten contract superseding
it by implication will be incapable of proof. See Anson, Contract, ed.
*

xiii.

p. 328.

Supra,

Cf.

p. ijg n.

The

Bills of

Exchange Act, 1882,

62.

NON-PERFORMANCE.
V.

319

Non-performance by one party to a contract

puts an end to the rights which he enjoys under

the other party.

may have

And some

the same

act disables himself

effect.

it

ofterv

against

acts short of non-performance

Thus

if

one party by his

own

from performance \ or announces that

he has no intention of performing'', the other side

is

many

as

cases

entitled

to

treat

what has occurred

in

breach of contract by anticipation,' and the contract as

being therefore no longer binding.

Since however non-

performance, or breach, has also the effect of giving rise

remedial

to

postponed

till

rights,

its

discussion

may

conveniently be

the next chapter.

Playiche v. Colburn, 8 Bingham, 14.

Hochster v. Delatour, 3 E. & B. 678; Frost v. Knight, L. R. 7 Ex. in;
extended by Synge v. Synge, [1894] i Q. B. 467. Cf. L. Q. R. xii. p. loi.
1

'

chap. xii.
^o"-per-

CHAPTER Xm.
PRIVATE LAW

Primitive

reme

les.

right which could be violated with impunity, without

new

giving rise to any

of

REMEDIAL RIGHTS.

legal relation

a legal

right

an injured

at

all.

In an anarchical state of

society

person takes such compensation as he can

obtain from a wrong-doer, or,

may

satisfaction as

between the person

inherence and the person of incidence, would not be

if

strong enough, gets such

be derived from an act of revenge.

political society, in the first

place, puts this

rude

self-

help under stringent regulation, and secondly, provides a

substitute for
is

it

in the

shape of judicial process.

Self-help

indeed but an unsatisfactory means of redress.

possibility

depends upon the injured party being stronger

than the M^rong-doer, a state of things which

means a matter

of course

by no

is

and the injured party

is

made

when he

is

least

judge in his o^vn cause, often at a time

likely to

Its

form an impartial opinion upon

its

merits.

To

suppress private revenge, to erect Courts of Justice, and

to compel every one

compensation,
of a State

is

which

who

is

wronged

however a task
is

heroic age of Greece

still in

was

far

to look to

them

beyond the

process of formation.

for

streng-th

So the

characterized, according to Grote,

SELF-HELP.

321

by the omnipotence of private force, tempered and guided

by family sympathies, and the practical nullity of that

chap.

'

afterwards called the City,

collective

sovereign

historical

Greece

source of

obligation,

becomes

the

in

paramount

and

central

who

but

who

xm.

appears yet only in the

background \'
not surprising that, as Sir Henry Maine Regulated

It is therefore

has put

'

it,

Commonwealth

the

at first interfered through

^^

various organs rather to keep order and see fair play

its

than took them, as

in quarrels,

everywhere, into

measured,

own hands ^'

its

improvement seem

does always and

The

stages of social

to be the following.

and violent

hot-blooded,

injured party

now

it

First,

retaliation

the unthe

of

superseded by a mode of taking com-

is

pensation, the nature

and formalities

of wliich are to

some

'The primitive proceeding,'

extent prescribed by custom.

says the author last quoted, 'was undoubtedly the un-

ceremonious, unannounced, attack of the tribe or the

man who had

stung by injury on the tribe or the

Any

it.

expedient by which sudden plunder or slaughter

was adjourned

or prevented

Thus

barbarous society.
a whole

man

inflicted

when

its

priests

it

was an advantage even

was a gain to mankind

and leaders began

to

as

to encourage

seizure of property or family, not for the purpose

the
of

permanent appropriation, but with a view to what

we

should

now

not hesitate to

call

extortion

the stage at which the seizure of pledges

and

to

the stage

when

self-help,

and restrained by the

till

although permitted,
authority.

political

History,

Early History of Institutions, Lect.

ii.

p.

Utigation,

Law,

vi. p.

is

supervised

Distress

may

26.

cf.

conveniently cited by
1950

is

Next comes

his debt is paid.

tional

This

according to which an Indian creditor fasts at

the door of his debtor

Roman

^'

so prominent,

singular custom of 'sitting

belongs also the

it

dharna,''

is

J.

B. Scott in

i.

316.

ix.

On

the earliest forms of

and other authorities

The American Journal of Interna-

Jhering, Geist,

p.

167,

lb., Lect. x.

'

^^'

PRIVATE LAW: REMEDIAL RIGHTS.

322
CHAP.

XIII.

still

be resorted

with

many

may

be protected by force, but the force used must not

to,

but only for certain purposes, and

safeguards against abuse.

be in excess of the need.

Judicial
remedies.

Nuisances

tion of law
as conserving rights;

be

abated,' but

'

Last of

comes

all

Legally regulated self-help

not wholly superseded, but, as a rule, redress of wrongs

is

The opera-

may

so as to interfere with no man's rights.

the reign of the law-courts.

and property

Life

must be sought only from the tribunals of the sovereign \

The object of a developed system of law is the conservation, whether by means of the tribunals or of permitted
self-help, of

So long as

When

the rights wliich

all

recognises as existing

it

goes well, the action of the law

the balance of justice

or even by a threat of

Aristotle,

equalises

I'

disturbed by wrong-doing,

is

He

shall enjoy their

locupletiorem

law

of

judge,' says

is

to guarantee that

'Hoc natura aequum

rights*.

cum

says Pomponius, 'neminem

by preven-

'The

elsewhere adopts the saying of

Lycophron that the function

all

dormant.

the law intervenes to restore,

it,

as far as possible, the status quo ante.

'

is

detrimento

alterius

est,'

fieri

^'

Sometimes the law intervenes

for prevention, as

by the

tion,

'injunctions' which have long been issued by the Court

Chancery to forbid a threatened mischief, and by the

of

orders

made by the Roman

denuntiatio,' or

by

redress.

'

The remedial

damnum

praetors in cases of

infectum

interference

of

novi operis

''.'

the

law

When

more frequent and important.

'

is

however

a right

is

far

violated,

'
Cf. the edict of Marcus Aurelius: 'Optimum est ut si quas putes te
habere petitiones, actionibus experiaris:
Tu vim putas esse solum
si homines vulnerentur?
Vis est et tunc quotiens quis id quod deberi
sibi putat non per iudicem reposcit
Quisquis igitur probatus milii
fuerit rem ullam debitoris non ab ipso sibi traditam sine ullo iudice
temere possidere, eumque sibi ius in earn rem dixisse, ius crediti non

habebit.'

Dig.

xlviii. 7. 7.

Supra, p. 79.

'EyyvTjTrjs dWijXots

Dig.

:di. 6.

14.

tQv

8iKaiuv.

Pol.
*

Eth. Nio. v.
iii.

7.

4 and

9. 8.

Dig. xxxix.

and

2.

8.

LEGAL REDRESS.

323

the law endeavours to prevent the person of inherence chap.

from

losing, or the person of

new
way

right

duty

therefore immediately given to the former, by

is

compensation for his

of
is

upon the

laid

loss,

and a new corresponding

by way

latter,

against any advantage which he

In the

aggression.

his

'Tout

may have

language of

par

oblige celui

the

duquel

la faute

In examining early systems of laAv

traces of a time

when

acceptable

vision

to

of the

subjects

its

Such

the act, was

to the

il

arrive

est

to

come

new

right should be as

indulgence of private

the

as

the interpretation placed upon a pro-

is

Twelve Tables, that a

be

to

owner

we seem

the State had to take special

pains in order to insure that the

revenge.

derived from

French Code:

\'

a le reparer

upon

make- weight

of

quelconque de I'homme, qui cause a autrui un

fait

dommage,

incidence from gaining.

goods, whereas

of the

thief,

if

caught in

scourged and delivered as a slave

if

not caught under

circumstances offering to the owner a similar temptation

to violence, he

was

to be liable only for twice the value of

So the object of the early Teutonic legislation

the goods.

well described as having been, 'to preserve the society

is

from standing feuds, but at the same time to accord such

satisfaction

full

would induce the injured person to

as

waive his acknowledged right of personal revenge.

German Codes

began by

trymg

to

bring

about

The
the

acceptance of a fixed pecuniary composition as a constant

voluntary custom, and

as a

proceed ultimately to enforce

peremptory necessity: the idea of society

altogether

subordinate, and

its

is

it

at first

influence passes only

by

slow degrees from amicable arbitration into imperative

control

^'

'

Art. 1382.

'

Grote, History,

runn' will shov/

'Compositio.'

ii.

how

p.

28.

A cureory inspection of the

large a space in

them

is

Leges Barbarooccupied by the topic of

'

xiii.

PRIVATE LAW: REMEDIAL RIGHTS.

324
CHAP.

The new

XIII.

Self-help.

self-help

of

when he

is

to pull

i)r

Right of
action

may

right

allowed to push a trespasser out of his

down

it

is

realisable

which case

of the law-courts, in
action,' 'ins

it is

persequendi iudicio quod

however

realisable,

we

call

'

we

call

'

antecedent V

or compensation
is

Its object

only with the aid

known

as a

'

right of

The

debetur\'

sibi

remedial,' as opposed to

the right from a violation of which

for restitution,

field,

a wall which has been built across his

More commonly

path.

right,

thus be reahsable by the regulated

the injured person of inherence himself, as

and which

it arises,

maybe

either restitution

In the former case, the aim of the law

'.

to cancel, so far as possible, the wrongful act.

It allows

the injured party to remove a building which obstructs

his window-light,

a minor

who has

it calls

for

fraud,

it

it

decrees the

'

and destroys a contract which

of

tainted with

is

wrongly been deprived, or

need be by imprisonment, the

'specific

a contract which the person of incidence

performance' of
is

endeavouring

Equity * and to German law, ancient and modern,

So Theophilus speaks

of Obligations as the

MrjTtpes ruv ayooyuv ai ^i/ox^.

Inst.

iii.

enforces,

it

remedy which, though famihar

to repudiate, a

'

'

orders the return of an object of which the person

of inherence has
if

integrum

restitutio in

entered into a disadvantageous engagement,

to English
is

opposed

mothers of Actions:

13.

2 Supra,
Is qui actionem habet ad rem persequendam
pp. 146, 167.
ipsam rem habere videtur,' says Paulus, Dig. 1. 15. Pomponius, more
Dig. 1. 204.
truly, 'minus est actionem habere quam rem.'
'
Les actions sont des droits particuliers qui naisseut de la violation
'

'

des autres droits, et qui tendent, soit k faire cesser cette violation, soit
h en faire r^parer les effets.' Dalloz, s. v., No. 69. See Zouche on Jurisprudentiae media (i.e. Judicium), 'quibus Finis' (i.e. Justitia), 'in subjectum' i. e. communionem humanam) 'inducitur.' El. Jurispr. Pars. i.
10. On the term 'cause of action,' see Cooke v. Gill, L. R. 8 C. P. 107,
and Vaughan v. Weldon, L. R. 10 C. P. 47. It has been held by the Court
of Appeal that two actions may be brought in respect of the same facts,
when those facts give rise to two distinct causes of action,' per Brett,
'

'

'

M.

R.,

and Bowen,

14 Q. B. D. 141.
* The defaulter

L.

is

J., diss.

Coleridge, L. C. J. Brunsden v.

Humphrey,

directed to do the very thing which he contracted to

RIGHTS OF ACTION.
to the principles of

from it^

Roman law and

In the latter, which

is

325

of the systems derived chap, xiiialso the more usual, ^^'^ ^"
pensation.

do, and,

disobedient,

committed

to prison for contempt of Court.

that the Courts Christian anticipated the
Court of Chancery in specifically enforcing the performance of those
contracts, at least, in which there was an oath or 'fidei interpositio,'
L. Q. R. V. p. 235 and Specific Performance, ed. iii. p. 8. He thinks, ib. p. 14,
that the remedy may have leaked through from the canon to the manorial
if

is

Edward Fry has shown

Sir

'

law, where a Bishop

was lord

of a manor,' citing a case, temp. Ed. II., in

a manorial court of the Bishop of Ely, from The Court Baron' (Selden
Society), p. 115. Mr. W. F. Webster kindly calls my attention to the
extent to which specific performance of promises to marry was enforced
by Roman-Dutch law, at the Cape till 1838, and in the Transvaal till
1871; referring to Voet, Comm. ad Pand. lib. xxiii. tit. i. 12, to Van
Leeuwen's Commentaries, Bk. iv. 25. i, and to the note in Kotze's
'

translation (1887), vol. ii. p. 210.

According to the view prevalent in France,

'

Nemo

potest praecise

ad factum.' See Sir Edward Fry's Treatise on Specific Performance,

iii. p. 4, and the opinion of M. Renault, ib. p. 714.

cogi
ed.

The doctrine of Pothier, Oblig. 157, 'C'est en cette obligation de

dommages et interets que se resolvent toutes les obligations de faire quelque
chose,' was adopted in art. 1 1 42 of the Code Civil, Toute obligation de faire
ou de ne pas faire se r^sout en dommages et interets, en cas d'inexdcution
de la part du ddbiteur'; supported by M. Bigot-Pr(^ameneu (Recueil
des discours, t. i. p. 430) on the ground that 'nul ne pent fitre contraint
dans sa personne a faire ou a ne pas faire une chose, et que, si cela 4tait
possible, ce serait une violence qui ne peut pas etre un mode d'execution
des contrats.' There is nothing inconsistent with this view in arts. 1 143,
1 144, under which the injured party may be authorised to carry out the
work agreed upon at the expense of the defaulter; nor in art. 1 610, under
which a purchaser may be put into possession of the thing sold if the
vendor refuses to deliver it to him. Some of the older French authorities
had maintained that even here the sole remedy should be in damages, but
Pothier, following Paulus, Sent. vi. i. 13. 4, and Cujas, ad. 1. i de Act,
Empt., had argued that the Court should authorise the purchaser himself
to seize the thing sold, ou d'en expulser le vendeur par le minist^re d'un
sergent,' explaining that the maxim nemo potest praecise cogi ad factum'
only applies lorsque le fait renferme dans I'obligation est un pur fait de
la personne du debiteur, merxim factum,
il n'en est pas de meme du
fait de la tradition
ce fait non est merum factum, sed magis ad dationem
accedit,' Contrat de Vente, 68. I was indebted for a learned and interesting communication upon this subject to Mr. Justice Proudfoot of Toronto
(afterwards embodied in an article in the Canadian Law Times for October,
1894), who was disposed to go further than I am able to follow him in discovering approximations to Specific Performance in Roman law and in the
'

'

'

'

derivative systems.
in L. Q. R.
p. 276,

viii. p.

On German

252, citing

law, see a learned article, signed E. S.,

Dernburg, Preussisches Privatrecht, Bd. i.

and the German Code

of Civil Procedure, 774, 775.

PRIVATE LAW: REMEDIAL RIGHTS.

326
CHAP.

XIII.

case,

We

The
is

'

right
in per-

sonam.'

gives to the sufferer a right to be compensated

it

damages

in

available
'

wrong which cannot be undone.

for a

have seen that while some 'antecedent' rights are

'

Remedial rights are

i.

in personam.'

'

in personam,*

available, as a rule,

'

e.

'

in rem,' others are available only

against the wrong-doer, who, by the act of wrong-

doing, becomes at once the ascertained person of incidence

Such rights as those

of the remedial right.

distress,

and

especially certain rights enforceable in Courts

of Admiralty,

which are doubtless capable of being repre-

sented as remedial rights

as being merely

modes

remedial right

made

The

Origin.

and

of lien

is

'

causes, or

in

'

rem

may

\'

also be treated

by which the true

of execution,
effective^.

investitive facts,' of remedial rights are

always infringements of antecedent rights, and have therefore been incidentally mentioned

discussion of such

preceding chapters.

what we have

It

the

in

mdeed

is

course of the

occupied the two

which has

rights

impossible to describe

'orbit' of a right, without at

called the

the same time mentioning the acts which break in upon

smce the extent

it,

power

of

him who

of a right

is

or negatively, with the

however be necessary
specifically,

and

which they

infringe,

acts

the same thing with the

to interfere, positively

it

others ^

of

consider

to

now

It will

more

infringements

them according

to the rights

and with which indeed,

for the reason

classify

to

is

clothed with

just given, they are precisely correlative.

Infringenients.

Since

spoken

(whence

conduct which
of

as

'recht'

'droit'),

opposite character naturally

terms delictum,'
'

2
^

'

delit,'

straightforward

is

eulogistically

bemg

and

came

came

to

be

'rectum,' 'directum'

'right,'

conduct

to be expressed

of

the

by the

as deviating from the right path.

See the case of the Parlement Beige, L. R.

Supra, p. 168.
Supra, p. 151.

P. D. 127.

'

TORTS.
and 'wrong' or

German

'

out of the straight chap.

twisted

as

'tort,'

conduct

Similar

line*.

327

descriptively

less

is

called

Rechtsverletzung.'

employed

ahke

These terms are

languages to denote,

respective Species

their

in

They

wrongs independent

are however usually applied Breaches

^

only to

'

class of

wrongful acts which are breaches of contract are

of contract

i.

' ;

e.

the large tract""

Certain other classes of wrongful

specifically so described.

have for historical reasons

which take them out

of.

a very general sense, acts which

are violations of rights.

acts also

xiii.

in

Torts,

specific designations

of the category of delicts, or torts.

Thus Roman law treated

acts of certain kinds as

givmg

rise

to obligations not 'ex delicto,' but 'quasi ex delicto,' nor

are breaches of trust, or such acts as are charged against

a co-respondent

unknown

alike

by the law

The

in

Divorce Court, since they were

common

law, described as torts

of England'.

between those wrongs which are generi-

distinction

cally called

the

to the old

'

torts

'

and those which are

called crimes

The same

at first sight appear to be a fine one.

circumstances
stitute a

amount

will, in

from one point of view con-

while

from another point of view they

In the case, for instance, of an

assault, the right violated is that

which every man has

that his bodily safety shall be respected, and for the

done to

may ^qj.^^

this right the sufferer is entitled to get

But

this is not

the

safety of

all.

The

act of violence

society generally,

and

is

wrong

damages.

a menace to
therefore

will

be

Tarn multa surgunt perfidorum compita

Prudent, in Apotheos. Hymn. i.
Sicut illi qui in suo ministerio tortum faciunt,' occurs in an edict of

'

'

Tortis polita erroribus.'

'

Charles the Bald. 'Tort k la leye est contrarye.' Britton, fol. 1 16.
' A phrase due to the Common Law Procedure Act, 1852;
though the
opposition between actions founded on contract and founded on tort
'

'

'

occurs in the County Courts Act, 1846.

^ Although the action for cri7n. con. was for a tort.
On the nonrecognition, till comparatively recent times, of a general law applicable
to torts, see

Holmes

J. in

Harvard

Law

Review,

xii. p.

451.

and

set of^"'"^-

crime.

tort,

to

fact,

Difference

PRIVATE LAW: REMEDIAL RIGHTS.

328
CHAP.

XIII.

punished by the State.

So a

libel is said to violate

not

only the right of an individual not to be defamed, but

right of the

also the

that no incentive shall be

State

given to a breach of the peace.

by books

and a crime

is

redressed by the

sometimes alleged

between a tort

a matter of procedure, the former being

civil,

while the latter

But the

criminal courts.

is

punished by the
deeper, and

distinction lies

well expressed by Blackstone,

*

It is

of authority that the difference

who

is

says that torts are an

infringement or privation of the private, or

civil,

belonging to individuals, considered as individuals ;

rights

crimes

are a breach of public rights and duties which affect the

whole community, considered as a community \'

which

is

violated

that which

by a

violated

is

in the former case

the State.

is

The

right

tort is always a different right

from

by a crime.

The person

an individual, in the

In a French criminal

trial

of inherence

latter case is

may

there

accord-

ingly appear not only the public prosecutor, representing

the State and demanding the punishment of the offender,

but also the injured individual, as 'partie

damages

for

for

the

loss

which

he

civile,'

has

asking

personally

sustained ^

The far-reaching consequences of acts become more and

more visible with the advance of civilisation, and the State
tends more and more to recognise as offences against the
community acts which it formerly only saw to be injurious
to individuals

Wrongful

Possible

^.

acts

may

be,

and

are, classified

on

five different

classifica-

tions of

principles at least.

wrongs.

Lord Lindley in Quinn v. Leathern, [1901] A. C. at p. 542.

Code d'Instruction Criminelle, art. 63. On the old English remedy,
knowTi as an 'Appeal,' abolished by 59 Geo. III. c. 46, see 4 Bl. Comrn.
Cf.

312.
' 'Dalits et
quasi-d^lits are dealt with in the Code Civil, arts.
1382-13S6; 'Unerlaubte Handlungen,' in the Burgerliches Gesetzbuch,
823-853- Seein Journ.Comp. Leg.,N.S.,xii.p. 274, a notice by S. Amos
of La nozione del Torto nella dottrina e nella giurisprudenza inglese, by
'

M.

Sarfatti.

WRONGFUL

CLASSIFICATION OF

3^9

According to the state of the will of the wrong-doer,

i.

which may conceivably

of innocent trespass;

such

(3)
'

ACTS.

exhibits

as

be, (i) entirely absent, as in acts

such as

(2)

intention,

exhibits

sometimes

negligence*;
described as

".'

malice

As has

already been explained, the law has in modern

times substituted,
state of

mind

many

cases, for

of a given defendant

an enquiry into the

an enquiry into the

conformity of his acts to an external standard,

may

conduct which

the

viz.

to

be reasonably expected from a

person of his class'.

ii.

According to the state of the will of

which may conceivably,

party,

(i)

the injured

consent to an

fairly

invasion of his right, which by being thus waived, becomes

no

right,

and

its

invasion no wrong, since

and an act ab

iniuria*';

initio

'

wrongful

volenti

may

non

fit

lose this

character by the subsequently given assent of the injured

party

(2)

be flatly opposed to the

course, tortious, even

act,

which

when an apparent

is

then, of

assent to

it

is

Supra, p. III.
There has been a tendency in recent American cases to hold that an
improper motive may make illegal an otherwise legal act; as where
a barber started a shop, regardless of any profit for himself, merely to
ruin the plaintiff's business. Tuttle v. Buck (Minn. 1909), 119 N. W. 946.
* Supra, pp. 113, 114. For an interesting enquiry as to the ground of
liability for torts, and especially whether or no they imply moral blame^
'

worthiness, see Holmes,

The Common Law,

p. 79.

Mr. Justice Holmes

law started from those intentional

WTongs which are simplest and nearest to the feeling of revenge which
leads to self-redress. It thus naturally adopted the vocabulary, and in
some degree the tests, of morals. But as the law has grown, its standards
have necessarily become external, because they have considered not the
actual condition of the particular defendant, but whether his conduct
would have been wrong in the fair average member of the community
whom he is expected to equal at his peril.' lb. p. 161. Cf. also Sir F.
points out, in another chapter, that

Pollock's

work on

'

Torts.

As to the application of this principle, and the

between 'sciens' and 'volens,' see Thomas v. Quartermain,
18 Q. B. D. 685; Smith v. Baker, [1891] App. Ca. 325; Williams v.
Birmingham Battery Co., [1892] 2 Q. B. 338. On the change of view
marked by the two last cases, see L. Q. R. xv. p. 336.
*

Supra,

distinction

p.

155.

chap, xin,

PRIVATE LAW: REMEDIAL RIGHTS.

330
CHAP.

XIII.

procured by duress

(3)

be induced to assent by the deceit

by

of the party injuring, the act of so procuring assent

wrong known as fraud.'

According
to the means whereby the wrong is
iii.
effected, whether, for instance, by physical violence, by
words uttered, or by omission to carry out a contract.
*

deceit being the

iv.

Accordingly as actual loss to the injured party follow-

ing upon the act of the wrong-doer

to its tortious

According to

V.

is,

or

is

not, essential

character \

nature

the

whether, for instance,

the

of

invaded,

right

be a right to personal freedom,

it

or to a monopoly, or to the fulfilment of a contract.

Principle
selected.

who waver between

Writers

these various points of

view, subdividing one portion of the whole class of wrong-

upon one

acts

ful

principle,

and another

portion upon

another principle, involve themselves in unnecessary

culties.

The last-mentioned

When

preferred.

given wrong

is

it

is

principle of division is to be

once

an invasion,

diffi-

known

of

what

right

any

other characteristics follow

its

as a matter of course.
List of

wrongs

tabular view

wrongful

of

referred to the right of which

acts, in

it is

which

each

is

an infringement, might

from the data contained in the two

easily be constructed

preceding chapters.

Among

rights

'

in rem,' that to personal safety

by assault or imprisonment

or adultery with, a wife,

of,

or enticing

away

a slave

is

by seduction

of a servant,

the right to one's good name,

by defamation; rights generally

available,

and malicious arrest or prosecution;

by trespass, conversion, detinue, and

by nuisance,

rights of possession,
'

furtum

'

rights of

ownership of tangible objects, by the same acts

of copyright, patent-right

ment';

'

rights

'in

Sue per Buwen, L.

re

J.,

violated

family rights, by abduction

and trade-mark, by

aliena,'

rights

'infringe-

by 'disturbance'

of

in Ratcliffe v. Evans, [1892] 2 Q. B. 524.

an

WRONGS INDEPENDENT OF CONTRACT.

easement, or

conversion of a pledge; rights to immunity chap. xm.

'

'

from fraud, by

Among

'

deceit.'

rights

'in personam,' family rights,

analogues, are infringed by

'

by a vassal

neglect

by breach of trust

what we have

fiduciary rights,

by

rights of a reversioner,

waste

'

'

called meritorious rights, by refusal of the

merited reward;

rights against

by neglect on

officials,

perform their duties; rights 'ex contractu,'

their part to

by breaches

their

of a freedman, or

of his feudal duties;

;

and

subtraction,' adultery, refusal

due aliment, ingratitude on the part

of

33I

of contract, consistmg, according to the nature

of the contract in question, in such acts or omissions as

non-payment, non-delivery, defective

in marrying, non-render of

care-taking, default

services, negligent

services, refusal to enter into partnership,

render of

doing acts prom-

ised not to be done, breach of warranty, or non-return of

pledge.

"With reference to these acts generally, the rule holds

good that qui

'

is

facit per

alium

per

facit

se.'

Liability

The employer ggrvTnte

responsible for acts which he has ordered to be done, or

which have been done by

his servant,

without orders but

within the scope of the servant's employment ^

The
tract

'

right resulting from

is

wrongs independent

of a wider character than that

breaches of contract.

may mental and

In the former case only, as a

of

rule, ^^'^ ^o^^-

bodily suffering be taken into account

hand, a breach of contract

wrong

of con- for

which results from orcontmct

measuring the damages to be awarded.

in

'

is

more

another kind, since

On

the other

readily established than

it

depends

on any

less

question as to the state of the will of the wrong-doer, and

some damages may be had

whether or no
*

it

Cf. supra, p. 156.

contractors, see

for

every breach of contract,

be the cause of any actual

Bower

loss.

'

Direct,' Damages.

On the liability of contractors as well as their subv. Peate, L. R. i Q. B. D. 321. On the liability of

a shipowner for the acts of his master being limited by surrender of the
ship, see Holmes, Common Law, p. 30.

PRIVATE LAW: REMEDIAL RIGHTS.

332
CHAP. xiii.

or

'

general

'

damages are those which are the necessary and

'indirect,' or

immediate consequence of the wrong, while

'special,'

damages are somethnes granted in respect

of its

remoter consequences \

What

Transfer.

has been said as to the

transfer of antecedent rights

'

attending the

difficulties

in

personam

'

greater strength, to the transfer of remedial rights

non-transferability to the representatives of

with

applies,

The

a deceased

person of such remedial rights as arise from the violation

a right

of

tion.

his

individuality

cum

'

persona
Extinc-

intimately connected with

expressed by the maxim, Actio personalis moritur

is

^'

A mere

performance of the duty antecedently owed

no discharge of the remedial right arising from

may

performance, but the right

variety of

be

extinguished

other ways, including some

of

is

non-

its

in

those which

are appUcable to the extinction of antecedent rights 'in

personam
Release.

i.

\'

The person

inherence

of

right of action, for instance

or

stipulation;

may

de non petendo

'

may

formally release

his

by deed or by the Aquilian

give a covenant not to sue, 'pactum

or

may

enter into,

what

is

called in

On the 'measure of damages,' cf. 'pretia rerum non ex affectione

singulorum sed communiter fungi.' Dig. ix. 2. ^^. Cf. Cod. vii. 47.
Does an injured person weaken his claim against the person who caused
the injury, or against an insurance society, by refusing to submit to an
operation suitable to his case? See F. Endemann, Die Rechtswirkung
'

der Ablehnung einer Operation, Berlin, 1893.

* Supra,
pp. 159, 310. On the various meanings of the term 'special
damages,' see Ratdiffe v. Evans, u. supra.
' Supra,
pp. 173, 314. An action for breach of promise of marriage,
without damage to the estate, does not survive to the representatives of
the promisee. Chamberlain v. Williamson, 2 M. & S. 408, nor against the
representatives of the promisor, Finlay v. Chirney, 20 Q. B. D. 494.

Quirkv. Thomas, [1916] 2 K. B. (A. C.) 516. in which case Swinfen-Eady

L. J. expressed grave doubts whether the action would lie, even if special damages be proved.' Similarly, Esher M. R. in the preceding case.
Cf. Stanhope v. Stanhope and Adye, 11 Prob. D. (C. A.) 103, as to a de'

cree nisi of Divorce.

Cf. supra, p. 314.

EXTINCTION.

333

English law,' an accord and satisfaction' with the person chap. xni.
of incidence,

i.

act for the act

which has not been performed, and followed

by the performance

may

by

also

owner

ratify

'

resultmg right

his

of goods wrongfully sold

by taking part
be lost

like^vise

of

iii.

Set-oflf.

iv.

Merger.

'

treats the sale as lawful

The

the purchase money.

by

The bankruptcy

ii.

The person of inherence

a wrong done to him Ratificaof redress, as when the

of that act.

conduct so

his

as to waive

some other

into an agreement substituting

e.

right

Bank-

of the person of incidence.

S^t.off.

It

down

has been laid

that the

givmg

covenant in the place of a simple contract does not

or extinguish the debt, but
of proceeding

it

is

contract.

merge

'

The intention of
The pohcy of the

that there shall not be two subsisting remedies, one

upon the covenant and another upon the simple

by the same person against the same person

demand \'
'

of a Merger,

merges the remedy by way

upon the simple

the parties has nothing to do with that.

law

may

contract,

for the

So a judgment in favour of the

a bar to the original cause of action, because

same

plaintiff

it is

is

thereby

reduced to a certainty and the object of the suit attained,

so far as

it

can be at that stage

and vexatious

and

in

rem iudicatam

Hence the maxim

The cause

changed into a matter of record, which

nature,

useless

to subject the defendant to another suit for

the purpose of attaining the same result.

Transit

would be

it

and the

inferior

remedy

merged

is

of

action

of a

is

in the higher

So in Roman law an obligation was transmuted by

contestatio,'

by

post

litem contestatam

Price v. Moulton, lo C. B. 561.

King

v,

'htis

dare debitorem opor-

condemnari oportere, post

condemnationem iudicatum facere oportere ^'

Ca. 504.

^.'

and again by judgment, which was expressed

saying, 'ante litem contestatam

tere,

is

higher

Hoare, 13

M. & W.

494;

cf.

Kendall

v.

An award

Hamilton, 4 App.
^

Gai.

iii.

180.

PRIVATE LAW: REMEDIAL RIGHTS.

334
CHAP. xui.

under arbitration does not usually extinguish a remedial

right, unless followed by performance of the award.

Estoppel.

by a judgment

V. 'Estoppel,'

the defendant.

for

by an issue

facts actually decided

any

in

'The

suit cannot be

again litigated between the same parties, and are evidence

between them, and that conclusive, for the purpose

terminating litigation
Prescrip

vi.

Extinctive

of

\'

or

prescription,

limitation

of

actions,

tiou.

introduced, as
'

for

quieting

it

expressed in the Act of James

is

men's

of

estates

and avoiding

by depriving the remedial right

reduces

it

of

its

to the position of a merely

which however

remams capable

still

'

judicial

natural

I,

of suits

'

remedy,

obligation,

of supporting a lien

or pledge ^

The

lapse of time necessary to produce this result varies

very widely in different systems, and with reference to

rights of

begins to run

from the

the remedial right comes into

existence,

species ^

different

moment when
in

other words,

It

may be

when

absence

from

prevented

who

as

affected

by

person whose

the

On

it.

Avould otherwise benefit

the other

by

alive his

indebtedness by such acts as part

payment

of

interest,

violated.

is

from running by

the minority, imprisonment,

country of

the

would otherwise be
the person

the antecedent right

interrupted, or

various causes, such

It

or

express

it

or

right

hand,

may keep

payment, or

acknowledgment with

a promise to pay*.
Suspcn
&ion.

There are cases

without being

in

lost.

which a remedial right

Thus

a Court will

is

suspended

refuse to try an

Boileau v. Rutlin, 2 Ex. 665. 'Res iudicata pro veritate accipitur/

I. 17. 207.
On the 'exceptio rei iudicatae,' see Dig. xliv. 2. The
principle was applied to awards between nations by the Hague Tribunal
in 1902 in deciding the first case submitted to it. See the judgment in
^

Dig.

La
2

Justice Internationale, 1903, p. 18.

21 lac. I. c. 16.

German

Civil Code, 94-225.

Cf.

Cf. a 'Note' in 31 L. Q. R. p. 141.

'

Supra, pp. 230

n., 243.

EXTINCTION.
action while an action to try the

335

same question

is

pending

before a Court of concurrent jurisdiction, in which case

there

is

said to be

'

lis

alibi

pendens.'

So also

long said to be a principle of English law that

fact

which gives

a felony, the
to the
late

rise to the

remedy

punishment

it

when

was
the

remedial right amounts also to

of the injured individual

of the crime;

is

postponed

but grave doubt has of

been thrown upon this alleged principle \

1
For the history of the rule to this effect, see Wells v. Abrahams, L. R.
Q. B. 554, where Blackburn, J., traces all the dicta in its favour back to
the case of Markham v. Cobbe, Sir W. Jones, 147, decided in 1626. In ex
parte Ball v. Shepherd (1879), 10 Ch. D. (C. A.) 667, and Midland Rail.

Co. V. Smith (1881), 6 Q. B. D. 561, the rule is treated as finally exploded;

but see Appleby v. Franklin (1885), 17 Q. B. D. 93, and Windmill Local
Board of Health v. Vint, 45 Ch. D. (C. A.) 351. Cf. Dig. xlvii. 2. 56. i.

chap.

xm.

CHAPTER XIV.
PRIVATE LAW

Among

Normal
normal'
persons.

mapped

ABNORMAL.
may be

the modes in which the field of law

out,

we have

into 'normal'

jt,

already explained that which divides

and 'abnormal'; the former kind

of

law

dealing with rights as unaffected by any special characof the

teristics

persons with

whom

they are connected,

the latter kind dealing with rights as so affected \

all

In

statements with reference to rights the standard type

of personality

and

it is

is

assumed, unless the contrary

when

only

there

is

into which,

as

we have

who

seen,

two

are
it

who is
a human

place,

artificial

The
in

is

called 'an

is

unaffected

infancy, coverture, alienage,

forth.

In considering the various classes of substantive

-1

typical

the first

what

peculiarity as

and so

is,

In the next place, he

being, as opposed to

person^.'

by any such
slavery,

thus assumed as a factor,

of the

possible to

is

analyse every right, needs any investigation.

person,

expressed

a deviation from that type

that the character of the persons

factors

is

Supra, pp. 138, 167; infra,

Supra, p. 93; infra, p. 337.

p. 343-

rights,

ARTIFICIAL PERSONS.

we have hitherto treated

now about to treat of the

them

of

337

We

as normal.

are chap.

produced upon them

effect

xiv.

by-

abnormity of personality.

was usual in old grammars to explain the cases Abnormal

of nouns by a diagram, in which the nominative case^^^^^'
was represented by an upright line, from the base of which
It

lines,

representing the genitive, dative, accusative, vocative,

and

ablative,

sloped off at gradually increasing

The accompanying
similar

manner the

figure

may

angles.

serve to illustrate

in a

variations of juristic personahty.

Normal person,
infimt,

/feme

is

coveart,

convict,

The most marked distinction between abnormal persons Natural

that some are natural, i.e. are individual human beings, ^"^1^

while others are

beings, or

of

artificial,

human

of

by law,

treated

they were individual

human

at the discretion of

as to

human
for

beings ^

any aggregate

sustain a single

Artificial persons are created in

England, for

by a charter granted by the executive authority,

by the legislature, but of

special statute passed

by a

or

are aggregates of

beings so to coalesce

personality.

instance,

if

by no means

It is

e.

property, which are

certain purposes, as

I.

i.

Supra, pp.

96, 142.

Order

of 1883, provides that the

these rules, unless there

is

Ixxi. i, of

the Rules of the Supreme Court

shall, in the construction of

word 'person'

anything in the subject or context repugnant

body corporate or politic. By the Interpretation Act,

In this act, and in every act passed after the commencement

thereto, include a

1889,

s. 19,

'

of this act, the expression

appears, include any

the

more

body

"person"

shall, unless

the contrary intention

of persons, corporate or unincorporate.'

theoretical aspects of the topic, see supra, p. 97.

On

Artificial

PRIVATE LAW: ABNORMAL.

338

CHAP. XIV. late years also

by virtue of general

scribe the conditions

may

statutes,'

acquire a corporate character \

They may be formed

wholly of natural persons, or wholly of

or of a mixture of

which pre-

under which voluntary associations

artificial

persons,

artificial

They
number

and natural persons.

cease to exist by no longer comprising the requisite

by the revocation or surrender

of subordinate persons, or
of their privileges.
Character-

The

an

characteristics of

artificial

person

from

differ

istics of.

those of a group of natural persons no less than from

those

of

single

it is

not merely the

but

something

natural person.

sum

superadded

although they one and

vel

all

universitatibus

aliis

maneant,

an

total of its

pars

On

them^

to

the

one hand,

component members,

may

It

remain,

are changed, 'in decurionibus

niliil

refert

maneat, vel

utrum omnes idem

oimies

immutati

sint*.'

The property which it may hold does not belong to the

members either individually or collectively
quibus permissum est corpus habere collegii, societatis, sive cuiusque
alterius eorum nomine, proprium est, ad exemplum rei
publicae, habere res communes
Its claims and liabilities
'

*.'

are

own,

its

debetur

'si

quid universitati debetur, singulis non

nee quod debet universitas singuli debent ^.'

agent, though appointed

does not

represent

by a majority

them,

universitate intervenit,

'hie

non pro

of the

Its

members,

enim pro republica vel

singuMs*.'

In

all

these

^ Such as those now consolidated in

The Companies (Consohdation)
Act, 1908.' The Crown may delegate its power of creating corporations.
'

says Blackstone, 'the Chancellor of the University of Oxford has

to erect corporations; and has actually often exerted it,
in the erection of several matriculated companies of tradesmen subservient to the students.' Comm. i. p. 474.
* So, says Paulus, the members of an illicit 'collegium' can take
a legacy only if it is left to them individually: 'hi enim non quasi
collegium, sed quasi certi homines, admittentur ad legatum.' Dig.
xxxiv. 5. 20. A 'municipium,' according to Ulpian, xxii. 5, cannot be
instituted heir, 'quoniam incertum corpus est.'
' Dig. iii. 4. 7. 2.
* lb. 4. i. i.
* Dig. 4. 2.
5 lb.
4, 7. I.
'So,'

power by charter

CORPORATIONS.

339

respects true artificial persons are distinguishable from clubs

and unincorporated trading partnerships, however

chap. xiv.

large.

On the other hand, an artificial necessarily differs

'A corporation
in many respects from a natural person.
aggregate of many is invisible, immortal, and rests only
intendment and consideration of law.

in

is it

will

that of the majority of

is

It

has no soul,

subject to the imbecilities of the body

neither

its

\'

expressed only by means of an agent; there are

wrongful acts of which

obviously incapable

it is

capacity for being the subject of rights,

and

for

performing legal

'

acts,

strictly limited by the purposes

is

'

many

and

its

Rechtsfahigkeit,*

Handlungsfahigkeit,'

by which

its

is

existence

recognised ^

The invention

of corporations has been justly described Utility

by a high authority upon the

'perhaps more than

of its

states.'

'By

subject

to the objects

of

one which,

as

Europe and the freedom

of

means,'

this

same

the

says

municipalities were furnished with a

which never wore

of.

any other human device, has con-

tributed to the civilisation

'

Its

members, and can be

form

of

writer,

government

Charitable trusts were secured

out.

them

so long as

such objects should

continue to be found, the protection, improvement and

encouragement
provided

for,

cherished

in

of

trades

and

and learning and

times

through

arts

were

religion

permanently

kept alive and

which probably no other

means can be mentioned that would appear equally well

qualified to preserve them*.'

The purposes which

artificial

persons are intended

promote are very various, and such persons

^

The

Dig.

may

perhaps

case of Sutton's Hospital, lo Rep. 32 b.

iv. 2. 9, 3. 15.

Cf. Metropolitan Saloon

Company

v.

Hawkins,

4 H. & N. 87.
* Cf. The Amalg. Socy.
of Ry. Servants v. Osborne, [1910] A. C. 87.
*

toClassifica-

Grant, on Corporations, p.

4,

CHAP. XIV.

340

PRIVATE LAW: ABNORMAL.

be

according as they subserve one or other of

classified,

them, under the following heads

(i)

Subordinately

such as municipal corpora-

political,

tions, generally.
(2)

Administrative, such as the Trinity House or the

College of Heralds.
(3) Professional,

the Incorporated

such as the College of Physicians or

Law

Society.

(4) Religious, such as the Chapter of

Church Missionary

Paul's or the

Society.

and

(5) Scientific

St.

such as the Royal Society,

Artistic,

the Royal Academy, or the British Academy.

(6)

For

Promotion

the

University of Oxford

or

Education,

of

the

such

Public

Girls'

as

Day

the

School

Trust Limited ^
(7)

Eleemosynary, such as

St.

Thomas's Hospital, or the

Corporation of the Sons of the Clergy.

(8)

Trading, such as the Great Western Railway, the

Lambeth Water- works Company, the

Association Limited, or

Civil Service

Law Guarantee and

the

Supply
Trust

Society ^

The holders

'Quasitions/^^'

tions,

for the time being of certain official posi-

though not incorporated, are recognised

law as

'

a parish and their successors

as

if

they were an

in English

So the Churchwardens of

Quasi-Corporations.'

may

artificial

hold goods but not land,

person;

and larger rights

have been conferred by statute upon Guardians

Poor, and Boards of

Management

of district

of the

Schools or

from the point of view of

Pandekten, p. 54. Cf German Civil Code, 2 1-89.
* Legal personality was granted, by way of exception, in 191 1, to the
Universities of Louvain and Brussels.
' Such a society may now be appointed as trustee, but not as executor,
jointly with a natural person. See 55 & 56 Vict. c. 39; 62 & 63 Vict. c. 20;
Re Martin, [1903] 20 T. L. Rep. 229; Thompson v, Alexander, [1905]
I Ch. 229.
1

For a

classification of juristic persons

Roman Law, see Baron,

QUASI-CORPORATIONS.
Asylums.

The term

34I

also applied to the position occu-

is

chap. xrv.

pied under certain statutes by Banking partnersliips and

Commissioners

Sewers.^

of

under the Acts of

187

and

though not a corporation, in

a

in

'

trade

registered

may now

1876,

be sued,

registered name, as also

its

representative action,' and

liable for the acts of its officers,

union,

its

general

funds are

done in the course of their

employment ^.

The

legal position of a corporation of the older type is Older cor^^^ ^^'

It exists generally for some purpose

comparatively simple.

pubhc

of

utility,

and

its

interest in the property

members have no
which belongs

The most complicated,

branch of the law

of

which are formed

for

as

to

defined personal

it.

well as the most modern,

persons relates to those

artificial

purposes

of

They

trade.

are a

natural accompaniment of the extension of commerce.

ordinary partnership lacks the coherence which

for great undertakings.

Its partners

is

An

required

may withdraw from

taking their capital with them, and the 'firm' having

it,

such no legal

as

recognition,

could be sued upon, according

made with

it

common law

of

contract
to

the

England, only in an action in which the whole

partners were

made

list

of

plaintiffs or defendants.^

In order to remedy the

first

of these inconveniences, Trading

partnerships were formed upon the principle

of a joint-

There are symptoms of a tendency in England to break down the

between corporations and societies of other kinds. Cf. the
permission given, by the Rules of the Supreme Court, Order xlviii a,
for bringing actions in the name of and against an unincorporated firm
the definition of a 'Body unincorporated' in the Customs and Inland
Revenue Act, 1885; and the attempt made in the same year to restrain
the powers of 'quasi-corporations' in dealing with their property. On
'Halbcorporationen,' see Dernburg, Pand. i. p. 147.
2 See The
Taff Vale Ry. Co. v. Amal. Socy. of Ry. Servants, [1901] A. C.
426; but the decision in this case was overruled by the Trade Disputes
Act, 1906, so far as it made the Union, or its members, liable for the
acts charged against the Union.
But see now Order Iviii a, above mentioned.
1

distinction

tions.

PRIVATE LAW: ABNORMAL.

342

which must remain at a fixed

CHAP. XIV. stock, the capital invested in

amount, although the shares into which

obviate the

difficulty

suing,

in

nor did

and present, from

partners, past

divided

it is

may

This device did not" however

pass from hand to hand.

relieve

it

debts in

for

liability

the

excess of their, past or present, shares in the concern.

In the interest not only of the share- partners, but also of

the public with which they had dealings,

it

was

to discourage the formation of such associations

desirable
;

and the

formation of joint-stock partnerships, except such as were

incorporated by royal chaiter, was accordingly, for a time,
prohibited in England by the 'Bubble Act,' 6 Geo.

An

I. c. i8.

incorporated trading company, in accordance with the

ordinary principles regulating

artificial

persons, consists of

a definite amount of capital to which alone creditors of

company can look

the

for the satisfaction of their

number

divided into shares held by a

though they participate

in the

number

proportion to the

son of this sort

law.

It

now

is

compagnie

stock

its losses.

by each, incur no

An

artificial per-

recognised under most systems of

can be formed, as a rule, only with the consent of

the sovereign power \ and

'

who,

of individuals

profits of the concern,, in

of shares held

personal liability in respect of

demands,

'

'

societe

'

or

anonyme,' an Actiengesellschaft,' or 'joint'

'

company

corporation

described as a

is

is

limited

I'

less

company the

incur an unlimited

personal

form resembling a partnership

pure form of such a

shareholders

liability.
'

There

in
is

which
also

en commandite,' in which

1 This requirement has been much discussed in Germany, and has

been modified in the later issues of the Handelsgesetzbuch; see arts.

215, 249*

The

first

Act for limiting the

&

liability of

members

of Joint- stock

Speaking of the
disappearance of the old Trade-guilds, M. de Laveleye says: 'Plusde
corporations industrielles: les societ^s anonymes qui en tiennent lieu ne
sont qu'un moyen d'associer les capitaux et non des hommes.' Formes
primitives de la propri6t(5, p. 269.

Companies was i8

19 Vict.

c.

133, passed in 1855.

LIABILITIES OF CORPORATIONS.
the liability of some of

the shareholders

their shares, while that of others

Subject

may^ and

concern

trading

is

limited by

is

partners

in

partners whose

number

Enghsh

become

exceeds twenty must, according to

chap. xiv.

unlimited \

some exceptions, any seven

to

343

laAv,

incorporated by registration under the Companies Acts,

with

either limited or unlimited

may

they

liabihty as

determine at the time of incorporation.

The debts

of

an incorporated company of any kind are Bank-

payable in the

instance only out of the corporate colorations,

insuflficient, the company

first

Should those funds prove

funds.

becomes

wound

bankrupt,

or, as

or 'goes

up,'

Court investigates

into

its

is

it

variously

and

affairs,

expressed,

'is

The appropriate

liquidation.'

upon the share-

calls

holders, in the case of a limited company, for

any balance

which may be unpaid upon their shares, and,

in the case

may

an unlimited company, for any further sum which

of

be required from their private fortunes. Out of the fund

thus available, the claims of creditors which have been

satisfactorily established are paid either in full or rateably,

as the case

The

may

be,

and the company ceases

to exist

^.

existence of a foreign corporation will generally be Foreign

recognised,

if

was created

according to the law of the country where

it

assigned to corporations by the law of

whose court

it tions.

has attributes similar to those which are

it is plaintiff

Cf. supra, p. 302.

'One-man' companies,

in

or defendant

the country in

*.

which only one member

is

bona

fide

responsible, treated as fraudulent in Broderip v. Salomon, [1895] 2 Ch.

(C. A.) 323, were declared unobjectionable by the House of Lords, in the

same case on appeal under the name

A. C.

22.

On

'no-liability'

of

Salomon

v.

Salomon

&

Co., [1897]

companies, see Journal Comp. Legisl.

ii.

p. 160.
*

and

On

Shaym
*

the liability of

tort, see

Yale L.

members

J., p. 112,

v. Ev. Post Co., 61

of a dissolved corporation in contract

citing

N. E.

Curran

v.

Arkansas, 15

How.

304;

115.

See P. Arminjon on La nationality des personnes morales,' Revue de

'

PRIVATE LAW: ABNORMAL.

344

The question whether a company duly

CHAP. XIV.

registered

in

England retains

its

majority, of

shareholders and directors become alien

its

rights of action, although

enemies by the outbreak of war, has been

much

In a recent leading case, the Court of Appeals,

L.

J.,

now Lord Wrenbury,

of

discussed.

diss.

Buckley
first

were unaffected

Lords reversed this decision,

down

without, however, laying

or the

following the Court of

instance, held that the company's rights

by the war. The House

all,

that

its

ruUng would be

applicable under all circumstances ^

Proprietary peculiarities.

The

chief peculiarity of the proprietary rights of arti-

persons

ficial

to

relates

tenure

their

The

land^

of

accumulation of estates in the hands of religious houses

was

directly opposed to the interests of feudal lords,

accordingly

made every

effort

in

England

who

to get rid of

such tenure, which they described as being 'in mortua

manu,' by a long series of enactments. These

Mortmain' were

extended in

time

to

'

Statutes of

the

prohibition

of the alienation of land to lay as well as to spiritual

corporations

and

this continues to

be the rule of English

law to the present day, when no licence in mortmain

is

granted by the CrowTi, subject to a number of statutory

exceptions in the interests of rehgion, charity, or other
definite

now

pubUc object

The Wills Act

repealed, in giving a general

power

an exception against devises to

porate.'

corporation

parting with

its

is

also

'

of

Henry VIII,

of devise, contained

bodies politic and cor-

usually restrained from

landed property, and even from leasing

Droit International, 2* serie, t. iv. p. 381. A foreign corporation has been

admitted in England to be a plaintiff since 1734, to be a defendant since
1858.
^

Daimler Co.

On

v. Continental

Tyre and Rubber Co., [1916]

I and 10.
corporations as joint-tenants, see

Cf. 5 & 6 G. V.

A. C. 307.

c. s-

The Bodies Corporate

Tenancy) Act of 1899.

' The enactments on this subject have been consolidated
main and Charitable Uses Act, 1888, 51 & 52 Vict. c. 42.

in the

(Joint

Mort-

POWERS OF CORPORATIONS
for

it

more than

number

a certain

of years,

345
without the

chap. xrv.

sanction of a public authority.

The form

which, as

in

rule \ an

person Contrac-

artificial

enters into a contract or otherwise performs a juristic aMi^i^'

act is, according to English law, by the imposition of
its seal,

which has been described as

^

a corporation

of

'

poration, the act

for

which

it

is

the

hand and mouth

unless, in the case of

is

'

a trading cor-

incidental to carrying on the business

incorporated, and, in the case of a non-

trading corporation,

when

the act

is

of trivial importance,

or of urgent necessity I

There are some acts of which an

artificial

person

is

obviously incapable, and there are others which the law

will not recognise its capacity to

perform

*.

It has long

been settled in England that an assumption on the part of

a corporation to do what

may be ground

is

wholly beyond

its

for a forfeiture of the charter

competence

on which

its

much

existence depends ^ and there has been of late years

discussion as to the classes of corporate acts which the law

will

support as valid with reference to mdividual

porators and to third parties respectively.

companies were

first

When

to determine whether,

into existence, they

railway

created, with Parliamentary powers

of a kind never before entrusted to similar bodies,

became necessary

cor-

it

when once

soon

called

were to be held capable of exercising,

as nearly as possible, all the powers of a natural person,

unless expressly prohibited from doing

so,

or whether their

I. e. apart from statutory provisions, such as 1 1 & 1 2 Vict. c. 63. s. 85.

Gibson v. E. I. Co., 5 Bing. N. C. 269.
' But by 38 & 39 Vict. c. 55. s. 174, a contract the value of which
exceeds 50 made by an urban authority must be under seal.
* 'Municipes per se nihil possidere possunt, quia universi consentire
non possunt.' Dig. xli. 2. i. 22; cf. xxxviii. 3. i. On the Hability of a
corporation for wrongs, e. g. f or trespass, libel, or fraud, see Pollock, Torts,
ed. xiii. pp. 62, 320. It is liable to an action for malicious prosecution.
Cornford v. Carlton Bank, [1899] i Q B. 392.
* R. v. Mayor of London, 1 Shower
274; cf. R. v. Eastern Archipelago
Co., 2 E. & B. 856.
1

PRIVATE LAW: ABNORMAL.

346
CHAP. XIV. acts

must be

strictly limited

to

the furtherance of the

purpose for which they had been incorporated.

The question was

first

raised in 1846, with reference to

the right of a railway company to subsidise a harbour

company, and Lord

a right, laid
'

down

Companies

Langdale, in deciding against such

the law in the following terms

kind,

this

of

most extensive

possessing

powers, have so recently been introduced into this country

that neither the legislature nor the courts of law have yet

been able to understand

their

all

the different lights in which

transactions ought properly to be viewed. ...

look upon a railway

company

in the light of

To

common

partnership, and as subject to no greater vigilance than

common

partnerships

are,

would,

think, be

greatly to

mistake the functions which they perform and the powers

which they exercise

of

interference

not only with the

public but with the private rights of

this

am

realm. ... I

the Act, or

is

individuals in

clearly of opinion that the

which are given by an Act

of Parliament, like

no further than

in question, extend

all

is

powers

that

now

expressly stated in

necessarily and properly required for carry-

ing into effect the undertaking and works which the Act

has expressly sanctioned

This view, though

now

it

\'

has sometimes been criticised, seems

to be settled law.

In a later case,

the

House

of

Lords, the permission which the Legislature gives to the

promoters of a company was paraphrased as follows:

'

You may meet

company, but

in

together

and form yourselves

doing that you must

tell

all

into a

who may

be disposed to deal with you the objects for which you

have been associated.

will trust to that

will see that

Those who are dealing with you

memorandum

you have the power

of association,

and they

of carrying on business

Colman v. Eastern Counties Railway Co., 10 Beav. 13. On the

between the powers of chartered and statutory companies
respectively, see Ashbury Carnage Co. v. Riche, L. R. 7 H. L. 673.
^

difference

CORPORATIONS SOLE.
such a manner as

in

objects for which

persons

the

state

know

that they are dealing with

can only devote their means to a given class

act of a corporation in excess of its powers, with Ultra nres.

reference to third persons,

and

vires^,

is

void even

technically said to be tdtra

is

unanimously agreed to by

if

The same term

the corporators.

is also,

a corporation which

not bind a

corporation will

members
Such
result

beyond

being

the

members

artificial

performance of a

'

of

of

the

dissentient minority of its

persons as have hitherto been described Corpora-

ingly described as
law, as

powers

'.

from the combination of a number

for the

all

but less properly,

applied to a resolution of a majority of the

'

common

of natural persons

function,

and are accord-

universitates personarum,' or, in English

corporations aggregate.'

An

person may,

artificial

however, also exist without being supported by any natural

person.
rights

It

and

fictitious

The most

may

consist merely of a

of duties, to

mass

of property, of

which the law chooses to give a

unity by treating

it

familiar example

is

as a 'universitas bonorum.'

a 'hereditas' before

which in Roman law

been accepted by the

heir,

as capable of increase

and diminution, and even

ing by means of a slave comprised in

it,

as

is

it

has

treated

of contract-

if

it

were a

person *.
It

would have been quite

same way the devolution

possible to

explain in

of the lands of the

the

Crown, or

of

a bishopric, or of a rectory, from the sovereign, bishop,

*

E.
*

Per Lord Hatherley, in Riche v. The Ashbury Carriage Co., L. R.

& I., App. 684.
Perhaps first in South Yorkshire Rail. Co. v. Gt. N. Rail. Co., 9 Ex. 84

(1853).

chap. xiv.

\'

of objects

An

You must

you are associated, so that the persons

dealing with you will

who

specifies.

it

347

The Earl of Shrewsbury v. N.

Supra, p. 97.

Staff. Rail. Co., L.

R.

Eq. 593.

PRIVATE LAW: ABNORMAL.

348

HAP. XIV. or rector, to his successor

but English law has preferred

to introduce for this purpose the

'

of a
is

and the Provost

made
Natural

may

3-

caste,

and

6.

position;

12. civil

9.

were respectively

16.

the facts included in this

'

7.

13.

manus

sex;

i.

'

4-

2.

minor-

coverture

bodily defect;
10.

8.

rank,

slavery;

illegitimacy; 14- heresy;

hostile

list,

Anne ^.

among natural persons

race and colour;

death;

nationality;

foreign

and

'

mental defect;

official

profession;

15.

of Oriel College, Oxford,

potestas

patria

celibacy;

II.

origin of such a corporation

chief varieties of status

'

itself,

but the Master of Pembroke College

be referred to the following causes:

ity;
5.

corporations sole by letters patent of Queen

The

II.

The

corporation sole ^'

rarely traceable

pecuhar to

fiction,

All

nationality.

of

which might be extended,

have been held, at one time or another, to differentiate

the legal position of persons affected by them from that
of persons of the

to give a

few

normal type^

illustrations

It

of each

may
of

be worth while

the special types

of status thus arising.

Sx.

The disabilities or privileges of women, as such,

must be looked for in modern times rather in the department of public than in that of private law. It must
however be remembered that even in the time of Gains
the life-long tutelage of women, propter animi levitatem,'
I-

'

had not wholly become

1

A corporation sole,

obsolete*,

though

it

and

that,

may hold lands,

chattels; because, says Blackstone, 'such

by a senatus-

cannot hold goods and

moveable property

is

liable to

embezzled, and would raise a multitude of disputes between

the successor and the executor, which the law is careful to avoid.'
Comm. i. p. 478. On the limited attributes of a corporafon sole, see
Power i V. Banks, [1901] 2 Ch. 487. Prof. Maitland, in the L. Q. R. xvi.
p. 331, attributes the term to Lord Coke (Co. Litt. 250 a), perhaps

be

lost or

suggested to him by Broke's Grand Abridgment.

2 See 12 Anne, St. 2. c. 6.
In the Tagore Lectures, 1883, Lect. xii. Dr. Jolly gives a curious
account of the classes of persons incapable of inheriting, according to
Hindoo law, and according to the Sachsenspiegel.
*

Inst.

i.

144.

NATURAL PERSONS.
consultum

passed in the reign

allowed to repudiate any

undertaken as

sureties,

'

2.

Minors

are, as a rule, capable of

and

making a

of

liable for their

will,

non

fungi

officiis

sit

aequum \'

holding and receiving Minority,

wrongful

acts,

but incapable

or of entering into a valid contract

without the approval of a guardian or of some public

The exception

authority I

to this rule, in favour of up-

holding an infant's contracts for necessaries,

is

obviously

made in the interest of the mfant himself; 'ne magno

incommodo afficiantur, nemme cum his contrahente, et
quodammodo commercio eis interdicatur ^' Infants are,
however, unless under the age of consent, which

differs

under different systems, not incapacitated from entering

into the contract of marriage
differently fixed

is

*.

for

most

of

the

The age

purposes

of

in

age

twenty-one,

of

dividing

private

periods only, that which precedes

lows the

of full majority

under different systems, and

be remarked that English law,

has

and

it

human

may
life

law into

two

that which

fol-

from

the

departed

Dig. xvi. 1.2.

Cf. the Infant Settlements Act, 1855, and the Infants Rehef
Act, 1874. The disabihty of an infant, said Lord Mansfield, is to be
used 'as a shield and not as a sword,' Zouch v. Parsons, 3 Burr. 1802.
He is not Uable in tort for inducing a contract by falsely representing
1

Johnson v. Pie, i Sid. 258; nor does he lose the

sued for a return of property thus fraudulently
obtained. Leslie v. Shiell, [19 14] 3 K. B. 607. The cause of action was
held to be in substance ex contractu.
Dig. iv. 4. 24. I.
Cf. Barnes v. Toye, 13 Q. B. D. 410; Johnstone v.
Marks, 19 Q. B. D. 509. In America this liability is treated as 'quasicontractual.' Also in England, at any rate under the Sale of Goods Act,
1893, s. 2, per Fletcher Moulton, L. J., in Nash v. Inman, [1908] 2 K. B.
(C. A.) I. It is held that things with which an infant is already sufEciently supplied, although purchased from a tradesman ignorant of the
fact, are not necessaries.
* Subject to certain safeguards: see e. g. 4 Geo. IV. c. 76; Code Civil,
arts. 144-160; German Civil Code, 1303-1308. As to the nature of the
himself to be of

full age,

protection of the Act

if

contract, see supra, p. 246.

chap. xiv.

which they might have

eas virilibus

et eius generis obligationibus obstringi

property,

were

of Claudius, they

liability

quum

349

PRIVATE LAW: ABNORMAL.

350

Roman

CHAP. XIV. theory of the

lawyers and their followers.

theory, which postpones the date of full majority

This

till

the

completion of the twenty-fifth year, distinguishes in the

preceding

period, infancy,

qualified majority attained

and by boys
Patria
potestaa

3'

girls at the

familias' could hold

'filius

and a

age of twelve

no property, except,

what he acquired by way

could enter into most

disabled,

by

infancy,

to

at the age of fourteen years.

in later times,

He

proximity

contracts,

of 'peculium.'

but was

specially

by the senatus-consultum Macedonianum, from

borrowing money.
Coverture.

The effect of marriage, according to most systems

was to produce a unity between the husband and
wife, rendering each of them incapable of suing the other
4.

of law,

',

and constituting a sort

of partnership

between them,

in

which the husband has very extensive powers over the

partnership property, while the wife has not only no power
of alienating

it,

but

or of entering into

common law

of

is

also

incapable of

making a wUl,

any contract on her own account.

England exhibits these

disabilities of

The
the

^ Such is, for instance, the rule of the English Common Law, Co. Litt.
112a. But under 45 & 46 Vict. c. 75, a married woman, subject to certain
exceptions, has in her own name the same civil remedies, and also the
same remedies and redress by way of criminal proceedings, for the protection and security of her own separate property, as if such property
belonged to her as a feme sole,' and the husband may similarly take
proceedings, civil or criminal, against his wife. The older theory of
marriage seems still to predominate in the United States. It has indeed
been held in one of the appellate divisions of the Court of New York that
a husband may bring an action against his wife to recover property
belonging to him which has been forcibly seized and carried away by
Berdell v. Parkhurst, 19 Hun 358. In Schultz v. Schultz, menher.
tioned in a former edition of this work, from information kindly supplied
by Mr. Roger Foster, the Supreme Court of New York held in 1882 that,
in the absence of any exception as to the husband, an Act of i860, giving
to any married woman a right of action in her own name against any
person for injury to her person or character, included an action against
her husband, and had thus 'routed and dispelled' the rules of the
Common Law, which 'could not stand the scrutiny and analysis of
modern civilisation.' But this case has since been reversed by the Court
'

of Appeals.

27

Hun

26.

NATURAL PERSONS.
wife in

Of the several systems

form.

strongest

their

351
chap. xiv.

between which French law allows an option to persons

about to marry, the 'regime de

from the

'

giving, as

it

coutumiers,'

favourable

the wife,

to

husband the absolute control

does, to the

common

the

communaute,' derived

la

least

is

of

stock*; while the 'regime dotal,' an imitation

system of

of the dotal

Roman

modern

law, resembles that

creation of the English Courts of equity, a marriage settle-

ment, in which the wife's 'separate estate'

only from

not

against

manipulation by the

the possibly improvident

wife herself

has been

The

'^

much

legal

protected

is

husband, but also

disposal of

women

position of

by the

it

in

England

modified by recent legislation, especially

by the 'Married Women's Property

Acts,'

1882'

and

1893.

Unmarried and

5.

childless persons

were punished under Celibacy,

the lex lulia et Papia Poppaea by forfeiture, either total

or partial, of the

6.

lunatic,

Roman law

in

'

ius capiendi ex testamento.'

though capable of holding property, was Mental

incapable of

nullum negotium gerere

agit*.'

potest,

'Furiosus

quia non iutelligit quid

is it

even voidable by him,

by the other party Avithout notice

which was perhaps not possible

act.

In English law a contract made by him

ipso facto void, nor

into

any legal

somewhat

similar disability,

in

'

Code

lb., art. 1540.

if

not

entered

the lunacy*;

case of a 'furiosus.'

unknown

England, sometimes attaches to persons

of

is

to the

whom

law of

a compe-

Civil, art. 1399.

Repealing the Acts of 1870 and 1874 on the same subject.

Inst.

Moulton

iii.

19. 8.

V.

Cf. Dig. xliv.

Camroux, 4 Ex.

7. i.

12;

1.

17; Imperial

17. s, 40, 124.

Loan

Co. v. Stone, [1892!

Q. B. (C. A.) 599. By the Indian Contract Act of 1872, u, 12,

contracts entered into during lunacy or drunkenness are void. Cf supra,
p. 250; Code Civil, arts. 489-512; German Civil Code, 104, 114. On the
tort of a lunatic, see Dig. ix. 2. 5. 2. By the Sale of Goods Act, 1893, s. 2,
I

he must pay a reasonable price for necessaries supplied.

PRIVATE LAW: ABNORMAL.

352
CHAP. XIV. tent

Court has declared to be

cannot be said to create a status, and

may

ing contracts

best

prodigals

'

'.

Drunkenness
avoid-

its effects in

be compared with

the

similar

effects of duress.

Bodily

Deaf or dumb persons were unable to contract by

7.

defect.
'

Office.

stipulatio.'
8.

The

king,

according to the

can do no wrong.

No

maxim

of English law,

action can be brought against him,

nor indeed against a foreign sovereign, as such, or his

ambassador.

high

Certain

exempted from

are

ofiBcials

responsibility for the acts of their subordinates,

functionaries

public

Statutes

of

are

Limitation

from

relieved
at

an

by the

than

date

earlier

and various

liability

other

people.
Colour

and race

9.

Most

the disabilities

of

States of the American

formerly attaching in the

Union on account

of race or colour

have now been removed^; but no coloured men, except

negroes of African descent, can become naturalized in the

United States
Slavery.

10.

who

may

It
is

'.

well be questioned whether a

human

being

incapable of marriage, of holding property, and

of contracting, can be regarded as

a legal person at

This was the position of a slave in

declares that

'servile

Roman

all.

law, which

caput nullum ius habet,' and 'in

personam servilem nulla

cadit ohligatio

*.'

Nor was

his

private-law position affected, as Austin seems to think ^

by the constitutions which made

it

penal for his master

1 Paulus, Sent. Rec. iii. 4. A. 7; Dig. xxvii. 10. i pr.; Code Civil, art.
513; German Civil Code, 6. For a study in comparative law upon this
subject, see C. T. H. Wright in L. Q. R. xvi. p. 57.

See Stimson, American Statute-law, art. 605. Though in Oregon and

or Mongolian can be employed in public works, or
in city buildings or grounds.
' Cf. re Takuji Yamashita (1902), Wash., 70 Pac. Rep., and other cases
2

Nevada no Chinaman

cited in
*

Michigan L. R. i. 334.
1. 17. 22; although they were capable of incurring an 'obligatio

Dig.

naturalis,' Dig. xliv.

Vol.

ii.

p. 8.

7. 14.

Cf. Inst.

iii.

20. i.

NATURAL PERSONS.
him without

or grievously ill-treat

to kill

353

were in truth analogous to

These

cause.

the provisions

chap, xiv.

modern

in

systems of public law for the prevention of cruelty to

Since however

animals.

slave

is

necessary to point out that his status

abnormal to the extent

11.

soldier

systems, certain

on

of being all

even

has,

purposes, some of the characteristics of a

for

human

legal

being \

in private

is

under

enjoys,

mostProfes-

exceptional testamentary privileges.

is

law

but non-existent.

active service

English law a barrister

it

By

incapable of validly contracting

be paid for his professional assistance; and the same

to

disabiUty attaches also to a physician ^

12.

The

'entering into religion,' according to

effects of

English law, have been already noticed ^ Similar effects

follow according to the law of the Hindus.

similar loss of legal rights
for treason or felony
13.

An

intestato'

still

somewhat

from attainder

resulted also

*.

illegitimate child is incapable of inheriting 'ablllegiti-

from an ascendant or

law regards him as nullius

'

German Codes, such

succession

of

Civil

if

collateral,

a child

because the

Under the French ^ and

filius.'

may however

acquire rights

solemnly recognised by his parents, or

one of them, or on their subsequent marriage.

14.

Religious

cause of

civil

constitutions

Code

down

si

been an

in the first

to the laws

important Noncon-

of the

imperial

book

by which a

of

the

Roman

was disquahfied from owning a horse worth more

'Ipsi servo facta iniuria

maxime

has

from the date

which are collected

of Justinian,

Catholic

nonconformity
disability

inulta a praetore relinqui

verberibus vel quaestione

fieret,

palam

non

debuit,

banc enim et servum sentire

est.' Dig. xlvii. 10. 15. 35; cf. 1. 17. 32.

Supra, p. 301.
* Supra, p.
95 Jolly, Tagore Lectures, pp. 175, 278. On the incapacity to marry produced under some systems by holy orders or vows of
chastity, see E. Cimbali, II matrimonio dello straniero, i. pp. 174-191.
* See now
33 & 34 Vict. c. 23.
^ Arts. 1719-1740.
* Arts.
331-342, 756-766.
^

1950

Aa

PRIVATE LAW: ABNORMAL.

354
OHAP. XIV.

than

holding land
Alienage.

which rendered Jews incapable

;^5 in Ireland, or

of

Roumania,

in

The gradual extension of the rights of 'connubium'

and 'commercium with Roman citizens to the neighbouring
15.

'

Italian tribes

Roman

is

The Act

law.

own

allowed to

marks the

a well-known chapter of the history of

of

by which

1870,

freehold land in

aliens

were

Kingdom,

the United

latest step in the assimilation of their position,

as far as private

law

concerned, with that of British

is

subjects.
Hostility.

16.

The contracts

an alien enemy with

of

made during

subject

the

war are

sue upon other causes of action

war

He

plaintiff

has

is

and

British
right to

his

suspended during the

no persona

thus

any British

in

void,

standi

Court, but

has

in

iudicio

recently

as

been

admitted in certain cases to appear as a claimant in the

Prize Court

The

'\

incapacity by English law of the witness to a will

to take a legacy

marry the

under

sister of his

it,

and until recently

deceased wife

of a

so also of a

man

to

husband

or wife, as a rule, to take by donation one from the other

Roman

in

law, are instances of restrictions placed

persons occupying for

to other persons,

the time being certain

which from the limited extent

upon

relations
of their

operation can hardly be said to constitute a status.

1 On the notorious art.
23 Qi) of No. iv. of the Hague Convention of
1907, inadvertently accepted by the British Delegates and ratified by the
British Government, one interpretation of which would have abrogated

this rule, see the author's

Laws

of

War on

Land, 1908,

p. 44; his art. in

28 L. Q. R. 94; and his Letters to 'The Times' on War and Neutrality,

ed. 2, p. 41. The interpretation in question was definitely repudiated
by the Court of Appeal in Porter v. Freundenberg, [1915] i K. B. 857.

The Mowe, Treherne's Prize Cases, i. p. 60.

This incapacity was removed by the Deceased Wife's Sister's Marriage Act, 1907/ 7 Ed. Vn. c. 47.
2
*

'

CHAPTER XV.
PRIVATE LAW

REMEDIAL

deriving

all

right

its

is

value

ADJECTIVE.

in

itself

from

the

obtain from the power of the State.

that support
of a

may be

remedial right,

mere

The mode

as

'

adjective,'

'Procedure'.'

which an injured party

in

can

it

which

prescribed by that department of

because

only for the sake of 'substantive law\' but

known

in

secured, in order to the realisation

is

law which has been called

better

potentiality,

support which

is

is

it

exists

probably

In the exceptional cases

allowed to redress his

own

wrong. Adjective law points out the limits within which

such

self-help

is

permissible.

In

all

other

cases

it

Supra, pp. 89, 166. See Bentham, Worfc^s, ii. p. 6.

The term 'Procedure' was, till the passing of the Common Law
Procedure Acts, unfamiliar in English law. It is said by Lush, L. J., to
denote, like 'Practice,' in its larger sense, 'the mode of proceeding by
which a legal right is enforced, as distinguished from the law which gives
or defines the right, and which by means of the proceeding the Court is
to administer; the machinery as distinguished from the product.' Poyser
*

'

Minors, L. R. 7 Q. B. D. 329, at p. 333. Procedure

writers very inappropriately called 'formal law.'
V.

A a2

is

by many German

PRIVATE LAW: ADJECTIVE.

356
CHAP. XV.

announces what steps must be taken in order duly to

set in

motion the machinery of the law-courts for the

benefit either of a plaintiff or of a defendant.

Rules of procedure occupy so prominent a place in early

society,

and furnish so much curious

illustration of the

history of civiUsation, that they have attracted a share

of attention perhaps in

excess of their real importance.

One might almost suppose from the language

writers

an

that

elaborately

precede a clear recognition of the rights which

tended to protect.

has been said that law

It

more with remedies than with

rights.

some

of

Procedure

organised

It

reasonable to say that a field consists in

may
in-

is

it

concerned

is

would be

as

hedge and

its

ditch rather than in the space of land which these enclose.

In point of

fact, a

soon

not

as,

if

derived,

is

which may be

the

The

round by remedies.
Procedure

must be recognised

right

before,

true

first,

traced

moment when
interest

from the

between

its

at least as

of

fenced

the topic of

connection

close

earliest

is

it

forms

and

the anarchy which preceded them \ and secondly, from the

manner

in

which the tribunals have contrived, from time

law

to time, to effect changes in the substance of the

under cover
it is

Contents.

of

enforced.

Adjective law, though

and

judges and

it

concerns primarily the rights

private litigants, touches closely on topics,

acts of

such as the

organisation

of

Courts and the

duties of

sheriffs, which belong to public law.

prises the rules for

'

itself,

merely modifying the methods by which

(i)

selecting the jurisdiction

It

com-

which has

See, for instance, Sir H. Maine's Early History of Institutions, lect.

ix.

and X., and his interesting remarks, in Early Law and Custom, p. 364,
on the prominent position occupied by Procedure in the XII Tables, as
contrasted with
of the

lated self-help.

Thornton,

its

relegation to the last place in the Institutional writers

by battle was a late survival in England of reguAfter the last reported case of the kind, Ashford v.
B. & Aid. 405, it was abolished by 59 Geo. III. c. 46.

Empire.

'

Trial

'

CLASSIFICATION OF TOPICS.
cognisance of the matter in
the Court which

matter

(iii)

is

in the

chap. xv.

setting in motion the machinery of the Court

last

and

setting in motion

(iv)

by which the judgment

the physical force

Court

of the

These

be rendered effectual \

resort, to

those of substantive law, are primarily appli-

like

rules,

ascertaining

(ii)

appropriate for the decision of the

so as to procure the decision

is,

question;

357

cable to persons of the

normal type, and only with certain

modifications to abnormal persons.

i.

It

by no means the case that a remedial

is

capable of

is

Court

for

will

bemg

An

enforced everywhere.

instance

entertain

an action for breach

of contract quite irrespectively of the place

made, or broken, or
will hardly hear

parties

are

in

right Jurisdic-

English

which the

where

parties

it

reside,

was
but

an application for a divorce unless the

domiciled

nor will

country,

the

in

an action for trespass to land unless the land

it

is

try

within

the realm.

It

ii.

also

is

necessary that

the appropriate Court.

changes introduced

Thus

by the

proceedings be taken in Court,

in England,

Judicature

even after the

Acts,

is

it

still

necessary that an administration action should be com-

menced
in the

in

the Chancery division, and

Admiralty division,

of the

salvage

High Court

action

of Justice.

There are also matters which can only be tried

in

one

and not

any

or other of the divisions of that Court,

inferior tribunal.

iii.

The

choice of

the

appropriate

matter compared with rightly setting

motion.

its

is

simple The

machinery in

In this operation, which has been described by

such phrases as

'

Court

'legis

actio,'

'I'instance,'

'Quia iurisdictio sine modica coercitione nulla

est.'

'la

Dig.

demande

i.

21. 5.

action,

PRIVATE LAW: ADJECTIVE.

358
CHAP. XV.

'

judiciaire,'

'

action,'

suit,'

'

Verfahren,' the following stages

are usually distinguishable.

Citation.

i.

The summons,

or

by which the

citation,

plaintiff

brings the defendant into Court.

Pleadings.

2.

The

pleadings,

'

plaintiff informs the

of his claim,

and the defendant

grantmg the truth

defendant, or

it

ground

may

by the

alleged

states the nature of his

to the effect

of the plaintiff's

law no

they are in

facts

Court and the defendant of the nature

The defence may be

defence.

by which the

I'instruction de la cause,'

for his

even

that,

allegations

of fact,

claim against the

consist in denying altogether the

or in admitting them, but

plaintiff,

alleging other facts, such as a release, or the Statutes of

Limitation, which neutralise the effect

A defence of the

otherwise have had.

was

called in

Roman law an

The exchange

existent.

how much

clear

on either

side,

between the

is

of

pleadings

admitted and

The

in

England

plea

may be

of action

showing that

and therefore what

parties.

and

\'

showing that the right

yet available, or 'peremptory,'

is

last-mentioned kind

'exceptio,'

a plea in 'confession and avoidance

either 'dilatory,'

which they would

is

process

it

continues

how much

is

not

is
is

nontill

it

denied

precisely the dispute

may be

orally in the presence of the Court, as

carried

on

under the code of

Procedure for the German Empire \ or in writing

Civil

or print, as in England.

much

scope for

dexterous

AVlien well
intellectual

managed

it

gives

fencing, but its

Comparatae sunt autem exceptiones defendendorum eorum gratia

qui bus agitur: saepe enim accidit ut, licet ipsa actio qua actor
experitur iusta sit, tamen iniqua sit ad versus eum cum quo agitur.'
'

'

cum

Inst. iv. 13.

^

Civilprozessordnung

prozesse,'

i.

e.

when

fiir

das Deutsche Reich, 119. But in Anwaltsmust be employed, dis'

professional representatives

advantages as to costs, and otherwise, follow, unless 'die miindliche

Verhandlung' is 'durch Schriftsatze vorbereitet,' 120: and copies of
these writings are to be filed in Court, 124. Cf. the recommendations
of the Lord Chancellor's Committee on Procedure, 1881.

TRIAL.

359

fertile theme for legal chap.

from the time of Gains to that of Bentham \
3. The trial, hearing, or 'audience,' at which each of Trial,
the parties endeavours to establish to the satisfaction
of the Court the truth of the view mamtained by

tendency to over-subtlety has been a

xv.

critics

him

of the question

or one of fact

if

of law,

by adducing proofs.
oral,

whether

at issue,

by

and certain rules

citing authorities,

may

Proofs

be one of law

it

exist in

if

of fact,

be either documentary or

most systems with

refer-

ence to their admissibility, amounting in some systems to

a body of law of no

evidence'

little

complexity.

Such a 'law

more necessary when questions

is

are

of Evidence,

tried

by a jury than when they are decided by a professionally

trained judge ^.

on the one hand, to limit

Its objects are,

the field of enquiry, by the doctrine that certain classes of

facts are already within the

and by presumptions
'

to be

assumed

'

'

judicial notice

by which

to be sufiiciently

'

of the Courts,

certain propositions are

proved when certain other

propositions have been established';

and on the other

hand, to exclude certain kinds of evidence as having too

remote a bearing on the

satisfactorily

'

The

or

tested,

issue, or

as

as

coming

incapable

from

of

being

suspicious

'legisactiones,' says Gaius, gradually fell into disrepute,

'nam-

que ex nimia subtilitate veterum, qui tunc iura condidc runt, eo rea
perducta est, ut vel qui minimum errasset litem perderet,' iv. 30: and
he gives the following instance, cum qui de vitibus succisis ita egisset
ut in actione vites nominarot, responsum est eum rem perdidisse, quia
debuisset arbores nominare, eo quod lex xii tabularum, ex qua de vitibus
'

succisis actio competeret, generaliter de arboribus succisis loqueretur,'

ib. II.

Cf.

Cod.

ii.

58.

i.

constitution of Justin limits the duration of

an action to three years, 'ne lites fiant paene immortales, et vitae

hominum modum excedant.' Cod. iii. i. 13. See also Bentham, Works,
ii.

p. 14.

For an admirable sketch of the development of this branch of law,

A preliminary treatise on Evidence at the Common
Law, 1898.
' E.
g. the Presumption of life limitation (Scotland) Act,' 1891. When
the death of several persons is occasioned by the same cause, English
law admits no presumption as to survivorship grounded upon age or sex.
Wing V. Angrave, 8 H. L. Ca. 183; so also the German Civil Code, 20.
^

see Prof. Thayer,

'

Cf. 2 Phill. Eccl. Cases, at p. 273.

PRIVATE LAW: ADJECTIVE.

36o
CHAP. XV.

quarter \

For the last-mentioned reason certcdn

classes

of persons, or persons occupying certain relative positions,

are rendered incapable of being witnesses.

regulating the right

rules

person, or to be represented

There are also

the parties to appear in

of

by advocates, and the order

which the parties or their advocates may tender their

in

eridence and address the Court.

Judgment.

The judgment, by which

4.

question

in

litigation.

the

may

It

property, or an ascertainment

or an affirmation of the due

Court

relate

to

decides

or a dissolution

execution

the

right

to

of status,

of a legal act,

or an award of damages for a wrong, or an order for

the specific performance

or non-performance of a certain

act^
Costs.

The judgment usually charges upon

the losing side

the 'costs' to which the other party has

been put in

consequence of the suit^

Appeal.

5.

and

The procedure on Appeal, when an Appeal

resorted to by either party ^

is

possible

is

* The German Civilprozessordnung is opposed to Presumptions and

other so-called 'artificial' proofs, 259. The Einftihrungsgesetz, 14,
repeals laws restricting modes of proof. But see the new Civil Code, 14.
The theory of legal proof is no doubt largely due to the canonists, but it
can hardly be said to have been wholly unknown to Roman law. See
the opinion of Favorinus, apud Cell. Noctes A. xiv. 2.
^

E.

g.

Act, 21
*

On

As

who

on a declaration of nullity, or under the Legitimacy Declaration

&

22 Vict.

c.

93.

a decree of divorce.
to

'

tierce opposition'

when

Cf. supra, p. 324.

the judgment affects the rights of one

not a party to the action, see Code de Procedure Civile, art. 474.
Justinian's legislation upon the subject is contained in Cod. iii. i. 23. Costs were in England eo nomine unknown to the
common law, but were given to the plaintiff by 6 Ed. I. c. i, to the
defendant by 23 H. VIII. c. 15. At one tune also the judgment contained a direction that the plaintiff (or the defendant) be amerced, or in
mercy, "in misericordia domini regis," for his false claim (or, for his
wilful delay of justice).'
^ The Sachsenspiegel gave a right of appeal to a dissentient member
of the Court, as having an interest on public grounds that the law should
be correctly stated.
'

is

Cf. supra, p. 189.

'

EXECUTION.

Execution, whereby a successful party calls upon

iv.

the

361

of

officers

functionaries,

to

or property, as

judgment

into

the

Court,

such

use

may be

or

appropriate

other

either

force,

chap. xv.

State Execution,

person

against

necessary in order to carry the

It

effect.

may

remarked

be

that

successful defendant, except for the recovery of his costs,

has obviously no need of execution, and that execution

judgment

of

in

civil

cause

demand

does not take place except on the

party.

not ex

is

officio^

i.

e.

of a litigant

Certain articles, the property of the losing party,

are frequently protected

that the

privilege

of

The

execution \

against

stitutions of nineteen States of the

con-

United States provide

debtor to enjoy the necessary

comforts of hfe shall be recognised by wholesome laws

exempting a reasonable
execution.

Sixteen

States have

exempting a homestead
of the

amount
for

of

his

property from

now 'Homestead

the

shelter

laws,*

and protection

family from execution or judicial sale for debt,

unless both husband and wife have

mortgaging, or otherwise subjecting

expressly joined in
it

to the

claims of

creditors ^

Besides the original parties to an action, whose interests Extraare directly involved in
into

it

it,

by the authority

other persons

of the Court.

may

be brought

which involve wider interests than those of the

notice

must be given

to a

parties.

In some actions,

State functionary,

parties,

who may

then intervene in the proceedings on public grounds ^

^ So in certain actions a 'beneficium competentiae' was enjoyed by

defendants, so that 'non totum quod habent extorquendum est, sed et
ipsarum ratio habenda est, ne egeant.' Dig. 1. 17. 173. So English law
exempts from seizure wearing apparel, bedding, and implements of
a man's trade to the value of 5. See e. g. 8 & 9 Vict. c. 127.S. 8, and the
County Courts Act, 1888, s. 147.
' See Stimson, American Statute-law,
81, 83. The first Homestead
law' was passed in 1836, by the Republic of Texas. On analogous recent
legislation in British Colonies, see E. Manson in the Journal of Comp.
'

Legislation, N. S., No.

'

iii.

p. 441.

See Code de Procedure Civile, P.

I. liv.

ii.

tit. 4,

De la Communication

PRIVATE LAW: ADJECTIVE.

362

A maximum

CHAP. XV.
Default.

interval

may

be fixed between each step

an action, on pain of a decision being given

in

default' against the

who

party

'in

neglects to proceed in

due course.

Adjective

Law.

may

be normal

to say, artificial persons,

and such

Adjective, no less than Substantive, law

Abnormal

or abnormal: that

is

varieties of natural persons as those considered

m the

pre-

ceding chapter, are in a different position with reference

and being sued from that occupied by ordinary

to suing

The

individuals.

modifications of the rules of procedure

which take place with a view to abnormal personality

are

of

somewhat

be sufficient here to
rules

of

'persona

from
the

arrest, as

law,
in

is

an

proceed

character

by way
an

that

iudicio,'

and

it

may

of illustration, to the

enemy has no

alien

that

peer

is

privileged

a clergyman on his way to or from

performance of divine

parties in

may

English
standi

technical
refer,

that

service,

if

one of the

action for a divorce be lunatic, the

notwithstanding

his,

or

her,

suit

inabiUty to

plead; and to the recently abrogated rule that a husband

must be joined
au

in

an action against his wife.

Ministfere Public; Gerichtsverfassungsgesetz

fiir

das Deutsche Reich,

142; Civilprozessordnung, 568. As to the intervention of the King's

Proctor, or of 'any person,' in Divorce proceedings, see 23 & 24 Vict.

c.

144. ss. 5,

7.

CHAPTER

XVI.

PUBLIC LAW.

Lord Bacon,

I coN^siDER,' says

'

that

it

is

received division of law into ius x>uhlicum

vation,

tlie

one being

other of government

tlie

\'

been already explained^.

indeed present, but
rights

and duties which

and another.
but

is

its

In

tlie^^^'-

law the State

private

is

present only as arbiter of the

exist

between one

also one of the parties

it

ius P'*t- of public

of the distinction has

In public law the State

duties with which

and

it is

and

property, and

sinews of

The nature

a true and The char-

is

of its subjects

not only arbiter,

interested.

The

rights

and

deals concern itself of the one part

subjects of the other part,

and

this

union in one

personality of the attributes of judge and party has given

rise

to the view,

from which we have already expressed

our dissent, that the State,

or,

as

it

is

expressed, the

Sovereign, not only has no duties, but also has no rights

properly so called I

The conception

of public, as

opposed to private, law

Preparation towards the Union of Laws, Works, vii. 731.

2 Supra,
Supra, p. 125.
p. 131.

is

PUBLIC LAW.

364
CHAP. XVI.

due to the Romans, who say

of

it

'

ad statum

Romanae

rei

spectat,' 'in sacris, in sacerdotibus, in magistratibus

sistit \'

and, as a matter of fact, mclude in

With

of crime.

and

in daily use, in the legal speculation

practice of the continent of Europe, but unfortunately

no

finds

An

is

law

extended meaning the phrase has

this

been accepted, and

con-

also the

it

equivalent

in

our insular legal terminology".

when he had been made

English lawyer,

under-

to

stand the idea, wliich to his foreign colleagues

at once

is

rudimentary and indispensable, would probably come to

the conclusion that

it

nised in this country as

law,'

'Revenue

law,'

covers the topics which are recog'

Constitutional law,'

and 'Pleas

of the

'

Ecclesiastical

Crown.'

It

is

somewhat remarkable that perhaps the most

therefore

summary

masterly

law

of the nature of public

is

to be

found in the writings of an English Lord Chancellor.

Privatum,' says Lord Bacon,

Lex enim cavet

'

sub tutela luris Publici

autem authoritas pendet ex maiestate imperii

Quare

lus

latet.

magistratuum

civibus, magistratus legibus,

politiae et legibus fundamentalibus.

'

si

et fabrica

ex

ilia

parte

sanitas fuerit et recta constitutio, leges erunt in bono usu,

sin

mmus, parum

in

lis

praesidii erit.

Neque tamen lus

Publicum ad hoc tantum spectat ut addatur tanquam

custos

luri Privato, ne

iniuriae, sed

illud violetur

atque ut cessent

extenditur etiam ad religionem et arm a, et

disciplinam et ornaraenta et opes, denique ad omnia circa

Bene Esse

Its parts.

The

civitatis^'

distinctions in accordance with

which the

field of

private

law has been divided and subdivided apply to

Dig.

I. I. 2.
'Publicum ius est quod ad statum rei Romanae
i.
privatum quod ad singulorum utilitatem. Sunt enim quaedam

'

spectat,

quaedam privatim.' Cf. supra, p. 129.

The two departments were similarly confused in Old German

publice utilia,
'

Deutsche Staatslehre, p. 7.
Exemplum tractatus de lustitia universali, Works,

law.

Cf. Bluntschli,
^

vii. p.

732.

i.

p. 804;

cf. ib.

'

DIVISIONS OF.

365

public law also.

In the latter as well as in the former chap, xvi

we may

'

detect a

substantive

body

'

general welfare, and

the

for

and reduced

those principles are safe-guarded

The

is

'

by which

to practice.

rem' and rights

'in

as clearly traceable in one department of

law

between rights

distinction

personam

of principles adopted

'adjective' rules

as in the other, as

is

'in

between rights

also that

antecedent

'

and 'remedial,' and that between rights 'normal' and

'

abnormal.'

The last-mentioned
marked

in public

distinction

law as

to

indeed

is

The reason

ception as to the nature of the whole subject.

is

not far to seek.

strongly

so

have led to a serious miscon-

Of the two persons who are constituent

elements of every right, one must always in public law

be the State, acting of course through
aries.

Now

State

an

is

its

artificial

various function-

person,

the

often

highly complex construction of which introduces numerous

complexities into the rights of which
factors.

of

it

is

one

of the

Mr. Austin was so struck with this characteristic

public law as to be led to identify the whole subject

with those

rules

political status,

to regard

law

it

which define the different kinds of

and so

to

persons, but Ave

of

abnormal

deny

its

separate existence, and

merely as one branch of what he

rights.

He

prefer to

calls

the

describe as the law of

thus a revolter, in the unwonted

is

company of Blackstone, against what, according to the

Roman and modern continental systems, is the primary
the field of

division

of

detailed

disproof of

refutes

itself,

he evidently

to be

sufficient to confront it

its

traceable

in

with what

among

we

it

may

perhaps be

conceive to be the

the distinctions which

public as well as in

between normal and abnormal rights

conspicuous.

apologist to conclusions which

inconvenient,

true doctrine, namely that

are

Instead of attempting

a heresy which perhaps sufficiently

by leading
feels

law.

private
is

among

law,

that

the most

PUBLIC LAW.

366

Classifica-

by no means follows from the same principles of

division being applicable both in public and in private

tion of its
topics.

law, that they are

CHAP. XVI.

It

most conveniently apphed

in the

same

order in the two departments, or that their application

produces in each case similar results.

The
is

correlation of the parts of public law one to another

indeed far from being settled.

attention

the

of

Roman

It

lawyers,

never attracted the

and has

very

been

and somewhat loosely, treated by the jurists

modern Europe. The subject is, indeed, one which lends

variously,
of

but reluctantly to systematic exposition, and

itself

with some hesitation that

the heads

law

I.

we

propose to consider

law;

Constitutional

Criminal law

III.

of

IV.

law of the State considered

II.

it

is

under

it

Administrative

Criminal procedure

V. the

in its quasi-private personality

VI. the procedure relating to the State as so considered \

The

Relations
to the
classifica-

tion of
[)rivate

aw.

first

four of these heads contain the topics which

are most properly comprised in Public law.

though not convenient,

possible,

would be

It

to arrange these topics in

accordance with the classification adopted in Private law.

the attempt were made, antecedent rights would have

If

to be sought for in Constitutional, in Administrative

also in Criminal law
in Administrative

procedure

is

and

remedial rights in Criminal and also

law; adjective law mainly in Criminal

and abnormal law mainly

and Criminal law.

topic

The

in

Constitutional

importance of the last-mentioned

due, as already stated, to the fact that, whereas in

Private law both of the persons concerned with any given

right are, as a rule, perfectly similar,

and

of that

normal

type which requires no special investigation, the persons

concerned in a PubUc-law right are necessarily dissimilar,

one of them being always that highly abnormal person

which
*

It

recht

'

is

called a

State.

It

may

also

be remarked that

may be worth while to remark that what the Germans call

deals with the topics into which

omitting Nos. Ill and IV.

'

Staats-

we have analysed Public

'

law,'

CONSTITUTIONAL LAW.

3^7

the majority of the rights dealt witli in Public law are chap.

permanently enjoyed by the State as the person of

in-

herence against

In

subjects as the persons of incidence.

its

Private law, on the contrary, he

who

is

to-day the person

of inherence with reference to a right of

any given descrip-

tion

may

xvi.

very probably become to-morrow the person of

incidence with reference to a precisely similar right, and

vice versa.

The

rules contained

under the

and sixth heads

fifth

of

our arrangement are rules of Public law, because they

the rights of the State; but they approximate

relate to

closely to rules of Private law, because they relate to the

State merely as the greatest of artificial persons,

and not

as governing, administering, or preserving order.

It is

beyond the scope

more than a very

attempt

of the present treatise to

brief indication of the topics included

under each of the six heads under which we have

dis-

tributed the matter of Public law.

I.

The primary function

ascertain the political centre of gravity of

any given

announces in what portion of the whole

It

law

Constitutional

of

is

to be

the 'internal sovereignty,' 'suprema potestas,'

Aristotle called

walt,' or, as

other words,

it

defines the

The sovereign
omnipotent.

never be

to

of

Kvpiov

t?}?

it

is

toConstitu-

State, l^w.

found

'Staatsge-

In

^roAew?^.

government.

part of the State, as thus ascertained,

Since

the source of

all

law,

its

is

The

acts can po^g^r/

As little can they be, strictly speaking,

The latter term is properly applied only

illegal.

unconstitutional.
to characterise

it,

form

is

an act of an inferior

excess of its delegated powers.

Thus

the Congress of the United States

political authority in

a statute passed

may be

by

unconstitutional,

because the sovereign people has empowered the President

'

Polit.

iii.

lo.

I.

HoKirda

rtva rp&Kov vevifirivTai,

Tijs

Koivuvlas icriv.

/cot

lb. iv.

/j-iv

yap

i<rTi rct^t?

rah Kb\t(nv

17

irepi

roj

iipx'^^t

ri to Ki'ipiov rijs TroXtreios Kal rl rb rfKos iKdffTi}i

i.

10.

Cf. supra, p. 49.

PUBLIC LAW.

368
CHAP. XVI.

and Congress to
tions,

legislate only subject to certain reserva-

and has entrusted

Supreme Court the duty

to a

deciding whether any given enactment

or

is

pursuance of the restricted powers thus delegated

in

the

authority of

England

illegal,

sovereign power.

An

limitation.

never unconstitutional unless

and can never be

Only

either

unconstitutional acts

as

is,

also

term

of the

a lax sense

in

permissible to describe

act
is

it

in

the act of the

it is

if

but

Commons

and

Lords,

by no such

fettered

is

strictly speaking,

King,

the

of

not made

is

is it

the

of

sovereign power which run counter to the expectations and

political

The

Its factors.

usages of the inhabitants of a country.

definition

the

of

necessarily leads to the

parts.

The

distinction

judicial functions

for

is

power

sovereign

consideration of

between

in

its

state

component

legislative, executive,

and

was

left

as old as Aristotle

but

it

Montesquieu to point out the importance of these

several functions being discharged

persons^.

With

reference

to

all

law enters into minute

stitutional

by

distinct groups

these

questions

of

con-

It prescribes

detail.

the order of succession to the throne; or, in a Republic,

the

mode

electmg a President.

of

continuity

of

provides

It

the executive power I

It

the

for

enumerates the

prerogatives ' of the king, or other chief magistrate*.

regulates

the

It

composition of the Council of State, and

Upper and Lower Houses of the Assembly, when

the mode in which a seat
the Assembly is thus divided
is acquired in the Upper House, whether by succession,
of the

tenure

nomination,

election,

or

electing the

members

of the

powers and

privileges

Polit. iv. II. I.

With the maxim

de

of

of

office;

mode

house of representatives

of

the

the assembly as a whole, and

*

'the

the

King never

dies,' cf.

Esprit,

xi. c. 6.

'Sedes Apostolica non

rescr. in Sext. i. 3.
Council, in The Zamora, [1916] 2 A. C. 77, has denied
the right of the Crown, by O. in C, to affect the law administered by a

moritur,'
*

c. 5.

The Privy

Prize Court.

CONSTITUTIONAL LAW.
who compose

of the individuals

law-making.
sponsibility

government

it

deals

also

and

their

respective

and

their

and State

the relation,

non-sovereign

bodies;

re-

armed
which
Church

their power,

the

acts of

self-government;

local

the relations between the mother-country and

and dependencies.

in

any, between

unconstitutional

as

legislative

the

and the mode

if

of chap. xri.

action; the

of

the judges and their immunities

^ ;

any, of disallowing

if

spheres

organisation;

forces of the State, their control

they are recruited

and the machinery

with the ministers, their

It

offices

369

its

colonies

It describes the portions of the earth's

surface over which the sovereignty of the State extends,

and

who

defines the persons

comprises therefore

It

nationality ^

nationality

are subject to its authority.

for

rules

the

ascertainment of

by

the State over

'naturalisation.'
its

It

declares the rights of

subjects in respect of their liability to

and otherwise.

military conscription, to service as jurymen,

It declares,

to be

new

and for regulating the acquisition of a

on the other hand, the rights of the subjects

assisted

and protected by the

narrower class of subjects which enjoys

to hold public offices

and

and

State,

may

that

to elect their representatives to

the Assembly, or Parliament, of the Nation.

circumstances which

of

full civic rights

Among

the

disqualify a subject for citizenship

are minority, infamy, heresy, colour, lack of settled abode,

insufficiency of income,

and

also sex, for in spite of the

tendency of modern thought upon this subject, there are

those

still

A
^
'

who

say,

'

die Politik ist Sache des

constitution has been well defined as

Ecclesiastical

is

'

Mannes ^'
I'ensemble des

sometimes co-ordinated with Public and Private law.

Nam et genera [legum] sunt tria, sacri, publici, privati iuris.'

quod

Quint,

ii.

4.

quatemae,
Sacrum, privatum, populi commune quod usquam est.'
Auson. Id. xi. 61.
^ M. Cogordan, La Nationality,
p. 2, points out the recent origin of this
term, and that it appears in the Dictionnaire de I'Acad^mie franeaise fof
the first time in the edition of 1835.
Bluntschli, Die Lehre vom modernen Staat, i. p. 246.
Cf

'

lus triplex tabulae

1950

ter sanxere

PUBLIC LAW.

370
CHAP. XVI.

a regler

et des lois fondamentales, destinees

institutions

Taction de radministration et de tons les citoyens'.'

body

as in England, an unwritten

often,

is

It

of custom,

man' which

though, since the assertion of the 'rights of

preceded the Independence of the United States and the

French Revolution, the written enactment of such fundamental principles has been not uncommon, as well on the

European continent as

A written constitution

in America.

make innovation

provisions which

usually contains

less

easy than in the case of customary constitutions, such as

may

that of England, any part of which

be modified by an

ordinary xVct of Parliament \

The contents

of the constitutional

by reference

illustrated

which enters

far

New York
'

The

and the

State,

its

of the State

into detail than

is

Code

draft Political

usual in such

of the

State of

what persons compose the people

political

rights

and duties

of all

of the

persons

jurisdiction: the second defines the territory

and

its

civil

divisions

the third relates to

the general government of the State, the fiuictions of

public officers,
policy

its

public ways,

the fourth relates

counties,

cities,

to

towns, and

with an announcement that

resides in
consist

not

'

The

of citizens

the

villages.'
'

government

local

who

its

civil

of

The Code begins

the sovereignty of the State

are

electors;

2.

is

of

said to
citizens

constitutions of federal governments, such as those

United States or Switzerland, contain provisions

Ahrens, Cours,

lb., p. 381.

iii.

p. 380.

Lord Bryce has suggested the use

'flexible' to express this distinction.

See

now

of the terms 'rigid'

his

American Com-

pp. 475-478. See also Professor Dicey's instructive

ingenious applications of the distinction, Law of the Constitution,

monwealth,
ed.

general police and

the people thereof,' and the people

I-

and

its

electors.'

of the

and

be

purports to be divided into four parts, whereof

declares

first

subject to

may

to a piece of proposed legislation,

more

The

undertakings.

branch of law

viii.

i.

pp. 124, 142, 469.

ADMINISTRATIVE LAW.
upon many

private

of

topics

law, such as respect for chap. xvi.

The reason

and contracts.

property

3;i

being, as has well

been stated, that certain principles of policy or of justice

'

must be enforced upon the whole confederated body as

well as upon the separate parts thereof, and the very
tempts legislators to place

inflexibility of the constitution

among
in

nature constitutional) have special claims upon

respect and observance

The various organs

II.

maxims which (though not

constitutional articles

their

the

of

described by constitutional law

sovereign

as at rest;

power areAdmini-

but

it

is

also^^^^

necessary that they should be considered as in motion,

and that the manner of

in detail.

called

their activity should be prescribed

The branch

Administrative

of the

law,

'

law which does

this

Verwaltungsrecht,'

is

the

in

In this sense Administration

widest sense of the term.

has been defined as the exercise of political powers within

'

the limits of the constitution

manifoldly changing
cases

^'

as 'the total concrete

activity of the

and

State in particular

and as 'the functions, or the

activity,

of

the

sovereign power*.'
Different views are taken as to the topics which are

included under this very wide conception.

It

may

fairly

be said to include the making and promulgation of laws

the action of the
its

government

foreign relations

in

guiding the

State in

the administration of justice

the

management of the property and business transactions of

the State; and the working in detail, by means of subordinates entrusted with a certain amount of discretion,

^
Dicej", u. s. Cf. Bryce, u. s., ii. p. 41. It is thus that questions
such as those raised in the Dartmouth College case, supra, p. 257 71., are
brought before the Supreme Court.
* Ahrens, Cours, ii. p. 3 So.

'

Bluntschli, u.

Flitter,

s. iii.

p. 465.

apud Holzendorff, System,

B

b 2

p. 695.

Its widest

PUBLIC LAW.

372

complex machinery by which the State provides at

its own existence and for the general welfare.

CHAP. XVI. of the

once for
Its

more

Administrative

law,

thus

as

conceived

of,

not

is

specific

sense.

coherent body of doctrine, and

it

term as to apply

specialise the use of the

Of the

the above-mentioned topics.

of

convenient so to

is

and executive government are more

fitly

it

to

rest,

some only
legislation

treated of under

those chapters of Constitutional law which deal with the

and the sovereign

legislature

the organisation of the

for

the rules for the administra-

must be sought,

of justice

tion

so far

as they provide

under Constitutional

courts,

law, so far as they govern civil procedure, under Adjective

Private law, and so far as they govern crimes and criminal

procedure, under those heads of Public law, namely the
third and fourth, which
topics
its

we devote

specifically to

those

while the law relating to the State property and

business transactions would be found in the fifth and

sixth of our heads of public law.

Administrative law, in the more specific sense of the term,

Its

functions

Revenue.

Armed
forces.

Depend-

deals with such topics as the following

The

i.

ii.

collection of the

The

and Navy
iii.

Revenue.

recruitment, equipment, and control of the

;

Army

Ship-building and Fortifications.

The government

of Colonies

and Dependencies.

encies.

tat

civil.

iv.

The collection of statistics the registration of births,

and marriages C etat civil ) and of conveyances
;

deaths,

Material

'

and mortgages

of land

sation of aliens

V.

individuals

of

In France this

Civil.

the naturali- -A

the granting of charters to corporations.

The promotion

welfare.

the custody of wills

whom
is

of

the

the

material welfare of
State

is

all

the

composed, either by

dealt with as a matter of private law, in the Code

ADMINISTRATIVE LAW.

373

the prevention of evil or the production of good.

Among

the operations carried on by State functionaries for this

purpose are the following:

1.

Measures of sanitary precaution, such as the organisa-

tion of drainage, the

inspection and

even destruction of

unhealthy dwellings, the regulation of dangerous undertakings, such as mining,

and

of

unwholesome trades the

employment of
;

inspection of ships; the prevention of the

women

or children in certain occupations, or for

number

a certain

of hours

quarantine

^
;

more than

vaccination

the

supply of pure water; the prevention of the adulteration

of articles of food
2.

The regular workmg

working of
3.

4-

and drink ^.

The
The

relief

of a poor-law, or the exceptional

works and doles

visitation of lunatic

in time of famine.

asylums and nunneries.

protection of the coinage and the inspection of

weights and measures.

5.
6.

The supervision of professions and trades.

The collection of information as to foreign commerce

the supervision of banks, insurance societies, and companies

generally.
7.

and
8.

The

supervision of roads, railways, canals, telegraphs,

posts.

The maintenance

of lighthouses, harbours, sea-walls,

and dykes.

The preservation of order, the

the management of prisons.
9-

detection of crime,

and

* There is a difference of judicial opinion in America whether enactments to this effect are unconstitutional, as an interference with freedom
of contract, e. g. Tilt v. People, 27 Chi. L. News, 270, or are a legitimate
exertion of the police power of a State, e. g. Commonwealth v. Hamilton
Manufacturing Co., 120 Mass. 385; People v. Phyfe, 136 N. Y. 554.
* Mr. Traill well remarked that whenever the modern State has
thought fit to depart from the system of laissez-faire, it has not been
content with merely commanding the citizens to do certain things, but
has itself seen to his doing them. Central Government, p. 158. For a
thoroughgoing protest against government inspection, see Mr. Herbert
Spencer's The Man versus the State. Cf. Count Tolstoy, in the Fort-

nightly Review, 1906, pp.

i,

203.

ghap xvi

PUBLIC LAW

374
CHAP. XVI.

Moral

The promotion

vi.

and moral welfare

of the intellectual

by such measures as

of the public generally,

welfare.

The organisation of schools, and the sustentation

museums and Ubraries.
2. The prevention of Sunday trading, the supervision
1.

amusement, and the licensmg

places of

Self-

It

government.

must be remembered that much

very highly centralised

in

an
Admini-

inferior

crimmal

of

of plays \

of this work, except

entrusted to local

States, is

same

authorities, often to the

of

authorities

who

also exercise

jurisdiction.

Disputed questions of admmistrative law, or cases of

strative
jurisdic-

comply with

refusal to

tion.

its

rules, are in

England usually

minor matters brought before a justice

in

More

serious questions

Although military and

by Courts

jVIartial

of the

peace.

are tried in the superior courts.

ecclesiastical discipline is enforced

and Courts Christian, no person

is

by

virtue of his official position exempted from the jurisdiction

of the

Common

But

law".

it

writers that questions affecting

is

maintained by some

official

persons, as such,

should be exclusively decided by special tribunals, which

accordingly exist in
organisation.

An

many

appellate

for instance, established

Verwaltungsgerichtshof was,
'

1863

in

for

the

Grand Duchy

In Germany the term Polizei has been gradually so narrowed as

become synonymous Avith innere Verwaltung,' and is subdivided int<->
Sicherheitspolizei and Wohlfahrtspflege.' See Birkmeyer's Encyclo'

'

'

to
'

countries, with a hierarchical

'

'

'

'

padieder Rechtswissenschaft, p. 881. Cf. Holzendorff, System, pp. 695,

713, Encycl., Bd. iii. pp. 415, 11 14.
^
Martial as opposed to military law is not recognised by the law of
England. 'In proclaiming martial law, the executive authority in fact
'

'

'

community, to neglect
who, in obedience to the

declares itself obliged, for the protection of the

law, trusting to

tlie

Legislature to relieve

all

constituted authority, may have acted in defence of the public safety,

from the consequences of having acted unlawfully.' Duke of Newcastle's

despatch, 1862, cited in Clode, Military Forces, ii. p. 511. Cf. ex parte
Marais, [1902] A. C. 109, the present author's Handbook of the Laws
and Customs of War on Land, issued by the War Office in 1904, arts.
8-18, and his larger work, The Laws of War on Land (written and un\\Titten), 1908, pp. 14-17.

CRIMINAL LAW.

Baden.

of

created

mixed court

1847

in

of

Prussia;

in

375

a similar character was

and the 'Conseil d'Etat'

chap. x\^.

performs the functions of such a court in France, where

questions of jurisdiction
administrative

between the ordinary and the

are

decided by

'

Tribunal des

':

Conflits

Perhaps the most important of the functions of the Criminal

III.

State

Courts

that which

is

it

discharges as the guardian of order

preventing and punishing

all

common

has laid

it

In defining the orbit of

welfare.

this respect, the State usually proceeds

of the

and

to itself,

injuries

disobedience to the rules which

down
its

all

for the

rights

by an enumeration

which infringe upon them, coupled with an

acts

intimation of the penalty to which any one committing

such acts will be

tains the rules
'

as

upon

Criminal law,'

It

liable.

'

The branch

law which con-

this subject is accordingly described

Droit penal,'

'

comparatively modern.

is

of

Strafrecht.'

The

ceptional executive or legislative act,

was its
power by an ex- -^^

early tendency

to punish offences against the sovereign

and

to treat offences

against individuals, even when, like theft and homicide,

they were a serious menace to the general welfare, as

merely

delicts

injuries

civil

The law

Rome

of

to be

compensated

by damages.

for

continued to the last to treat as

acts which would now be

as crimes, although, by a

long

regarded

course of

civil

exclusively

unsystematic

See Professor Dicey 's Law of the Constitution, ed. viii. pp. 325, 336,
Previously to the appearance of this work next to nothing liad
been written in English upon the extended meaning given upon the
Droit administratif,' which plays
continent to administrative law.'
BO important a part in the law of France, is described by M. Aucoc as
regulating i la constitution et les rapports des organes de la soci6t^
charges du soin des int6rets collectifs qui font I'objet de i'administration
publique, c 'est-a-dire des diff ^rentes personnifications de la soci^t^, dont
'

555.

'

'

'

l'tat

avec

est la plus

importante 2 les rapports des autorit^s administratives

On the inadequacy of this description, see, however,

les citoyens.'

Dicey, u.

s.,

p. 329.

PUBLIC LAW.

376
HAP. XVI.

legislation, it

some
and disorderly character

also attached penal consequences to

The merely

of them.
of the

had

practical

criminal law which

preserved, for instance, in

is

the ninth books of the Codes of Theodosius and Justinian

is

readily

centuriata

The prerogative of punishment,

by the king and the comitia
later times shared by the senate, was

explicable.

early times

exercised in

and

'

in

'

usually delegated in each case to a magistrate or body of

commissioners.
delegacies,

'

The

series of statutes

by which standing

quaestiones perpetuae,' were instituted for the

kmds, whenever they might

trial of offences of particular

be committed, commences with the lex Calpurnia,

and was continued

b. c. 149,

a number of courses of conduct

till

had been from time to time branded as criminal

of

legislation

the

emperors, though

'quaestiones' by the simpler

procedure

extraordinaria,' followed

Unes of

statutes,

the

and produced a body

formless,

The

superseded

it

the

the 'indicia

of

old criminal

the

of rules large indeed

but

and owing hardly anything to the great men

whose wisdom had interpenetrated every doctrine

of pri-

The Teutonic view of even violent wrongs

resembled the early Roman, in regarding them as con-

vate law.

whom

cerning almost exclusively the person injured, to

therefore atonement
'

When

compositio,'

was

to be

made by way

by the Germans that wrong-doing might

the individual, but also the State
assistance towards formulating

criminal law of

it

itself,

they found

exposition for

Rome, deeply tinged

more general

usefulness.

was therefore necessary, and the

for guidance.

as

was with

it

by

juristic

Original legisla-

first

made
Emperor

essay was

in the 'Constitutio Criminalis Carolina,' of the

Charles V.

little

in the legal system to

national idiosyncrasies, had never been prepared

tion

damages,

injure not merely

which they were most accustomed to turn

The

of

the idea began to be clearly grasped

This attempt to provide a criminal law for

*

Cf.

Maine,

x'^jicient

Law,

ch. v.

CRIMINAL LAW.
much

the whole Empire lost

of

its

377

importance from the chap.

xvi.

compilation of national codes for Bavaria, Austria, and

many

German

other

States during the latter half of the

eighteenth century, but was the forerunner of the penal

code for
Reich,'

all

Germany, Strafgesetzbuch fUr das Deutsche

'

which came into operation

great criminal codes

now

law

18 10,

for

France in

in force,

was promulgated

was drafted

in

the ' Code Penal

'

became

and has been imitated by the

Latin races of the continent

British India which

Of the other

in 1872.

x86o.

while the penal code for

by Lord Macaulay

in 1834

In the meantime the whole

theory of punishment and of the classification of offences

men

has been thoroughly discussed by such

Bentham, Feuerbach, Mittermaier, and

and the criminal branch

to be divided

a terminology, though a
It

is

and a

of public

upon recognised

Stephen

and

to possess

loose one, of its

ovm.

divided into a body of substantive criminal law

body

of

criminal

procedure.

The former, mth

which alone we are concerned at present, consists

parts, a general

and a

following
of the

of

two

particular.

The more general part

i.

law may now be said

principles,

somewhat

as Beccaria,

Sir J. F.

deals with such topics as the

the nature of a criminal act ^

the responsibility

Its general

^^

wrong-doer on the grounds of intention or negU-

gence^; the extent to which an

artificial

person

may be

>
The last-named in his General View of the Criminal Law, 186.3; his
Digests of Criminal Law, 1877, and of Criminal Procedure, 1883; his
History of the Criminal Law, 1883; and his Draft Penal Code, which
for some years after the introduction of the bill in 1878 was intermittently
under the consideration of Parliament.
'
Verbrechen ist die von Seiten der Gesetzgebung constatirte Gefahr'

dung der Lebensbedingungen der Gesellschaft.' Jhering, Zweck,

p. 481. Cf. Mens rea, by D. A. Stroud, and a review of the treatise

i.

in

L. Q. R. xxxi. p. 451.
3 Cf. supra,
pp. 108, 1 1 1, 151, 1 71 Professor Clark's Analysis of Criminal Liability, 1880; Holmes, Common Law, pp. 47, So, 75- In English
Law, an honest and reasonable, though mistaken, belief may be a good
defence. Hearne v. Garton, 2 E. & E, 66. But see Commonwealth v.
;

Hayden, 163 Mass. 453.

'

PUBLIC LAW.

3/3
CHAP. XVI.

criminally responsible

facts

which negative

responsibility,

such as tender age, compulsion, idiocy, lunacy, or drunkenness

facts

which may

justify

an act otherwise criminal,

such as the consent of the party mjured, self-defence',

how

lawful authority, or the public welfare;

is

equivalent to commission

proceedings

may be

* ;

far omission

the persons by whom criminal

instituted^; the

list

of punishments,

such as death, banishment, imprisonment, hard

labour,

whipping, loss of

civil rights, liability to police supervision,

or pecuniary fine

the period of time,

a bar to criminal prosecution

fois acquit; the

aiding

the effect of a plea of autre-

and abetting

attempts; cumulative punishments.

to find those distinctions

which occur in almost

any, which will be

if

of crime; criminal

Here

also

we

between different grades

The

systems.

all

expect

of crime

drawn

distinction

by English law between felonies and misdemeanors is

as familiar as it has become unmeaning. The French Code
'

'

'

'

opens with a threefold classification of wrongful acts into

'contraventions,' 'delits,'

and

'crimes,' according to

being respectively punishable by

^
-

'

peines de police,'

'

their

peines

Pearks, d-c, Ltd. v. Ward, [1902] 2 K. B. 1.

anthropological school of Italian penalists finds in the

The new

habitual criminal characteristics which, on the one hand, render him

irresponsible for his acts, and on the other hand forbid any hope of his
reclamation. See Lombroso, Uomo delinquente.
'
'Vim enim vi defendere omnes leges omniaque iura permittunt.'
Paulus, Dig. ix. 45. 4. But self-preservation from starvation was held

no defence to an indictment for murder in the Mignonette case. R. v.

Dudley, 14 Q. B. D. 273.
^ E. g. under sect.
43 of the Indian Penal Code.
^ E. g. according to English law, not by a wife against her husband,
nor V. v., except for injury to person or property; not therefore for libel,
even under the Married Women's Property Act of 1882, sect. 16. R. v.
Lord Mayor of London, 16 Q. B. D, 776. Cf. supra, p. 350 n.
"

E.

g.

Code d'Instruction Crim.,

For various periods

art.

637; Strafgesetzbuch, art. 65.

of Prescription against the

French Government, in

claims for duty, see the Loi du 22 frimaire, An vii, tit. viii. art. 61, as subsequently modified. In England the rule 'nullum tempus occurrit regi
still holds good, except in so far as it has been derogated from by statute.
See such statutes in Stephen, Hist. Crim. Law, ii. p. 2,

'

CRIMINAL LAW.
correctionnelles,' or 'peines afflictives

German Code draws

the
'

Uebertretung,'

'

379

(u infamantes'; and chap.

Vergehen,' and

'

and "misdrijven'; the

Code

Italian

The Dutch

Verbrechen.'

Code of 1886 distinguishes only between

'

xvi.

between

a similar distinction

overtredingen

between

of 1889, only

'delitti'and 'contravvenzioni'; the Spanish Code of 1870,

only between 'delitos' and

Bill,

which has now

for

many

Parliament, recognises

of

The criminal Code

'faltas.'

Sessions awaited the leisure

only the

between

distinction

mdictable offences and others, expressly abolishing that

between

To

felonies

and misdemeanors.

the introductory portion of a Criminal Code belong

also provisions as to the relation of the prosecution of

offence to the recovery in a civil action of

injury caused by

it

to

an individual.

damages

Such

long alleged to exist in English law that the

for a

wrong which

also

amounts

to a felony

the felon has been convicted \ and such

till

of the

Code Penal which declares that

aux peines

'la

etablies par la loi est toujours

an

for the

the rule

is

remedy

civil
is

suspended

is

the article

condamnation
prononcee sans

prejudice des restitutions et dommages-interets qui peuvent

aux parties V

etre dtis

ii.

acts,

The
and

special part contains a classification of criminal

specific

provisions

with regard

the

to

penal

Its special

^^

consequences of each.

Such acts may

offences

be, in the first place, distinguished into The

list

of

committed directly against the State, or community

generally,

and offences the mischief

of

which

is

primarily

directed against particular individuals.

The
r-

State, or

community

Acts tending to interrupt

foreign powers;
^

generally,
its

is

injured by

Against

friendly relations with^

whence the enactments agamst 'foreign

Wellock V. Constantine,

stood, see supra, p. 335.

- Art. 10; cf. Dig. xlvii. 10.

H.
7.

&

C. 146. For the law as

now

under-

^^*^-

PUBLIC LAW.

38o

and against

CHAP. XVI. enlistment,'

compassing the death

libelling or

of foreign sovereigns \

Acts tending to the subversion of the government,

2.

such as assassination of princes, rebellion, and similar acts

High Treason.

of

Acts tending to the subversion of the

3.

liberties of the

subject ^

Riots and other offences against pubHc order

4.

and

tranquillity.
5.

Abuse

6.

Resistance or disobedience to lawful authority.

7.

Obstruction to the course of justice by perjury, or

of official position.

documents, or

of

falsification

rescue

or

harbouring of

offenders.
8.

Maintenance of suits

9.

Omission to give information, or giving

tion, as to births, deaths,

*.

and

the French under the phrase

10.

false informa-

similar matters, included

'

etat

by

civil.'

Offences relating to the coinage, or to weights and

measures11.

Cruelty

whether

this

to
is

generally, or as

animals; though
forbidden as

it

may be doubted

brutalising

offensive to the

to

the public

humane sentiments

of

individuals, or rather as implying such a recognition of

quasi-rights in animals, as led to the

of cruelty to slaves

Cf. R. V. Peltier, 28 State Trials, 529.

Cf.

Code

Penal,

tit.

Roman

prohibition

*.

i.

ch.

ii.

Bank v. Pooley, 10 App. Ca. 210. On the lawfulness of maintenance by one who has an interest in the thing in variance,'
^

Cf. Metropolitan

'

see
*

now

Alabaster v. Harness, [1895] i Q. B. (C. A.) 339.

So Cicero: 'Ecquid ergo primum mutis tribuemus beluis? non enim

sed maximi et docti, Pythagoras et Empedocles, unam

iuris esse denuntiant, clamantque
inexpiabiles poenas impendere iis a quibus violatum sit animal. Scelus
est igitur nocere bestiae.' De Rep. iii. 11. Cf. Ed. Engelhardt, De
I'animalit*^ et de son droit, 1900. Legislation upon the subject begins in

mediocres

viri,

omnium animantium condicionem

3 G. IV. c. 71, the earlier Acts laying much stress upon

the demoralising effect of the keeping of houses for the baiting of dogs,

England with


CRIMINAL LAW.

381

12.

Acts injurious to public morality, such as bigamy.

13.

Suicided

14.

Acts injurious to the public health, such as neglect

of vaccination,

Many

and various forms

wrongful

of nuisance.

acts, affecting primarily individuals,

therefore giving rise to remedial

They may perhaps be

ing heads

1.

Violence to the

and against

rights in private law,

are also so harmful to society as to be punished by

crimes ^

chap. xvi.

classified

person, in

its

it

as

under the follow-

kinds

various

and

degrees of homicide, wounding, rape, assault, or imprison-

ment.
2.

Defamation of character (by English law only when

in the

form

to be true

of a hbel) ^

and

sometimes

justifiable

when shown

for the public benefit ^

is now regulated by 12 & 13 Vict. c. 92,

63 & 64 Vict. c. 33, and 4 Ed. VII, c. 4. Cf supra, p. 352For a flat denial to animals of even moral rights, see Moral Philosophy,

bulls,

47

and

bears.

The subject

& 48 Vict. c. 43,

by Joseph Rickaby, S. J., Pt. ii. c. 5. 2: 'Brute beasts, not having

understanding, and therefore not being persons, cannot have any rights.
We have no duties of charity, nor duties of any kind to the lower
animals, as neither to stocks and stones.
Still we have duties about
stones, not to fling them through our neighbours' windows, and we have
duties about brute beasts.' Pope Pius V, in 1567, prohibited 'spectacula
ubi Tauri et Ferae in circo vel foro agitantur,' speaking of them as
.

'a pietate et caritate Christiana aliena, cruenta turpiaque

daemonum

et

non hominum spectacula,' but apparently mainly on account of the

'hominum mortes, membrorum mutilationes, animarumque pericula'
which frequently result from them. Bullarium Rom. (op. C. Cocquelines),
t. iv. pars ii. p. 402. The Cour de Cassation recently held that bull-fights
are prohibited by the law of 1850, which was intended not merely
to protect animals against cruelty, but also to prevent the demoralising
effect of such cruelty upon spectators. Gazette des Tribunaux, Jan. 11,
1900.

See E. Manson on 'Suicide as a Crime,' in Journal Comp. Legisl.

No. iii. p. 310. An attempt to commit is a misdemeanour, R. v.
^ Supra, p. 327.
Burgess, 9 Cox, C. C. 247.
Cf. supra, p. 184.
A libel is criminal on account of its supposed
tendency to arouse angry passions, R. v. Holbrook, 4 Q. B. D. 46. The
obsolete offence of 'Scandalum magnatum' might, however, be committed by spoken words. See supra, p. 184, n. 3.
* It would seem that no proceedings can be taken for libel on a deceased
*

N.

S.,

in-

PUBLIC LAW.

382
CHAP. XVI.

3.

Acts offensive to religious feeling ^

4.

Offences against family rights, such as abduction of

some systems, adultery ^

Offences against possession and o^vnership, such as

children, or, in
5.

and arson, or other wilful destruction

theft

of property.

Certain breaches of contract, of a kind likely to cause

6.

mconvenience, or for which a

social

civil

remedy would be

valueless ^

Fraudulent misrepresentations and swindling*.

7.

may

It

be remarked that offences against the property

of the State are often assimilated to offences against that

of individuals

and, in

many

instances, particular kinds

of State property are, for the purposes of the criminal law,

vested by statute

m certain State functionaries ^

person. See the charge of Stephen, J., at the Cardiff Assizes, in R. v.

Ensor, 10 Feb., 1887, relying on R. v. Topham, 4 East 126, as against
a dictum in 5 Rep. 125. Aliter under the Indian Penal Code, art. 4Q9,
Cf. Dalloz, s. v. 'Presse-outrage,' art. 11 28.
the question whether this, or mere repugnancy to the Christian
religion, be the test of a blasphemous libel, see the summing up of Lord
Coleridge, C. J., in R. v. Ramsay & Foole, 15 Cox, C. C. 231, and Sir J. F.
expl.
1

I.

On

Stephen's History of the Criminal Law, ii. p. 475.

2 E.g. 'La femme convaincue d'adult^re subira la peine de I'emprisonnement pendant trois mois au moins et deux ans au plus.' Code
P<^nal, art. 337. But proceedings can only be taken by the husband,
and he can terminate the imprisonment by taking her home. Cf. Strafgesetzbuch, art. 171; Indian Penal Code, art. 497. On the action of the
Canon law in England, see Redfern v. Redfern, [1891] P. (C. A.) 139. The
Penal Code of Indore punishes as adultery intercourse with a widow.
L. Q. R. vi. p. 89.
' E. g. 38 &
39 Vict. c. 86. s. 5, as to malicious breach of contract, with
reason to believe that the consequence may be to cause danger to life or
serious bodily injury, or to expose valuable property to destruction or
serious injury.

grass lands.

Cf

Cf. the provisions in Irish Statutes against ploughing

.

also in Holzendorff's

Encyclopadie the

art.

'

Vertrags-

verletzung.'

E.

the conviction, though only under the Debtors Act, 1869, 13,
at a restaurant, having no means of paying for
what he had ordered. R. v. Jones, [1898] i Q. B. 119.
" Thus by
7 W. IV. and i Vict. c. 36. s. 40, articles sent by post are, for
the purposes of the Act, made the property of the Postmaster-General.
*

of one

g.

who had dined


CRIMINAL PROCEDURE.
IV. Adjective criminal law,
tion criminelle,'

'

Strafprozess,'

the machinery of

punishment

the

Penal Procedure,'

Courts

Instruc- chap.

'

is

set

motion for the

in

'

peines de

'summary

convictions,' applicable, unless

with the

two

species

a simpler,

consent of the accused, only to trifling transgressions

a

more solemn,

Each

xvi.

the body of rules whereby Criminal

is

of offenders.

It consists usually of

pohce,'

'

3^3

and

for the trial of serious crimes.

of these consists of several stages, having a strong

resemblance to the stages of procedure in private law*.

In the more solemn procedure

The

1.

we may

distinguish:

choice of the proper jurisdiction.

Jurisdiction.

The

ii.

iii.

1.

Court.

The procedure proper, consisting of

The summons, by which the accused

the warrant, under which

or
to

choice of the proper Court.

he

is

Procedure.
is

called upon,

compelled, to appear

answer the charge.

The

2.

preliminary

discharge of

investigation,

terminating

in

the

the accused, or in his being committed for

trial.
3.

The measures ensuring that the accused

forthcoming for

trial, viz.

shall

be

imprisonment or security

either

given by himself or his friends.

4.

The

pleadings,

by which, on the one hand, the pro-

secution informs the Court and the accused of the nature

of

the charge against him, and, on

the other hand, the

accused states the nature of his defence.

It

would have been

sufficient,

and

in

accordance with

fact, to declare

that such articles are in his possession. This rule is peculiar to the law
of England. For a comparative view of the laws of other countries upon
the subject, see an art. by M. de Kirchenheim in the Revue de Droit
Internationale, xiv. p. 6i6.
* Supra,
p. 356.
continent, which is

introduced into

is stronger in England than on the

under the influence of the inquisitorial method

The resemblance
still

Germany by the

'

'

Constitutio Criminalis Carolina.

PUBLIC LAW.

384
CHAP. XVI.

The

5.

conducted on a prescribed plan and in

trial,

accordance with rules of evidence which differ in certain

respects from those which prevail in civil suits'.

The verdict and judgment.

The procedure on appeal, so

6.
7.

an appeal

far as

is

per-

missible.

Execution.

iv.

Execution, which

whom

to

the force of

is

by the functionary

carried out

the State

entrusted

is

for

the

purpose.

The bringing

Public prosecutor.

generally

it
'

is

of criminals to justice

on the continent,

Staatsanwaltschaft,' or

left,

as

to
it

may be

confided, as

a 'ministere public,'

generally has been in

England, and was at Rome, to the industry of the injured

individual

Law

person.

and duties as the guardian of order,

which respect little analogy can be remarked to any-

V. Besides

of the
State as a
juristic

^.

in

its

rights

thing in private law, the State, as a great juristic person,

enjoys

many

quasi-rights

strangers as subjects, and

against
is

individuals,

liable to

many

as well

quasi-duties

These rights and duties closely resemble

in their favour.

those which private law recognises as subsisting between

one individual

and

of the so-called

'

Supra, p. 359.
of evidence in civil
1

another I

The

State, irrespectively

eminent domain which

'

enjoys over

all

On the tendency towards an assimilation of the rules

and criminal

cases, see the

remarks of M. A. Prins,

fitude sur la procedure p6nale k Londres, 1879, p.

*

it

4.

A Roman form of indictment is preserved in the following fragment

apud ilium praetorem vel proconsulem, Lucius

lege lulia de adulteriis ream deferre,
quod dicat earn cum Gaio Seio, in civitate ilia, domo illius, mense illo,
of Paulus: 'Consul et dies,

Titius professus est se

Maeviam

Dig. xlviii. 2. 3. The office of

illis, adulterium commisisse.'
'Director of Public Prosecutions' was established in England by 42 & 43

consulibus
Vict.

c. 22.

See the remarks of Grotius upon the transactions of those 'qui summam habent potestatem ... in his quae privatim agunt.' De I. B. et P.
On the entry of the 'fiscus' into the domain of private law,
ii. 2. 5. 3.

see

Sohm,
N. S.

Leg.,

Institutionen, 20, Transl. p. 103. Cf. an art. in J. Comp.

xii. p. 297, citing the Land Transfer Act, 1897, s. 23 (3).

QUASI-PRIVATE.
the property of
prietor

and

its

subjects \

385

usually a great landed pro- chap.

is

in respect of its land

entitled to servitudes

is

over the estates of individuals, and subject to servitudes

for the benefit of
sorts,

such estates

'^.

It

owns buildmgs

of all

from the palace to the pohce-station, and a large

amount

from pictures by Titian and

of personal property,

Tintoretto to cloth for

It carries

making the prison dress

of convicts.

on gigantic manufacturmg undertakings, lends

and borrows money, issues promissory notes, and generally

enters into all kinds of contracts.

means

of

agents,

who may

It necessarily acts

by

exceed their powers or act

may wilfully or negligently

cause damage to individuals. It may become a mortgagee,
and in many cases allows itself a tacit hypothec by way
fraudulently.

Its

of security for

under a

will,

servants

what is owed to it. It is capable of taking

and succeeds ab mtestato to all those who

die without leaving heirs.

many

Its rights

of these heads are different

and

liabilities

from those

under

of individuals,

or even of private artificial persons, especially with refer-

ence to liability for injuries done by

its

servants,

by
modern tendency is to modify the strictness
rule that 'nullum tempus occurrit regiV

to the barring of its rights

prescription,

the

and as

though here
of the old

VI. The substantive law affecting the State as a quasi- Law

private juristic personality

adjective rules, prescribing the

mode

in

which the

State,

to have originated with Grotius, I. B. et P. i. 3. 6;

See Bynkershoek, Quaestiones I. P. ii. 15. It is employed by
Vattel, whence perhaps imported, by the Translation of 1760, into the
English language.
' But see E. Nys in the Revue de Dr. Int., N. S. xiii. p. 314' Cf. the 'nullum tempus' Act, 9 G. III. c. 16, and 24 & 25 Vict. c. 62,
barring the Crown as to lands and rents after sixty years. By the Code
Civil, art. 2227, L'fitat, les 6tabhssements publics, et les communes, sont
*

ii.

The term seems

14. 7.

'

soumis aux memes prescriptions que

ment
1950

les opposer.'

of

supplemented by a body of ^^^l^'

is

les particuliers, et

peuvent 6gale-

xvi.

PUBLIC LAW.

386
CHAP. XVI.

as SHch a personality,

thus provided

is

not,

may sue
it may

The procedure

or be sued \

be remarked, as in private

law, similar for both parties, but varies according as the

party, plaintiff or defendant,

the

is

State or a private

other words, the procedure, as compared

In

individual.

with the ordinary procedure between individuals,

abnormal

and

always

is

abnormity takes different forms when

its

the sovereign takes proceedings against one of his subjects,

The

or a subject takes proceedings against his sovereign.

reason, of course, being that the litigation

sovereign,

whose

who

is

the source of

between the

is

and the

all right,

on the

rights are wholly dependent

subject,

of the

will

sovereign.

The character

of this procedure varies considerably in

different countries.

In England the old

Against

redress from the

'monstrans de

common law methods

Crown were by

droit,'

'

of getting

petition de droit

'

and

the Court of Chancery or the

Court of Exchequer, and in some cases by proceedings

Chancery against

the

Attorney- General.

It

in

been

has

provided by a modern statute^ that a Petition of Right

may

be entitled in any one of the superior Courts in which

the subject-matter of the petition would have been cognisable,

if

the

same had been a matter

subject and subject, and that

Secretary of

State

for the

Majesty's consideration, who,

grant his
plea, or

fiat

it

Home
if

in dispute

shall

be

left

between
with the

Department, for His

he shall think

lit,

may

that right be done, whereupon an answer,

demurrer

shall

be made on behalf of the Crown,

and the subsequent proceedings be assimilated as

practicable to the course of an ordinary action. It

far as
is

also

provided that costs shall be payable both to and by the

Cf. supra, p. 131.

& 24 Vict. c. 24. See Tobin v. The Queen, 16 C. B., N. S., 310;
Windsor, 11 A. C. 607. West Rand Central Gold Co. v. The King,
[1905] 2 K. B. 391.
2

R.

23

V.

PROCEDURE.
Crown, subject to the same

387

rules, so far as practicable, as chap. xvi.

obtain in proceedings between subject and subject \

The Crown may obtain redress

against

subjects

its

by By

the

common law actions as are consistent with the royal ^*^**

dignity but much easier and more effectual remedies are
such

usually obtained

by such prerogative modes

are peculiarly confined

ofiice,'

'

to

it

writ of exteut,' a

'information'

exhibited

King's Bench

Division

'

of process as

^ such

as

writ of

scii-e facias,''

an

'

inquest

by the Attorney- General

of

the

High

Court.

or
in

of

an
the

The old

exemption of the CroT\Ti from the payment of costs in

proceedings with subjects has been nearly abolished by a
succession of statutes.
* The Workmen's Compensation Act, supra, p. 157, applies when the
Crown is employer, except in the military and naval services. On the
,

law of the United States upon this subject, cf. stipra, p. 132, n. i. It is
noticeable that in Egypt actions may be brought in the International
Courts directly against the Government. R^glement pour les procfesmixtes,
*

tit. i. art. 10.

Blackstone, 3

Comm.

258.

Ce2

CHAPTER XVn.
INTERNATIONAL LAW.
The nature

The body

of

rules

regulating those

rights in

which

of inter-

national
law.

both of the personal factors are States,

'

the

Law

of Nations,' but

Gentes,' or
It differs

'

International

is

loosely called

more appropriately

'

lus inter

Law \'

from ordinary law in being unsupported by the

authority of a State.

It differs

in being a rule for States

from ordinary morality

and not

for individuals.

^ Cf. supra, p. 132. The term 'Jus inter Gentes' is due to the Oxford
Professor, Richard Zouche, in his 'lus Feciale,' 1650, though the component words of the appellation occur in descriptions of the science by

Victoria, Vasquez, Saurez

and Grotius. The Chancellor D'Aguesseau,

in

the 'Instructions sur les Etudes,' addressed in 1716 to his eldest son,
introduces him to 'ce qu'on appelle le Droit des Gens, ou, pour parler
plus correctement,'parce que le nom de Droit des Gens a un autre sens,
que vous apprendrez dans I'^tude du Droit Romain, de Droit entre les
Nations, lus inter Gentes.' (Euvres, i. p. 268. Cf. ib., pp. 444, 521, 548.
The Abb^ de Saint-Pierre, according to M. Nys, Rev. de Droit Int.,
p. 428, also speaks of 'le Droit entre Nations,' in his Ouvrages
de politique et de morale, 1738-41. It was Jeremy Bentham who at
last coined the term International Law, in his Principles of Morals and
Legislation, first published in 1789, as appropriate to the 'mutual transactions of sovereigns as such'; adding in a note: 'the word international,
it must be acknowledged, is a new one; though, it is hoped, suflBciently
analogous and intelligible. It is calculated to express, in a more significant way, the branch of law which goes commonly under the name
of the law of nations.' It would seem that the term 'Law of Nations'
is first found in an English Act of Parliament in 7 Anne, c. 1 2, and Intert. xxiii.

'

national

Law'

in 41

&

43 Vict.,

c. 73.

Gf, the writer's Studies, p. 193.

'

ANALOGY TO PRIVATE LAW.

It is the vanishing point of

Jurisprudence

389

since

it

lacks chap. xvii.

any arbiter of disputed questions, save public opinion,

beyond and above the disputant parties themselves, and

since, in proportion as it

tends to become assimilated to

true law by the aggregation of States into a larger society,

ceases to be

it

itself,

law of a federal
'

maxima

civitas

'

of

and

is

transmuted into the public

The

government.

realisation

of the

which theorists have dreamed would

thus be not the triumph, but the extinction, of International law,

which can subsist only between States which,

the one hand, sufficiently resemble one another, and

on

are closely enough knit together by

common

interests, to

be susceptible of a uniform pressure of public opinion,

while,

on

other

the

hand, they are

not so

combined as to be controlled by the force

These conditions

authority.
social

cities

Very

fully

imperfectly, between

all, to.

kolvo.

it

various

twv 'EAAt^vojv

in

vo/jllijm

*.

of modern Christendom ^ no
was hoped, would venture at the present

day expressly to repudiate the duty

precepts of International law in

Just as what
is

the

between the States

one of which,

law

and

which accordingly acknowledged, as

Hellas,

of

some degree obligatory on

More

of a central

of political independence

S3anpathy have been twice realised in the history

the world.

of

politically

is

its

of

conforming to the

dealings with the rest.

not very conveniently termed * Municipal

recognised as supreme over

all

questions of private

or public right arising within the jurisdiction of any given

State', so

it

is

conceded that 'International law,' so far

as its doctrines have been generally received,

*

Thuc.

On

iii.

is

decisive of

59.

the accession of non-Christian States to this group, see infra,

P- 393^

Cf. supra, p. 133. Bentham, Principles of Morals and Legislation,

mistaken in supposing Blackstone to have been the first to use

ch. xvii, is

'municipal' as equivalent to 'national' or 'internal' law; a sense of

the term which was well established at least as early as the sixteenth
century. Blackstone expressly says, 'I call it municipal law in accord-

ance with

common

speech.'

Comm.

44.

INTERNATIONAL LAW.

390
CHAP. XVII.

all

questions which arise between one State and another *.

Its

true

nature and functions have never been better

described than in the following passage, in which they

were

for the first time

adequately set forth, in the early

years of the seventeenth century.

partis

iuris

says

est,'

quantumvis in varios populos

'Ratio autem huius

'quia

Suarez,

et

humanum

genus,

regna divisum, semper

habet aliquam miitatem non solum speciflcam, sed etiam

quasi politicam et moralem,

ceptum mutui amoris

et

quam

indicat naturale prae-

misericordiae quod

ad omnes

extenditur, etiam extraneos et cuiuscunque nationis.

propter

licet

regnum,

unaquaeque

sit in

se

civitas, perfecta

communitas perfecta

respublica, aut

et

suis

constans, nihilominus quaelibet illarum est etiam

aliquo
spectat,

modo huius
.

hac

prout ad genus

universi,

ergo

ratione

indigent

Qua-

aliquo

membris

membrum
humanum
quo

iure

dirigantur et recte ordinentur, in hoc genere conmiunicationis et societatis.

Et quamvis magna ex parte hoc

per

fiat

rationem naturalem, non tamen sufficienter et immediate

quoad omnia, ideoque aliqua

specialia iura potuerunt'

usu

earum gentium introduci ^.'

Although,

as

being

States, 'international'

law,

its

is

concerned with
in a sense a

the

relations

of

department of 'public'

analogies are rather to the private than to the

public branch of law municipal.

The reason being

that,

while in public (municipal) law the personal factors in a

right are always dissimilar, in international, as in private,
1 On the relation of International to Municipal Law, see the author's
Studies in International Law, p. 95, The American Journal of International Law, ii. p. 357, and The Zarnora, [1916] 2 A. C. 77.

^ De lege et Deo legislatore, ii. c. xix.

Cf. Bynkershoek: 'illo
9.
perpetuo usu inter diversos sui iuris populos observata consuetude, quam
solida et mascula ratio iis persuasit, et ius gentium appellamus.' De Foro
Legatorum, Dedic. For an admirable modern statement of the true
nature of International law, see per Lord Alverstone in West Rand Central
Gold Mining Co. v. The King, [1905] 2 K. B. at p. 402. For an early expression of German contempt for its precepts, hear Frederick II: 'que ce
Droit public, manquant de puissance corrective n'est qu'un vain fantome,
que les souverains ^talent, dans les factums et manifestes, lors meme
Qu'ils le violent.' Instructions pour la direction de I'Acad^mie des Nobles.

'

ANALOGY TO PRIVATE LAW.

law

they

always

are

private law are

two

are they

two

Just

similar.

391

the

as

parties

in chap. xvii.

individuals, so in International law

Much

States.

confusion

is

occasioned by

authors who, failmg to grasp this essential characteristic

of International law, speak of sovereigns

'international

as

persons,' or

treat

of

and ambassadors
States as capable

having international relations with individuals

of

regard-

ing, for instance, the seizure of a blockade- runner as

exercise of authority

by a belligerent State over

an

a neutral

subject.

Hence

is

it

that

the

topics

most conveniently grouped

principles

in general

may

science

this

of

be

accordance with the

which were originally discovered

of division

by the analysis of private law.

There

is

substantive

'

and an 'adjective' law of nations: the persons governed

by

this

rights

law may be

may

'

normal

or

'

'

abnormal

'

and

their

be 'antecedent' or 'remedial,' 'in rem' or 'in

personam.'

distribution of the subject

upon these

rather

lines,

Classifica-

than in accordance with the method which, originated by jopicg.

Kliiber, has

become

since

traditional,

especially

on the

other side of the Atlantic, has been elsewhere advocated

by the present writer \

in the following terms

but private law "writ large."

'

The law
an

appli-

cation to pohtical communities of those legal ideas

which

of nations is

It is

were originally appUed to the relations of individuals.

Its leading distinctions are therefore naturally those with
which private law has long ago rendered us
international, as

in

private law,

we

familiar.

In

are concerned with

the Persons for whose sake rights are recognised; with

the

Rights

thus

by which those

recognised;
rights

are

and with the Protection

made

effective.

We

have a

1 In an Oxford lecture, a translation of which appeared under the title

'Les D6bats diplomatiques r^cents dans leurs rapports avec le syst^me
du droit international/ in the Revue de Droit International for 1878,
p. 167. See now the author's Studies in International Law (1898), p. 151.

INTERNATIONAL LAW.

392
CHAP. XVII.

law

of Persons

and

a Substantive law which sets forth

explains the rights of those persons; and an Adjective

by which redress

law, which describes the procedure

when

to be obtained

The

those rights are violated.

is

inter-

national law of persons consists of an investigation into

from

The substantive law

it.

and

State

the nature of a sovereign

of the deviations

nations inquires into

of

the character, origin, and termination of the rights which

States

may

describes

the

while

enjoy;

procedure

the

subdivided

is

into

of nations

law which

the

obtained

is

last-mentioned de-

This

for international wrong-doing.

partment

law

adjective

by which redress

regulates

the relations of the belligerents to one another, and the

law which regulates

the

each belligerent

of

relations

The whole

with States which take no part in the war.

science

may

is

be

thus divisible into four great chapters, which

described

shortly

as

respectively

treating

of

Belligerency; and of

international Status; of Peace; of

Neutrality.'

The Persons known to International law

The normal international person is a

International
persons.

I.

not

only enjoys

external

full

member

a recognised

which vary from

sovereignty, or

State

sovereignty, but

the family of

of

are States.

nations.

which
also

is

States

type either by being defective in

this

by having no place

the

in

family of

nations, are abnormal international persons.

The

Normal
and
abnormal.

characteristics of a State, as distinguished

political

an

in

societies,

explanation

of

possesses full

'

have been necessarily touched upon

chapter

earlier

from non-

where

the differences

be

also will

between

external sovereignty

'

an

found

State which

and one which

is

mi-

souverain,' as being 'protected' or otherwise dependent

on another \
^

'

The family

of nations

'

is

an aggregate of

Supra, p. so. The term halbsouveran seems to have been invented

(1777), Versuch, Bd. I. Th. i. 11.

by Moser

'

'

INTERNATIONAL PERSONS.

393

states which, as the result of their historical antecedents, chap. xvh.

have inherited a common

level

of

moral and

said

to

include

offshoots

their

civilisation,

the Christian
in

and are

nations

with

America,

at a similar

The term may be

political opinion.

the

of

Europe and

addition

the

of

Ottoman Empire, which was declared by the treaty

Paris of 1856 to be admitted to the

Within

charmed

this

circle, to

of

Concert Europeen.'

which Japan

also,

some

time since, fully established her claim to be admitted,

all

States, according to the theory of International law, are

Outside of

equal.

it,

no

State, be

as powerful

it

and as

civilised as China or Persia, can be regarded as a wholly

normal international person.

The

and protection present

topics of semi-sovereignty

considerable analogies to those of infancy, coverture, and

tutelage in Private law.
as individual

human

and

die, so

majority,

may

It

new

State

arises

be remarked

that

beings are born, attain the age of

come

States

either

a case

existence, obtain

into

and cease to

full international recognition,

existed previously,

also

Originally,

now

be.

where no State Origin

of

necessarily of infrequent

occurrence or derivatively, by separation from a previously

;

existing State,

and

by agreement with the older

this either

in the last-mentioned

State, or against its wishes.

It

case that other nations often

feel a difficulty in

is

upon the reception which should

deciding

be given to the

new

claimant for national honours.

The question
ls

at

what moment a State

the same with the

The

identity.

affected

inquiry as

identity

by any change

to

State

or extension of

the

a dissolution of the
tiie

case of the Jews.

admittedly

constitution or

one State in another, as

between

constitutes

of

merger
divided

what

of

diminution
of

ceases to exist Termina-

territory,

is

but

its

not

dynasty, or

only by the

when Poland was

neighbouring Powers, or TDy such

political

bond as has happened

in

INTERNATIONAL LAW.

394
CHAP. XVII.
Antecedent international

The

II.

are

'

rights of a State,

antecedent

'

Uke those of an individual,

as subsisting independently of any wrong-

doing, or 'remedial,'

way

given by

as

compensation

of

rights.

an

for

may
or

Rights

injury sustained ^

the former class

of

be available either *in rem,' against

personam,'

'in

rights

given

against

other States,

all

while

only;

State

the latter class are usually available only 'in

of

personam.'
In rem.

i.

Antecedent international rights

'

in rem,'

those

e.

i,

which do not result from wrong-doing, and are enjoyed by

a State as against

many

others, present

all

classified as
(3)

having reference to

Ownership

and

(5)

the protection of

Other classes of rights are

subjects in foreign countries.

mentioned

Reputation;

(i) Safety; (2)

Jurisdiction

(4)

analogies to

They may be

the corresponding topics of Private law'.

some books upon International law ^ which,

in

if

they ought to be treated as separate heads of right

at

all,

would

the

are
of

rights

and

Negotiation

Such

be species of rights 'in rem.'

also

so-called

of

Legation,

Equality, of

which

Treaty-making;

and

according

to our system should

be rather discussed under the law

of international

being, as they are,

stattis,

from the conception

mere

corollaries

a Sovereign State as an

of

artificial

person.
(i)

The

remark.

right of a State to exist

Its violation

or

in safety calls

for

no

threatened violation gives rise

to the remedial right of self-preservation.

(2)

Of the right to a good name,

that 'the
its

glory of

power, of which

distinction

peoples,

it

is

establisfied,

and

nation

it

is

it

the

especially

reputation

one the

Cf. supra, p. 146.

It

is

this

the consideration of other

respectable in

Kluber, Droit des gens moderne,

ments, Pt. ii. c. 2, Pt. iii. cc. i, 2.
'

has been well said

it

intimately connected with

a considerable part.

which attracts to

which makes

neighbours.

'

a nation

the eyes of

which

of

glory of
*

its

well

which

Supra,

89, 144, 166;

is

is

p. 169.

Wheaton, Ele-

DOMINIUM.
established,

and

ing, finds itself

to

all

to offend

to

Its friends,

it.

property

of

with reference to the

modern conceptions,

show

all

'territory,'

most

is

which

strik-

chap. xvn.

and those

and

its

though

it

^'

'Dominium,'

kinds,

is

desire its

its enterprises,

their ill-will

ownership,

International

(3)

They

sovereigns.

become such, favour

detractors do not venture to

applies

which

especially one the glory of

sought by

friendship and fear

who wish

395

important

according to

is,

essential to the existence of a State.

In a territory, 'universitas agrorum intra fines cuiusque

civitatis

are comprised the rivers which flow through

the ports and harbours, creeks and bays, by which

coasts are indented,

so-called territorial waters,

its

the superincumbent air-space.

It

is

and

only recently that

discovery has

the progress of scientific

it,

its

given practical

importance to enquiries as to the rights which

may be

claimed by each State over the space of air conterminous

with

its territorj^

Some

attention was, indeed, directed

to the subject with reference to telegraphic

tions

',

communica-

but the urgency of the questions involved dates

from the invention, in the early years

century, of dirigible air craft*.

It

was

the

of

present

1900 that, on

in

the motion of M. Fauchille, the Institut de Droit International

Nys

appomted a committee, with

MM.

as Reporters, to deal with the topic,

Fauchille and

and

their Reports

have been exhaustively debated at several meetings of

was always

the Institut, in which a divergence of view

observable between those of
the

Roman law

things which

'

dictum,

its

members who

naturali iure

started from

among the
omnium communia sunt and

which includes

'

aer

'

','

- Dig. I. 16.
i. 186.
239.
See the Convention de Saint- P^tersbourg de 1874, and the 'Conventions radiot^legraphiques' signed at Berlin in 1906, at London in 1913.
* For some remarks upon the relation of these discoveries to land
ownership in Private Law, see supra, p. 191.
' Dig. i. 8. 2. But it would rather seem that in this passage 'aer'
should be taken to mean the element, not the space which it occupies.
1

Vattel,

INTERNATIONAL LAW.

396

who

CHAP. xvu. others

'

upon the maxim

relied rather

of English law,

The

cuius est solum eius est usque ad coelum.'

resolutions

adopted by the Institut in 19 ii bear traces of a compromise between the two views, as does

march

abortive

the

of the extensive

and the difference between them

literature of the subject \

rendered

much

Conference

Paris

of

The

19 10.

'usque ad

of events has, however, favoured the

During the present war, neutral States

coelum' theory.

have not hesitated to

fire

upon belhgerent

ing to pass over their territory.

There can henceforth be

no doubt that the proprietary right

superincumbent

air-space

airships attempt-

of a

State to the

absolute, without

is

limit

of

altitude.

The ownership

of territory

by

^'

prescription

'

accession

^
'

acquired originally

In the former case, by 'occupatio rei

or derivatively.

nuUius

may be

and possibly by

','

and here

difficult

questions

'

acquisitive

may

arise as

which
drawn between agri limitati,' agri adper universitatem,' and agri arcifinii.' In the latter

to the extent of the acquisition, for the solution of

distinctions are
signati

by

case ^

'

'

'

cession, succession, or conquest.

Besides the 'dominium' which a State enjoys over

own

territory, it

may

of its neighbours.

also

have rights over the

Such 'iura

in re

aUena^'

its

territories

may

be in

the nature of feudal superiority, mortgage, or servitude.

The

(4)

right of Jurisdiction, 'Imperium,'

is

intimately

* Cf Holzendorff, Handbuch des Volkerrechts

(1887), ii. 46; Rivier,
Droit des Gens (1896), i. 140; Meyer, Die Erschliessung des Luftraumes
an ihren rechtlichen Folgen (1909) Judge Baldwin, The Law of the Airship (1910); Rolland, Rev. G6n. Dr. Int. Public, xiii. p. 58; Nys, Droit
International (1912), i. 568, iii. 201. Many more references might be
given to works in many languages. It may suffice to refer particularly to
the Annuaire de I'lnstitut de Droit International for 1900, p. 262; 1902,
.

pp. 19-114, 335-337; 1906, pp. 293-303; 1910, pp. 293-329; 1911, pp.
i-iSS, 303-346; and to Sir H. E. Richards' admirable Lecture on

'Sovereignty over the Air,' 191 2.

2

Cf. supra, p. 214.

Cf. supra, p. 215.

'

Supra,

p. 221.

Cf. supra, pp. 215, 216.

Cf. supra, p. 216.

TREATIES.
connected with that of dominion

bounds

only within the

of a nation over its

twofold:

'i,

being, like

it,

exercisable

The

a given space.

of

rights

territory are indeed, as Vattel says,

domaine,

le

397

en vertu duquel

la

nation

pent user seul de ce pays pour ses besoins, en disposer,

et

en

le

droit

tirer I'usage

et dispose a sa volonte

pays

le

own

its

jurisdiction

they subjects or

they

may

be,

is

of international law, but

exercises

it

over

all

persons, be

committed by

aliens, in respect of acts

territory,

its

of international

may

elle

which a State claims to enjoy

than

of public

the jurisdiction which

aliens

lequel

de tout ce qui se passe

subjects, wheresoever

matter rather

them within

Tempire, ou

.'

The personal
over

2,

est propre.

il

du souverain commandement, par

ordonne
dans

auquel

by the rule
the State to which such

legitimated only

is

law which obliges

belong to acquiesce in their punishment.

Although the Dominion and the Jurisdiction of a State

are both circumscribed

are
'

by

territory,

its

not co-extensive, since, by

territory

right,

'

is,

the two rights

custom

of nations,

with a view to the exercise of the latter

'

extended

artificially

On

stricted in others.

a State

the

some

in

directions,

and

the one hand, the Jurisdiction of

allowed to extend, beyond the bounds of

is

dominions, to

all

re-

high seas, and, for certain purposes, to

its

flag

upon the

all ships,

not being

the ships that carry

its

may carry, which pass

On the other hand, Jurisby what is known as the

ships of war, whatever flag they

within three miles of

diction

its coasts.

artificially restricted

is

doctrine of

'

extraterritoriality,' in

certain persons

ambassadors and ships

of

war, though actually within

the territory, are treated as

Very extensive
^

Liv.

accordance with which

and things, notably foreign sovereigns,

if

they were outside of

it.

privileges of extraterritoriality are usually

i.

204;

cf.

Grot.

De

I.

B. et P.

ii.

3. 4.

cuap. xvn.

INTERNATIONAL LAW.

398

by Oriental nations

CHAP. XVII. granted

express treaty

Christian residents by

to

and a nation sometimes assumes, even

without treaty, to exercise a Jurisdiction over

subjects

who

concurrent jurisdiction

is

allowed to

nations upon

all

the high seas for the suppression of piracy.

Grotius

as

is,

inter

own

its

are resident in barbarous countries ^

'naturalis

says,

Since there
confederatio

tacita

et

omnes homines contra communes

societatis

hmnanae

hostes.'

(5)

State

not only entitled to the immunity from

is

and

territory

injury of

its

may

also

insist

they

may

be, shall receive

ments or

their

that

of

persons therein, but

all

subjects individually, wherever

its

no harm from foreign govern'

subjects.

Prima maximeque necessaria

cura pro subditis,' says Grotius

adding, sunt quasi pars

'

rectoris ^'

'In per-

ii.

rights of nations 'in personam,'

The antecedent

such

nation

one

as

may

i.

e.

enjoy against another given

nation, are almost exclusively contractual,

e.

i.

they arise

from Treaty.
be remembered that a contract in private law

It will

was shown

to imply

agreement

of

and

possible

i.

several parties;

legally

permitted;

as afects the relations

very generally,

which

affords

vi.

motive

of

is

iv.

produce a legally binding result;

also

ii.

an expression

a matter agreed upon which

iii.

v.

solemn

for

the

a nature to

of

and such a

the parties

one

form,

both

is

result

to another;

or

agreement*.

some
All

fact

the

grants and conventions of the Ottoman Empire to this effect

known as capitulations.' The exercise of the jurisdiction in
question by Great Britain is now regulated by the Foreign Jurisdiction
Act, 1890. The abolition of its exercise in Japan was provided for by the
I

The

are usually

'

Treaty of July
*

E.

g.

26

&

diction Act, 1890,

I.

B. et P.

which came into operation on July 17, 1899.

35, as to South Africa; and the Foreign Jurisasserts this right in the most general terms.

16, 1894,

27 Vict.

ii.

s. 2,

25.

I.

c.

Supra,

p. 266.

TREATIES.

300

elements of this analysis, with the exception of the

present

equally

are

in

last,

though some of the

treaty;

subordinate rules under each head are incapable of trans-

from private to international law.

plantation
treaty

'duress,' nor are the

ground of

Thus a

an ordinary contract, voidable on the

not, like

is

acts

of

plenipotentiaries

as binding on their sovereigns as they

would be under

the ordinary laAv of agency.

Treaties,

which are

may

contracts,

like

be

in accordance with their purpose,

of

are

'

accessory,'

and the

cession

of

alliance,

e. g.

Since a nation

divided

those

into

which may again be subdivided,

'principal,'

by way

of

mto
like

treaties of peace,

and those which

mortgage or guarantee \

obviously incapable of entering into

is

contracts, or otherwise giving expression to its will, unless

through a representative, the topic of agency occupies

a

space

large

added to the
of

in

list

international

of international rights,

This

'the right of Legation,'

error.

and

law,

is

under the style

submitted to be an

nation cannot be said to have a right of negoof sending

tiating or

an embassy, since

it

that any other nation shall either entertain

or receive

The law

cannot insist
its

proposals

ambassador.

its

of international

agency deals with the functions,

and ranks

ambassadors and

privileges,

of

other public

ministers; also with consuls and other agents

enjoy a diplomatic character.

inviolability

sonages

sometimes

is

is

and

who do not

The whole question

extraterritoriality

of the

diplomatic

of

per-

naturally analogous to nothing in private law,

but resembles rather that branch of public municipal law

which describes the safeguards provided

of

government
Remedial

for the protection

officials in the execution of their duties.

international

rights

vary according

to

the

nature of the right violated; thus entitling the injured

'

Cf. supra, pp. 287, 307.

chap. xvu.

INTERNATIONAL LAW.

400

an apology, by salute to

CHAP. XVII. State to

an insult to

for

or other property, of which

its

or otherwise,

flag

dignity; to restitution of territory,

its

it

has been deprived; or to

money indemnity.
HI. The Adjective law of nations prescribes the pro-

Belliger-

ency.

may

cedure by which the Substantive law

and corresponds roughly to what

enforced,

called 'the

the

disputant

So far as

affects

is

law of nations in time of war.'

'Belligerency.'

it

lawfully be

parties
it

only,

is

it

popularly

So far as
the law

disputants to parties not engaged in the struggle,

the law of
Steps
short
of war.

Redress

for

a friendly manner,
(2)

violated
t

via

may

right

amicabili,

obtained

be

.,.,.,,

by

(i)

in

negotiation,

the mediation of other States, or (3) arbitration^: or

may

it

it is

Neutrality.'

-,,

of

regulates the relations of the

be obtained by force, *via

facti,'

which

is

always

necessarily in the nature of self-help, and liable to

the disadvantages of a procedure in which the

party
^

is

a judge in his

own

The Hague Convention No.

all

injured

cause ^
of 1899,

now

replaced

by No.

of

1907, 'Pour le rSglement pacifique des conflits internationaux/ recommended, in addition to these methods, 'Commissions Internationales

d'Enqu^te,' art. 9, a suggestion acted upon in the case of the Dogger

Bank outrage. It also expressly recognised Arbitration 'comme le
moyen le plus efficace et en mSme temps le plus Equitable de r6gler les
litiges, &c., dans les questions d'ordre juridique, et en premier lieu dans
les questions d'interpr^tation ou d'application des Conventions Internationales,' art. 16. Identical treaties, for five years certain and renewable for a like period, have accordingly been made by most European
Powers, by which they agree to submit to the Tribunal constituted
under arts. 20-29 of the Convention such matters (only) as those above

ne mettent en cause ni les

ou I'honneur des deux fitats contractants, et qu'ils ne touchent pas aux int^r^ts des tierces Puissances.'
See now on 'Commissions,' arts. 9-36, on 'Arbitration,' art. 38, and on
the Tribunal of Arbitration, arts. 41-50 of the corresponding Convention of 1907. The Treaty between Great Britain and the U.S. of 1914
prohibits hostilities between the two countries till the grievances have
been reported on, after possibly a year's interval, by a special commis-

specified, 'k la condition toutefois, qu'ils

int^rSts vitaux, ni I'ind^pendance

sion created
'

by the Treaty.

Cf. supra, p. 320T

BELLIGERENCY.
In the latter case,

mere

of

de

'

droit,'

i.

e.

the right violated be one to acts

if

remedy

comity,' the

is

right be one of those

*stricti

iuris,'

to the

injured

i.

exercised

e.

various

short

'

called

is

good

similar

of

are

action

actual

are tolerated at the

open

Such are

war.

were

their earhest form,

whom

offices.

still

'special,'

by injured individuals against the

by

chap. xvn.

Retorsion

which are allowed to be

courses- of

State,

of those

citizens

what

a refusal to perform

If the

'Reprisals,' which, in

401

fellow-

they had been injured; but

present day only in

form of

the

'general reprisals,' allowed by the government of a State

subjects generally, or to its public forces.

to its

characteristic, in

either

in time of peace,

'non

'Embargo' and

they take place

case, being that

nisi in

'Pacific

Their

pace represaliis locus est'

blockade' are

among

the more

important species of general reprisals.

Actual war has been well described as

'

the litigation War.

Ought it, like an action in private law, to

commence with a notice served by one party upon the

of nations'.

other,

i.

e.

with a formal 'Declaration'?

there has been

much

According

of practice.

Upon

difference of opinion
to

Gentili,

'si

this point Declara^^^'

and

non

alteration

est

bellum

quam contentio legitima

primum petitio et denuntiatio

clandestina magis contentio

est iudiciorum, haec

fori
fieri

debet, ut in lite inerma fit\'

When war
it

is

outbreak

its

has once commenced, the rules by which Effect

regulated refer, in the

belligerents,

'

first

upon the subsisting

some

of

place, to the

treaties

which are ipso

effect of

between the
abrogated,

facto

while others remain in force; and upon

the

rights

of

each belligerent over such subjects of the other belhgerent

and

their property as

De

may be found

within

its

territory

ii. c. I.
The contrary view has in modern times prevailed;
the Hague Convention No. 3 of 1907. By art. i the Powers
'reconnaissent que les hostilit6s entre elles ne doivent pas commencer
sans un avertissement pr^alable et non Equivoque, &c.'
Dd
1950

but see

I.

B.

now

of

INTERNATIONAL LAW.

402

They

time.

the

CHAP. XVII. at

actual conduct of warfare, on

effect

Conduct

of

warfare.

upon the ownersliip

second

the

in

refer,

and

considered under four heads:

come

will

to its

of property.

may

Questions relating to the conduct of warfare

under which head

the

place, to

land or at sea,

viz.

be

(i) military operations,

rules as to stratagems, as to

the use of certain weapons, as to sieges and bombardments,

and marauders, as to quarter, ransom and

as to spies

and as

prisoners of war,

wounded
and

'

of

belli,'

requisitions

e.

i.

and therein

occupied,

and

'

and

property, public

of
'

and the

the enemy's country while

contributions

(3)

' ;

'

private,

commercia

such exceptions to the rule against intercourse

between enemies

and

to hospitals, surgeons,

treatment of

(2)

cartels

as

'

(4)

truces,

reprisals,'

safe-conducts,

capitulations,

the

in

sense

the

of

special

punishments to be awarded to enemies guilty of breaches

of the

The
with

law

war\

of

rules as to the effect of

questions

the

of

of

'booty,' of 'prize,'

private property

and

title

war upon ownership

deal

to conquered territory, of

such immunity as

accorded to

is

to certain species of national property,

of the acquisition of debts

due to the enemy, and

of re-

capture.

Neutrality.

IV.

It is

not unusual to find in systems of municipal

law prohibitions against taking up the law-suits of others

by way of 'champerty' or 'maintenance,' and against
interference

with

international law

occupy

to

the

course

of

criminal

somewhat analogous
important

very

justice ^

have come
The conduct of

topics

place.

warfare was long discussed with reference only to

'

Cf. supra, p. 374 n., as to the author's

Handbook

Customs of War on Land, &c., 1904, and his

War on Land (written and unwritten), 1908.
2

E.

g.

Dig.

and supra, pp.

xlviii.

7.

188, 189-

6.

Cf. Cuiacius, Obs.

In

31,

Laws and
The Laws of

of the

larger work,

viii.

belli-

'De Ergolabis';

NEUTRALITY.
gerents, but

became

it

clear

403

the course of

in

the last

chap. xvii.

century that a far more complex class of questions had

arisen with

towards

reference to the rights

which

nations

had become necessary

mode

to the

on

carry

to

stand

arrive at

to

of

the belligerents

from the war.

It

some agreement

as

aloof

reconciling the right of each belhgerent

of
his

warfare, with the no less undeniable

right of a neutral quietly to pursue his ordinary business \

Attention was very early drawn to the conflict of the

rights of a belligerent State with the trade of the subjects
of neutral States,

to a neutral State

modern

times.

with reference,

but the relations of a belligerent State

were imperfectly worked out

The subject
first,

is

till

quite

most conveniently considered

to the Rights; and, secondly, to the

Duties of Neutrals.

The Rights

of

a Neutral

are the fundamental rights Rights

by war; and may

of a State, modified in certain respects

perhaps be enumerated as follows

To sovereignty within

i.

or cancel,

its

territory

all belligerent acts, either in

and so to prevent,

the territory

itself

or in the adjacent waters, to exercise there the right of

asylum, and to prohibit the exercise there of any

belli-

gerent jurisdiction.
ii.

To

iii.

To

the inviolability of

its

public ships.

the security of the persons and property of

its

subjects within the territory of a belligerent, subject to

certain exceptions, such as the
'

'

ius angariae.'

The difficulty, says Grotius, had been perceived long before his
'cum alii belli rigorem, alii commerciorum utilitatem defenderent,'

time,

I. B. et P. iii. 15. His treatment of the subject is very meagre, and he has
no general name for it, although Neumajr von Ramsia had published,
as early as 1620, a special treatise Von der Neutralitat,' &c. Baron Descamps would substitute the awkward and uninforming term 'le Pacig^rat' for the adequate and convenient word 'Neutrality.' Annuaire de
'

I'Instit.

de Droit International,

t.

xx. pp. 61, 211.

Dd2

of

INTERNATIONAL LAW.

404
C5AP. xvii.

To

iv.

the continuance of diplomatic intercourse with

the belligerents.

To

V.

under certain circumstances, a revolting

recognise,

population as a

new

facto belligerent, or even as a

cfe

sovereign State.
Duties of

The Duties

may,

of a Neutral

conceived, be classed

it is

under three heads, of which the First consists

of restraints

on the free action of the State, as such; the Second, in

an obligation
individuals;
in the

to restrain in certain respects the acts

and the Third,

punishment

of

in an obligation to acquiesce

by a

of its subjects

belligerent for acts

which apart from the war would be innocents

The

i.

State, as

restraints

imposed upon the action

such, forbid

it

ii.

its

The

ment

belligerent, or to

ports so as to further belligerent objects.

State

is

the acts both of

prevent

a neutral

to furnish troops, or arms, or

money, or to allow passage, to either

open

of

bound

its

own

with

to a positive interference

subjects

and

of aliens, so as to

perhaps the equip-

hostilities, or enlistments, or

of war-ships, taking place within its territory,

generally to prevent

its

territory

and

from being used as a

base of operations by either belligerent.

It

is,

however,

not bound to prevent the export of contraband for

belli-

gerent use.
iii.

There are certain acts of neutral subjects with which,

of one

though detrimental to the interests

the belligerents, the Neutral
terfere.

cases

to

subjects,

She

is,

State

is

however, under an
ordinary

right

or other of

not bound to

in-

obligation in these

her

forego

her

and

allow them to be interfered with, and

to

On

of

protecting

the division of neutral duties here suggested, under the heads of

and 'Acquiescence,' see further the author's
paper in the Proceedings of the British Academy for 1905, or, as translated, in the Revue de Droit International, 2* s4rie, t. vii. p. 359^

'Abstention,' 'Prevention'

NEUTRALITY.
to be confiscated,

their property

405

by the

belligerent

who

has ground to complain of their conduct.

Many commercial

transactions,

which

in

time of peace

are perfectly unobjectionable, will thus in time of

war

expose those concerned in them to losses for which they

wdll

obtain

blockade

any rate

'

no

and
till

'

compensation.

Such

carriage of contraband

recently, breach of 'the

1756,' carriage of

are

'breach

of

and such were, at

rule of the war of

' ;

enemies' goods under a neutral

flag,

and,

according to the views of some nations, sending neutral

goods under the flag of an enemy.

Most writers have been

in the habit of seeing in these

cases a direct relation between a belligerent State

individual subjects of a neutral State.

It

is

and

submitted

that such a relation should never be recognized by International law, which ought to be regarded as occupied

exclusively with

State and State.

rights

and duties subsisting between

chap. xvu.

CHAPTER XVm.
THE APPLICATION OF LAW^
So long as law

regarded

is

principles, its interest is

body

as a

merely speculative.

of

abstract

Its practical

importance begins when these principles are brought to

bear upon actual combinations of circumstances.
Three
questions.

Many

questions

may

m which this takes

been laid down which,

of analysis

ment

and

be raised as to the extent and mode

place, and, for their solution, rules

like other legal rules, are susceptible

classification.

of Jurisprudence

When

cation of law.'

in accordance with

will

apply?

it

'

two questions
First,

law to the

The former
'

of capital import-

what State has jurisdicand secondly, what law

facts ?

of these questions

is

said to

Forum,' the latter to the appro-

third question, which, for the purpose of our present

is

of less importance than these two,

dismissed in a few words, relates to

depart-

the Appli-

Lex.'

enquiry,

'

call

a set of facts has to be regulated

law,

relate to the appropriate

priate

They make up that

which we propose to

ance present themselves.

tion to apply the

have

translation

by M. Nys

'

of this chapter, as

it

stood in the

appeared under the title 'De I'Application de

Revue de Droit International (1880), t. xii. p. 565.

edition,

and may be

Interpretation.'

first

la Loi' in the

PRIVATE LAW.
It will

407

be necessary to show very briefly

these chap. xvm.

what modes they are answered,

questions arise, and in

private law;

how

and how

in

same or analogous questions

far the

have to be considered also with reference to public and

to international law.

In private law

and

'

Forum.'

applica-

vate law/

Given a set of circumstances the legal consequences Questions

I.

which are disputed,

of

Private Law.

three questions have to be answered, The

all

first as to the

1.

obviously becomes necessary to

it

ascertain in the Courts of

be decided

other words,

in

what country the dispute can

what Court has

jurisdiction

to try the case ratione territorii^.

For

this

purpose

it

is

indispensable to classify, on the Possible

one hand, possible sets of circumstances, and, on the other

hand, possible Courts,

The circumstances

wliich

may

give rise to legal con-

troversies have been already classified in the preceding

chapters.

The Courts

in

which proceedings may possibly be taken

are: that of the country in which the plaintiff, or the

defendant,
or in

is

domiciled, or to which he owes allegiance ^

which the defendant happens to be; that

country in which the object in dispute

of the country in

which the

may have been

for

instance

which the ^vrongful act

of the country in

situated; that

juristic act in question,

a marriage, or a

the making of a will, took place;

in

is

of the

in

which

sale,

or

that of the country

question took place; that

which a contract was to produce

its

*
This phrase seems better adapted than its older equivalent 'jurisdiction ratione personae' to distinguish the question stated in the text
from questions as to 'jurisdiction ratione materiae,' 'sachliche Zustandig-

keit,'

i.

e.

as to the proper court, within a given territory, for the trial

of a particular class of actions.

2

This exceptional forum

is

recognised

e. g.

in the

Code

Civil, art. 14.

Possible

THE APPLICATION OF LAW.

4o8
CHAP, xviii. results

or that in which the plaintiff chooses to

commence

proceedings.
It

might be convenient

tively as the

'

to describe these

Fora

ligeantiae^ or domicilii^ actor is,

forum

ligeantiae, domicilii, or praesentiae, rei^

forum

rei sitae,

forum

actus,

including contractus \

delicti

commissi ^

forum

litis

motae, or fortuitum.

Of these technical terms one only, the forum

e.

i.

respec-

forum

and the forum

i&c.) rei,

'

{domicilii,

of the defendant, has obtained general currency,

doubtless by means of the long prevalence of the maxim,

'actor sequitur forum

As examples
it may

forum,

rei.'

of the

which

questions

arise as

to

the

be sufficient to mention that an English

Court will almost always decline jurisdiction in divorce

unless

the husband be domiciled in the country;

and

that an English Court will take cognisance of a contract,

wherever made and between whatever

French Court

is,

parties, while

as a rule, incompetent to do so unless one

of the contracting parties be a

French subject or domiciled

in France.

The Courts

of a given country

to time thus to decide on their

have not only from time

own

competence, but also

occasionally to investigate the competence of the Courts

of other

States

the decrees of which,

when duly made,

they will often recognise under the technical description

'

of

Foreign judgments,' just

facts creating rights;

as

which rights may thus continue to

subsist outside of the jurisdiction

them
1

they do other foreign

which

originally

gave

validity.

Which

latter

term

is

specially described as the

also usually

forum

employed

to cover

what might be

solutionis.

^ A forum obligationis, i. e. of the country where the cause of action

has arisen, would include the /ora actus and delicti commissi.

THE APPROPRIATE
The question

II.

LEX.

as to the applicable

'

409

Lex

'

is

more

far

complicated than that as to the competent 'Forum.'

circumstances which affect

as Concentricity, Time, Race,

general circles of law.

by

own

its

which

to

kingdom
the

and

belongs,
included,

is

civic, royal,

city

statutes, but also

it

affairs

of

of

and

may

be enumerated

^^'

and Place.

often occurs that special

It

i.

solution

its

chap, xviii.

The Questions

it

are

may

included

raoreConcen-

in

be governed not only

by the law

of the

kingdom

empire in which that

the

may

be doubted whether

the citizens are to be

regulated

by the

or imperial laws, where these differ from

one

another.

The general

rule

that the nearer and narrower law

is

to be applied rather than the

is

more remote and wider,

'Stadtrecht bricht Landrecht, Landrecht bricht gemeines

Recht

'

thus

'

gavelkind

'

Kent rather than the

prevails in

general law of England as to succession to realty \

ii.

It

might be supposed that the universally admitted Time,

principle that laws have, in the absence of express pro-

no retrospective operation, 'leges

vision to that effect,

constitutiones futuris dare

old law.

some

This

is,

is

et

facta

doubt whether a

to be governed l^y a

new

or

by an

such for instance as acquisition by

under a

of facts occurring

all

non ad

however, by no means the case, since

legal relations,

prescription or

negotiis,

would prevent

praeterita revocari^'

given state of facts

formam

will, are

the result of a series

through a prolonged period.

There

is

accordingly a literature devoted to the discussion of the

'temporal limits' of the application of law^

On

the conflict between Federal and State decisions in the United

an article in the American Law Review, xvii. p. 743. Cf. the
Einfiihrungsgesetz zum biirgerlichen Gesetzbuche, Erster Abschn.,
'

States, see

art. 3.

Cod. i. 4. 7.
E. g. Struve, tlber das positive Rechtsgesetz riicksichtlich seiner
Ausdehnung in der Zeit, 1831; Savigny's discussion of the 'zeitlichen
-

'

THE APPLICATION OF LAW.

410
CHAP. xvin.
^^'

There

iii.

a stage

is

civilisation

of

at

which law

is

addressed, not to the inhabitants of a country, but to the

members

of a tribe, or the followers of a religious system,

irrespectively of the locality in which they

to be.

This

is

the

'

personal

'

may happen

stage in the development of

The governments which the barbarians established

on the ruins of the Roman Empire did not administer one

law.

system of justice applicable throughout a given

but decided each case that arose in
personal law

of the

defendant^

an often-quoted passage
Agobard,

it

in

gether

'^.'

In one

and the

Burgundian, and the

system of law.
the

present

one of the tracts of Bishop

day

territorial law,' it

in

'

five

men, each under

found walking or sitting

to-

same town the Frank, the

Roman

similar

the

of

so that, according to

might well happen that

a different law, would be

territory,

pursuance

lived

each under his

own

phenomenon may be seen

British

India.

has been said,

'

is

'The notion

at

of

European and modern.

The law which Hindoos and Mahometans obey do not

recognise territorial limits. The Shasters and the Koran
revealed religion and law to distinct peoples, each of

recognised a

common

faith as

whom

the only bond of union,

but were ignorant of the novel doctrine

that law and

sovereignty could be conterminous with territorial limits

The

British Courts, in dealing with

members

of the

I'

Hindoo

Granzen,' System, Bd. viii. pp. 368-540; Chabot de I'AUier, Questions

transitoires sur le Code Napoleon, 1809; and Professor Affolter, Geschichte des intertemporalen Privatrechts, 1902.
*
Marriage was contracted according to the law of the husband, and
wives married according to their own law could be dismissed at pleasure,
but for such religious prohibitions as that of the council of Tibur, Mansi,
t. xviii. col. 151, cited by Westlake, Private International Law, ed. 2.
p. II n.
2 'Nam
plerumque contingit ut simul eant aut sedeant quinque
homines, et nullus eorum communem legem cum altero habeat, exterius
in rebus transitoriis, cum interius in rebus perennibus una Christi lege
teneantur.' Adv. legem Gundobadi, c. 4, Op. i. p. iii.

Cowell, Tagore Lectures, 1870, p. 40.

THE APPROPRIATE
Mahometan communities, hold

or

LEX.

411

wherever

that

such

chap, xviii.

persons go within the limits of British territory, they carry

with them, as a personal law applicable to their family

and possessions, Hindoo or Mahometan law respectively

iv.

According to modern

ideas, a

system of law appUes

not to a given race, but to a given territory. It follows

from the independence of each State within

that

it

might, without

international

which

law,

calls for decision

every set

exclusively by

law, technically described as the lex

own borders

any principle

contravening

regulate

its

of
its

fori.,

of

circumstances

own law. This

may be said to

be the natural law for the Courts of each State to apply

and

it is

that which will undoubtedly be applied by them,

in the absence of special reason to the

the development of

civilisation

ever,

become as inconvenient as

this

law

rigidly

to all

and commerce
it is

transactions,

it

has,

whether completed

whether permanently settled

country, or merely passing through

are of course

bound

to apply to each

how-

inequitable to apply

wholly within the territory, or partly outside of

to acts of all persons,

With

contrary ^

it.

it,

and

in the

The Law Courts

case the law which

1 Cf. Cowell, Tagore Lectures, 1870, p.

5, and the First Report of the
Commission for a body of Substantive Law for India, p. 80.
2 It must be noticed that ah ambiguity lurks in the phrase
law of the
country,' which has quite recently given occasion to a considerable litera'

law of England' (or 'of France') include, or exclude,

the rules followed by the English (or the French) Courts in determining the system of law applicable to a given case? If the phrase includes
such rules, then the meaning of saying that a given case is to be decided
according to the law of Spain, may be that it is to be decided according
to the system which that law thinks to be applicable to such cases, which
may be the law of France. The view that cases determinable by the law
of one country may thus, for that very reason, be determined in accordance with the law of some other country, is known as the doctrine
of Renvoi, Rinvio, Ruck- und Weiterverweisung. See especially Buzzati,
II Rinvio nel Diritto Internazionale Privato, 1898, also I'Annuaire de
I'Inst. de Droit International, t. xviii. p. 145, and Notes on the Doctrine
of Renvoi, by J. P. Bate, 1904. Cf. Dicey, Conflict, ed. ii. pp. 79, 715.
ture. Does.e.g.,' the

Place,

THE APPLICATION OF LAW.

412
CHAP. XVIII. the sovereign

has provided for

been well observed, there

its

regulation, but, as has

no reason to suppose that the

is

sovereign enacted the ordinary

It accordingly

the exceptional cases in question.

necessary to classify these

what

'

mixed

are the categories of law

with a view to

lex fori

cases,'

became

and to determine

by which,

in accordance

with equity and with the general convenience, each ought

to be governed.

The

Possible
cases.

possible cases

must come within the

classification

with which the previous chapters have familiarised us,

i.

e.

they must be cases of status, of property, of contract, and

Possible
laws.

may

so forth.

The

which one

of the persons concerned

which he

is

possible law

which the wrong

in question

or in which an act, such as the

carried

owes

allegiance, or in

domiciled, or in which the thing in question

situated, or in

contract,

be that of the country to

was performed, or
out.

making

of a will or of a

which a contract was

in

These distinctions

may

is

was committed,
to be

be technically ex-

pressed by the following terms respectively:

lex ligeantiae,
lex do7nicilii.

lex loci rei sitae^

lex loci delicti commissi^
lex loci actus, of

which

contracttis is a species,

lex loci solutionis.

The

lex fori

has been previously mentioned.

terms are in current use, except only the

is

All of these

lex ligeantiae.,

which

suggested as conveniently descriptive of the law of the

country to which a person owes national allegiance a law

which, in the opinion of the school of jurists now predominant
;

on the Continent, ought to decide many of the questions

which have usually been determined by the lex domicilii\
1 Cf.
Codice Civile, arts. 6-9. This doctrine, it will be observed,
though presenting some analogies to that of the 'personality of laws,'
explained at p. 410, supra, is by no means identical with it.

THE APPROPRIATE LEX.

The

selection

applicable to
class,

from

this

list

of the lex

the decision of

which

questions of

413
properly chap. xvin.

is

a particular

those relating for instance to marriage, to minority,

or to bankruptcy,

guided in each country by the laws

is

There

of that country ^

is,

however, a considerable general

resemblance between the rules of different systems

positive

law upon these points

inclined with regard to

and

and to the theories

subject

convenience.

more

of foreign countries,

of such experts as

from the point

The

is

of

such questions than to others to

pay deference both to the positive law

the

positive law

of

have written upon

view of propriety and

assimilation thus produced of positive

systems to one another and to the theories of experts

has led to an erroneous impression that there exists something like a

common law

subject ^ instead

of,

mation of national

as

is

of civilised nations

upon the

really the case, a gradual approxi-

practice,

a growing body of theory ^

guided to some extent by

Some

writers have indeed

been led so far astray as to assert the invalidity of any

national laws which do not conform to their views

upon

the subject*.

1 Cf. In re Hawlhorne, L. R/^23 Ch. D. 748:

sometimes by express
enactment, as in the Codice Civile, in the Einfiihrungsgesetz of the
German Civil Code, and in the Bills of Exchange Act, 1882.
* Conferences, held at The Hague in 1893 and succeeding years, under
the presidency of Professor Asser, at which most of the European powers,
as also Japan, though not Great Britain, were diplomatically repre-

sented, have resulted in the signature of eight treaties codifying, so far

as the signatories are concerned, large portions of Private International

law. Treaties with similar objects have also been entered into

by

sev-

South American States as a result of the Congress held at Montevideo in 1888. See Revue de Droit Internat., xxv. p. 521, xxviii. p. 573;
lb., 2^6 sdrie, t. iv. p. 485, vi. p. 517, vii. p. 646; Bulletin Argent, de
Droit International Priv6, 1905, p. 377. Cf. pamphlets by Professors
Buzzati, 1899, Meili, 1905, and S. Baldwin, 1903, 1906.
* This error is well exposed by Lindley, L. J.: 'It is all very well to
say that International law is one and indivisible,' &c., Ex parte the
UnionBank of Australia, [1892] i Ch. (C.A.) at 226. Cf. Lord Selborne,
in Orr v. Orr Ewing, 10 A. G. 453.
* E. g. Struve,
9. 37. Cf. Ex parte Blain, 12 Ch. D. 522eral

THE APPLICATION OF LAW.

414
CHAP. XVIII.
Classification of

nomenclature.

The body of principles adopted in positive systems, or

recommended by theorists, for the selection of the territorial 'lex'

which

is

appropriate to the decision of any

given question of private law, has been called

by many

names, the variety of which attests the obscurity which

has involved the true nature of the subject.

reduced to seven

Statutes.

classes.

The controversy having

I-

They may be

first

been raised with

refer-

ence to the competing claims of the 'statuta' of different

Italian cities, the

whole topic was treated from

The example

of view.

set

by Bartolus

on the code in the fourteenth century

a series of writers such as

Halbritter,

in his

this point

comment

was followed by

who wrote 'De

and John Voet, who wrote in 1698 ^

Henry published a 'Treatise on the Difference
a Traite des statuts,
between Personal and Real Statutes
lois personnelles et reelles, et du droit international prive,'
Statutis' in 1545 \

In 1823

J.

'

'

by M. de Chassat, appeared in 1845; and 'La theorie des

Statuts, ou Principes du statut reel et du statut personnel
d'apres le droit Civil Frangais,'

Conflict.

2.

by M. Barde,

more descriptive name

suggested in 1653 by Rodenburg,

for

in 1880.

such discussions was

who

prefixed to his

work

on the law of married people a tract entitled 'de iure

quod oritur ex statutorum vel consuetudinum discrepantium

conflictu*.'

Paul Voet followed, in 1661, with a treatise

'de statutis eorumque concursu';

Huber, in 1686, with

famous chapter 'de conflictu legum diversarum in

diversis imperils"; and Hertius, in i688, with his tract
his

Ad
Ad

'cunctos populos,' i. i.
'cunctos populos,' i. i. Tubingae.
In his Comment, ad Pandectas, lib. i. tit. 4.
pars 2.
* The tract is thus referred to on the general title-page. Its
title is 'De iure quod oritur ex diversitate statutorum.'
*
*

1.

1.

In his Praelectiones

1686.

iuris

Romani, pars

ii.

ad Pand.

lib.

own
i.

sub-

tit.

3.

NOMENCLATURE.
'de collisione legiim\'

415

G. de Meiern wrote in 1715 'de chap,

J,

statutorum conflictu eorumque apud exteros valore

in 1792,

de statutorum collisione et praeferentia

'

and

in 1841

die

'liber

1842,

Collision

'

'

Ham,

Wachter,

der Privatrechts-

gesetze versehiedener Staaten-'; Livermore, in 1828, 'on

the contrariety of laws'; and Brinkmann, in 1831, 'von

dem Widerspruche auslandischer und einheimischer Gesetze.'

Story's 'Conflict of

Laws' was published

in 1834; Burge's

'Commentaries on colonial and foreign laws, generally,

and

with each other and with the law of

in their conflict

England,' in 1838, 2nd

Laws

the

1907;

edit.

England and

of

J.

Hosack's 'Conflict of

Scotland,' in 1847

Wharton's

'Conflict of Laws,' in 1872; Professor Dicey's 'Digest of

Law

the

to the Conflict of Laws,'

R. C. Minor's 'The Conflict of Laws,' in

H. Beale's 'A selection of cases in the Conflict of

J.

Laws,' 3

3.

England with reference

and 1908

in 1896

1901

of

vols., in 1907.

The

fact that effect is given to

on whose authority they depend

territory of the State

emphasised in the

laws outside of the Extra-

titles of

is effect,

such works as that of Cocceius,

'de fundata in territorio et plurium locorum concurrente

potestate,' 1684^;

Scheinemann, 'de auctoritate legum

of

civilium extra territorium legislatoris,' 1696; of Seger, 'de

legum

vi

et

decretorum in territorio

alieno,' 1777; also in

Savigny's expressions as to 'die ortlichen Granzen*,' and

Schmid's 'die Herrschaft der Gesetze, nach ihren raumlichen Grenzen^'

Comm.

et Opusc. i. p. 129.
See Archiv fiir civ. Praxis, Bd. xxiv.

Exercit. Curios,

'

System, vol.

The

viii.

p. 230, xxv. p. i.

p. 680.

i.

pp.

5,

8-367.

work is Die Herrschaft der Gesetzenach ihren

raumlichen und zeitlichen Grenzen im Gebiete des biirgerlichen und
6

full title of his

peinlichen Rechts,' Jena,

Rechtsnormen
rechtes/ F.

'

1863.

Cf.

'Die raumliche Herrschaft der

dem Gebiete des Privat-

(ortliche Statutenkollision) auf

Bohm,

1890.

xviii.

THE APPLICATION OF LAW.

4i6
CHAP. XVIII.
"

tion

4.

The question

as to the choice of the

becomes prominent

A.nwendung fremder

Gesetze

to be applied

1822

Gesetze,'

in that of Struye,

^ ;

Rechtsgesetz in seiner Beziehung auf

'iiber das positive

raumliche

law

in the treatise of Oerstadt, 'iiber die

und

Verhaltnisse

verschiedener Oerter,'

Anwendung der

die

iiber

and

1834;

in incidental

expressions occurring in Savigny's System ^

Comity.

course a merely voluntary act on the part

It is of

5-

any State when

of

language of Huber,

it
'

In the

gives effect to foreign law.

Rectores imperiorum id comiter agunt

ut iura cuiusque populi intra terminos eius exercita teneant

ubique suam vim

entitled the

volume
(1861)

subject

this

Sir

Robert Phillimore accordingly

of his

Commentaries which deals with

^'

'On Private

Law, or

International

Comity.'

S chaffner gave to his book, published in 1841, a

6.

Inter-

national
Private
law.

apparently intended to indicate that

which rules

in

from another.

it

title

mode

dealt with the

of private

law are borrowed by one State

He

it

called

nationalen Privatrechts

;
'

'

and

die
it

Entwickelung des

was followed by

inter-

Pfeiffer's

'das Princip des internationalen Privatrechts,' 185 1

by

von Bar's 'das Internationale Privat- und Strafrecht,' 1862

and (omitting Strafrecht) 1889 by von Piittlingen's 'Hand;

buch des

in Oesterreich-Ungarn geltenden internationalen

Privatrechts,' in 1878;

by Hamaker's

tionaal Privaatregt,' in the

same year

tract 'het interna;

by Asser's

Schets

'

van het internationaal Privaatregt,' 1880; by Zitelmann's

Internationales Privatrecht, 1897-1912; and by F. Meili's
'Die

moderne Fortbildung des internationalen

Eunomia,

viii.

Prael. iuris

Privat-

1. pp. 1-105.
pp. IS, 32, 109. Cf. Sir H. Maine's definition of the topic as the
conditions on which one community will recognise and apply a portion
of the jurisdiction of another.'
'

Romani, pars

ii.

ad Pandect,

lib.

i.

tit. 3.

'
;

NOMENCLATURE.

In 1874 there appeared the 'Trattatodi chap. xvm.

rechts,* in 1909.

du'itto civile mternazionale

'Droit

417

'

of

penal international

'

The

Internationales Privat-

'

f Ur

Zeitschrif t

by

of Fiore, translated

was founded by Ferd. Bohm

Antoine.

C.

und

Straf recht

1S90.

In 1840 Foelix began a series of articles 'du conflit Private

7.

des

in 1880-81 the

Lomonaco;

international^' of Laurent, as also the 'Droit

civil

de differentes nations, ou du droit international ^'

lois

and re-published them

1843

in

the

as

du

Traite

'

droit

du conflit des lois en matiere de

The term was adopted in 1844 by Chancellor
Kent, who derives it from Victor Faucher \ and was known
in 1847 to Mr. Hosack ^ Mr. Westlake followed, in 1858,
international prive, ou
droit prive

^.'

with his 'Private International Law, or the Conflict of

Laws'; M. Fiore, in 1869, with his

principii per risolvere

privato,

'

Diritto internazionale

confl.itti

tra legislazioni

diverse in materia di diritto civile e commerciale

with

'

Le Droit prive qui

ou du droit des gens

fondamentaux

du
*

M. Brocher with

droit international prive,' 1876

Private International

Weiss with
Su'

W.

1895
1

')

his

'

Streit

M. Haus

dans ses principes

his

les lois

civiles

'Nouveau

traite

Mr. Foote with his

Jurisprudence,'

1878;

M. Andre

Droit international prive,' 1892 and 1907

Rattigan with his

M.

regit les etrangers en Belgique,

prive, considere

dans ses rapports avec

et

des Beiges,' 1874;

'

with his

'

Private International Law,' in

^vaT-qixa

tStwTtKow

Ste^vow? SiKac'ou,

civil international' was perhaps first used by

Report to the Acad^mie des Sciences Morales et Politiques,

The term 'Droit

Portalis, in a

Comptes rendus, 1843, t. i. p. 449.

2 In the Revue Etrangere et Frangaise de Legislation, t. vii. p.
Foelix begins, 'On appelle droit international I'ensemble des regies

81,
re-

comme

raison de decider des conflits entre le droit priv6 des

diverses nations.' He goes on to blame Wheaton for using the term
'droit international' as equivalent to 'di-oit des gens,' i.e. to public inter-

connues

He enumerates, pp. 17, 18, some earlier writers on the

On Dumoulin (ob. 1604), as introducing the topic into France,

national law!
subject.

see Clunet, 191

*

See

1950

I,

2,

14.

p. 79.
^

Coram.

2.

Op.

cit.

IntGr-

national

THE APPLICATION OF LAW.

4i8
CHAP. XVIII. in 1906

M.

Jitta with his

'

Substance des obhgations dans

le droit international prive,' 1906, 1907.

writes in his Zeitschrift on

tions

to Statutes,

Kohler

His example has been

Horn and by M. Darras

lowed, in France, by M.

Objec-

J.

'

droit international prive.'

in the

Professor

Zwischenstaatliches Recht,'

In 1874 M. Clunet established at Paris the Journal

1908.

du

'

Argentme, by M. Zeballos

Objections, well and

each and

ill

The nomenclature

an attempt to resolve a

'Statutes,'

grammatical question,
phrases, one

is

is

in 1905

in 1906.

founded, have been urged against

of these phrases ^

all

fol-

legal

into a

indeed obsolete.

of the

merely

Of the other

while the rest are

distinctly misleading,

rather inadequate than erroneous..

to Con-

Those who deny that a 'Conflict

flict,

takes place are right

if

of laws'

mean only

they

of a domestic can never be displaced

law.

ever really

that the authority

by that

of a foreign

It cannot, however, be denied that, although each

State

free to

is

question
foreign

adopt for

own

its

the decision

or foreign

laws to choose that

rival claims of these bodies of

law, and

which

it

of

any given

between various
yet the

prefers,

law do present themselves

to the legislature or the court as competing or conflicting.

There

is

no

strife for

the mastery, but there

petition of opposite conveniences.

inadequate, because
diction,

it

The

is

a com-

phrase, although

does not cover questions as to juris-

or as to the execution of foreign judgments,

is

better than any other.

to Extraterritoriality,

Such expressions as seem

supremacy,

'

to attribute an extraterritorial

Herrschaft,' to any system of law, are

more

obviously open to censure, as being inconsistent with the

absolute sovereignty of each State within

Little can

own

territory.

be said for describing the topic as 'Derecho Privado

Humano', with E.

S. Zeballos, in his Justicia Internacional Positiva,

1910, pp. 43, 44; or with Dr. T. Baty, in his

Law.'

its

book

of 1914, as 'Polarized

OBJECTIONS TO NOMENCLATURE.
When, on

hand, the theory of

the other

the ground

attacked, on

that

419

Comity

'

'

is chap. xvin.

applying a *

Court, in

^Jomity,

is guided, not by courtesy, but by legal

must not be forgotten that, although the

particuhir 'lex,'
principle,

it

Courts of each State are guided by the law of the State,

the State in making that law

guided, not

is

by the law

but by general considerations of equity, ac-

of Nations,

companied by some expectation of

reciprocity.

'Comity'

thus expresses the truth that the adoption of this or that

rule
law.

by a State

is

The new

a matter of indifference to international

Italian

school would

indeed deny this

proposition, asserting that a State, in applying foreign

international duty of

The phrase
Gesetze,'

is

too wide

'

'

perfect obligation

Application

liable to

of

law,'

\'

'

Anwendung

no objection except that

embracing, as

may,

it

law

but complying with an

to certain sets of circumstances, is

it is

der

perhaps

the topics of

all

to Applica'

the

present chapter.

'

International Private law,'

'

Internationales Privatrecht,' to

though a dangerously ambiguous term,

being understood

to denote the

private law are borrowed

is

mood

by the Courts

Inter-

not incapable of private

in

which rules

of one State

of ^^^>

from

those of another.

The transposed version

national law

'

is

of this

term

wholly indefensible.

as

'

Private Inter-

mean, in accordance with that use of the Avord 'international

'

language,

which, besides being well established in ordinary

is

both

logically correct, 'a

scientifically

convenient

and

etymo-

private species of the body of rules

which prevails between one nation and another.'

^

Nothing

See a Report by Signor Mancini, sometime Minister of Justice, to

Revue de Droit International, t. vii.

the Institut de Droit International,

PP- 333) 337> 362.

Cf.

von Bar,

in

System, p. 681.

e2

to Private

Such a phrase should tional

von Holzendorff's Encyclopadie,

law.

THE APPLICATION OF LAW.

420
CHAP. XVIII. of the

sort

is,

employment

however, intended

of the

phrase, as

which govern the choice

of

and the unfortunate

indicating

the

principles

the system of private law

applicable to a given class of

has led to endless

facts,

misconception of the true nature of this department of

It has also

science \

legal

made

it

necessary to lengthen

the description of International law, properly so called,

by prefixing
'

to

it

otherwise

the

superfluous

epithet

public'

most important,

It is

for the clear

understanding of the

real character of the topic wliich for the last forty years

has been misdescribed as

'

Private International law,' that

compound should no longer be employed.

abandonment less desirable with a view to the

this barbarous

Nor

is its

rehabilitation of the

purpose for which

The

The

con-

the topic.

it

term international
'

was

'

originally coined

topic in question consists of the

for the scientific

-.

body

of rules

which

prevail in a given country, or given countries, or which

theorists think ought to prevail generally, as to the selec-

tion

of

the law to be applied in cases where

it

may be

doubted whether the domestic or a foreign law, and, in the

^

Cf

e. g.

Ex

parte

Union Bank

of Australia, u. supra.

Supra, p. 391. So Professor Meili, 'Das internationale Privatrecht

hebt sich scharf ab vom Volkerrecht, das sich auf die Rechtsverhaltnisse
der einzelnen Staaten zueinander bezieht.' Zeitschr. fvir Volkerrecht,
-

Mr. Frederic Harrison, in two singularly able articles

Review for 1879, suggested as a substitute for 'Private International law' the term Intermiuiicipal law.' This is surely
no improvement, since 'municipal,' in accordance with established use,
&c., 1910, p. 168.

in the Fortnightly

'

either equivalent to 'national' or relates to civic organisation. 'American Interstate law' is the not inappropriate title of a work by David
Rorer, which appeared at Chicago in 1879 and 1893. In a syllabus of
lectures for 1886, Mr. Harrison proposed to speak of the interterritorial
application of law.' For a defence of the, one would have supposed,
obviously inadequate term 'Diritto privato universale dello straniero,'
invented by Professor Cimbali, of Macerata, and a curious polemic
is

'

waged by him upon the subject with other Italian professors, see his
'Di una nuova denominazione del cosiddetto Diritto Internazionale
privato,' 1893.

SUGGESTED NOMENCLATURE.
latter case,

which foreign law,

is

421

appropriate to the facts. It cuap. xvm.

With

is

a body of rules for finding rules.

is

usual to combine that of the choice of the competent

forurn^

and

this

topic

it

also that of the effect to be given to a foreign

judgment.

The group

of topics

the old names,

"

'

is

Private International law

'

is

may

'

is

probably the best,

indubitably the worst.

Application of Foreign law,' or

nition of rights,'

'

when

'

The

the Extraterritorial Recog-

be suggested as at any rate not

misleading, while the latter phrase might

calling attention to

Of The

undoubtedly hard to name.

the Conflict of laws

the

fact

a law seems to obtain

that

what

be useful as

really

happens

an extraterritorial

effect,

rather that rights created and defined by foreign law

is

obtain recognition by the domestic tribunal ^

Thus

it

is

that the status of marriage will be recognised as resulting

from an observance
celebrationis,

lex

loci

the

judgment

of

of the formalities prescribed

by the

and an obligation resulting from

a competent Court in one State will

be enforced by the Courts of another ^

No name

yet been suggested which satisfactorily covers the

topics of

has

two

'Forum' and 'LexV

In addition to the terms in the

text, as it originally

appeared in

1880, the terms 'Droit prive (ou, selon le cas, pdnal) extraterritorial'

were suggested by the present writer in the Revue de Droit International

same year, t. xii. p. 581. In 1883 a work appeared at Madrid, entitled 'Principios de derecho internacional privado, o de derecho extraterritorial de Europa y America en sus relaciones con el derecho civil de
Espana,' by D. Manuel Torres Campos. On this phraseology, see now
Professor Dicey, Conflict of Laws, 1908, p. 15.
' The theory of the text, it will be observed, assumes the foimdation of
this whole topic, whether it be described as 'the application of foreign
law,' or the 'extraterritorial recognition of rights,' to be that of 'vested
rights'; a doctrine which appears to the author to remain unshaken by
the numerous attacks which have been directed against it. It is well
stated by Huber, 'Subiectio hominum infra leges cuiusque territorii,
quamdiu illic agunt, quae facit ut actus ab initio validus, aut nxillus, alibi
quoque valere, aut non valere, non nequeat.' Prael. ad Pand. i. 3. 15.
Cf. Wachter, u. s.
' For an early reference to the topic, see Gaius, Inst. iti. s. 120.
for the

choice

THE APPLICATION OF LAW.

422
CHAP.

xvm.

Interpretation.

of the

law

rests

It is said to

upon

rests

'

may be

either

When

logical.'

of a

statute

it

is

of the legislator,

meaning to the words,

The

'

when

it is

obvious meaning

of the

described as

it

it is

called

'

it

is

avoids

words
called

giving

beyond the

restrictive.'

Public Law.

2.

kind

hand,

in order not to go

It is chiefly in the criminal

questions

the meaning of

'grammatical,' or

logical interpretation stretches the

to cover its

intention of the legislator,

criminal
law.

when it
usual,' when

authentic,'

called

'extensive'; when, on the other

appli-

'

may turn on

'Doctrinal interpretation'

on the intention

The

which

derived from unwritten practice.

words and sentences, when

full

legal,'

or *doctrinaV

itself,

expressly provided by the legislator, or

it is

'

reasonableness.

its intrinsic

Legal interpretation

'

'

'Interpretation'

be either

on the same authority as the law

which

Doctrinal.

rightly

necessary that the words

be properly construed.

shall

application of law.

is

is

it

thus a third, though a very subordinate, topic of the

is

Legal.

may

In order that the competent Court

III.

apply the appropriate law,

branch of Public law that

now under

consideration present

themselves for solution.

I.

The 'forum' which,

Forum.
seized of the

punishment

times asserted to be
offender

of

ratione

territori%

is

properly

an offence has been at different

that

of

the nation of which the

a subject, that of the domicil of the offender,

is

that of the nation injured, that of the place of the arrest

or detention of the offender, and that of the place where

As

in

what are

called the 'interpretation clauses' of a

modem Act

many of which are now superseded by the comprehensive

Interpretation Act, 1889. By since repealed sections of the Prussian

of Parliament,

Landrecht (Einl. 47, 78), judges were directed to consult the 'Gesetzcommission' as to the interpretation of that Code, and to follow its
rulings. Cf. Cod. i. 14. 9 and 12. Cf. also Dalloz, s. v. 'Lois,' art. 438;

and supra,

p.

67 n.

THE CRIMINAL

423

These may be respectively

was committed.

the offence

'FORUM.'

chap, xviii,

described as the

forum

ligeantiae^

forum

domicilii^

forum

civitatis laesae,

forum

deprehensionis^ or fortuitum^

forum

delicti

The last-mentioned

commissi.

'forum,' which was indeed the first

to assert its claims, has in recent times nearly superseded

modern
Four theories as to

the others, as being the most compatible with

ideas

of the nature

the competent

What

i.

tion,'

is

'

of sovereignty.

forum

known

'

are heard of at the present day.

as the

'

territorial

founded upon the competency

commissi., asserts that each State

with

all

theory of jurisdic- The

of

the forum

may, and ought

terri-

delicti ^Yi^^ry

to,

deal

who commit

persons, be they subjects or aliens,

offences within its territory, or on board of its ships, against

its

criminal law.

true,

is

as

punishment
punishment

This proposition, though indisputably

indisputably inadequate
of crime.

to secure

the

due

Its insufficiency to provide for the

of criminals

who have

escaped from the

tory in which their offence was committed

is

terri-

partially

redressed by treaties of Extradition, under which such

offenders are returned to the forum delicti; but

it

still

needs supplementing by other principles.

ii.

According to 'the personal theory of

each State has a right to the obedience of

wheresoever they

may

be.

absence, for an

own

offence against its

theory, which asserts the claim

of

pi
per-

subjects, theory

may

laws committed
This second

the forum ligeantiae^

very variously applied in practice.

The
le
sona

country, or even in

while within the territory of another State.

is

own

It follows that a subject

be tried on his return to his

his

its

jurisdiction,'

England and the

THE APPLICATION OF LAW.

424
CHAP. XVIII.

United States use

limited

but sparingly, as introducing a

it

exceptions to the standard

of

list

Parliament that a British subject

murder,

manslaughter,

within
tried

'in

be indicted for

bigamy, whether

or

committed

any place

in

England or Ireland

may be

which he

in

apprehended or be in custody ^'

shall be

The

may

dominions or without, and

King's

the

of

provided by Act of

It is thus

territorial jurisdiction \

very-

principle

agree

States

continental

punishing

in

offences

committed abroad by a subject against the Government

or courage of the country to

which he belongs, but

differ

The

widely in their treatment of offences of other kinds.

French Code of 1808 punished offences committed abroad

The Code

by Frenchmen against Frenchmen ^

German Empire punishes

acts of its subjects

for the

which are

criminal in the country where they were committed as

Germany*.

well as in

Code

the Austrian draft

of

Italian

Code

of

1889

18676 contain similar

and
pro-

with reference to offences of a certain gravity.

visions,

The Bavarian Code

of 186 1 stated the liability of subjects

any such

without

amended

as

The

in

provides

1866,

hors du territoire de la France

crime puni par

and the French Code,

reservation'^;

la

loi

that 'tout
s'est

Frangais qui

rendu coupable d'un

frauQaise pent

etre poursuivi

et

juge en France ^'

This enactment

in accordance

is

with an opinion given

Government by the Cour de Cassation

to the

and approved by twenty-four Courts

of

in

1845

Appeal and six

Faculties of law, against the exclusively territorial char1

Cf. the Zollverein,

24

&

Swab.

96.

100, ss. 9, 57. Cf. as to Treason, 35 H. VIII. c. 2;

VI. c. 11; 7 Anne, c. 21. See further, Sir H. Jenkyns, British

25 Vict.

c.

5 & 6 Ed.
Rule and Jurisdiction, &c., 1902, pp. 136-140.
3

Code

Art.

d'instruction criminelle, art.

*

4. 3.

Art.

5.

7.

Art. 4.

Inlander unterliegen den Bestimmungen der Bayerischen Strafgesetze wegen aller von ihnen im In- oder Auslande veriibten strafbaren
^

Handlungen,

art. 10.

Arts. 5-7.

THE CRIMINAL
penal jurisdiction.

acter of

Court, 'c'est que

frangaise,
c'est

ne

le

'FORUM.'

'Ce qui est

droit de

dans aucun

puisse,

forum

the

excludes,

cas, etre regi

Ugeantiae

is

delicti

not

par cette

case

whose governments have capitulations

la

citap.

xvm.

loi

etranger,

sol

le

loi^'

concurrent
the

in

de

ce qui est errone,

que Facte punissable, commis sur

The forum

said the

vrai,'

nom

punir, au

ne pent s'exercer qu'en France

425

with,

but

Europeans

of

to that effect with

the governments of Oriental States.

iii.

What may

preservation'

in

neither

nor

'territorial'
It

quasi-territorial.'

may

as

theory of

the

'

self-

been

'personal,' has

it

called

allows that the Courts of a State

punish offences although committed not only outside

who

but also by persons

of its territory

Such a

are not

its subjects.

which might perhaps be described

jurisdiction,

forum

as claimed for the

cwitatis laesae, is usually asserted

with reference to offences against the Government of the

State, or against its public credit.

The French Code,

and punishment

trial

abroad an offence

'

as revised in 1866, provides

of

any

alien

for the

who, having committed

attentatoire a la stirete de I'Etat, ou de

contrefagon du sceau de PEtat,' or against the French

coinage or paper currency, shall afterwards, voluntarily

by means

or

Code

of

Code

of

of

18894,
1

punishment

86 1

Cited by

Arts.

went

of offences

M.

4. I.

come within the French

further;

and the

of 1872^,

contain similar

Bavarian subjects,

may

extradition,

The German Code

territory ^

articles.

providing

committed abroad by

'in the absence

of

also

4.

for

the

aliens against

anything to

Brocher, Rev. de Droit Int. vii. p. 46.

the Strafprozessordnuug of 1877, art.

By

Italian

The Bavarian

9,

be condemned though absent from German territory.

Art.

The theory

some Contmental systems considered gervation.

cases to confer a jurisdiction which, since

in certain
is

be described

of sclf-DrG*

is

Art.

the
7.

the accused

THE APPLICATION OF LAW.

426
CHAP.

in the treaties of the State or the principles of

xvm. contrary

International law ^'

At

Brussels Session, in 1879, the 'Institut de Droit

its

much

international,' after

upon

resolution

pmiir les
et

alors

de

subject:

this

'Tout

etat a le droit de

commis meme en dehors de son

faits

des

par

discussion, adopted the following

de ses

etrangers en violation

que ces

territoire

lois

penales,

sont une atteinte a I'existence sociale

faits

en cause, et comproinettent sa securite, et

I'etat

ne sont point prevus par

duquel

territoire

la

ont eu

ils

loi

The

lieu.'

qu'ils

du pays sur

penale

le

Institut rejected

a resolution extending the right to other cases I

The theory

iv.

The

may

theory, which

of cosmopolitan

general

supervision,' or 'of

justice.

merely

to

the

forum

described as one 'of

be

cosmopohtan

deprehensionis^

justice,'

looks

which we

have

punishmg any criminal who may come

of

the right

each State

also called fortuitum, ascribing to

into its power.

This theory has long found favour with reference to

on the ground that they have thrown off their

subjection to any political authority, but some writers
pirates,

have claimed for

instance,

it

a far wider appUcation.

makes an exception

territorial

jurisdiction in the

Vattel, for

to the rule of exclusively

case of

'

ces scelerats qui,

par la qualite et la frequence habituelle de leurs crimes,

violent toute surete publique et se declarent les ennemis

He

du genre humain.'

continues

les assassins, les incendiaires

extermines partout ou on
outragent toutes

les

les

'
:

Les empoisonneurs,

de profession, peuvent etre

saisit;

car

ils

attaquent et

nations, en foulant aux

pieds les

1
Art. 12. A similar provision in the Penal Code of Mexico, art. 186,
making a Delito committed in a foreign country by a foreigner against
a Mexican punishable in Mexico and according to its laws, gave rise in
1886 to the Cutting case, on which see the official report of Mr. J. B.
Moore to the U. S. Secretary of State, and Revue de Droit International,
'

t.

'

XX. p. 559.
*

Annuaire,

iii.

p. 281.

THE CRIMINAL
fondements de

commune.

surete

leiu"

'FORUM.'

427
que

C'est ainsi

les chap, xviii.

pirates sont envoyes a la potence par les premiers entre

les

mains de qui

ou des crimes de
les

tombent.

ils

celui

qui

est

exemplairement

pimii'

du pays

cette nature ont ete comniis en reclame

auteurs pour en faire

comme

Si le souverain

la punition,

on doit

principalement

interesse

The Austrian

\'

les lui rendre,

draft

les

Code

ac-

cordingly provides for the punishment of serious offences

committed abroad by

subject to the stipulations

aliens,

any treaty to the contrary^; and the

of

Italian

Code

of

1889 contains a similar provision, in case the State to

which the

alien belongs shall

have refused to take him

view to punishment ^

in extradition, with a

obvious that the adoption by a State of one or Combiua-

It is

another of the four current theories of jurisdiction,

or^J^^^^j^g

of a combination of several of them, will determine not of

J^is-

diction.

only the exercise of

its

own

criminal jurisdiction with

reference to a given set of facts, but also

of the

of the rightfulness

exercise

their jurisdiction with reference to the

In cases where

it

may

or

any one

of

an offender the

benefit of

it

may

States

of

state of facts.

not regard the decision

'

In English law there

*.

same

them as final,
the maxim, ne

Provisions to this effect are not

Codes

by other

recognition

recognises the concurrent competence

of the Courts of

of several States,

its

is

uncommon

so as to give
bis in

idem,'

in Continental

authority for saying that

a plea of 'autrefois acquit' or 'convict' in a competent

foreign court
1

Droit des Gens,

Verbrecher,

1868, art.

Art.

Code

But

is

cf.

881, p.

a good defence ^
i.

233.

Cf.

von

Holzendorfif,

Die Auslieferung der

7.

6.

6.

d'ins. crim., art. 7; Loi de 1886, art. 5; German Code, arts. 5. 7.

Austrian Code, art. 30; Italian Code, art. 8; and Fiore, Droit

p6nal international, i. p. 161.

^ See R. V. Hutchinson, 29 C. II, cited in Beake v. Tyrrell, i W. & M.,
I Shower, 6, and in R. v. Roche, iTJS, i Leach, 135; also R. v. Miles,
24 Q. B. D. 423. Cf. Bull, N. P. 245; Archbold, Grim. Pract. p. 121.

THE APPLICATION OF LAW.

428
CHAP.

The

xvm.

its

readiness, or disinclinatiou, of a State to surrender

OAvn subjects in extradition

which

The Continental

its

among which

nations,

'personal jurisdiction'
dition of their

renders

another result of the view

is

adopts with reference to criminal competence.

it

own

the doctrine

refuse extra-

fully entertained,

is

England readily

subjects; while

subjects because

it is

of

sur-

not, as a rule, prepared to

punish them for offences committed outside of the country.

The

Lex.

Questions as to the appropriate

II.

may

such questions which

as to

(i)

Concentricity, and

occur, but questions of

Time

Race, and

are not of

no doubt occasionally
(iv) Place,

from the question of 'Forum.'

separable

'

conceivably be raised, those

(ii)

(iii)

Lex

Of the four classes

frequent occurrence in criminal law.

of

'

which often determines a controversy

in

are hardly

The 'comity'
private law in

accordance ^^dth rules borrowed from a foreign system has

no place

No

in the trial of crimes.

to administer the criminal

law

State will undertake

of another,

though

sometimes go so far as to enquire into the

punishment to which a crime would be

to the

The
been

law

of the place

where

topics of criminal

treated

it

much

in

may

amount

liable

of

according

was committed.

forum and lex have sometimes

'

'

'

'

conjunction with the analogous topics of

by von Bar in his InterStrafrechtl' They have indeed

'

private law, as, for instance,

nationales

it

Privat-

und

common, and the

title of

von Bar's work would

be objectionable only on the ground of ambiguity,

did not seem to lend

itself to

if

it

the support of statements by

other writers which involve the whole subject in hopeless

confusion.
It

may

perhaps be assumed that the reader

who has

followed the argument of the last few pages will at once

^

E.

The

g.

German Code,
edition of 1889

art. 2.
is

restricted to Privatrecht.

OF INTERNATIONAL LAW.

429

astonishing inconsistency of view which is

by
the following extract from a work of debetrayed
servedly high authority:
'On appelle,' says M, Foelix,
detect

the

'droit

international prive

chap, xviii.

lesquelles

jugent les

se

diverses nations

Tensemble

conflits

entre

en d'autres termes,

des regies d'apres

le

droit

le droit

des

xyrive

international

prive se compose des lois civiles ou criminelles d'un etat

dans
It

le territoire

national law,'
'

d'un etat etranger

would not be too much

international

if
'

thus conceived

in the sense in

\'

to say that
of, is

Private Inter-

'

neither

which either

'

private

of those

'

nor

terms

are usually and properly employed in Jurisprudence.

What was

III.

said of the

'

interpretation

'

of Private jnterpretation.

will apply also to that of Public law.

International Laic.

3.
I.

No

law, of

question of

which

it is

the judge of

is

its

own

II.

way

its

'

Forum

'

can arise in

International The

an essential principle that each nation

own

quarrels,

and the executioner

appli-

j^^|,*^^_

of*io"^l

^^'^^

decrees I

Lex

The question

of

that nresents

but a

'

'

does indeed arise, but in a The

slight analogy to

anything in

*
Droit International Priv6, 1. M. von Bar, who defends his combination of the two topics by the authority of R. von Mohl, Staatsrecht,

Volkerrecht u. Politik, p. 682, endeavours to avoid the

difficulties

which

by distinguishing between 'Internationales Recht' and

'Volkerrecht.' The former term he employs to signify a genus, of which
the two species are respectively 'Volkerrecht,' by which he means Public
International law, and Internationales Privatrecht.' Mr. Westlake, who
follows Foelix, frankly admitted, in his second edition, p. 5, that he was
his title raises

'

using the term 'private' in a sense which has no relation to the division
of national law into 'public' and 'private.'
2 Unless indeed under Conventions rendering obligatory the reference
of certain classes of questions to arbitration, as under the Convention of
1903 (renewed in 1909) between Great Britain and France, which has

served as the model for so many Conventions between pairs of States; or

under such more far-reaching Conventions as that made in 19 14 between
Great Britain and the United States. As to the abortive proposal for an
International Prize Court, see supra, p. 39.

Lex.

THE APPLICATION OF LAW.

430
CHAP. XVIII. either

department of Municipal law.

It is

merely whether

a given set of circumstances comes, or does not come,

within the operation of International law at

all.

In other

words, whether the States between which a controversy

has arisen are,
nations.'

members

or are not,

If not, the principles to

family of

of 'the

be applied to the facts

are derivable not from International law, but from views

of national

mterest tempered by general morality.

Much

confused reasoning has resulted from forgetfulness of the

limited area within which

it

is

possible

or desirable to

apply the rules of International law, as such.

III.

Interpre-

What

pretation

'

has been said upon the subject of 'Inter-

with reference to Municipal law, applies mutatis

mutandis to International law

The axioms

of the science

text- writers will

interpretation.'

of

also.

and the doctrines

of received

be susceptible in general only of

The same remark must apply

'

logical

to Treaties,

which authentic interpretation could be given only by

'

'

express agreement

between

the signatory Powers,

cannot be bound by such interpretative comment as

have proved acceptable to the plenipotentiaries by

who
may

whom

the Treaty was signed \

^ See,
with reference to the controversy raised by M. Renault's
'Rapport' upon the Declaration of London of 1909, the author's Letters

to

The Times upon War and

Neutrality, ed.

2,

19 14, pp.

87-191.

INDEX.
Acquisition, per universitatem, 160.

A.

Abandonment,

Acquisitive prescription, 215, 395.

Act, 90, 91, 92, 105, 107, 151, 157,
219, 254, 255.

206, 220.

Abatement, 322.
Abduction, 330, 382.
Abettors, 378.

Abnormal law,

146, 336, 362, 365.

persons, 139, 143, 336, 337, 345,

357, 362, 365, 391, 392.
rights, 138, 142, 166, 337, 365.
Abrogation of laws, by desuetude,
58, 63.

Absolute duties, 130.

Abuse

of process, 188.

Acceptance, 267, 268, 269, 271.

in alienation, 216, 255 n.
Accession, 215, 395.
Accessory, 106, 206, 215, 286, 307,

378.

contract, 286, 307.

Acquisition, derivative, 158, 216,

original, 214, 395.

private right, 128.

Actiengesellschaft, 342.

Actio personalis, 173 n, 307, 332.

Action, 324 n, 357.

cause 324
right 324.
Actions, limitation
215, 397.

357.
n.

of,

n,

332.

395.

of

of,

Account stated, 307, 310.

Accursius, 268 n.

Juristic,

of,

Accident, 106, 111, 255, 297.

Accidentalia Negotii, 123.

Accord and Satisfaction, 317

criminal, 337, 379.

elements of an, 107.

116, 118, 120, 121, 122.

lawful and unlawful, 116.
God, 297.
of law and of party, 160, 310,
311.
one-sided, two-sided, 123, 255,
256, 266.
symbolic, 121.
same, may infringe public and

classification of,

Adiunctio, 216.

Adjective law, 89, 147, 166, 355,

362, 365, 383, 385, 391.

criminal law, 375, 376, 377,

382.
international law, 390, 391, 399.

INDEX.

432

Adjective private law, 166, 355,

356.

public law, 365.

Adjudication, as a source of law,

Alverstone, Lord, 390 n.

Alveus derelictus, 216.
Ambiguity, 262.
Amercement, 360 n.

Angaria, 403.

65.

Administrative law, 144, 366, 371,

375 n.

Anger, 118 n.
Animals, 214.

Admiralty practice, 154, 167, 326.

Adoption, 179.

cruelty 131, 353, 380.

responsibility 156 173.
Animus, 193, 195.
domini, 198.
possessoris, 198, 198

Adultery, 178, 247, 327, 330, 331,

Annuities, 305.

382, 384 n.
Advantages, open to community

Anonyme,

classification of, 373.

jurisdiction, 374.

to,

n,

for,

Administrator, 161, 162, 244.

generally, 169, 186.

Advocates, 298, 353, 360.

Aemulatio vicini, 208 n.
Aeusserungstheorie, 268.
Affolter, Prof., 410 n.
Age, 349, 378.
Agency, 116, 117, 118, 264, 273,
298, 299, 338, 385, 399.

n.

Societe, 303, 342.

Anson, Sir W., 141 n, 238 n, 264 n,

272 n, 279 n, 304 n, 309 n, 318 n.
Antecedent rights, 146, 166, 324,
326, 393, 398.

Antichresis, 231.
Anticipation, breach by, 319.

Appeal, 360, 384.

Application, the, of law, 406, 415,

419-422, 430.

foreign law, 420.

contract, 280.
general, 274.
Appointment, power
implied, 273.
Aquilius, 318.
international, 399.
Thomas,
Aquinas,
by necessity, 272
79
pretended, 237, 238, 275.
Arbitration, 334, 400.
conventions, 430.

274.
the contract 272, 299, 307. Aristocracy,
of

in

of,

St.

n.

210

n.

20, 34, 71 n,

n.

special,

51.

of,

Agent, of necessity, 273.

Agents, classes of, 274, 301.
Agobard, Bp., 410.
Agreement, 256, 259-276, 292.
Aguesseau, D', 44, 133 n, 388 n.
Ahrens, 79, 207 n, 210 n, 257,
370 n, 371 n.
Air, rights over the, 191 n, 210,

Aristotle, 25 n,

27

n, 31 n, 32, 36,

47, 71 n, 129, 286, 322, 367, 368.

Armed

forces, 372.

Arrhae, 294.
Artificial persons, 94, 96, 107, 138,
160, 336, 337, 385.

Alciatus, 205.

characteristics 338, 345, 362.

340.

345, 362.
proofs, 360

Aleatory contract, 287, 304.

Ashley, Prof., 265 n.

Alienation, 160, 209, 216, 255 n,

Assault, 171, 323, 330, 350 n, 381.

Asser, T. M. C, 413 n, 416.

395, 396 n.

287.

contract 287.
voluntary, 288.
for,

AUens, 354, 397.

Aliment, 331.
Allegiance, 407, 412.
Alluvio, 216.

of,

classification of,

disabilities of,

n.

Assignment, 218, 258, 310-314.

Attainder, 353.

Attempt, criminal, 378.

Aucoc, L., 375 n.
Auction, 267.
Auctioneers, 301.

INDEX.
Audience, 359.
Auslobung, 266 n.
Ausonius, 369 n.
Austin, J., 10, 23 n, 50, 53, 60, 102,

rrO,ll2n,

130, 141, 143,

129,

159 n, 207, 365.

433

Bigamy, 381, 424.

Bilateral contract, 286.
Bill of

exchange, 279, 312, 318.

of lading, 312.
of
235.
sale,

Birth, 95.

Avaries, 306.

Blackburn, Lord, 263.

Blackstone, Sir W., 23 n, 37, 69,

Avulsio, 216.

83, 95, 110, 137, 141, 202, 328,

Autrefois acquit, 427.

Award, 333.
Ayliffe,

348 n, 365, 387 n, 389

Blasphemy, 382 n.

Backofenzwang, 213.
Bacon, Lord, 67 n, 79, 152, 363,

Blindness, 163 n.
Blockade, 391, 405.
Blondeau, M., 137.
Bluntschli, J. C, 369 n.
Bocking, Ed., 117 n.

175 n.
Azo, 281 n.
B.

Bona, 213.

364.

Bailment, 203, 204, 239, 277, 286,

295, 298.

Baldwin, Judge, 76
413 n.

n, 171 n,

396

n,

Bankruptcy,

161,

activa, passiva, 161, 213.

Bonitarian ownership, 221.

Bononim

universitates, 97, 213.

Booty, 214, 402.

Bottomry, 234, 305.
Bracton, 59, 201, 201 n.

Banishment, 95, 378.

Banker, 291.
219,

249, 302,

315, 333, 343.

Breach of contract, 319, 327, 331,

382.

Bannrechte, 213, 249.

Bar, L. von, 52 n, 416, 419
Barde, M., 414.
Bargain and Sale, 255 n.
Baring-Gould, 293 n.
Baron, J., 102 n, 104 n.

n, 428.

by anticipation, 319.
Breach of promise to marry, 294.

327, 331.
trust,

Brinkmann,

R., 415.

Brissonius, B., 120.

Britton 327 n.

Brocher, C, 417, 425 n.

Brokers, 274, 301.

Barristers, 298, 353.

Barter, 288.

Bartolus, 414.

Browning, R., 175.

Bate, J. P., 411 n.

Battery, 170, 330.
Baty, T., 261 n, 418.

Bryce, Lord, 51 n, 370 n.

Beale,

n.

J.

Bulgaria, 50.
Bull-fight, 381 n.

H., 415.

Beccaria, C. B., 377.

Belligerency, 371, 400, 401, 402,
403, 404, 405.

Beneficiimi ordinis, 307, 308.

Bentham,

J.,

5,

14,

23,

38,

Bundesstaat, 50.
Burge, 415.
Buzzati, 411 n, 413 n.
By-laws, 76.
Bynkershoek, 390 n.

81,

130 n, 137, 157, 159, 174, 192,

220 71, 251, 253, 285, 291, 377,
388 n, 389 n.
Berne, Union of, 219 n.

C.

Caltminiae iudiciimi, 189.

Campbell's Act, 173 n, 281 n.

Canon, 221.

Betrothal, 292.
Bets, 304.

Canon law, 64,

Betting agent, 304 n.

Capitis diminutio, 315.

123. 146, 178, 281,

291 n.

INDEX.

434
Capitulations, 398 n, 402, 425.

Caput, 93.
lupinum, 95.
Caretaking, 295.
Carolina, the C.

Classification of

abnormal natural

persons, 347.

Classification of acts, 107.

Classification of adjective private

C,

376, 383 n.

law, 356.
Classification of administrative law,

Carriage, 295, 296.

Carrier, 253, 296.

372.

Causa, 276, 281.

Cause, 151.

Classification of artificial persons,

Cause of action, 324 n.

Cause and effect in Contract, 258,

Classification of Constitutional law,

339, 340.

285.

367.

Contracts,

Classification of

Cause, in French law, 282.

286,

287.
Classification of Corporations, 340.

Cautio, 278.

Cautio iudicatum

solvi,

189 n.

Classification of Criminal law, 379,

Caution, 307.
Caveat emptor, 290.

Classification of Fora, 407, 408.

CeUbacy, 348, 351.

Classification of International law,

380, 381.

Celsus, 20.

391, 394, 403.

Law,

Cessio actionum, 312.

Cession, 396.

Classification

Champerty, 402.
Chance, 111.

Classification of offences, 379, 380,

Chancellor, the Lord, 72, 73, 74,

75, 76, 248.

Classification of Private law, 166,

Chancery, Court

Classification of Public law, 366,

of

128,

381.

of, 180,

249, 322,

Change

in the law, 409.

Charles V, Emperor, 376.
Charondas, 258.
Charter party, 297.
Chassat, M. de, 414.

167, 412.

367.
Classification of rights, 125.
Classification

of territorial laws,

412.
Classification of things, 100, 103,

Cheque, 291.

209, 210.

Chirographa, 279.
Chose in action, 136 n, 311.

Classification of treaties, 398.

Christendom, 389.

Claves horrei, 194.

Cloak-room, 296.
Clubs, 339.

Christianity,

382

against,

offences

n.

Church, law of the, 369

Classification of wrongs, 328, 329.

Clunet, E., 418.

Chrysippus, 20, 33.

n.

Church and State, 369.

6 n, 16 n, 20, 33, 58, 71 n.
Cimbali, Ed., 420 n.
Cicero,

147,

366.

2,

Cocceius, 415.

Cockburn, L.C.J., 232.

Code, the Civil.
Austrian, 39.

Clam, 197.

French, see under French.

German, see under German.
Japanese, 85 n, 191.
draft for New York, 174 n.
the Swiss, 39, 191 n, 200 n.
Codification of Criminal law, 375,
377 n.

Clark, Professor, 67 n, 377 n.

Cogordan, G., 369

Citation, 358, 383, 401.

Citizens, 370.
Civil death, 95, 220, 348, 353.
Civil obligation, 243.

Civitas

maxima, 389.

Claims, Court

of,

132 n.

n.

INDEX.
Coinage offences, 380.
Coleridge, L.C.J., 64 n, 382

n.

Colonies, 372.
n.

Constitutional law, 144, 367, 368,

372.

Comity, 401, 416, 419, 428.

Command, law as a, 87.
Societe

en,

classification
302,

belli, 402.

Contract, 122, 123, 216, 246, 254,

255, 256.

224.

agency 273, 399.

agreement 260.
as a
259.
assignment 258.
by correspondence, 268.
consensual, 259, 260, 318.
criminal breach 382.
definitions 256, 257.

257, 284.
elements 259, 260, 266, 398.
enforcement 258, 263.
expression 256, 260, 272.
flaws 270.
form and cause 276, 281.
formal and informal, 277.
implied, 272, 284.
in the widest sense, 123, 216,
255.
international, 399.
modes of strengthening, 285.
objective theory 264.
obligatory, 256, 259, 292.
original, the, 49.
parol, 279, 283.
parties 266, 276, 286.
possibility and legality 275.
of record, 258
rescission 290, 316.
simple, 279.
specialty and parol, 278, 279,
283, 318.
tort founded on, 254.
two senses of the term, 256.
void and voidable, 270, 271,
280.
written, 280, 283, 302.
in,

the, 59.

in,

employment, 156, 297.

risk,

Company, 157

n, 297, 338, 338 n,

340: see also Artificial persons.

Partnership, Societe.

English, 344.

of,

of,

Comparative law, 8.
Comparative philology, 8.
Compensatio, 317.
Compensation, 317, 320, 321, 323,
325.

of,

effect of,

of,

of,

of,

see Jurisdiction.

Competition, unfair, 186

Complex masses

in,

of,

/*.

of rights

and

duties, 219.

Compositio, 323 n, 376.

Compromise, 316.
Compulsion, 107, 378.
Concentricity of laws, 409, 428.
Condition, 124, 309.

Conditional Contracts, 286, 290.

Condominium, 220.
Confession and avoidance, 358.
Conflict of laws, 414,

417, 420,

429.

Congo Ordonnance, 39

in,

n.

n.

Conjugal rights, 246, 247.

Conquest, 395.
Consciousness, 108.
Consensual contract, 259, 286, 318.
Consideration, 279 n, 283, 284,
294, 318.

good, 294.
imported, 279

294.
valuable, 288.

of,

of,

Confusio, 216, 315.

spiritual,

flexible,

Contraband, 405.

Commodatum, 290.
Common, rights of,

Competence,

and

n.

Constitutimi, 310.

Committees, 180.
Commixtio, 216.

Common law,

368.

of,

Constitutions, rigid

370

342.

Commercia

Consignation, 316.
Consolidation, 228.
Constitution, defined, 368.

Combines, 186

Commandite,

435

n, 318.

of,

Contracts,
307.

accessory,

286,

287,

INDEX.

436

Contracts, of agency, 273, 299, 308.

aleatory, 286, 287, 304.

alienatory, 287.

286.

286.
conditional, 286, 290.
consensual, 259, 286, 318.
formal, 277, 286, 289, 292.
formless, 277, 286.
gratuitous, 286.

266, 286.
marriage, 287, 292.
of marriage, 246, 255
of minors, 348.
onerous, 286.
principal, 286, 287.
286.
of
288, 296,
239, 255
309

286, 287, 295, 298.

for negative
287, 303.
several, 286.
synallagmatic, 286.

286.
bilateral,

classification of,

Corpus, 193.
Correal obligation, 266

n.

Correi, 266.

Correspondence, contract by, 268.

Cosmopolitan justice, theory of,
426.
Costs, 189, 360, 386.

Cottenham, Lord,

73, 75.

Coulanges, F. de, 16 n.
Council of Trent, 293.

joint,

Court, choice

for

Court of Claims, 132 n.

Courts martial, 374.
Covenant running with the land,

n.

real,

n,

sale,

n.

for service,

service,

unilateral,

Contractual right, 181, 254,

285,

357.

313.

Coverture, 348, 350.

Cowell, 410 n, 411 n.
Creditor, 266.

Crime, 220, 327, 375.

Criminal act, 377.
Criminal acts, classification

of,

377.

Crim. con., action of, 327.

Criminal jurisdiction, 422.
Criminal law, 144, 327, 367, 375,
422.

319.

Contribution, 308. Cf. Regress.

Contributory negligence, 154.

Convalescence, 123.
Convention radiotelegraphique de
1913, 395 n.
Conventions, International, 429 n.

Conversion, 205, 331.

Conveyance, 216.
Conveyancers, practice

adjective, 383.

427,
general, 377.

379.
procedure, 366, 383.
conflict of,

special,

Crompton, Mr. Justice, 182.

Cruelty, see Animals.
Cuius est solum,' &c., 191.

'

of, 65.

Culpa, 112.

compensation, 155
degrees 114, 115
in abstracto, 113.
in concreto, 113.
contrahendo, 270.

n.

Conviction, 220.

Copyright, 211, 212, 219, 330.

international, 219

n.

Co-respondent, 178, 327.

Corporations, 97, 142, 219

n, 228,

338, 339, 340, 344, 374.

aggregate, 337, 347.

340.

345.

343.
possession by, 343
347.

343
trading, 341.

of,

ventris, 95
Curtesy, 226.

n.

sole,

n.

Corporeal thing, 101, 136, 214.

34.

Curator, 180.

classification of,

foreign,

n.

in

Cumberland, R.,

disabilities of,

torts of,

of,

n.

Custom, as a source

of law, 56.

how transformed into law,

theories as
or merchants, 61 318.
of the realm, 254.
59.

to, 63.

39,

59,

n,

57,

INDEX.
Customs, 223.

Derivative

Cutting case, the, 426 n.

Damage, 170, 185, 327.

Damages, 320, 326, 327,

general, 332.

332.
measure 332.

328, 360.

Determinate authority,

28, 40.

146.

Dicey, Prof., 51 n, 77 n, 143 n,

179 7?, 370, 371 n, 375 n, 411 n,

things, 171, 239.

415, 422 n.

Darling, J., 187.

Darras, M., 418.
Datio in solutum, 316.

liabilities of the,

of,

Detinue, 210, 330.

infectimi, 322.

Dante, 20, 71.

Derivative possession, 200.

Demburg, H., 45, 66 n.
Descamps, Baron, 403.
Destruction of a thing, 314.

incidence, rights

of,

Dead, rights of the,

315, 381-82 n.

of

rights, 168.

special,

Dangerous

acquisition, origin

States, 393.

D.

Damnum

437

Dies

cedit, 165.

Diligentia, 112.

95, 161, 173,

Director of Public Prosecutions,

384

n.

Directors'

315.

Act,

Liability

1890,

238 n.

Deafness, 352.
Death, 95, 170, 268.

Dispositive fact, 158, 219.

voluntary and involuntary, 219.

on obhgations, 268,
Dissolution
person,
312, 315, 332.
Effect on ownership, 220.
338.
presumption 359
Distress, 233, 321, 326.
effect of,

of artificial

97,

of,

of,

Death,

civil, 95,

n.

Disturbance, 330.

220, 348, 353.

Debitor, 266.

Deceased wife's

Divestitive fact, 158, 159, 220.

sister, 354,

354

n.

Divisibility, 104.

Deceit, 234, 235, 236, 237, 238,

240, 270, 330.

Divorce, 178, 247, 294, 332, 40S.

Dolus malus, 237 n.

Declaration of war, 401.

Declaration, the, of London, 39 n,
175 n.
Decretals, 120 n.
Decretum, 34 n, 78 n, 175 n.

Domestic

Deed, 278, 318.

Defamation, 184, 330, 381.
Default, 362.

rights, 245.

service, 181, 182, 295, 298.

Domicil, 407, 408, 411, 412.

Dominant tenement,
Dominical

Dominium,

Dominium

222.

rights, 180, 181.

206, 395.

eminens,

208,

384,

385.

Deity, the, 63, 285.

DeUct, 326, 327, 375.

DeUvery, 194, 217, 286.

Donatio mortis causa, 165, 217.

Donation, 217, 287, 354.
Dos, 288, 351.
Draco, 58.

Democracy,

Droit, 14, 83.

Del credere agent, 301.

51.

Democritus, 32.

Drunkenness, 109. 251, 352, 378.

Duck, A., 69.
Dumont, 38 n.
Dimioulin, 417 n.

Demosthenes, 19, 48.

Denier a Dieu, 278.
Deodand, 156 7i.
Deposit, 295.

Depositation, 249 n.

Derivative acquisition,
395.

159, 216,

Duress, 108, 271, 279, 330, 399.

Duties as basis of classification,
86, 87 n.
Duties of neutrals, 404.

INDEX.

438

Duty, absolute and relative, 130.

legal

and moral,

Easements, 224, 330, 331.

Ecclesiastical law, 369 n.

Expression of agreement, 272.

Expression of Will, 116, 119, 120,

Edict, the perpetual, 75, 135 n.

Egypt, 50.
Eldon, Lord, 74, 75.

Elements

of

an

121, 122.

Extent of a

act, 107.

a contract, 262, 266, 398.

aright, 90,91.

right, 155.

Extinction of rights, 314, 332.

Extinctive prescription, 334.

Elevator cases, the, 208 n.

EUenborough, Lord, 109, 111

Extradition treaties, 423, 427.

n,

Extraterritorial effect of laws, 415,

418.

153.

Embargo, 401.
Embezzlement, 201 n.
Emblements, 292.
Eminent domain, 385.

Extraterritorial

recognition

of

rights, 420.

Extraterritoriality, 397.

Empfangstheorie, 268.
Emphyteusis, 221.
Employers' Liability Act,

Factors, 274, 301.

157,

Factors' Acts, 301 n.

Factory Acts, 80.

299.

Emulous use, 208

Enemy, 354, 362.

trading with
as claimant

Facts, 92, 106, 157, 314 n, 348.

n.

the, 344.
in

prize

dispositive, 158, 218.

159, 220.

326.
involuntary, 159, 219.
translative, 159.
voluntary, 159, 219.
divestitive,

courts,

354.

Equity, 38, 39, 71.

Exchange, 288.
Execution, 361, 384.
Executive functions, 371.
Executor, 161, 164, 244, 249, 311.
Executory consideration, 285.
Exercice abusif d'un droit, 187 n.

86.

of redemption, 231 n.

investitive, 158,

Error, 109, 264.

Familieru-echt, 136.

Erskine's Institute, 68 n, 177 n.

Family of Nations, the, 392, 429.

Family rights, 174, 244, 311, 330,

Principles,

68

45,

Erworbene Rechte,
Escheat, 162.
Esher, Lord,

M.

n.

382.

168.

Fashion, 21, 22, 28, 29.

Faucher, V., 417.
FauchiUe, P., 395.
Felony, 335, 378, 379.
Ferae naturae, animals, 172, 195,

R., 65 n.

Essentialia Negotii, 123.

Estoppel, 279, 334.
Etat civil, 372, 380.

214.

Etat federatif, 50.

Fessenden, F. G., 176

Ethic, 26.

defined, 27.

Feudal duties, 331, 395.

Feuerbach, A. R., von, 377.

Etiquette, 23, 28.

European Concert, 393.

Events, 92, 105, 157.
preventing performance,

315.

Evidence, law

of,

359, 384.

doli mali,

270

Fiction, legal, 66, 211, 213.

314,

Fideicommissa, 248.
Fideicommissarius, 249.
Fideiussio, 307, 308.

Fides facta, 278.

Exceptio, 358.

n,

Festuca, 278.

n.

Fiducia, 231.

INDEX.
Frederick

Fiduciarius, 249.

Fiduciary

439

245,

rights,

248-250,

II,

390

n.

Freight, 298.

French law, 162, 191, 208

331.

n, 224,

Filius familias, 350.

227, 247, 276, 278, 281 n, 288,

Fiore, P., 417, 427 n.

289, 295, 300, 301, 302, 304, 305,

Finn,

351,

a,

341.

Fixtures, 216, 292.

Fcelix, J. J. G.,

minology

of,

353,

377,

378,

408. 424,

425.

unfortunate

ter-

Friedman, L. M., 176

n.

Fructus industriales, 292.

417, 429.

naturales, 292.

Foolhardiness, 112 n.
Foote, J. A., 417.
Foote's case, 382 n.
Fora, classiJacation of, 407, 408.
Forbearance, 90, 107.
Foreign corporation, 343.
Foreign enlistment, 379, 404.

Fiurther assurance, 307, 310.

Foreign judgments, 39, 408, 420,

Furtum, 330.

Fructuvun perceptio, 215.

Fruits, 228.
J., 253 7i, 325 n.
Fungible things, 106, 226, 227,

Fry, L.

228, 290.

426.

Foreign Jurisdiction Act, 398 n.

Forensic Medicine, 5 n.
Forfeiture of a right, 155, 228, 345.
Form of Expression of Will, 122,
49, 51, 367.

Formal contract, 277, 286.

FormaUties, 217, 277, 289.

277.
of a contract, 262, 343.
utility of,

Formless contract, 277, 286.

Fonmi, the question

423, 429.

297 n, 311, 318, 348, 359 n,

421 n.

Gaming, 304.

345.

of government,

Gains, 36, 135, 135 n, 137 n, 227,

of,

406, 422,

Gans, Ed., 205.

Gavelkind, 409.
Geldart, 98 n.
Gellius, A., 23 n, 43 n, 58, 294.
General average, 306.
Generally available rights, 169,
186, 330.

Geneva Conventions,

the, 430.

in private law, 407.

in public law, 422.
actus, 408.

laesae, 422, 425.

contractus, 408.

408, 419, 424.

deprehensionis, 423, 426.
domicilii, 408, 423.
fortuitum, 408, 423, 426.
ligeantiae, 408, 423, 424.
motae, 408.

Civil Code, 39 n, 95 n,
101 n, 108 n, 115 n, 120 n, 168 n,
188 n, 191 n, 200 n, 203 n, 207 n,
208 n, 241 n, 262 n, 267 n, 268 n,
270 n, 276, 276 n, 295 n, 303 n,
311 n, 312 n, 334 n, 340 n, 360 n,
409 n, 413 n, 427 n, 428 n.
German Commercial Code, 62 n.
Geschaftsobligationen, 245 n.
Gierke, 98, 99.

Foster, Roger, 175 n, 350 n.

Gift, 219, 287, 288.

Franchise, 212, 219.

Fraud, 236, 237, 238, 239, 271,

Gluck, C. F., 3
300 n.

GentiU, A., 36, 40, 401.

German

civitatis

delicti,

litis

God, act

274, 280, 324, 329, 330, 382.

right

to

immunity from,

169,

236, 330.

Frauds, statute
318 .

of,

273, 280, 307,

law

of,

n,

120

297.

of, 23, 40.

Goods, 213.
Goodwill, 188n, 211

Grand

jury, 59.

n,

146 n,

INDEX.

440

Gratuitous contract, 286.

Gregory, C. N., 270 n.
Grote, G., 16 n, 320, 321, 323 n.
Grotius, Hugo, 34, 37, 40, 47, 49,

212 n, 264 n, 384 n, 398, 403 7i.

Ground-rent, 228.
Grueber, E., 9 n, 284 n.
Guarantee, 285, 289, 291, 292, 299,
300, 308.

186.

Guardianship, 179, 180, 247, 349.

H.
Habit and Repute, 176, 177.
Habitatio, 226.

Hadrian, 75.
Hague Conventions, the, of 1899,
1907, 354 n, 400 n, 401 n, 430.
of 1893, &c., 413 n.
Tribunal, the, 400 n.

Halbritter, 414.

Hale, L. C. J., 9 n, 65, 67 n, 77

117 n, 137, 141.
Hall, W. E., 95 n.

Ham,

Holzendorff, von, 396, 427 n.

Homer, 16 n.

Homestead

Habit, 57.

Halm,

Holland, T. E., 316 n, 374 n, 388 n,

390 n, 391 n, 402 n, 404 n, 430 n.
Holmes, Mr. [Justice, 67 n, 95 n,
111 n, 112 n, 114, 115 7i, 156 n,
164 n, 195 n, 201 n, 202 n, 203 /i,
259, 261 n, 265 n, 278 n, 279 n,
283 n, 329 n, 331 n, 377 n.
Holt, L. C. J., 61 n, 115 n, 150 n,

n,

205.

HostiUty, 354.
House of Lords, decisions
Hozumi, N., 42 n, 85 n.

Huber, U., 146

Hugo, G., 146.

of, 69.

n, 414, 416,

421

W. A., 141 n, 278.

Husband and Wife, 108, 155,

n.

174,

177, 246, 273, 293, 350, 351, 354,

361, 362.

416.

Hammond, W.

G., 66 n.

Handsel, 278, 293.

Hardwicke, Lord, 73, 163 n, 194,

Hypothec, 232, 233.

Hypothekenbucher, 234.
I.

249.
F., 80, 427 n.
Hasse, J. C., 114 n.
Hatton, Sir Ch., 73.
Haus, J. J., 417.
Heedlessness, 112 n.
Hegel, G.W.F., 21,63, 107

Identification, theory

Harrison,

J.,

Ignorance, 109.
Ignorance, of fact, 109.
n.

Hertius,

J.

n,

135 n.

n, 32.

380.

Highways, use of, 188.

Hindoo law, 64, 411.
Hiring, 290.
Historical School, the, 63.

Hobbes, Th., 22
44, 49, 51, 78.

24

of law, 110.

Imperium, 396.
Implied Agency, 273.

Contract, 272, 285.

Trust, 249.
ImpossibiUty, 275.
subsequent, 313.

N., 414.

High Treason,

niegaUty, 275, 367.

Dlegitimacy, 143, 353.
Immoveables, 105, 216.

414.

Herodotus, 30

154,

Idiocy, 378.

Hereditas, 347.

Hermogenianus, 131

of,

Identity, 393.

Heineccius, Jo. G., 158.

Henry,

n.

Hunter,

415.

Hamaker,

laws, 361.

Honorarium, 298 n, 300.

Honour, laws of, 23, 29.
Hooker, Rich., 20, 24 n, 37, 49
Horace, 78.
Horn, M., 418.
Hosack, J., 415.

n, 34, 43 n,

Imprisonment, 171, 330, 379, 381,

383.

Impuberes, 109.
Imputation, 116, 184.

INDEX.

441

Interpretation, grammatical, 422.

Inaedificatio, 216.

Incerta persona, 159, 266.

Incidence, rights of determinate,
145.

422.

422, 430.

422.
usual, 422.
legal,

logical,

restrictive,

Indemnity, 305, 307, 308.

Indeterminate authority, 28.

incidence, rights

of, 145.

Indian Code, 40.

Indictment, 131, 384 n.

Intertemporales Privatrecht, 410 n.

Intestate succession, 161.
Invention, 211.
Investitive fact, 158, 326.

Indivisibility, 105.

Isidorus, 34.

Industrial fruits, 228.

Italian

Infamy, 300.

Indicia extraordinaria, 376.

Infant, 109, 310, 336, 349.

Indicium rusticimi, 154.

unborn, 95.
Infants'

Code, 62

n,

207

n.

lura in re, 190, 205.

ReUef Act, 309, 310, 349 n.

Information, 387.
Infringement, 151, 183, 212, 326,

aliena, 216, 217, 229, 330, 395.

lurisconsulti, 2 n.

lurisprudentia, meaning of term,

2,3.

330, 375.
Ingratitude, 287, 331.

lus, 14, 83.

Interdicts, 197, 205.

accrescendi, 302.
angariae, 403.
inter gentes, 388.
gentium, 9 35, 277.
naturale, 33-40,
in personam, 243.
possessionis, 192, 205.
possidendi, 192, 207.
privatum, 364.
publicum, 364.
quod ad pers. pertinet, 137.
quod ad res pertinet, 137.
ad rem, 146.
in rem, 145, 146, 241, 244.
in 146.
vindicandi, 207.

Interest, 291, 305.

lusta causa, 158, 217.

Injunctions, 73, 322.

Innkeepers, 253, 296.

Innocent IV, Pope, 98, 99.
Inquisitorial method, 383 n.
Inscriptions, 234.

Inspection, government, 373 n.

de Droit International,

Institut

392.
Insult, 184.

Insurance, 295, 296, 297, 305, 306,

312.
Intangible property, 210, 212, 218.
Intention, 108, 183, 196, 197, 198,
329, 377.
Intercessio, 300 n, 307.

n,

6,

re,

International law, 40, 132, 144, 147,

388, 389, 390 n, 404, 405, 419,

429

n.

application 429.
penal law, 427, 428.
persons, 391, 392, 393.
private law, 416, 417, 418, 419,
420, 422.
unions, 219
Interpretation, 406, 422, 429.
Act, the, 337 n.
authentic, 422, 430.
doctrinal, 422.
extensive, 422.
of,

n.

J.

Japan, 393, 398 n.

Japanese law, 42 n, 85 n, 207 n,
221 n.
Javolenus, 260.
Jenks, E., 117 n, 168- n, 276 n.
Jenkyns, Sir H., 424 n.
JesseS M. R., 75, 275.
Jest, 120.

Jhering, R. von, 6 n, 29 n, 42 n,
45, 48, 65 n, 85, 107 n, 118 n,

121 n, 131 n, 199, 200, 200

n, 287 n, 321 n, 377 n.

205

//,

INDEX.

442
Jitta, J.,

261 n, 418.

Jurisprudence, dental, 5 n.

John

of Salisbury, see Salisbury.

Joint

and several

contracts, 266,

286, 308.

5.

6.

10.

owners, 209, 216.

historical, 11.

Joint-stock company, 341, 342.

Joint tenancy, 302.

348 n.
Judge, function

expository,
formal,
general,

medical, 5
particular,
imiversal,
use of the term law 21.
Act, 117-124.
one-sided, 123, 255.
two-sided, 123, 255, 256, 266.
person, 96, 107.
local, 5.

n.

Jolly,

10.

of,

322.

10.

253, 368, 369.

Judgment, 360, 384.
as merger, 333.
liability of,

in,

Juristic

Judicature Act, 1873, the, 76.

Judicial decisions, authority of,

Jury, grand, 59.

68, 69.

Judicial notice, 359.

Justification, 155, 170, 183, 185, 378.

functions, 368, 369, 372.

separation, 247.

Justinian, 58, 76, 129, 137, 189,

360 n.

Julianus, Salvias, 75.

E.

Jurisdiction, 357, 383.

administrative, 374.
criminal, 383.
ethnological, 8
international, 394, 396.
personae, 417
ratione materiae, 417
cosmopolitan theory 426.
personal theory 423.
quasi-territorial theory 425.
self-preservation theory 425.

theory
423.
n.

n.

of,

of,

of,

of,

territorial

of,

Jurisdiction Act, Foreign, 398 n.

Jurisprudence,

Kant, 21, 27, 30 n, 78, 84, 116 n,

177, 191, 216 n, 242, 246 n.
Kent, Chancellor, 417.
Kindersley, V. C, 257.
King, the, 352, 368 n.
King's Proctor, 362 n.

Kirchmann,

84.

Kluber, J. L., 391, 394 n.

Kohler, J., 418.
Krause, 21, 79.
Kuhn, A. K., 171 n.
Kultur-Staat, 80 n.

2.

L.
defined,
as equivalent to law,
Labeo, 237
a
Laesio enormis, 271
288.
a formal science,
C.
410
abstracted from positive law,
Landrecht bricht gemeines Recht,
progressive,
409.
not
into general and
Land Transfer Act, 162
164
Langdale, Lord, 346.
particular,
not
into
Langdell,
261
and
Larceny, 201
philosophical,

and criminal,
Latent defects, 289.
into
Laurent,
417.
relation to comparative law, Laveleye, E. de, 342
Law,
7,8.
the physical
analytical, 6
architectural, 4
in the practical

as a rule of action, 20, 21, 23.

12.

n.

4.

science, 5, 13.

n,

L'Allier,

6, 7, 13.

de,

n.

9.

9.

divisible

n,

n.

10, 13.

divisible

historical

Prof.,

divisible

n.

n.

11, 13.

civil

F.,

12.

n.

its

14.

in

n.

n.

censorial, 5.

sciences, 18, 19.

sciences, 18, 19.

INDEX.
Law,

in Jurisprudence, 21, 41.

application 406, 415, 419,

420, 422, 429.
classification 127, 147, 366.
interpretation 422, 430.
object 78, 80, 322.
object means of attaining,
80, 355.
origin 57, 58.
sources 55, 56.
divisions 147, 364, 365, 366.
abnormal, 138, 143, 147, 336,
362, 365.
adjective, 89, 147, 166, 355,
of,

of,

of,

of,

of,

of,

of,

of,

362, 365, 383, 385, 391.

Administrative,

89,

147,

166,

364, 377, 391, 392.

410, 411.
of things, 134.
written and unwritten, 77.
a proposition, 23, 87.
a command, 22, 51, 87.
definition of 41.
territorial,

a,

a,

16,

a,

Law, act of, 160, 311.

Law-making organs, 76.
Lease, 292

Leave and

licence, 170.

Legacy, 164, 216, 249.

Legal duty, 86.

66, 211, 213.

process, abuse 188.

81, 85.
of,

right,

Legality of a contract, 276.

classification of, 372.

common, the, 59.

comparative,
Constitutional, 144,

Legation, law

of,

399.

Legislation, as source of

8.

364, 366,

Law,

76.

Legislative functions, 372.

Legitimatio per subsequens matri-

367, 372.
144, 327, 366, 375, 422.

of Evidence, 359, 384.

extraterritorial
415,
418.
formal, 355
general, 137.
God, 23, 41.
International, 40, 132, 388, 390.
martial, 374.
private, 416-422, 428.
Merchant, 61 318.
military, 374.
Moral, 29.
Municipal, 127, 389, 420
of Nations, 388, 418.
of Nature,
normal, 138, 143, 147, 336, 392.
particular, 137.
personal, 410.
of persons, 134, 137, 336, 362,
365.

43.
private, 126, 143, 147, 167, 336,
355, 363, 390, 429.
private international, 416, 417,
419.
public, 127, 144, 147, 328, 363,
effect

of,

n.

of

Law, substantive,

fiction,

144, 366, 371,

374, 375 n.

Criminal,

443

40,

39,

n,

133,

31, 32, 33, 34.

positive,

386, 422, 429.

n.

monium,

353.

Leibnitz, G.

W., 80, 84, 117

n,

162 n.

Leonhard, R., 117 n, 121 n, 261,

262 n.
Leonina societas, 302.
Letters, property in, 211 n.
Letting, 290.

Lex, the question

of,

406, 409, 428,

429.

Calptimia, 376.

412.
411, 412.
ligeantiae, 412.
actus, 412.
contractus, 412.

commissi, 412.

412.
solutionis, 412.
331.
329
assignment 312.
limited, 303, 343.
Libel, 184, 186, 328, 330, 381.
blasphemous, 382
on the dead, 183, 381-82
domicilii,

fori,

loci
loci

loci delicti

loci rei sitae,

loci

Liability,

n,

of,

n.

n.

Liberalities, 287.

Libertini, 181, 248.

Licences, 229.

INDEX.

444
Lieber, 66 n.

Mancipatio, 278.

Lien, 232, 289, 296.

Mandatory, 272, 299.

Mandatum,

299 n.

Life, services for,

Life-interest, 226, 228.

Life-rent, 226.

Lights, ancient, 224.

Limitation of actions, 215, 334,

352.

statutes

281, 309, 334, 352.

of,

Limited UabiUty, 303, 343.

Lindley, L. J., 413 n.
Lis alibi pendens, 335.

the, 154.

Markby, Sir W., 65

Market overt, 289.

Litis contestatio, 333.

Livelihood, right to, 186.

for use, 290.

Local government, 374.

Locatio-conductio, 290,

291

n,

of,

of, 69.

Lotteries, 305.

effect of,

Loysel, 282 n.

bilities,

Lucas de Penna,
Lunacy, 378.

Lush, L. J., 355 n.

Lycophron, 322.

M.
S.

C,

350.

law, 64, 177 n, 275,

410, 411.
Sir

52, 52 n,

H.

S.,

66

n,

10 n, 16 n, 23 n,
73 n, 75, 85 n,

105 n, 161, 321, 356 n, 376 n,

416 n.

Maintenance, 189, 380, 402.

Majority, age

MaUce,

of,

196, 239, 299, 330, 331.

Measure of damages, 332

Medecine legale, 5 n.

n.

Medical jurisprudence, 5 n.
Meiern, J. G. de, 415.
MeiU, F., 413 n, 416, 420 n.
Menace, 170.

Macaulay, Lord, 375.

Macedonianum,

lia-

219, 311, 350, 351.

Martial law, 374.

Master and Servant, 156, 169, 180,

99.

Lunatics, 109, 138, 139, 178, 250,

351, 362.

Maine,

clandestine and regular, 293.

fraudulent, 239.
temporary, 177.
brokage, 275.
contract, 120 246, 255, 287,
292.
precontract 293.
settlement, 288, 351.

on ownership and
n,

n, 30, 79.

Lomonaco, 417.
Lords, House of, judgments

Mahomedan

n.

Marriage, 175, 246, 292, 410 n.

Livermore, S., 415.

Loan for consumption, 290.

296 n, 298.
Locke, John, 24

Manumission, 181.
Marine insurance, 305, 306, 312.
Marital rights, 174, 175, 178, 246.
Maritime Conventions Act, 1911,

Liquidation, 343.

Loan

299.

Mansfield, Lord, 231, 283 n.

Manslaughter, 424.
Manson, E., 381 n.
Mansuetae naturae, animals, 172.
Manu, Institutes of, 56 n.

350.

108, 184, 329.

Malicious prosecution, 189, 190,

330.

Malum
Malum

per se, 37.

prohibitum, 37.
Mancini, P. S., 46 n, 419

n.

Mens

rea, 377.

Mental suffering, 173.

Merchants, custom of, see Custom.
Merger, 315, 333.
Meritorious rights, 245, 250, 331.

Method,

149, 166, 245, 285, 286,

287, 330, 366, 391.

Metus,
Meyer,

107.

A., 395 n.
Might, 85.
Mignonette case, the, 378
Miles, J. C, 245 n.
MiUtary law, 374.
Mill, J., 107 n.

Mill, J. S., 7 n.

n.

INDEX.

445

Ministere public, 362 n, 384.

Minor, R. C, 415.
Minors, 107, 233, 336, 349.

Nauticum foenus, 305.

Mirabeau, 209.
Misdemeanor, 378.

Negative services, 287, 303.

Necessaries, 246, 274 n, 349.

Necessity, Agent of, 273.

NegUgence,

n.

Negotiable instruments, 313.

Negotiorum gestio, 244, 250.

Nervous shock, see Mental suffer-

adquirendi, 158.

Mohl, R. von, 429

Monarchy, 51.

n.

Money, 288, 291.

had and received,
Monogamy, 177.

ing.

Neutral duties, author's

250.

law,

Neutrality, 392, 400, 403-405.

Nomenclature, see Terminology.

Nomology, 26, 27, 28.

defined, 27.
Nojios, 16 n.

Nonconformity, 353.
Non-performance, 314, 315, 319.

86, 243.

Normal

28.

principles,

29, 30, 388.

Morality and custom, 56, 57.

Mortgage, 231, 234, 235, 396.

Mortmain, statutes

classifica-

tion of, 404.

Monopolies, statute of, 212.

Monopoly, 159, 330.
Montaigne, 30 n.
Montesquieu, 133 n, 368.
Moore, J. B., 426 n.

Moral duty,

152-155,

116,

comparative, 155
contributory, 153, 154.

Mistake, 118, 121, 252, 281.

Mittermaier, C. J. A., 279.
Modestinus, 93, 177, 317.

Modus

111,

157, 170, 295-299, 329, 377.

Misrepresentation, 270.

of,

209, 248,

344.

Moulins, Ordonnance
Moveables, 105.
Miihlenzwang, 213.

de, 280.

Max, professor, 6
Mundschatz, 293.
Miiller,

law, 143, 147.

persons, 139, 143, 337, 392.

138, 145, 166.

right,

Nottingham, Lord, 75.

Novatio, 311, 317.
Novi operis denuntiatio, 322.
Noxae deditio, 156 n.

Nuda

proprietas, 207, 221.

Nudum
n, 16 n.

pactum, 276, 281.

Nuisance, 210, 330, 381.
Nullity, 118, 121, 123.

Municipal law, 133, 389, 420

n.

NuUimi tempus, 385

Murder, 424.

Numbers

Mutuum,

Nys, E., 385

290.

n.

of a State, 46.
n,

388

n,

396

n,

406 n.

N.

Name, Trade,

right to, 212 n.

NationaUty, 369.
Natural justice, 38.
Natural Law, 6, 31-40.
deductions from theory

208, 214, 228.

obligation, 243, 307, 317
person, 160, 337, 348.

168, 208, 222.

of, 36.

fruits,

n, 334.

93,

rights,

Natiu-alia Negotii, 123.

Naturalisation, 368, 372.

Nautae caupones, the edict, 296.

Nautica pecunia, 305.

Oaths, 285.
Obiter dicta, 65.
Object of law, 79, 87, 324.
of a right, 82, 91, 100, 127, 324.
Objects of ownership, 209.

Oblatio, 316.

Obligation,

is it

'

res

'?

242.

266
definitions 242.
natural, 243, 307, 317

100, 182.

civil,

correal,

n.

of,

Obligations, 317, 325 n.

Obligationes, 241, 242.

n, 334.

INDEX.

446
Obligationes, ex

contractu,

242,

ex
205, 242.
ex
causarum
quasi ex contractu, 242,
245.
quasi ex
242, 327.
delicto,

figuris, 245.

variis

244,

ObUgatory contract, 256, 259, 292.

Occupatio, 214, 395.

classification of,

379-382.

Partus ancillae, 216.

Party, act

Offer to negotiate, 267 n.

Office, effect of holding, 252, 352.
Official rights, 241, 252, 380.

Oldendorp, J., 36.

Omission, 107 n, 380.
One-man Companies, 343

160, 311.

Patents, 211, 218, 330.

Patria potestas, 348, 350.
Patronus, 179, 248.
300, 324

TO,

338 n, 384

n.

Paumee, 278.
Pawn, 232.
Payment, 314.
by third party, 314.

Orbit of a right, 150, 326, 375.

Orders in Council, 368 n.

into Court, 317.

Ordinary rights, 185.

artificial

of,

extraneous to an action, 361.

Paulus, 107, 109, 129, 155 n, 242,

n.

Onerous contract, 286.

Operae servorum, 226.

of law, 55.
of
393.

n.

n.

Offer, 266.

persons, 97.

states,

Ovid, 190

Parties to an action, 361.

to a contract, 266, 285, 286.
Partnership, 274, 301, 302, 303 n,
339, 340, 341, 343.

classification of, 379.

Origin of

Partie civile, 328.

302.
Partnership Act, 1890, 301, 303
the Limited, 303

Oerstadt, 415.
Offences, 375.
list of,

payment, 316, 334.

physical, 104.

delicto,

Parol contract, 279, 283.

Part, ideal, 104.

255.

n.

Ownership, 206, 220, 233, 394, 395.

Peace, 392, 394.

Peculium, 350.
Peer, 362.
Penal Code, 378, 379.
People, 46.
Performance, 314.
events preventing, 314, 315.

acquisition 214, 220, 396.

bonitarian and Quiritarian, 221.
release 294, 317, 318.
elements 206.
substitutes 314, 316.
international, 394.
150
172,
at
joint and
220.
Perjury, 380.

and equitable, 221.

Permissive use, 287, 290.
limits 207.
92-100,
Person,
135,
objects 209, 210.
336.
transfer 211, 215, 217, 219.
abnormal, 139, 336, 337, 348,
P.
357, 362, 365, 391.

107, 337, 338,

Pacific Blockade, 401.
339, 347, 365, 385.
Pacigerat, 403
of incidence,
Pacta, nuda, 276, 281.
of inherence,

281.
international, 391.
Pactum de non petendo, 318, 332.

107.
264
287
Paley, W., 29
natural, 94, 337, 347, 348.
Bearer, 313.
Paper
normal, 138, 139, 336, 337, 357,
179, 247, 350.
Parent and
of,

of,

of,

for,

Peril,

several,

n,

one's,

legal

of,

134,

90, 91,

of,

of,

artificial, 93, 96,

n.

91, 93.

91, 93.

vestita,

n, 30,

n,

n.

juristic, 95,

93,

to

child,

Parental rights, 179, 247, 350.

391.

INDEX.
Person, offences against the, 379,
381.

127.
public and private, 126.
94, 158, 266.
Persona,
standi in
354, 362.

of,

93,

of,

iudicio,

of,

Personae, res actiones, 135 n.

Personal law, 410.
real

to,

146, 414.

of,

jurisdiction, 423.

Personality, extension

Possession, as a mode of acquiring ownership, 214.

commencement 192, 205.

derivative, 199, 200.
elements 193.
nature 192, 199, 200, 201.
representative, 196.
right 169, 179, 192, 208.
symbolical, 194.
termination 206.

political,

and statutes,
servitudes, 225.
theory of

447

of, 190,

204

Persons, law of, 134-146, 336.

Petition of Right, 132, 386.

PossibiUty of a contract, 275.

Post, contracts by, 268.

property
382

in

articles

sent by,

n.

Pfeiffer, L., 416.

Post, A. H., 8 n.

Phillimore, Sir R., 416.

Poste, E., 137.

Philology, comparative, 8.

Postmaster-General, 252, 382 n.

Pothier, 234 n, 257, 270 n, 325 n.
Pound, R., 66 n, 76 n.
Practice, 355 n.
of conveyancers, 65.

Physicians, 298, 353.

Picard, E., 6 n.
Picketing, 181 n.
Pictura, 216.

Pignus, 232.
Pindar, 19.

Praetor, the, 72.

Pirates, 398, 426.

Precarium, 198, 231 n.

Precedents, 68.
Pre-contract of marriage, 293.
Predial servitudes, 222.
Prerogative process, 387.

Pranzataro, 266 n.

Place, 107, 428.

in the application of law, 408,
409, 411, 425, 426, 427, 428.

Plantatio, 216.

Plato, 16 n, 49 n, 270 n.
Plea, in confession and avoidance?
358.

Prerogatives, 368.
Prescription,

acquisitive,

215,

396.

dilatory, 358.
peremptory, 358.

extinctive, 215, 334,

in criminal law, 378.

Pleadings, 358, 383.

Pledge, 221, 229, 230, 307, 320,

Presumptions, 185, 271, 359.

Pret a la grosse, 305.

331, 334.

Price, 288.

Pledging, 277.

Primary

Plures

rei,

Principal

PoUcy

of the law, 275, 303, 333.

266.

Political person, 127.

Pollicitatio, 267.

PoUock, L.C.B., 67

n, 251 n, 263.

Pollock, Sir F., 8 n, 56 n, 68 n,

111 n, 117 n, 153 n, 170 n, 189 n,

223 n, 238 n, 261 n, 283, 295 n,

rights, 147.

and accessory,

106, 214,

286, 287, 307, 378, 399.

Principal and agent, 116, 122, 272,

274, 299, 300, 301, 331, 399.

Principal contract, 286, 287.
Prins,

M.

A.,

384

n.

Prisot, L.C.J., 64.

Privacy, right to, 190 n.

Private International law, 415, 419,
420, 429.

297 n, 304 n, 329 n, 345 n.

Polygamy, 177.
Pomponius, 2, 155, 322, 324 n.

conferences on, 413

Positive law, 9, 43.

relation of, to natural, 9, 35.

Private law, 127, 143, 148, 167, 328,

355, 363, 390, 428, 429.

n.

INDEX.

448

Private law, abnormal, 147, 167,

336, 362.

adjective, 166, 167, 355.

application 406.
normal, 147, 167.
substantive, 166.

Punishment, theory

special part of

Punishments, the
Purchase, 219.

of,

377.

of,

the, 379.
list of,

379.

Piittlingen, V. von, 416.

Q.

Privileged statement, 185.

Privileges, 236.

Quaestiones perpetuae, 377.

Privilegium, 23 n, 159.

Qualification, 159.

Privy Council, decisions

Quasi-contracts, 245 n.
Quasi-corporations, 340.

of, 70.

Prize, 214, 402.

Prize Court, the, 354.

an International, 39

Quasi ex contractu, obligationes,

n,

430

242-245.

n.

Procedure, 89, 355, 366, 377, 383,

387.

Quasi ex dehcto, 242.

Quasi-possession, 206.
Quasi-private personality of the

Prodigi, 109, 180, 353.

Profession, 298, 353.

State, 366.

Profits a prendre, 224, 226.

Promise to marry, 292.

Promisor and promisee, 266.
Promissory note, 279, 310, 313.
Promulgation of a law, 42 n.
Proof, 359.

Quasi-rights,

and duties

the

of

State, 127, 132, 133, 384.

Quasi-territorial jurisdiction, 390,

425.

Quasi-usufruct, 227.
Quiritarian ownership, 221.

Property, 209.

intangible, 210, 218.

literary and
211, 218.
moveable and immoveable, 216.
offences against, 382.
tangible, 210.
artistic,

Proprietary rights, 169, 189, 395.

Protection of Subjects, right of,

R.

Race, in the application of law,

409, 410, 411, 427.

Rachimburgi, 59.
Racing, 304.
Railway-carriers, 296, 297, 298.
Companies, 297, 346.

Raleigh, Sir W., 23.

394, 397, 398.

Protest, 122 n.
Proudfoot, Mr. Justice, 325 n.
Proximity, 161, 219.

Prudhon, 207 n.
Prussian Landrecht, 422

n.

Ramsla, N. von, 403

Rashness, 112 n.

n.

Ratification, 273, 307, 309, 333.

Rattigan, Sir W., 417.

Real contract, 286.

property, 104, 162, 289.

application 422.
Real representative, act to estab
162
363.
characteristics 366.
servitudes, 221, 222, 223.
relation to private law, 328, statute, 146, 414.
PubUc

law, 127, 144, 147, 362.

of,

of,

lish a,

n.

'classification of,
of,

364, 365, 375, 384, 389, 390.

Reallast, 228.

Publication of laws, 42 n.
PubUc opinion, 81, 85, 389.

Reason, 56 n.
Reasonable custom, 57.

Public poUcy, 69, 156, 275, 303.

Public prosecutor, 328, 384, 384 n.
Puchta, G. F., 45 n, 63, 92 n, 117 n,
124 n, 159 n, 190 n, 203 n.
Pufifendorf, 14 n, 84.

Recaptor, 250.
Recht, 14, 83, 326.

objectives and subjectives,

Rechtsgeschaft, 116, 118, 255.
Recognition, 220, 404.

83.

INDEX.
Recognizance, 131 n.
Record, contract of, 259 n.
Redhibitory action, 290.
Regelsberger, F., 121 n.
RIgime de la communaute, 351.

351.
372.
Registration
of contracts, 287.
of encumbrances, 234.

218.
10
trade-marks, 219.
n,

of

Regress, 302, 308.

Relative duties, 130.
Release, 314, 317, 332.
Religion, entering into, 95, 220,

as a source of law,

against, 381.

63, 410.

n.

Reversion, injury to, 228, 331.

Reversioner, 331.
Revocation, 268, 269, 301.
Richards, Sir H. E., 396 n.
Right, a, what is, 81, 84, 85 n.
ambiguity of the term, 83.

analysis
134,
definitions
84.
dynamical elements
149,
157.
extent 160.
forfeiture 155.
infringement 150, 326, 327,
328, 330.
the Japanese term for recent,
85
object 80, 136.
orbit 150, 205, 326, 375.

elements
149.
waiver 155, 169, 170, 329,
of, 90,

of, 92,

oflFences

of,

166,

320,

322, 324, 326, 332, 399.

extinction of, 332.

origin 320, 326.

suspension 334.
transfer 332.
of,

of,

of,

n.

of,

of,

91,

of,

of,

n.

Rent, 291.
Renunciation, 301.
Renvoi, 411 n.

statical

of, 92,

of,

333.

Right of action, a, 324.

Rights, as a basis for the

Reported cases, 65-70.

Representation, 130, 300.
Reprisals, 401, 402.

Reputation, right

Retrospective application of law,

of, 82,

353.

Remoteness, 152, 359.

Renault, L., 325 n, 430

Restraint of trade, 303.

Retorsion, 401.

Revenge, 320, 323, 329

Revenue, 372.

of births,

Remainder-man, 227.
Remedial rights, 146,

Restitution, 89, 324.

of conjugal rights, 247.

409.

dotal,

of title,

449

to, 169, 182, 330,

394.

classifi-

cation of law, 87, 147, 166.

primary
128.

distinction

between,

classification of, 125, 147, 169,

offences against, 381.

244.

Res, corporales and incorporales,

101, 102, 103, 136, 210 n, 214.

fungibiles and non

106, 290.
iudicata, 333.
mancipi, 105 289.
mobiles and immobiles, 105.
nuUius, 195, 210, 214.

fungibiles,

n,

Rescission, 316.

Reservation, 120 n, 122 n.

Resolutory condition, 124.
Respondentia, 305.
Responsibility, 156, 331, 377.
Restitutio in integrum, 316, 324.

abnormal,
365.

138, 117, 166, 336,

absolute, 146, IGS.

antecedent, 166, 167, 169, 241,
326, 364, 391, 393, 398.
of common, 224.
contractual, 181, 254, 255, 285.
ex contractu, 245, 255, 331.
derivative, 168.
determinate incidence, 140.
disposition, 209.
domestic, 245.
dominical, 180.
of enjoj'ment, 208.
of
of

INDEX.

450

Rights, family, 169, 174, 245, 330,

382.
fiduciary, 245, 248, 331.

Rita, 16 n.

Rodenburg, C, 414.

Rogtiln,
6
290
to immunity from fraud, 236. Roman-Dutch Law, 151 282,
imperfect, 401.
289
indeterminate incidence, 146. Rorer, David, 420
international, 393, 394.
Rousseau, 46
49

Rover, 121
ex
245.
Rules of action,
postulates
marital, 174, 175, 178, 246.
meritorious, 245, 250, 331.
Rusticonun iudicium, 154, 154
moral,
motion, 149, 157, 371.
natural, 167, 208, 222.
Sachsenspiegel, 348
360
of neutrals, 403.
Safety, right
169, 330, 394.
normal, 138, 147, 166, 336, 365.
Germain, 56

Sale, contract
245, 252.
239, 255
288,
ordinary, 169, 185.
296, 309, 309
parental, 179, 247.
Sale of Goods Act, 217
280

309
401.
to personal
118
208
169,320, 394.
personam, 144, 167, 241, 243, Sale-man, 164
E.,

n,

n.

n,

71.

n.

of

n,

legal, 80, 82, 85, 86.

n.

n.

20.

lege,

of, 25.

n.

81, 86.

in

n.

n,

to,

n.

St.

n,

of,

official,

n.

n,

n,

n.

perfect,

Saleilles,

safety,

n,

n.

n.

in

245, 255, 256, 311, 313, 326, 331,

364, 391, 394, 398.

ex lege, 245.
transfer of, 311, 312.

extinction

of,

315, 332.

to possession, 208.
primary,
to privacy, 190
private, 127, 328.
proprietary, 190.

127, 328.

146, 147.

221, 229, 330, 395.

rem,
169, 255,
310, 326, 330, 394.
remedial, 146,
167, 242,
146.

n.

public,

relative,

in re aliena,

145, 167, 168,

in

166,

320, 322,

324, 326,

332,

365,

SaUc law, 164 n, 201, 278

SaUsbxiry, John of, 73 n.
Salvage, 250, 252 n, 306.

n.

Sanction, 22, 30, 88.

Sanitary precautions, 373.
Satio, 216.

Savigny, F. C. von, 21, 45, 46, 46 n,

59 n, 63, 78, 92 n, 94 n, 102 n,
105 n, 106 n, 119 n, 122 n, 136 n,
137 n, 143 n, 157 n, 168 n, 194,
195 n, 197 n, 198, 200, 204, 204 n,

205 n, 216 n, 242, 249 n, 256, 259,

279 n, 313 n, 409 n, 415, 416.
Scandalum magnatum, 184 n,
381 n.
Schaffner, W., 416.
Schall, 121 n.

Scheinemann, 415.

391, 394, 399.

to reputation, 182, 394.

Schirrmeister, G., 168 n.
at
Schlossmann, 122
149, 150,371.
of
Schmid, R., 415.
230.
sanctioned and sanctioning, 146. Schoffen,
279.
secondary, 146.
Schtar,
of self-defence, 324, 378, 400. Schuldvertrag, 256
separation
to
Sciences,
242
limits to province of each

401.
tutelary, 179.
26.
n.

rest,

sale,

59.

the,

n.

services,

n.

the,

of, 17.

stricti iuris,

Riots, 380.

Sciences, practical, 17, 26,

of,

INDEX.
Sciences, practical, ai vision of, into

Ethic and Nomology, 26.

theoretical,

Sex, 96, 348, 369.

Sext, the, 146 n.
Shares in companies, 313 n, 342.
Ships, 218, 253, 298, 331 n.

18, 19.

Scientific discussion, 65.

Scott, J. B., 321.

Scots law, 59 n, 128 n, 151 n,

173 n, 176, 179 n, 208 n, 226,
n,

250

Seal, 279 n.

Seal, contract under, see

Deed.

rights, 146.

Security, 230, 231, 236, 285, 385.

discharge
transfer

of,

of,

jurisdiction over, 397, 403, 404,

423.

Simple contract, 279.

n.

Scriptura, 216.

Secondary

Servius, 237 n.
Set-off, 317, 333.

Scienter, 172 n.

249

451

236.

Singular succession, 160.

Sitting dharna, 321.
Slander, 182-185.

of

title,

188, 210.

Slave, 93, 180, 307, 330, 352, 353.

Societas, see Partnership.

leonina, 302.
Soci^te anonyme, 303, 342.
en commandite, 302, 342.
en nom coUectif, 302.

236.

Sedes Apostolica, 368.

Seduction, 179, 181 n, 330.
Seger, 415.
Seisin, 202.

Sohm,

122 n, 124
245 n, 278 n
Solariimi, 221 n.

Selbstcontrahiren, das, 266 n.

221

Prof.,

Selden, J., 74.

Self-defence, 171, 378.
Self-government, 374.

Soldiers, 111, 353.

Self-help, 246, 320, 321, 324, 400.

Sophocles, 32.

right

Self-preservation,

theory

of,

of,

378,

425.

Sources of law, 55, 56.

of rights, 157.

Sovereign poUtical authority, 42,

Self-sale, 170.

45, 53.

Semi-sovereignty, 49, 393.

Separate estate, 351.
Sequestratio, 295.

Servants, 195, 299.

liabUity for acts

of, 156,

component parts, 368.

Sovereignty, 49, 367.
external, 50, 370, 392.
internal, 367.

of theory
52.
its

51,

273, 331.

Services, contract for, 286, 287,

295, 298.

for 299
negative, 287, 303.
professional, 298, 353.
right 181.
life,

314 n.

Solutio, 243,

394.

129 n,

n,

n,

n.

to,

Servient tenement, 222.

Servitude, 221, 222, 223, 385, 396.

difficulties

of,

Special property, 202.

SpeciaUty contract, 278, 283, 317.

Specific performance, 324.
Specificatio, 214.

Spence, 73 n.
Spencer, Herbert, 80

n,

373

n.

Sponsalia, 292.

Staatsgewalt, 367.

acquisition and
Staatsrecht, 366
225, 228.
characteristics 224.
Stadtrecht bricht Landrecht, 409.

365-375.
223.
State,
definition 224.
definitions 47.
may have rights and
personal, 222, 223, 225.

222.
128,
328, 363, 384, 393.

organs law-making,
222, 223, 224, 225.
rural and urban, 223, 225.
133.
State, as
v.

loss of,

of,

classes of,

a, 46,

of,

of,

duties,

predial,
real,

131,

its

for

arbiter,

77.

INDEX.

452
State, identity of a, 393.

in international law, 392.

intervention
as a
person, 384, 385.
objects
371.
offences against, 375, 379-382.
origin
393.
as party, 127, 384, 385.
property 371, 382, 385, 394.
as source of law,
termination 393.
392.
States,
mi-souverains, 392.
of, 88.

juristic

of, 80,

of, 48,

of,

41, 56, 80.

Supreme Court of U.S., 70, 77.

Suretyship, see Guarantee.
Survivorship, 302, 359 n.
Suspension of remedy, 334, 354,
379.

Suspensive condition, 124.

Suzerainty, 50, 392.

Swiss Civil Code, 39, 101, 192

200 n, 207 n.
Syngraphae, 279.

n,

of,

T.

classification of, 50,

50,

Status, 93, 134, 137, 141, 348, 364,

387.

international, 392, 394.

143 n.
Status
naturales, 94, 143

n.

Tacking, 236.
Tangible property, 210, 214.
Taylor, Hannis, 70 n.
Taylor, Jeremy, 34.
Temerity, 112 n.
Tender, 316.

civiles, 94,

n.

Statuta, theory of the, 414, 416.

Stephen, Sir J. F., 67 n, 107

212 n, 377, 378 n, 382 n.
Stewart, Dugald, 29 n.

Tableaux vivants, 211

n,

Stipulatio, 277, 279, 318, 352.

Tenement, dominant and servient,

222.

Terce, 226.

Terminology, suggested new, 26,

Stock- jobbing, 305.

91,

Stoics, the, 33.

336, 366, 406, 408, 409, 410, 412,

422, 423, 425, 426.

Stoppage in transitu, 289.

J., 118, 119 n, 415.
Story, W., 287 n.
Streit, M., 417.
Stroud, D. A., 377.

Story,

Struve, 409, 413, 416.

Suarez, F., 390.

Substantive law, 89, 147, 167, 362,

365, 377, 385, 391.

international law, 390, 399.

private law, 167.
Substituted right, 317.
Substitutes for performance, 314.
Subtraction, 331.
Succession, 160, 219, 396.

161, 219, 385.

singular, 160.
testamentary, 162, 219.
universal, 160, 219, 311.
intestate,

Suicide, 381.

Summa

potestas, 49.

Summary

conviction, 383.

Siunmons, 358, 383.

Superficies, 221.

Suprema

potestas, 367.

135,

137,

147,

150,

245,

Territorial theory of jurisdiction,

423.
Territory, 395, 397, 410.

Testament, 162, 219.

Testamentary succession, 162,163,
219.

Teutonic law, 200, 278, 289, 290,

323, 354 n, 358 n, 376.
Texas doctrine, the, 173 n.
Text-books, 65.
Theophilus, 93, 324 n.
Thief, possession

Thing,

a,

by

a, 196.

100.

accessory,
215.
compound, 103, 104.
consumable, 106, 227.
fungible, 106, 290.
identity 101, 102.
intangible, 103, 210, 211, 212.

211.
100,
material, 100, 192.
moveable, immoveable, 105.

106.
simple, 102.
106,

of,

intellectual,

103,

principal,

INDEX.
Thing, tangible, 210.

definition

of, 100, 101.

a, divisibility

of,

and componibility

104.

Things, classification

of, 100, 103,

134-144.

of,

Thomas,

Trust, breach of, 327, 331.

Trusts, 73, 248.
legislation against in U.
186 ..

Tsuda, Dr., 85

S.,

n.

Tutelary rights, 179, 248.

Tutor, 179, 180, 349.

210.

law

453

Aquinas.
82 n, 84.
Tierce opposition, 360 n.

Twelve Tables,

Time, 107, 267, 334, 378.

Ulpian, 3, 23 n, 34, 35, 129, 206 n.

Ultra vires, doctrine of, 347.

St., see

Thomasius,

the, 182 n, 323.

31, 41, 44,

in the application of law, 409,

U.

Unborn

428.

child, 95.

Title, 157, 214.

Unconstitutional, meaning of the

term, 367.

Titulus, 147.

Underwriters, 306.

Tindal, L. C.

J.,

113.

Tolstoy, Count, 373 n.

Undue

Torres Campos, D. M., 421 n.

Unger,

Tort, 330.

Union

and crime, 327,

375, 376, 377,

378, 379.

Torts, founded

on

contract, 254.

of a corporation, 343

n.

Trade Disputes Act, 1906, the,

99 n, 187, 341 n.
Trade-guilds, 342 n.
Trade-mark, 212, 219, 240, 330.
Trade-name, right to, 212 n.

influence, 108, 271,

J.,

68 n.

of States, 50.

United Kingdom, 50.

United States, constitution
258 n.
Universal

succession,

personarum, 97, 347.

Unwritten law, 77.
Urrechte, 168.

Usage, 56.
Use, contract
Uses, 248.

for,

of,

249.

H. D., 373

n.

Transactio, 316.

Transfer of rights in personam,

159, 311, 332.

Transfer of rights in rem, 157, 174,

175, 178, 208, 215, 218, 219, 236.

Transfer of rights, by act of law

and

161,

Universitates bonorum, 97, 213,

347.

Traditio, 217.

Traill,

160,

219, 311.

Trade-union, 186, 187, 341.

Traiectitia pecimia, 305.

of, 77,

Statute

290.

Usucapio, 215.
Usufruct, 226, 227.
Usury, 291.
Usus, 226.

Usus

fori, 65.

of party, 159, 310.

Translative fact, 159.

Trauung, 293.

Treason, 380.
Treasure-trove, 195, 214.
Treaties, 398.

Trent, Council of, 176, 177 n, 293.

Trespass, 205, 330.
Tria capita, 93, 94.
Trial, 359, 383, 401.

by battle, 356
Trib\mal des

n.

confiits, 375.

V.
Vassal, 24S, 331.
Vattel, E. de, 397, 426.

Vedas, the, 19.

Verbrechen, 379.

Vermogen,

161, 213.

Vernehmungstheorie, 269.
Verwaltungsrecht, 371.
Vested rights, theory of, 421 n.
Vis, 107, 197, 271, 322 n.

Vis maior, 297 n.

INDEX.

454

Whole,

Vitia, 290.

Vivum vadium, 231

Widow, adultery

Voet, John, 414.

Paul, 414.
Void and voidable acts, 118.
contracts, 271, 280.
Volenti

non

fit

Wife,

iniuria, 154, 170,

n, 362.
H., 230 n.

Will, a, 161, 220.

n.

360.

see Aleatory.

Witthum, 293.

155, 169, 170,

Wolff, 48, 126 n.

Women,

109, 111, 180, 349, 369.

Woolsey, T. D., 178

401.

on property and ob315, 354, 354 n, 400,

401, 402, 403, 404, 405.

of,

Work on

n.

materials, 296.

Workmen's Compensation Act, the,

157.

Wounding, 171.
Wrenbury, Lord,

401, 402.

Ward

of Chancery, 180.
Wardship, 180.

Warehouseman,

n,
n.

Witness, incapacity for being, 354,

329, 333, 404.

War, the laws

256, 260,

form of, 120, 272.

WiUs, union of, 260, 261, 264.
Windscheid, B., 9 n, 102 n, 103
106 n, 117 n, 120 n, 122 n, 269

W.
Wachter, C. G., 415, 421
Wadset, 331.
Wager, 304.

of, 116, 119,

261, 262, 272.

facts,

ligations,

J.

expression

alienation, 287, 288.

159.

effect of,

with, 382 n.

Will, the, 25, 26, 27, 107, 256, 329.

exertion of, 107, 118.

Voluntary agreements, 288.

103,

liability for acts of, 273, 274.

Wigmore,

Vdlkerrecht, 429 n.

War,

physical,

how suable, 350

329.

Wagering contract,
Waiver of a right,

and

ideal

104.

n.

344.

Written contract, 280, 283, 301.

law, 77.

295.

Wrong, 326, 327, 330,

Wrongs, classification

Warfare, conduct of, 402.

Warranty, 239, 289, 298, 309.
Waste, 331.

330, 331.
independent of

331.
of,

328, 329.

list of,

Wedding, 292.
Weinkauf, 278.

contract, 327,

330.

Weiss, A., 417.

Westbury, Lord, 15 n, 212.
Westlake, Professor J., 137, 410 n,
417, 429 n.
Wette, 278.
Wharton, F., 114 n, 115 n, 415.

Zeballos, M., 418.

Zitelmann, E., 107 n, 120 n, 416.

Wheaton,417.

Zustandsobligationen, 245 n.

Z.

Zouche, R., 83, 131

324 n, 388 n.

n,

133 n, 241 n,

THE END.

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