The Project Gutenberg eBook of Jurisprudence, by John W. Salmond

Title: Jurisprudence

Fourth Edition

Author: John W. Salmond

Release Date: July 30, 2023 [eBook #71297]

Language: English

Credits: Richard Tonsing and the Online Distributed Proofreading Team at https://www.pgdp.net (This file was produced from images generously made available by The Internet Archive)

I have endeavoured to make this book useful to more than one class of readers. It is written primarily for the use of those students of the law who are desirous of laying a scientific foundation for their legal education; yet I hope that it will not be found destitute of interest by those lawyers whose academic studies lie behind them, but who have not wholly ceased to concern themselves with the theoretical and scientific aspects of the law. Further, a great part of what I have written is sufficiently free from the technicalities and details of the concrete legal system to serve the purposes of those laymen who, with no desire to adventure themselves among the repellent mysteries of the law, are yet interested in those more general portions of legal theory which touch the problems of ethical and political science.

It will be noticed that occasional passages of the text are printed in smaller type. These are of lesser importance, of greater difficulty, or of a controversial or historical character, and are not essential to the continuity of the exposition.

Certain parts of this book have already been published in the Law Quarterly Review, and I have also incorporated in it the substance of a much smaller work published by me some viyears ago under the title of “The First Principles of Jurisprudence.” I have not thought it necessary to allude in the text to certain discrepancies in matters of detail between my earlier and later views, and it will be understood that the present work wholly supersedes the earlier, as containing a re-statement of the substance of it in a more comprehensive form.

This edition is substantially a reprint of the third, which was published in 1910.

§ 1. Jurisprudence as the Science of Law.

In the widest of its applications the term jurisprudence means the science of law, using the word law in that vague and general sense in which it includes all species of obligatory rules of human action. Of jurisprudence in this sense, there are as many divisions as there are kinds of law which have been deemed sufficiently important and well developed to serve as the subject-matter of distinct branches of learning. They are at least three in number:

1. Civil Jurisprudence.—This is the science of civil law, that is to say, the law of the land. Its purpose is to give a complete and systematic account of that complex body of principles which is received and administered in the tribunals of the state.

2. International Jurisprudence.—This is the science of international law or the law of nations. It is concerned not with the rules which are in force within states, but with those which prevail between states. Just as the conduct of the subjects of a single state is governed by the civil law, so international law regulates the conduct of states themselves in their relations towards each other.

3. Natural Jurisprudence.—This is the science of that which our forefathers termed natural law or the law of nature (jus naturale). By this they meant the principles of natural justice—justice as it is in itself, in deed and in truth, as 2contrasted with those more or less imperfect and distorted images of it which may be seen in civil and international law. Whether these principles of natural justice are rightly entitled to the name of law—whether natural law, so called, can be rightly classed along with civil and international law as a species of the same genus—is a question which it is not needful for us here to discuss. It is sufficient for our present purpose to note the historical fact, that there is a very extensive literature in which the law of nature is given a place side by side with civil law and the law of nations (jus naturale, jus civile, and jus gentium), and in which the resulting threefold division of jurisprudence into natural, civil, and international, is recognised as valid.

Books of natural jurisprudence are in their essence books of ethics or moral philosophy, limited, however, to that department which is concerned with justice, as opposed to the other forms of right, while the method and the point of view are those of the lawyer rather than of the moral philosopher. Experience has shown, however, that this abstract theory of justice in itself, this attempt to work out in abstracto the principles of natural right, is a sufficiently unprofitable form of literature. In England both name and thing have become in recent years all but obsolete. Yet there are not wanting even at this day examples of the earlier way of thought. The most notable of these is the late Professor Lorimer’s Institutes of Law, a Treatise of the Principles of Jurisprudence as determined by Nature. On the Continent, on the other hand, the literature of natural law, though no longer as flourishing as it was, is still of importance. One of the best known works of this class is Ahrens’ Cours de Droit Naturel. A typical example from an earlier epoch is Pufendorf’s once celebrated but now neglected work, De Jure Naturae et Gentium (1672).^[1]

In a second and narrower sense, jurisprudence, instead of including all three of the foregoing divisions, is limited to one only, namely, that which we have distinguished as civil. It is the science of civil law. A similar specific application belongs to the term law also, for when we speak of law without any qualifying epithet, we commonly mean that particular form which is administered in the tribunals of the state. So when we speak of jurisprudence without more, we usually intend the science of this special kind of law and this alone.^[2]

Civil jurisprudence is divisible into three branches, which may be distinguished as Systematic, Historical, and Critical. The first deals with the present; its purpose is the exposition of the legal system as it now is. The second deals with the past; it is concerned with the legal system in the process of its historical development. The third deals with the ideal future; it expounds the law not as it is or has been, but as it ought to be. Systematic jurisprudence is legal exposition; historical jurisprudence is legal history; while critical jurisprudence is commonly known as the science of legislation.

There is yet a third and still narrower sense, in which jurisprudence includes not the whole science of civil law, but only a particular part of it. In this limited signification it may be termed abstract, theoretical, or general, to distinguish it from the more concrete, practical, and special departments of legal study. It is with this form only that we are concerned in the present treatise. How, then, shall we define it, and how distinguish it from the residue of the science of the civil law? It is the science of the first principles of the civil law. It is not possible, indeed, to draw any hard line of logical division between these first principles and the remaining portions of the legal system. The distinction is one of degree rather than of kind. Nevertheless it is expedient to set apart, as the subject-matter of a special department of study, those more fundamental conceptions and principles which serve as the basis of the concrete details of the law. This introductory and general portion of legal science, cut off for reasons of practical convenience from the special portions which come after it, constitutes the subject-matter of our inquiry. It comprises the first principles of civil jurisprudence in all its three divisions, systematic, historical, and critical. The fact that its boundaries are not capable of being traced with logical precision detracts in no degree from the advantages to be derived from its recognition and separate treatment as a distinct department of juridical science. Practical legal exposition acknowledges no call to rise to first principles, or to proceed to ultimate analysis. From the point of view of law as an art, the importance of conceptions and principles varies inversely with their abstractness or generality. Practical jurisprudence proceeds from below upward, and ascends no further than the requirements of use and practice demand. Theoretical jurisprudence, on the contrary, attributes value to the abstract and the general, rather than to the concrete and the particular. Even when these two departments of knowledge are coincident in their subject-matter, they are far apart in their standpoints, methods, and purposes. The aim of the abstract study is to supply that theoretical foundation 5which the science of law demands, but of which the art of law is careless.

Opinions may well differ to some extent as to the matters which are fit, by reason of their generality or their theoretic and scientific interest, to find a place among the contents of abstract jurisprudence. Speaking generally, however, it may be said that this science appropriately deals with such matters as the following:

1. An analysis of the conception of civil law itself, together with an examination of the relations between this and other forms of law.

2. An analysis of the various subordinate and constituent ideas of which the complex idea of the law is made up; for example, those of the state, of sovereignty, and of the administration of justice.

3. An account of the sources from which the law proceeds, with an investigation into the theory of legislation, precedent, and customary law.

4. An examination of the general principles of legal development, as contrasted with the historic details of the growth of the individual legal system, this last pertaining to legal history.

5. An inquiry into the scientific arrangement of the law, that is to say, the logical division of the corpus juris into distinct departments, together with an analysis of the distinctions on which the division is based.

6. An analysis of the conception of legal rights together with the division of rights into various classes, and the general theory of the creation, transfer, and extinction of rights.

7. An investigation of the theory of legal liability, civil and criminal.

8. An examination of any other juridical conceptions which by reason of their fundamental character, or their theoretical interest, significance, or difficulty, deserve special attention from the abstract point of view; for example, property, possession, obligations, trusts, incorporation, and many others.^[3]

6It may avoid misconceptions, and assist us in understanding what theoretical jurisprudence is, if we state shortly what it is not.

1. In the first place it is not an elementary outline of the concrete legal system. It deals not with the outlines of the law, but with its ultimate conceptions. It is concerned not with the simplest and easiest, but with some of the most abstruse and difficult portions of the legal system. Theoretical jurisprudence is not elementary law, any more than metaphysics is elementary science.

2. In the second place it is not, as the name general jurisprudence suggests, and as some writers have held,^[4] the science of those conceptions and principles which all or most systems of law have in common. It is true, indeed, that a great part of the matter with which it is concerned is to be found in all mature legal systems. All these have the same essential nature and purposes, and therefore agree to a large extent in their fundamental principles. But it is not because of this universal reception, that such principles pertain to theoretical jurisprudence. Were it a rule of every country in the world that a man could not marry his deceased wife’s sister, the rule would not for that reason be entitled to a place in this department of legal science. Conversely, as universal reception is not sufficient, so neither is it necessary. Even if no system in the world, save that of England, recognised the legislative efficacy of precedent, the theory of case-law would none the less be a fit and proper subject of the science in question.

3. Finally, this branch of knowledge has no exclusive claim to the name of jurisprudence or of legal science. It is not, as some say, the science of law, but is simply the introductory portion of it. As we have already seen, it is not even capable of definite and logical separation from the residue of legal learning. The division is one suggested by considerations of practical convenience, not demanded by the requirements of logic.

7The divisions of legal science, as they have been stated and explained in the foregoing pages, may be exhibited in tabular form as follows:

§ 4. English and Foreign Jurisprudence.

The use of the term jurisprudence to indicate exclusively that special branch of knowledge which we have termed theoretical jurisprudence, is a peculiarity of English nomenclature. In foreign literature jurisprudence and its synonyms include the whole of legal science and are never used in this specific and limited signification. The foreign works which correspond most accurately to the English literature of this subject are of three different kinds:—

1. Works devoted to the subject known as Juridical Encyclopædia, one of the best known examples of which is that of Arndts. He defines this department of legal science as comprising “a scientific and systematic outline or general view of the whole province of jurisprudence (Rechtswissenschaft), together with the general data of that science.” “Its purpose,” he adds, “is to determine the compass and limits of jurisprudence, its relations to other sciences, its internal divisions, and the mutual relations of its constituent parts.”^[5]

2. Books of Pandektenrecht (that is to say, Modern Roman Law), and more especially the Introductory or General Part of these works. German jurists have devoted extraordinary energy and acumen to the analysis and exposition of the law of the Pandects, in that modern form in which it was received in Germany until superseded by recent legislation. Much of the work so done bears too special a reference to the details of the 8Roman system to be in point with respect to the theory of English law. The more general portions, however, are admirable examples of the scientific analysis of fundamental legal conceptions. Special mention may be made of the unfinished System of Modern Roman Law by Savigny, and of the similar works of Windscheid and Dernburg.

3. A third form of foreign literature which corresponds in part to our English books of jurisprudence, consists of those works of jurisprudentia naturalis which have been already referred to. These contain the theory of natural law and natural justice, while English jurisprudence is concerned with civil law, and with the civil or legal justice which that law embodies. Yet the relation between natural and civil law, natural and civil justice, is so intimate that the theory of the one is implicitly, if not explicitly, that of the other also. Widely, therefore, as they differ in aspect, we may place the French Philosophie du droit naturel and the German Naturrechtswissenschaft side by side with our own theoretical jurisprudence. It is, indeed, from the earlier literature of natural law, as represented by Pufendorf, Burlamaqui, Heineccius, and others,^[6] that the modern English literature of jurisprudence is directly descended.^[7]

§ 5. The Definition of Law.

The law is the body of principles recognised and applied by the state in the administration of justice. Or, more shortly: The law consists of the rules recognised and acted on in courts of justice.

It will be noticed that this is a definition, not of a law, but of the law, and our first concern is to examine the significance of this distinction. The term law is used in two senses, which may be conveniently distinguished as the abstract and the concrete. In its abstract application we speak of the law of England, the law of libel, criminal law, and so forth. Similarly we use the phrases law and order, law and justice, courts of law. It is to this usage that our definition is applicable. In its concrete sense, on the other hand, we say that Parliament has enacted or repealed a law. We speak of the by-laws of a railway company or municipal council. We hear of the corn laws or the navigation laws. The distinction demands attention for this reason, that the concrete term is not co-extensive with the abstract in its application. Law or the law does not consist of the total number of laws in force. The constituent elements of which the law is made up are not laws but rules of law or legal principles. That a will requires two witnesses is not rightly spoken of as a law of England; it is a rule of English law. A law means a statute, enactment, ordinance, decree, or any other exercise of legislative authority. It is one of the sources of law in the abstract sense. A law produces statute law, just as custom produces customary law, or as a precedent produces case-law.

This ambiguity is a peculiarity of English speech. All the 10chief Continental languages possess distinct expressions for the two meanings. Law in the concrete is lex, loi, gesetz, legge. Law in the abstract is jus, droit, recht, diritto. It is not the case, indeed, that the distinction between these two sets of terms is always rigidly maintained, for we occasionally find the concrete word used in the abstract sense. Medieval Latin, for example, constantly uses lex as equivalent to jus, and the same usage is not uncommon in the case of the French loi. The fact remains, however, that the Continental languages possess, and in general make use of, a method of avoiding the ambiguity inherent in the single English term.

Most English writers have, in defining law, defined it in the concrete, instead of in the abstract sense. They have attempted to answer the question: “What is a law?” while the true inquiry is: “What is law?” The central idea of juridical theory is not lex but jus, not gesetz but recht. To this inverted and unnatural method of procedure there are two objections. In the first place it involves a useless and embarrassing conflict with legal usage. In the mouths of lawyers the concrete signification is quite unusual. They speak habitually of law, of the law, of rules of law, of legal principles, but rarely of a law or of the laws. When they have occasion to express the concrete idea, they avoid the vague generic expression, and speak of some particular species of law—a statute, Act of Parliament, by-law, or rule of Court. In the second place, this consideration of laws instead of law tends almost necessarily to the conclusion that statute law is the type of all law and the form to which all of it is reducible in the last analysis. It misleads inquirers by sending them to the legislature to discover the true nature and origin of law, instead of to the courts of justice. It is consequently responsible for much that is inadequate and untrue in the juridical theory of English writers.^[8]

§ 6. The Administration of Justice.

We have defined law by reference to the administration of 11justice. It is needful, therefore, to obtain here some understanding of the essential nature of that function of the state, though a complete analysis of it must be deferred to a later period of our inquiry. That some form of compulsion and control is essential for the realization in human conduct of the idea of justice, experience has made sufficiently manifest. Unfortunately for the welfare of the world, men are not so constituted that to know the right is to do it. In the nature of things there is a conflict, partly real, partly only apparent, between the interests of man and man, and between those of individuals and those of society at large; and to leave every man free to do that which is right in his own eyes, would fill the world with fraud and violence. “We have seen,” says Spinoza, at the commencement of his Treatise on Politics,^[9] “that the way pointed out by Reason herself is exceeding difficult, insomuch so that they who persuade themselves that a multitude of men ... can be induced to live by the rule of Reason alone, are dreamers of dreams and of the golden age of the poets.” If, therefore, we would maintain justice, it is necessary to add compulsion to instruction. It is not enough to point out the way; it is needful to compel men to walk in it. Hence the existence of various regulative or coercive systems, the purpose of which is the upholding and enforcement of right and justice by some instrument of external constraint. One of the most important of these systems is the administration of justice by the state. Another is the control exercised over men by the opinion of the society in which they live. A third is that scheme of coercion established within the society of states for the enforcement of the principles of international justice.

The administration of justice may therefore be defined as the maintenance of right within a political community by means of the physical force of the state.

The instrument of coercion employed by any regulative system is called a sanction, and any rule of right supported by such means is said to be sanctioned. Thus physical force, in the various methods of its application, is the sanction 12applied by the state in the administration of justice. Censure, ridicule, contempt, are the sanctions by which society (as opposed to the state) enforces the rules of morality. War is the last and the most formidable of the sanctions which in the society of nations maintain the law of nations. Threatenings of evils to flow here or hereafter from divine anger are the sanctions of religion, so far as religion assumes the form of a regulative or coercive system.^[10]

A sanction is not necessarily a punishment or penalty. To punish wrongdoers is a very effectual way of maintaining the right, but it is not the only way. We enforce the rule of right, not only by imprisoning the thief, but by depriving him of his plunder, and restoring it to its true owner; and each of these applications of the physical force of the state is equally a sanction. The examination and classification of the different forms of sanction made use of by the state will claim our attention in a later chapter on the administration of justice.

§ 7. Law Logically Subsequent to the Administration of Justice.

We have defined law as the body of principles observed and acted on by the state in the administration of justice. To this definition the following objection may be made. It may be said: “In defining law by reference to the administration of justice, you have reversed the proper order of ideas, for law is the first in logical order, and the administration of justice second. The latter, therefore, must be defined by reference to the former, and not vice versa. Courts of justice are essentially courts of law, justice in this usage being merely another name for law. The administration of justice is essentially the enforcement of the law. The laws are the commands laid by the state upon its subjects, and the law courts are the organs through which these commands are enforced. Legislation, direct or indirect, must precede 13adjudication. Your definition of law is therefore inadequate, for it runs in a circle. It is not permissible to say that the law is the body of rules observed in the administration of justice, since this function of the state must itself be defined as the application and enforcement of the law.”

This objection is based on an erroneous conception of the essential nature of the administration of justice. The primary purpose of this function of the state is that which its name implies—to maintain right, to uphold justice, to protect rights, to redress wrongs. Law is secondary and unessential. It consists of the fixed principles in accordance with which this function is exercised. It consists of the pre-established and authoritative rules which judges apply in the administration of justice, to the exclusion of their own free will and discretion. For good and sufficient reasons the courts which administer justice are constrained to walk in predetermined paths. They are not at liberty to do that which seems right and just in their own eyes. They are bound hand and foot in the bonds of an authoritative creed which they must accept and act on without demur. This creed of the courts of justice constitutes the law, and so far as it extends, it excludes all right of private judgment. The law is the wisdom and justice of the organized commonwealth, formulated for the authoritative direction of those to whom the commonwealth has delegated its judicial functions. What a litigant obtains in the tribunals of a modern and civilized state is doubtless justice according to law, but it is essentially and primarily justice and not law. Judges are appointed, in the words of the judicial oath, “to do right to all manner of people, after the laws and usages of this realm.” Justice is the end, law is merely the instrument and the means; and the instrument must be defined by reference to its end.

It is essential to a clear understanding of this matter to remember that the administration of justice is perfectly possible without law at all. Howsoever expedient it may be, howsoever usual it may be, it is not necessary that the courts of the state should, in maintaining right and redressing wrong, act according to those fixed and predetermined principles 14which are called the law. A tribunal in which right is done to all manner of people in such fashion as commends itself to the unfettered discretion of the judge, in which equity and good conscience and natural justice are excluded by no rigid and artificial rules, in which the judge does that which he deems just in the particular case, regardless of general principles, may not be an efficient or trustworthy tribunal, but is a perfectly possible one. It is a court of justice, which is not also a court of law.

Moreover, even when a system of law exists, the extent of it may vary indefinitely. The degree in which the free discretion of a judge in doing right is excluded by predetermined rules of law, is capable of indefinite increase or diminution. The total exclusion of judicial discretion by legal principle is impossible in any system. However great is the encroachment of the law, there must remain some residuum of justice which is not according to law—some activities in respect of which the administration of justice cannot be defined or regarded as the enforcement of the law. Law is a gradual growth from small beginnings. The development of a legal system consists in the progressive substitution of rigid pre-established principles for individual judgment, and to a very large extent these principles grow up spontaneously within the tribunals themselves. That great aggregate of rules which constitutes a developed legal system is not a condition precedent of the administration of justice, but a product of it. Gradually from various sources—precedent, custom, statute—there is collected a body of fixed principles which the courts apply to the exclusion of their private judgment. The question at issue in the administration of justice more and more ceases to be, “What is the right and justice of this case?” and more and more assumes the alternative form, “What is the general principle already established and accepted, as applicable to such a case as this?” Justice becomes increasingly justice according to law, and courts of justice become increasingly courts of law.

The existence of law is, as has been said, marked and measured by the exclusion, in courts of justice, of individual judgment by authority, of free discretion by rule, of liberty of opinion by pre-established determinations. The remarkable extent to which this exclusion is permitted is a very characteristic feature of the administration of justice; but it is not and cannot be complete. Judicial action is accordingly divisible into two provinces; one being that of law, and the other that of fact. All matters that come for consideration before courts of justice are either matters of law or matters of fact. The former are those falling within the sphere of pre-established and authoritative principle, while the latter are those pertaining to the province of unfettered judicial discretion. In other words, every question which requires an answer in a court of justice is either one of law or one of fact. The former is one to be answered in accordance with established principles—one which has been already authoritatively answered, explicitly or implicitly, by the law. A question of fact, on the other hand, is one which has not been thus predetermined—one on which authority is silent—one which the court may and must answer and determine in accordance with its own individual judgment.

It must be clearly understood that by a question of fact, as we have used the expression, is meant any question whatever except one of law, whether that question is, or is not, one of fact in the other senses of this equivocal term. We are not concerned, for example, with the distinction between matters of fact and matters of right, or with that between matters of fact and matters of opinion. Everything is fact for us which is not predetermined by legal principles. It is clear that this is the sense in which this term must inevitably be used, if the distinction between questions of fact and questions of law is to be exhaustive and logical.

The distinction may be illustrated by the following examples:—

Whether a contractor has been guilty of unreasonable delay in building 16a house is a question of fact; the law contains no rules for its determination. But whether the holder of a bill of exchange has been guilty of unreasonable delay in giving notice of dishonour, is a question of law to be determined in accordance with certain fixed principles laid down in the Bills of Exchange Act.

Whether verbal or written evidence of a contract is the better, is a question of law, the superiority of the latter being the subject of a pre-existing and authoritative generalisation. But whether the oral testimony of A. or that of B. is the better evidence, is a question of fact, left entirely to the untrammelled judgment of the court.

What is the proper and reasonable punishment for murder is a question of law, individual judicial opinion being absolutely excluded by a fixed rule. What is the proper and reasonable punishment for theft is (save so far as judicial discretion is limited by the statutory appointment of a maximum limit) a question of fact, on which the law has nothing to say.

The question whether a child accused of crime has sufficient mental capacity to be criminally responsible for his acts, is one of fact, if the accused is over the age of seven years, but one of law (to be answered in the negative) if he is under that age.

The point in issue is the meaning of a particular clause in an Act of Parliament. Whether this is a question of fact or of law, depends on whether the clause has already been the subject of authoritative judicial interpretation. If not, it is one of fact for the opinion of the court. If, however, there has already been a decision on the point, the question is one of law to be decided in accordance with the previous determination. The conclusion may seem paradoxical that a question of statutory interpretation may be one of fact, but a little consideration will show that the statement is correct. It is true, indeed, that the question is one as to what the law is, but a question of law does not mean one as to what the law is, but one to be determined in accordance with a rule of law.

A question is very often both one of fact and one of law, and is then said to be a mixed question of law and of fact. It is to be answered partly in accordance with fixed legal principles, and as to the residue in accordance with free judicial opinion. That is to say, it is not a simple, but a composite question, resolvable into a greater or less number of simple factors, some of which pertain to the sphere of the law and the others to that of fact. Let us take, for example, the question as to the proper term of imprisonment for a certain convicted criminal. This may, according to circumstances, be a pure question of fact, a pure question of law, or a mixed question of law and 17of fact. It belongs to the first of these classes, if the law contains no provision whatever on the matter, the court having in consequence a perfectly free hand. It belongs to the second class, if the matter is definitely predetermined by a fixed rule, appointing the exact length of imprisonment to be awarded. It belongs to the third class, if the law has fixed a minimum or maximum term, but has left the court with full liberty within the appointed limits. Similarly, whether the defendant has been guilty of fraud is a mixed question of law and of fact, because it is resolvable into two elements, one of law and the other of fact; what acts the defendant has done, and with what intent he did them, are pure questions of fact; but whether such acts, done with such an intent, amount to fraud is a pure question of law. So the question whether a partnership exists between A. and B. is partly one of fact (viz., what agreement has been made between these persons), and partly one of law (viz., whether such an agreement constitutes the relation of partnership). Similar composite questions are innumerable.

The distinction between matters of fact and matters of law is thrown into great prominence by the composite character of the typical English tribunal and the resulting division of functions between judge and jury. The general rule is that questions of law are for the judge and questions of fact for the jury. This rule is subject, however, to numerous and important exceptions. Though there are no cases in which the law is left to the jury, there are many questions of fact which are withdrawn from the cognisance of the jury and answered by the judge. The interpretation of a written document, for example, may be, and very often is, a pure matter of fact, and nevertheless falls within the province of the judge. So the question of reasonable and probable cause for prosecution—which arises in actions for malicious prosecution—is one of fact and yet one for the judge himself. So it is the duty of the judge to decide whether there is any sufficient evidence to justify a verdict for the plaintiff, and if he decides that there is not, the case is withdrawn from the jury altogether; yet in the majority of cases this is a 18mere matter of fact, undetermined by any authoritative principles.^[11]

The validity of a legal principle is entirely independent of its truth. It is a valid principle of law, not because it is true, but because it is accepted and acted on by the tribunals of the state. The law is the theory of things, as received and acted on within the courts of justice, and this theory may or may not conform to the reality of things outside. The eye of the law does not infallibly see things as they are. Nor is this divergence of law from truth and fact necessarily, and in its full extent, inexpedient. The law, if it is to be an efficient and workable system, must needs be blind to many things, and the legal theory of things must be simpler than the reality. Partly by deliberate design, therefore, and partly by the errors and accidents of historical development, law and fact, legal theory and the truth of things, are far from complete coincidence. We have ever to distinguish that which exists in deed and in truth, from that which exists in law. Fraud in law, for example, may not be fraud in fact, and vice versa. That is to say, when the law lays down a principle determining, in any class of cases, what shall be deemed fraud, and what shall not, this principle may or may not be true, and so far as it is untrue, the truth of things is excluded by the legal theory of things. In like manner, that which is considered right or reasonable by the law may be far from possessing these qualities in truth and fact. Legal justice may conflict with natural justice; a legal wrong may not be also a moral wrong, nor a legal duty a moral duty.

We have seen that the existence of law is not essential to the administration of justice. Howsoever expedient, it is not necessary that this function of the state should be exercised in accordance with those rigid principles which constitute a legal system. The primary purpose of the judicature is not to enforce law, but to maintain justice, and this latter purpose is in its nature separable from the former and independent of it. Even when justice is administered according to law, the proportion between the sphere of legal principle and that of judicial discretion is different in different systems, and varies from time to time. This being so, it is well to make inquiry into the uses and justification of the law—to consider the advantages and disadvantages of this substitution of fixed principles for the arbitrium judicis in the administration of justice—in order that we may be enabled to judge whether this substitution be good or evil, and if good within what limits it should be confined.

That it is on the whole expedient that courts of justice should become courts of law, no one can seriously doubt. Yet the elements of evil involved in the transformation are too obvious and serious ever to have escaped recognition. Laws are in theory, as Hooker says, “the voices of right reason”; they are in theory the utterances of Justice speaking to men by the mouth of the state; but too often in reality they fall far short of this ideal. Too often they “turn judgment to wormwood,” and make the administration of justice a reproach. Nor is this true merely of the earlier and ruder stages of legal development. At the present day our law has learnt, in a measure never before attained, to speak the language of sound reason and good sense; but it still retains in no slight degree the vices of its youth, nor is it to be expected that at any time we shall altogether escape from the perennial conflict between law and justice. It is needful, therefore, that the law should plead and prove the ground and justification of its existence.

The chief uses of the law are three in number. The first 20of these is that it imparts uniformity and certainty to the administration of justice. It is vitally important not only that judicial decisions should be correct, distinguishing accurately between right and wrong, and appointing fitting remedies for injustice, but also that the subjects of the state should be able to know beforehand the decision to which on any matter the courts of justice will come. This prevision is impossible unless the course of justice is uniform, and the only effectual method of procuring uniformity is the observance of those fixed principles which constitute the law. It would be well, were it possible, for the tribunals of the state to recognise and enforce the rules of absolute justice; but it is better to have defective rules than to have none at all. For we expect from the coercive action of the state not merely the maintenance of abstract justice, but the establishment within the body politic of some measure of system, order, and harmony, in the actions and relations of its members. It is often more important that a rule should be definite, certain, known, and permanent, than that it should be ideally just. Sometimes, indeed, the element of order and certainty is the only one which requires consideration, it being entirely indifferent what the rule is, so long as it exists and is adhered to. The rule of the road is the best and most familiar example of this, but there are many other instances in which justice seems dumb, and yet it is needful that a definite rule of some sort should be adopted and maintained.

For this reason we require in great part to exclude judicial discretion by a body of inflexible law. For this reason it is, that in no civilised community do the judges and magistrates to whom is entrusted the duty of maintaining justice, exercise with a free hand the viri boni arbitrium. The more complex our civilisation becomes, the more needful is its regulation by law, and the less practicable the alternative method of judicial procedure. In simple and primitive communities it is doubtless possible, and may even be expedient, that rulers and magistrates should execute judgment in such manner as best commends itself to them. But in the civilisation to which we have now attained, any such 21attempt to substitute the deliverances of natural reason for predetermined principles of law would lead to chaos. “Reason,” says Jeremy Taylor,^[12] “is such a box of quicksilver that it abides no where; it dwells in no settled mansion; it is like a dove’s neck; ... and if we inquire after the law of nature” (that is to say, the principles of justice) “by the rules of our reason, we shall be as uncertain as the discourses of the people or the dreams of disturbed fancies.”

It is to be observed in the second place that the necessity of conforming to publicly declared principles protects the administration of justice from the disturbing influence of improper motives on the part of those entrusted with judicial functions. The law is necessarily impartial. It is made for no particular person, and for no individual case, and so admits of no respect of persons, and is deflected from the straight course by no irrelevant considerations peculiar to the special instance. Given a definite rule of law, a departure from it by a hair’s-breadth is visible to all men; but within the sphere of individual judgment the differences of honest opinion are so manifold and serious that dishonest opinion can pass in great part unchallenged and undetected. Where the duty of the judicature is to execute justice in accordance with fixed and known principles, the whole force of the public conscience can be brought to the enforcement of that duty and the maintenance of those principles. But when courts of justice are left to do that which is right in their own eyes, this control becomes to a great extent impossible, public opinion being left without that definite guidance which is essential to its force and influence. So much is this so, that the administration of justice according to law is rightly to be regarded as one of the first principles of political liberty. “The legislative or supreme authority,” says Locke,^[13] “cannot assume to itself a power to rule by extemporary, arbitrary decrees, but is bound to dispense justice, and to decide the rights of the subject 22by promulgated, standing laws, and known, authorized judges.” So in the words of Cicero,^[14] “We are the slaves of the law that we may be free.”

It is to its impartiality far more than to its wisdom (for this latter virtue it too often lacks) that are due the influence and reputation which the law has possessed at all times. Wise or foolish, it is the same for all, and to it, therefore, men have ever been willing to submit their quarrels, knowing, as Hooker^[15] says, that “the law doth speak with all indifferency; that the law hath no side-respect to their persons.” Hence the authority of a judgment according to law. The reference of international disputes to arbitration, and the loyal submission of nations to awards so made, are possible only in proportion to the development and recognition of a definite body of international law. The authority of the arbitrators is naught; that of the law is already sufficient to maintain in great part the peace of the world. So in the case of the civil law, only so far as justice is transformed into law, and the love of justice into the spirit of law-abidingness, will the influence of the judicature rise to an efficient level, and the purposes of civil government be adequately fulfilled.

Finally, the law serves to protect the administration of justice from the errors of individual judgment. The establishment of the law is the substitution of the opinion and conscience of the community at large for those of the individuals to whom judicial functions are entrusted. The principles of justice are not always clearly legible by the light of nature. The problems offered for judicial solution are often dark and difficult, and there is great need of guidance from that experience and wisdom of the world at large, of which the law is the record. The law is not always wise, but on the whole and in the long run it is wiser than those who administer it. It expresses the will and reason of the body politic, and claims by that title to overrule the will and reason of judges and magistrates, no less than those of private men. “To seek to be wiser than the laws,” says 23Aristotle,^[16] “is the very thing which is by good laws forbidden.”

§ 10. The Defects of the Law.

These then are the chief advantages to be derived from the exclusion of individual judgment by fixed principles of law. Nevertheless these benefits are not obtained save at a heavy cost. The law is without doubt a remedy for greater evils, yet it brings with it evils of its own. Some of them are inherent in its very nature, others are the outcome of tendencies which, however natural, are not beyond the reach of effective control.

The first defect of a legal system is its rigidity. A general principle of law is the product of a process of abstraction. It results from the elimination and disregard of the less material circumstances in the particular cases falling within its scope, and the concentration of attention upon the more essential elements which these cases have in common. We cannot be sure that in applying a rule so obtained, the elements so disregarded may not be material in the particular instance; and if they are so, and we make no allowance for them, the result is error and injustice. This possibility is fully recognised in departments of practice other than the law. The principles of political economy are obtained by the elimination of every motive save the desire for wealth; but we do not apply them blindfold to individual cases, without first taking account of the possibly disturbing influence of the eliminated elements. In law it is otherwise, for here a principle is not a mere guide to the due exercise of a rational discretion, but a substitute for it. It is to be applied without any allowance for special circumstances, and without turning to the right hand or to the left. The result of this inflexibility is that, however carefully and cunningly a legal rule may be framed, there will in all probability be some special instances in which it will work hardship and injustice, and prove a source of error instead of a guide to truth. So 24infinitely various are the affairs of men, that it is impossible to lay down general principles which will be true and just in every case. If we are to have general rules at all, we must be content to pay this price.

The time-honoured maxim, Summum jus est summa injuria, is an expression of the fact that few legal principles are so founded in truth that they can be pushed to their extremest logical conclusions without leading to injustice. The more general the principle, the greater is that elimination of immaterial elements of which it is the result, and the greater therefore is the chance that in its rigid application it may be found false. On the other hand, the more carefully the rule is qualified and limited, and the greater the number of exceptions and distinctions to which it is subject, the greater is the difficulty and uncertainty of its application. In attempting to escape from the evils which flow from the rigidity of the law, we incur those due to its complexity, and we do wisely if we discover the golden mean between the two extremes.

Analogous to the vice of rigidity is that of conservatism. The former is the failure of the law to conform itself to the requirements of special instances and unforeseen classes of cases. The latter is its failure to conform itself to those changes in circumstances and in men’s views of truth and justice, which are inevitably brought about by the lapse of time. In the absence of law, the administration of justice would automatically adapt itself to the circumstances and opinions of the time; but fettered by rules of law, courts of justice do the bidding, not of the present, but of the times past in which those rules were fashioned. That which is true to-day may become false to-morrow by change of circumstances, and that which is taken to-day for wisdom may to-morrow be recognised as folly by the advance of knowledge. This being so, some method is requisite whereby the law, which is by nature stationary, may be kept in harmony with the circumstances and opinions of the time. If the law is to be a living organism, and not a mere petrification, it is necessary to adopt and to use with vigilance some effective 25instrument of legal development, and the quality of any legal system will depend on the efficiency of the means so taken to secure it against a fatal conservatism. Legislation—the substitution of new principles for old by the express declaration of the state—is the instrument approved by all civilised and progressive races, none other having been found comparable to this in point of efficiency. Even this, however, is incapable of completely counteracting the evil of legal conservatism. However perfect we may make our legislative machinery, the law will lag behind public opinion, and public opinion behind the truth.

Another vice of the law is formalism. By this is meant the tendency to attribute undue importance to form as opposed to substance, and to exalt the immaterial to the level of the material. It is incumbent on a perfect legal system to exercise a sound judgment as to the relative importance of the matters which come within its cognisance; and a system is infected with formalism in so far as it fails to meet this requirement, and raises to the rank of the material and essential that which is in truth unessential and accidental. Whenever the importance of a thing in law is greater than its importance in fact, we have a legal formality. The formalism of ancient law is too notorious to require illustration, but we are scarcely yet in a position to boast ourselves as above reproach in this matter. Much legal reform is requisite if the maxim De minimis non curat lex is to be accounted anything but irony.

The last defect that we shall consider is undue and needless complexity. It is not possible, indeed, for any fully developed body of law to be such that he who runs may read it. Being, as it is, the reflection within courts of justice of the complex facts of civilised existence, a very considerable degree of elaboration is inevitable. Nevertheless the gigantic bulk and bewildering difficulties of our own labyrinthine system are far beyond anything that is called for by the necessities of the case. Partly through the methods of its historical development, and partly through the influence of 26that love of subtilty which has always been the besetting sin of the legal mind, our law is filled with needless distinctions, which add enormously to its bulk and nothing to its value, while they render great part of it unintelligible to any but the expert. This tendency to excessive subtilty and elaboration is one that specially affects a system which, like our own, has been largely developed by way of judicial decisions. It is not, however, an unavoidable defect, and the codes which have in modern times been enacted in European countries prove the possibility of reducing the law to a system of moderate size and intelligible simplicity.

From the foregoing considerations as to the advantages and disadvantages which are inherent in the administration of justice according to law, it becomes clear that we must guard against the excessive development of the legal system. If the benefits of law are great, the evils of too much law are not small. The growth of a legal system consists in the progressive encroachment of the sphere of law upon that of fact, the gradual exclusion of judicial discretion by predetermined legal principles. All systems do to some extent, and those which recognise precedent as a chief source of law do more especially, show a tendency to carry this process of development too far. Under the influence of the spirit of authority the growth of law goes on unchecked by any effective control, and in course of time the domain of legal principle comes to include much that would be better left to the arbitrium of courts of justice. At a certain stage of legal development, varying according to the particular subject-matter, the benefits of law begin to be outweighed by those elements of evil which are inherent in it.

Bacon has said, after Aristotle:^[17] Optima est lex quae minimum relinquit arbitrio judicis. However true this may be in general, there are many departments of judicial practice to which no such principle is applicable. Much has been done in recent times to prune the law of morbid growths. In many departments judicial discretion has been freed from 27the bonds of legal principle. Forms of action have been abolished; rules of pleading have been relaxed; the credibility of witnesses has become a matter of fact, instead of as formerly one of law; a discretionary power of punishment has been substituted for the terrible legal uniformity which once disgraced the administration of criminal justice; and the future will see further reforms in the same direction.

We have hitherto taken it for granted that legal principles are necessarily inflexible—that they are essentially peremptory rules excluding judicial discretion so far as they extend—that they must of necessity be followed blindly by courts of justice even against their better judgment. There seems no reason, however, in the nature of things why the law should not, to a considerable extent, be flexible instead of rigid—should not aid, guide, and inform judicial discretion, instead of excluding it—should not be subject to such exceptions and qualifications as in special circumstances the courts of justice shall deem reasonable or requisite. There is no apparent reason why the law should say to the judicature: “Do this in all cases, whether you consider it reasonable or not,” instead of: “Do this except in those cases in which you consider that there are special reasons for doing otherwise.” Such flexible principles are not unknown even at the present day, and it seems probable that in the more perfect system of the future much law that is now rigid and peremptory will lapse into the category of the conditional. It will always, indeed, be found needful to maintain great part of it on the higher level, but we have not yet realised to what an extent flexible principles are sufficient to attain all the good purposes of the law, while avoiding much of its attendant evil. It is probable, for instance, that the great bulk of the law of evidence should be of this nature. These rules should for the most part guide judicial discretion, instead of excluding it. In the former capacity, being in general founded on experience and good sense, they would be valuable aids to the discovery of truth; in the latter, they are too often the instruments of error.

The whole body of legal rules is divisible into two parts, which may be conveniently distinguished as General law and Special law. The former includes those legal rules of which the courts will take judicial notice, and which will therefore be applied as a matter of course in any case in which the appropriate subject-matter is present. Special law, on the other hand, consists of those rules which, although they are true rules of law, the courts will not recognise and apply as a matter of course, but which must be specially proved and brought to the notice of the courts by the parties interested in their recognition. In other words, the general law is that which is generally applicable; it is that which will be applied in all cases in which it is not specially excluded by proof that some other set of principles has a better claim to recognition in the particular instance. Special law, on the contrary, is that which has only a special or particular application, excluding and superseding the general law in those exceptional cases in which the courts are informed of its existence by evidence produced for that purpose.

The test of the distinction is judicial notice. By this is meant the knowledge which any court, ex officio, possesses and acts on, as contrasted with the knowledge which a court is bound to acquire through the appointed channel of evidence formally produced by the parties. A judge may know much in fact of which in law he is deemed ignorant, and of which, therefore, he must be informed by evidence legally produced. Conversely he may be ignorant in fact of much that by law he is entitled judicially to notice, and in such a case it is his right and duty to inform himself by such means as seem good to him. The general rule on the matter is that courts of justice know the law, but are ignorant of the facts. The former may and must be judicially noticed, while the latter must be proved. To each branch of this rule there are, however, important exceptions. There are certain exceptional classes of facts, of which, because of their notoriety, the law imputes a knowledge to the courts. Similarly there 29are certain classes of legal rules of which the courts may, and indeed must, hold themselves ignorant, until due proof of their existence has been produced before them. These, as we have said, constitute special, as opposed to the general law.

By far the larger and more important part of the legal system is general law. Judicial notice—recognition and application as a matter of course—is the ordinary rule. As to this branch of the law we need say nothing more in this place, but the rules of special law call for further consideration. They fall for the most part into five distinct classes. A full account of these must wait until we come to deal with the sources of law in a subsequent chapter, but in the meantime it is necessary to mention them as illustrating the distinction with which we are here concerned.

1. Local customs.—Immemorial custom in a particular locality has there the force of law. Within its own territorial limits it prevails over, and derogates from, the general law of the land. But the courts are judicially ignorant of its existence. If any litigant will take advantage of it, he must specially plead and prove it; otherwise the general law will be applied.

2. Mercantile customs.—The second kind of special law consists of that body of mercantile usage which is known as the law merchant. The general custom of merchants in the realm of England has in mercantile affairs the force of law. It may make, for example, an instrument negotiable, which by the general law of the land is not so. This customary law merchant is, like local customary law, special and not general; but, unlike local customary law, it has the capacity of being absorbed by, or taken up into the general law itself. When a mercantile usage has been sufficiently established by evidence and acknowledged as law by judicial decision, it is thereafter entitled to judicial notice. The process of proof need not be repeated from time to time.^[18] The result of this doctrine is a progressive transformation of the rules of the special law merchant into rules of the general law. The law of bills of 30exchange, for example, was formerly part of the special law merchant, requiring to be pleaded and proved as a condition precedent to its recognition and application; but successive judicial decisions, based upon evidence of this special law, have progressively transmuted it into general law, entitled to judicial notice and to application as a matter of course.

3. Private legislation.—Statutes are of two kinds, distinguishable as public and private. The distinguishing characteristic of a public Act is that judicial notice is taken of its existence, and it is therefore one of the sources of the general law. A private Act, on the other hand, is one which, owing to its limited scope, does not fall within the ordinary cognisance of the courts of justice, and will not be applied by them unless specially called to their notice by the parties interested. Examples of private legislation are acts incorporating individual companies and laying down the principles on which they are to be administered, acts regulating the navigation of some river, or the construction and management of some harbour, or any other enactments concerned, not with the interests of the realm or the public at large, but with those of private individuals or particular localities.^[19]

Private legislation is not limited to acts of Parliament. In most cases, though not in all, the delegated legislation of bodies subordinate to Parliament is private, and is therefore a source, not of general, but of special law. The by-laws of a railway company, for example, or of a borough council, are not entitled to judicial notice, and form no part of the general law of the land. Rules of court, on the other hand, established by the judges under statutory authority for the regulation of the procedure of the courts, are constituent parts of the ordinary law.

4. Foreign law.—The fourth kind of special law consists of those rules of foreign law, which upon occasion are applied even in English courts to the exclusion of English law. Experience has shown that justice cannot be efficiently administered by tribunals which refuse on all occasions to 31recognise any law but their own. It is essential in many cases to take account of some system of foreign law, and to measure the rights and liabilities of litigants by it, rather than by the indigenous or territorial law of the tribunal itself. If, for example, two men make a contract in France, which they intend to be governed by the law of France, and one of them sues on it in an English court, justice demands that the validity and effect of the contract shall be determined by French, rather than by English law. French, rather than English law will therefore be applied in such a case even by English judges. The principles which determine and regulate this exclusion of local by foreign law constitute the body of legal doctrine known as private international law.

Foreign law, so far as it is thus recognised in English courts, becomes, by virtue of this recognition, in a certain sense English law. French law is French as being applied in France, but English as being applied in England. Yet though it is then part of English law, as being administered in English courts, it is not part of the general law, for English courts have no official knowledge of any law save their own.

5. Conventional law.—The fifth and last form of special law is that which has its source in the agreement of those who are subject to it. Agreement is a juridical fact having two aspects, and capable of being looked at from two points of view. It is both a source of legal rights and a source of law. The former of these two aspects is the more familiar and in ordinary cases the more convenient, but in numerous instances the latter is profitable and instructive. The rules laid down in a contract, for the determination of the rights, duties, and liabilities of the parties, may rightly be regarded as rules of law which these parties have agreed to substitute for, or add to the rules of the general law. Agreement is a law for those who make it, which supersedes, supplements, or derogates from the ordinary law of the land. Modus et conventio vincunt legem. To a very large extent, though not completely, the general law is not peremptory and absolute, but consists of rules whose force is conditional on the absence 32of any other rules agreed upon by the parties interested. The articles of association of a company, for example, are just as much true rules of law, as are the provisions of the Companies Acts, or those statutory regulations which apply in the absence of any articles specially agreed upon. So articles of partnership fall within the definition of law, no less than the provisions of the Partnership Act which they are intended to supplement or modify, for both sets of rules are authoritative principles which the courts will apply in all litigation affecting the affairs of the partnership.

We have made the distinction between general and special law turn wholly upon the fact that judicial notice is taken of the former but not of the latter. It may be objected that this is a merely external and superficial view of the matter. General law, it may be argued, is so called because it is common to the whole realm and to all persons in it, while special law is that which has a special and limited application to particular places or classes of persons. In this contention there is an element of truth, but it falls short of a logical analysis of the distinction in question. It is true that the general law is usually wider in its application than special law. It is chiefly for this reason, indeed, that the former is, while the latter is not, deemed worthy of judicial notice. But we have here no logical basis for a division of the legal system into two parts. Much of the general law itself applies to particular classes of persons only. The law of solicitors, of auctioneers, or of pawnbrokers, is of very restricted application; yet it is just as truly part of the ordinary law of the land as is the law of theft, homicide, or libel, which applies to all mankind. The law of the royal prerogative is not special law, by reason of the fact that it applies only to a single individual; it is a constituent part of the general law. On the other hand, mercantile usage is dependent for its legal validity on its generality; it must be the custom of the realm, not that of any particular part of it; yet until, by judicial proof and recognition, it becomes entitled for the future to judicial notice, it is the special law merchant, standing outside the ordinary law of the land. The law of bills of exchange is no more general in its application now, than it ever was; yet it has now ceased to be special, and has become incorporated into the general law. The element of truth involved in the argument now under consideration is no more than this, that the comparative generality of their application is one of the most important matters to be taken into consideration in determining whether judicial notice shall or shall not be granted to rules of law.

§ 12. Common Law.

The term common law is used by English lawyers with unfortunate diversities of meaning. It is one of the contrasted 33terms in at least three different divisions of the legal system:

1. Common law and statute law.—By the common law is sometimes meant the whole of the law except that which has its origin in statutes or some other form of legislation. It is the unenacted law that is produced by custom or precedent, as opposed to the enacted law made by Parliament or subordinate legislative authorities.

2. Common law and equity.—In another sense common law means the whole of the law (enacted or unenacted) except that portion which was developed and administered exclusively by the old Court of Chancery, and which is distinguished as equity.^[20] It is in this sense, for example, that we speak of the Court of King’s Bench or Exchequer as being a court of common law.

3. Common law and special law.—In yet a third sense common law is a synonym of what we have already called general law, the ordinary law of the land, as opposed to the various forms of special law, such as local customs, which will not be applied as a matter of course in the administration of justice, but only when specially pleaded and proved.

The expression common law (jus commune) was adopted by English lawyers from the canonists, who used it to denote the general law of the Church as opposed to those divergent usages (consuetudines) which prevailed in different local jurisdictions, and superseded or modified within their own territorial limits the common law of Christendom.^[21] This canonical usage must have been familiar to the ecclesiastical judges of the English law courts of the twelfth and thirteenth centuries, and was adopted by them. We find the distinction between common law and special law (commune ley and especial ley) well established in the earliest Year Books.^[22] The common law is the ordinary system administered by the ordinary royal courts, and is contrasted with two other forms of law. It is opposed, in the first place, to that which is not administered in the ordinary royal courts at all, but by special tribunals governed by different 34systems. Thus we have the common law in the Court of King’s Bench, but the canon law in the Ecclesiastical Courts, the civil law in the Court of Admiralty, and, at a later date, the law which was called equity in the Court of Chancery.

In the second place the common law was contrasted with those various forms of special law which were recognised even in the King’s ordinary courts in derogation of the general law of the land. Thus it is opposed to local custom (la commune ley and le usage del pays);^[23] to the law merchant (la commune ley and la ley merchaunde);^[24] to statute law;^[25] and to conventional law (specialis conventio contra jus commune).^[26] The opposition of common and statute law is noteworthy. Statute law is conceived originally as special law, derogating from the ordinary law of the King’s courts. It was contra jus commune, just as contracts and local customs and the law merchant were contra jus commune. Such a point of view, indeed, is not logically defensible. A public and general statute does not bear the same relation to the rest of the law as a local or mercantile custom bears to it. Logically or not, however, statutes were classed side by side with the various forms of special law which derogated from the jus commune. Hence the modern usage by which the common law in one of its senses means unwritten or unenacted law, as opposed to all law which has its origin in legislation.

§ 13. Law and Equity.

Until the year 1873 England presented the extremely curious spectacle of two distinct and rival systems of law, administered at the same time by different tribunals. These systems were distinguished as common law and equity, or merely as law and equity (using the term law in a narrow sense as including one only of the two systems). The common law was the older, being coeval with the rise of royal justice in England, and it was administered in the older Courts, namely the King’s Bench, the Court of Common Pleas, and the Exchequer. Equity was the more modern body of legal doctrine, developed and administered by the Chancellor in the Court of Chancery as supplementary to, and corrective of, the older law. To a large extent the two systems were identical and harmonious, for it was a maxim of the Chancery that equity follows the law (Aequitas sequitur legem); that is to say, the rules already established in the older courts were adopted by the Chancellors and incorporated into the system 35of equity, unless there was some sufficient reason for their rejection or modification. In no small measure, however, law and equity were discordant, applying different rules to the same subject-matter. The same case would be decided in one way, if brought before the Court of King’s Bench, and in another, if adjudged in Chancery. The Judicature Act, 1873, put an end to this anomalous state of things, by the abolition of all portions of the common law which conflicted with equity, and by the consequent fusion of the two systems into a single and self-consistent body of law.

The distinction between law and equity has thus become historical merely, but it has not for that reason ceased to demand attention. It is not only a matter of considerable theoretical interest, but it has so left its mark upon our legal system, that its comprehension is still essential even in the practical study of the law.

1. The term equity possesses at least three distinct though related senses. In the first of these, it is nothing more than a synonym for natural justice. Aequitas is aequalitas—the fair impartial, or equal allotment of good and evil—the virtue which gives to every man his own. This is the popular application of the term, and possesses no special juridical significance.

2. In a second and legal sense equity means natural justice, not simply, but in a special aspect; that is to say, as opposed to the rigour of inflexible rules of law. Aequitas is contrasted with summum jus, or strictum jus, or the rigor juris. For the law lays down general principles, taking of necessity no account of the special circumstances of individual cases in which such generality may work injustice. So also, the law may with defective foresight have omitted to provide at all for the case in hand, and therefore supplies no remedy for the aggrieved suitor. In all such cases in order to avoid injustice, it is needful to go beyond the law, or even contrary to the law, and to administer justice in accordance with the dictates of natural reason. This it is that is meant by administering equity as opposed to law; and so far as any tribunal possesses the power of thus supplementing or 36rejecting the rules of law in special cases, it is, in this sense of the term, a court of equity, as opposed to a court of law.

The distinction thus indicated was received in the juridical theory both of the Greeks and the Romans. Aristotle defines equity as the correction of the law where it is defective on account of its generality,^[27] and the definition is constantly repeated by later writers. Elsewhere he says:^[28] “An arbitrator decides in accordance with equity, a judge in accordance with law: and it was for this purpose that arbitration was introduced, namely, that equity might prevail.” In the writings of Cicero we find frequent reference to the distinction between aequitas and jus. He quotes as already proverbial the saying, Summum jus summa injuria,^[29] meaning by summum jus the rigour of the law untempered by equity. Numerous indications of the same conception are to be met with in the writings of the Roman jurists.^[30]

The doctrine passed from Greek and Latin literature into the traditional jurisprudence of the Middle Ages. We may see, for example, a discussion of the matter in the Tractatus de Legibus of Aquinas.^[31] It was well known, therefore, to the lawyers who laid the foundations of our own legal system, and like other portions of scholastic doctrine, it passed into the English law courts of the thirteenth century. There is good reason for concluding that the King’s courts of that day did not consider themselves so straitly bound by statute, custom, or precedent, as to be incapable upon occasion of doing justice 37that went beyond the law.^[32] It was not until later that the common law so hardened into an inflexible and inexpansive system of strictum jus, that aequitas fled from the older courts to the newly established tribunal of the Chancellor.

The Court of Chancery, an offshoot from the King’s Council, was established to administer the equity which the common law had rejected, and of which the common law courts had declared themselves incapable. It provided an appeal from the rigid, narrow, and technical rules of the King’s courts of law, to the conscience and equity of the King himself, speaking by the mouth of his Chancellor. The King was the source and fountain of justice. The administration of justice was part of the royal prerogative, and the exercise of it had been delegated by the King to his servants, the judges. These judges held themselves bound by the inflexible rules established in their courts, but not so the King. A subject might have recourse, therefore, to the natural justice of the King, if distrustful of the legal justice of the King’s courts. Here he could obtain aequitas, if the strictum jus of the law courts was insufficient for his necessities. This equitable jurisdiction of the Crown, after having been exercised for a time by the King’s Council, was subsequently delegated to the Chancellor, who, as exercising it, was deemed to be the keeper of the royal conscience.

3. We have now reached a position from which we can see how the term equity acquired its third and last signification. In this sense, which is peculiar to English nomenclature, it is no longer opposed to law, but is itself a particular kind of law. It is that body of law which is administered in the Court of Chancery, as contrasted with the other and rival system administered in the common law courts. Equity is 38Chancery law as opposed to the common law. The equity of the Chancery has changed its nature and meaning. It was not originally law at all, but natural justice. The Chancellor, in the first days of his equitable jurisdiction, did not go about to set up and administer a new form of law, standing side by side with that already recognised in the Court of Common Pleas. His purpose was to administer justice without law, and this purpose he in fact fulfilled for many a day. In its origin the jurisdiction of the Chancellor was unfettered by any rules whatever. His duty was to do that “which justice, and reason, and good faith, and good conscience require in the case.”^[33] And of such requirements he was in each particular case to judge at his own good pleasure. In due time, however, there commenced that process of the encroachment of established principle upon judicial discretion, which marks the growth of all legal systems. By degrees the Chancellor suffered himself to be restricted by rule and precedent in his interpretation and execution of the dictates of the royal conscience. Just in so far as this change proceeded, the system administered in Chancery ceased to be a system of equity in the original sense, and became the same in essence as the common law itself. The final result was the establishment in England of a second system of law, standing over against the older law, in many respects an improvement on it, yet no less than it, a scheme of rigid, technical, predetermined principles. And the law thus developed was called equity, because it was in equity that it had its source.

Closely analogous to this equity-law of the English Chancellor is the jus praetorium of the Roman praetor. The praetor, the supreme judicial magistrate of the Roman republic, had much the same power as the Chancellor of supplying and correcting the deficiencies and errors of the older law by recourse to aequitas. Just as the exercise of this power gave rise in England to a body of Chancery law, standing by the side of the common law, so in Rome a jus praetorium 39grew up distinct from the older jus civile. “Jus praetorium,” says Papinian,^[34] “est quod praetores introduxerunt, adjuvandi vel supplendi vel corrigendi juris civilis gratia, propter utilitatem publicam.” The chief distinction between the Roman and the English cases is that at Rome the two systems of law coexisted in the same court, the jus praetorium practically superseding the jus civile so far as inconsistent with it; whereas in England, as we have seen, law and equity were administered by distinct tribunals. Moreover, although the jus praetorium had its source in the aequitas of the praetor, it does not seem that this body of law was ever itself called aequitas. This transference of meaning is peculiar to English usage.^[35]

§ 14. Law in General—A Rule of Action.

Having considered in the foregoing chapter the nature of civil law exclusively, we now proceed to examine certain other kinds of law which need to be distinguished from this and from each other. In its widest and vaguest sense the term law includes any rule of action: that is to say, any standard or pattern to which actions (whether the acts of rational agents or the operations of nature) are or ought to be conformed. In the words of Hooker,^[36] “we term any kind of rule or canon whereby actions are framed a law.” So Blackstone says:^[37] “Law, in its most general and comprehensive sense, signifies a rule of action, and is applied indiscriminately to all kinds of action, whether animate or inanimate, rational or irrational. Thus we say, the laws of motion, of gravitation, of optics or mechanics, as well as the laws of nature and of nations.”

Of law in this sense there are many kinds, and the following are sufficiently important and distinct to deserve separate mention and examination: (1) Physical or Scientific law, (2) Natural or Moral law, (3) Imperative law, (4) Conventional law, (5) Customary law, (6) Practical law, (7) International law, (8) Civil law. Before proceeding to analyse and distinguish these, there are the following introductory observations to be made:—

(1) This list is not based on any logical scheme of division and classification, but is a mere simplex enumeratio of the chief forms of law.

41(2) There is nothing to prevent the same rule from belonging to more than one of these classes.

(3) Any discussion as to the rightful claims of any of these classes of rules to be called law—any attempt to distinguish law properly so called from law improperly so called—would seem to be nothing more than a purposeless dispute about words. Our business is to recognise the fact that they are called law, and to distinguish accurately between the different classes of rules that are thus known by the same name.

§ 15. Physical or Scientific Law.

Physical laws or the laws of science are expressions of the uniformities of nature—general principles expressing the regularity and harmony observable in the activities and operations of the universe. It is in this sense that we speak of the law of gravitation, the laws of the tides, or the laws of chemical combination. Even the actions of human beings, so far as they are uniform, are the subject of law of this description: as, for example, when we speak of the laws of political economy, or of Grimm’s law of phonetics. These are rules expressing not what men ought to do, but what they do.

Physical laws are also, and more commonly, called natural laws, or the laws of nature; but these latter terms are ambiguous, for they signify also the moral law; that is to say the principles of natural right and wrong.

This use of the term law to connote nothing more than uniformity of action is derived from law in the sense of an imperative rule of action, by way of the theological conception of the universe as governed in all its operations (animate and inanimate, rational and irrational) by the will and command of God. The primary source of this conception is to be found in the Hebrew scriptures, and its secondary and immediate source in the scholasticism of the Middle Ages—a system of thought which was formed by a combination of the theology of the Hebrews with the philosophy of the Greeks. The Bible constantly speaks of the Deity as governing the 42universe, animate and inanimate, just as a ruler governs a society of men; and the order of the world is conceived as due to the obedience of all created things to the will and commands of their Creator. “He gave to the sea his decree, that the waters should not pass his commandment.”^[38] “He made a decree for the rain, and a way for the lightning of the thunder.”^[39] The schoolmen made this same conception one of the first principles of their philosophic system. The lex aeterna, according to St. Thomas Aquinas, is the ordinance of the divine wisdom, by which all things in heaven and earth are governed. “There is a certain eternal law, to wit, reason, existing in the mind of God and governing the whole universe.... For law is nothing else than the dictate of the practical reason in the ruler who governs a perfect community.”^[40] “Just as the reason of the divine wisdom, inasmuch as by it all things were created, has the nature of a type or idea; so also, inasmuch as by this reason all things are directed to their proper ends, it may be said to have the nature of an eternal law.... And accordingly the law eternal is nothing else than the reason of the divine wisdom regarded as regulative and directive of all actions and motions.”^[41]

This lex aeterna was divided by the schoolmen into two parts. One of these is that which governs the actions of men: this is the moral law, the law of nature, or of reason. The other is that which governs the actions of all other created things: this is that which we now term physical law, or natural law in the modern and prevalent sense of that ambiguous term.^[42] This latter branch of the eternal law is perfectly and uniformly obeyed; for the irrational agents on which it is imposed can do no otherwise than obey the dictates of the divine will. But the former branch—the moral law of reason—is obeyed only partially and imperfectly; for man by reason of his prerogative of freedom 43may turn aside from that will to follow his own desires. Physical law, therefore, is an expression of actions as they actually are; moral law, or the law of reason, is an expression of actions as they ought to be.

This scholastic theory of law finds eloquent expression in the writings of Hooker in the sixteenth century. “His commanding those things to be which are, and to be in such sort as they are, to keep that tenure and course which they do, importeth the establishment of nature’s law.... Since the time that God did first proclaim the edicts of his law upon it, heaven and earth have hearkened unto his voice, and their labour hath been to do his will.... See we not plainly that the obedience of creatures unto the law of nature is the stay of the whole world.”^[43] “Of law there can be no less acknowledged, than that her seat is the bosom of God, her voice the harmony of the world, all things in heaven and earth do her homage.”^[44]

The modern use of the term law, in the sense of physical or natural law, to indicate the uniformities of nature, is directly derived from this scholastic theory of the lex aeterna; but the theological conception of divine legislation on which it was originally based is now eliminated or disregarded. The relation between the physical law of inanimate nature and the moral or civil laws by which men are ruled has been reduced accordingly to one of remote analogy.

§ 16. Natural or Moral Law.

By natural or moral law is meant the principles of natural right and wrong—the principles of natural justice, if we use the term justice in its widest sense to include all forms of rightful action. Right or justice is of two kinds, distinguished as natural and positive. Natural justice is justice as it is in deed and in truth—in its perfect idea. Positive justice is justice as it is conceived, recognised, and expressed, more or less incompletely and inaccurately, by the civil or some other form of human and positive law. Just as positive law, 44therefore, is the expression of positive justice, so philosophers have recognised a natural law, which is the expression of natural justice.

This distinction between natural and positive justice, together with the corresponding and derivative distinction between natural and positive law, comes to us from Greek philosophy. Natural justice is φυσικὸν δίκαιον; positive justice is νομικὸν δίκαιον; and the natural law which expresses the principles of natural justice is φυσικὸς νόμος. When Greek philosophy passed from Athens to Rome, φυσικὸν δίκαιον appeared there as justitia naturalis and φυσικὸς νόμος as lex naturae or jus naturale.

This natural law was conceived by the Greeks as a body of imperative rules imposed upon mankind by Nature, the personified universe. The Stoics, more particularly, thought of Nature or the Universe as a living organism, of which the material world was the body, and of which the Deity or the Universal Reason was the pervading, animating, and governing soul; and natural law was the rule of conduct laid down by this Universal Reason for the direction of mankind.

Natural law has received many other names expressive of its divers qualities and aspects. It is Divine Law (jus divinum)—the command of God imposed upon men—this aspect of it being recognised in the pantheism of the Stoics, and coming into the forefront of the conception, so soon as natural law obtained a place in the philosophical system of Christian writers. Natural law is also the Law of Reason, as being established by that Reason by which the world is governed, and also as being addressed to and perceived by the rational nature of man. It is also the Unwritten Law (jus non scriptum), as being written not on brazen tablets or on pillars of stone, but solely by the finger of nature in the hearts of men. It is also the Universal or Common Law (κοινος νόμος, jus commune, jus gentium), as being of universal validity, the same in all places and binding on all peoples, and 45not one thing at Athens and another at Rome, as are the civil laws of states (ἴδιος νόμος, jus civile). It is also the Eternal Law (lex aeterna), as having existed from the commencement of the world, uncreated and immutable. Lastly, in modern times we find it termed the Moral Law, as being the expression of the principles of morality.

The term natural law, in the sense with which we are here concerned, is now fallen almost wholly out of use. We speak of the principles of natural justice, or of the rules of natural morality, but seldom of the law of nature, and for this departure from the established usage of ancient and medieval speech there are at least two reasons. The first is that the term natural law has become equivocal; for it is now used to signify physical law—the expression of the uniformities of nature. The second is that the term law, as applied to the principles of natural justice, brings with it certain misleading associations—suggestions of command, imposition, external authority, legislation—which are not in harmony with the moral philosophy of the present day.

The following quotations illustrate sufficiently the ancient and medieval conceptions of the law of nature:—

Aristotle.—“Law is either universal (κοινος νόμος) or special (ἴδιος νόμος). Special law consists of the written enactments by which men are governed. The universal law consists of those unwritten rules which are recognised among all men.”^[45] “Right and wrong have been defined by reference to two kinds of law.... Special law is that which is established by each people for itself.... The universal law is that which is conformable merely to Nature.”^[46]

Cicero.—“There is indeed a true law (lex), right reason, agreeing with nature, diffused among all men, unchanging, everlasting.... It is not allowable to alter this law, nor to derogate from it, nor can it be repealed. We cannot be released from this law, either by the praetor or by the people, nor is any person required to explain or interpret it. Nor is it one law at Rome and another at Athens, one law to-day and another hereafter; but the same law, everlasting and unchangeable, will bind all nations at all times; and there will be one common lord and ruler of all, even God the framer and proposer of this law.”^[47]

46Philo Judaeus.—“The unerring law is right reason; not an ordinance made by this or that mortal, a corruptible and perishable law, a lifeless law written on lifeless parchment, or engraved on lifeless columns; but one imperishable, and impressed by immortal Nature on the immortal mind.”^[48]

Gaius.—“All peoples that are ruled by laws and customs observe partly law peculiar to themselves and partly law common to all mankind. That which any people has established for itself is called jus civile, as being law peculiar to that state (jus proprium civitatis). But that law which natural reason establishes among all mankind is observed equally by all peoples, and is for that reason called jus gentium.”^[49]

Justinian.—“Natural law (jura naturalia), which is observed equally in all nations, being established by divine providence, remains for ever settled and immutable; but that law which each state has established for itself is often changed, either by legislation or by the tacit consent of the people.”^[50]

Hooker.—“The law of reason or human nature is that which men by discourse of natural reason have rightly found out themselves to be all for ever bound unto in their actions.”^[51]

Christian Thomasius.—“Natural law is a divine law, written in the hearts of all men, obliging them to do those things which are necessarily consonant to the rational nature of mankind, and to refrain from those things which are repugnant to it.”^[52]

The Jus Gentium of the Roman Lawyers.

It is a commonly received opinion, that jus gentium, although identified as early as the time of Cicero with the jus naturale of the Greeks, was in its origin and primary signification something quite distinct—a product not of Greek philosophy but of Roman law. It is alleged that jus gentium meant originally that system of civil and positive law which was administered in Rome to aliens (peregrini), as opposed to the system which was the exclusive birthright and privilege of Roman citizens (jus civile or jus quiritium); that this jus gentium, being later in date than the jus civile, was so much more reasonable and perfect that it came to be identified with the law of reason itself, the jus naturale of the Greeks, and so acquired a double meaning, (1) jus gentium, viz. jus naturale, and (2) jus gentium, viz. that part of the positive law of Rome which was applicable to aliens, and not merely to citizens. That the term jus gentium did possess this double meaning cannot be doubted; but it may be gravely doubted whether the true explanation of the fact is that which has just been set forth. It would seem more probable that jus gentium was in its very 47origin synonymous with jus naturale—a philosophical or ethical, and not a technical legal term—the Roman equivalent of the κοινος νόμος of Aristotle and the Greeks; and that the technical significance of the term is secondary and derivative. Jus gentium came to mean not only the law of nature—the principles of natural justice—but also a particular part of the positive law of Rome, namely, that part which was derived from and in harmony with those principles of natural justice, and which therefore was applicable in Roman law courts to all men equally, whether cives or peregrini. In the same way in England, the term equity, although originally purely ethical and the mere equivalent of natural justice or jus naturae, acquired a secondary, derivative, and technical use to signify a particular portion of the civil law of England, namely, that portion which was administered in the Court of Chancery, and which was called equity because derived from equity in the original ethical sense.

This, however, is not the place in which to enter into any detailed examination of this very interesting and difficult problem in the history of human ideas.^[53]

§ 17. Imperative Law.

Imperative law means any rule of action imposed upon men by some authority which enforces obedience to it. In other words an imperative law is a command which prescribes some general course of action, and which is imposed and enforced by superior power. The instrument of such enforcement—the sanction of the law—is not necessarily physical force, but may consist in any other form of constraint or compulsion by which the actions of men may be determined. Lex, says Pufendorf,^[54] est decretum quo superior sibi subjectum obligat, ut ad istius praescriptum actiones suas componat. “A law,” says Austin,^[55] “is a command which obliges a person or persons to a course of conduct.”

Laws of this kind are to be classified by reference to the authority from which they proceed. They are in the first place either divine or human. Divine laws consist of the commands imposed by God upon man and enforced by 48threats of punishment in this world or in the next: for example, the Ten Commandments.^[56] Human laws consist of imperative rules imposed by men upon men, and they are of three chief kinds, namely, civil law, the law of positive morality, and the law of nations. Civil law consists (in part at least, and in one of its aspects) of commands issued by the state to its subjects, and enforced by its physical power. Positive morality—the law of opinion or of reputation, as Locke^[57] calls it—consists of the rules imposed by society upon its members and enforced by public censure or disapprobation. The law of nations or international law consists (in part at least, and in one aspect) of rules imposed upon states by the society of states, and enforced partly by international opinion and partly by the threat of war.

Many writers are content to classify the civil law as being, essentially and throughout its whole compass, nothing more than a particular form of imperative law. They consider that it is a sufficient analysis and definition of civil law, to say that it consists of the commands issued by the state to its subjects, and enforced, if necessary, by the physical power of the state. This may be termed the imperative or more accurately the purely imperative theory of the civil law. “The civil laws,” says Hobbes,^[58] “are the command of him, who is endued with supreme power in the city” (that is, the state, civitas) “concerning the future actions of his subjects.” Similar opinions are expressed by Bentham^[59] and Austin,^[60] and have in consequence been widely, though by no means universally, accepted by English writers.

49This imperative theory, though it falls short of an adequate analysis, does undoubtedly express a very important aspect of the truth. It rightly emphasises the central fact that law is based on physical force. For law exists only as an incident of the administration of justice by the state, and this consists essentially in the imperative and coercive action of the state in imposing its will, by force if need be, upon the members of the body politic. “It is men and arms,” says Hobbes,^[61] “that make the force and power of the laws.” Law has its sole source, not in custom, not in consent, not in the spirit of the people, as some would have us believe, but in the will and the power of him, who in a commonwealth beareth not the sword in vain.

This, then, may be accepted as the central truth contained in the imperative theory of law, and if this is so there is no weight to be attributed to that which may be termed the historical argument against this theory. It is objected by some, that though the definition of law as the command of the state is plausible, and at first sight sufficient, as applied to the developed political societies of modern times, it is quite inapplicable to more primitive communities. Early law, it is said, is not the command of the state; it has its source in custom, religion, opinion, not in any authority vested in a political superior; it is not till a comparatively late stage of social evolution that law assumes its modern form, and is recognised as a product of supreme power; law, therefore, is prior to, and independent of political authority and enforcement; it is enforced by the state, because it is already law, not vice versa.^[62]

To this argument the advocates of the imperative theory 50can give a valid reply. If there are any rules prior to, and independent of the state, they may greatly resemble law; they may be the primeval substitutes for law; they may be the historical source from which law is developed and proceeds; but they are not themselves law. There may have been a time in the far past, when a man was not distinguishable from an anthropoid ape, but that is no reason for now defining a man in such wise as to include an ape. To trace two different things to a common origin in the beginnings of their historical evolution is not to disprove the existence or the importance of an essential difference between them as they now stand. This is to confuse all boundary lines, to substitute the history of the past for the logic of the present, and to render all distinction and definition vain. The historical point of view is valuable as a supplement to the logical and analytical, but not as a substitute for it. It must be borne in mind that in the beginning the whole earth was without form and void, and that science is concerned not with chaos but with cosmos.

The plausibility of the historical argument proceeds from the failure adequately to comprehend the distinction, hereafter to be noticed by us, between the formal and the material sources of law. Its formal source is that from which it obtains the nature and force of law. This is essentially and exclusively the power and will of the state. Its material sources, on the other hand, are those from which it derives its material contents. Custom and religion may be the material sources of a legal system no less than that express declaration of new legal principles by the state, which we term legislation. In early times, indeed, legislation may be unknown. No rule of law may as yet have been formulated in any declaration of the state. It may not yet have occurred to any man, that such a process as legislation is 51possible, and no ruler may ever yet have made a law. Custom and religion may be all-powerful and exclusive. Nevertheless if any rule of conduct has already put on the true nature, form, and essence of the civil law, it is because it has already at its back the power of the organised commonwealth for the maintenance and enforcement of it.

Yet although the imperative theory contains this element of the truth, it is not the whole truth. It is one-sided and inadequate—the product of an incomplete analysis of juridical conceptions. In the first place it is defective inasmuch as it disregards that ethical element which is an essential constituent of the complete conception. As to any special relation between law and justice, this theory is silent and ignorant. It eliminates from the implication of the term law all elements save that of force. This is an illegitimate simplification, for the complete idea contains at least one other element which is equally essential and permanent. This is right or justice. If rules of law are from one point of view commands issued by the state to its subjects, from another standpoint they appear as the principles of right and wrong so far as recognised and enforced by the state in the exercise of its essential function of administering justice. Law is not right alone, or might alone, but the perfect union of the two. It is justice speaking to men by the voice of the state. The established law, indeed, may be far from corresponding accurately with the true rule of right, nor is its legal validity in any way affected by any such imperfection. Nevertheless in idea law and justice are coincident. It is for the expression and realisation of justice that the law has been created, and like every other work of men’s hands, it must be defined by reference to its end and purpose. A purely imperative theory, therefore, is as one-sided as a purely ethical or non-imperative theory would be. It mistakes a part of the connotation of the term defined for the whole of it.

We should be sufficiently reminded of this ethical element by the usages of popular speech. The terms law and justice are familiar associates. Courts of law are also courts of 52justice, and the administration of justice is also the enforcement of law. Right, wrong, and duty are leading terms of law, as well as of morals. If we turn from our own to foreign languages, we find that law and right are usually called by the very same name. Jus, droit, recht, diritto, have all a double meaning; they are all ethical, as well as juridical; they all include the rules of justice, as well as those of law. Are these facts, then, of no significance? Are we to look on them as nothing more than accidental and meaningless coincidences of speech? It is this that the advocates of the theory in question would have us believe. We may, on the contrary, assume with confidence that these relations between the names of things are but the outward manifestation of very real and intimate relations between the things named. A theory which regards the law as the command of the state and nothing more, and which entirely ignores the aspect of law as a public declaration of the principles of justice, would lose all its plausibility, if expressed in a language in which the term for law signifies justice also.

Even if we incorporate the missing ethical element in the definition—even if we define the law as the sum of the principles of justice recognised and enforced by the state—even if we say with Blackstone^[63] that law is “a rule of civil conduct, prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong”—we shall not reach the whole truth. For although the idea of command or enforcement is an essential implication of the law, in the sense that there can be no law where there is no coercive administration of justice by the state, it is not true that every legal principle assumes, or can be made to assume, the form of a command. Although the imperative rules of right and wrong, as recognised by the state, constitute a part, and indeed the most important part of the law, they do not constitute the whole of it. The law includes the whole of the principles accepted and applied in the administration of justice, whether they are imperative principles or not. The only legal rules which conform to the imperative 53definition are those which create legal obligations, and no legal system consists exclusively of rules of this description. All well-developed bodies of law contain innumerable principles which have some other purpose and content than this, and so fall outside the scope of the imperative definition. These non-imperative legal principles are of various kinds. There are, for example, permissive rules of law, namely those which declare certain acts not to be obligatory, or not to be wrongful; a rule, for instance, declaring that witchcraft or heresy is no crime, or that damage done by competition in trade is no cause of action. It cannot be denied that these are rules of law, as that term is ordinarily used, and it is plain that they fall within the definition of the law as the principles acted on by courts of justice. But in what sense are they enforced by the state? They are not commands, but permissions; they create liberties, not obligations. So also the innumerable rules of judicial procedure are largely non-imperative. They are in no proper sense rules of conduct enforced by the state. Let us take for example the principles that hearsay is no evidence, that written evidence is superior to verbal, that a contract for the sale of land cannot be proved except by writing, that judicial notice will be taken of such and such facts, that matters once decided are decided once for all as between the same parties, that the interpretation of written documents is the office of the judge and not of the jury, that witnesses must be examined on oath or affirmation, that the verdict of a jury must be unanimous. Is it not plain that all these are in their true nature rules in accordance with which judges administer justice to the exclusion of their personal judgment, and not rules of action appointed by the state for observance by its subjects, and enforced by legal sanctions?

There are various other forms of non-imperative law, notably those which relate to the existence, application, and interpretation of other rules. The illustrations already given, however, should be sufficient to render evident the fact that the purely imperative theory not merely neglects an essential element in the idea of law, but also falls far short of the full 54application or denotation of the term. All legal principles are not commands of the state, and those which are such commands, are at the same time and in their essential nature something more, of which the imperative theory takes no account.

Some writers have endeavoured to evade the foregoing objection by regarding rules of procedure and all other non-imperative principles as being in reality commands addressed, not to the ordinary subjects of the state, but to the judges. The rule, they say, that murder is a crime, is a command addressed to all persons not to commit murder; and the rule that the punishment of murder is hanging, is a command to the judges to inflict that punishment.^[64] With respect to this contention, it is to be observed in the first place, that no delegation of its judicial functions by the supreme authority of the state is essential. There is no reason of necessity, why a despotic monarch or even a supreme legislature should not personally exercise judicial functions. In such a case the rules of procedure could not be enforced upon the judicature, yet it could scarcely be contended that they would for that reason cease to be true rules of law. And in the second place, even when the judicial functions of the state are delegated to subordinate judges, it is in no way necessary that they should be amenable to the law for the due performance of their duties. Are the rules of evidence, for example, entitled to the name of law, only because of the fact, if fact it be, that the judges who administer them may be legally punished for their disregard of them? It is surely sufficiently obvious that the legal character of all such rules is a consequence of the fact that they are actually observed in the administration of justice, not of the fact, if it is a fact, that the judicature is bound by legal sanctions to observe them.

§ 18. Conventional Law.

By conventional law is meant any rule or system of rules agreed upon by persons for the regulation of their conduct towards each other. Agreement is a law for the parties to it. Examples are the rules and regulations of a club or other society, and the laws of whist, cricket, or any other game. What are the laws of whist, except the rules which the players expressly or tacitly agree to observe in their conduct of the game?

In many cases conventional law is also civil law; for the rules which persons by mutual agreement lay down for themselves 55are often enforced by the state. But whether or not these conventional rules thus receive recognition and enforcement as part of the law of the land, they constitute law in the wide sense of a rule of human action.^[65]

The most important branch of conventional law is the law of nations, which, as we shall see later, consists essentially of the rules which have been agreed upon by states, as governing their conduct and relations to each other.

§ 19. Customary Law.

By customary law is here meant any rule of action which is actually observed by men—any rule which is the expression of some actual uniformity of voluntary action. Custom is a law for those who observe it—a law or rule which they have set for themselves, and to which they voluntarily conform their actions. It is true that custom is very often obligatory; that is to say, it is very often enforced by some form of imperative law, whether the civil law or the law of positive morality; but, irrespective of any such enforcement, and by reason solely of its de facto observance, it is itself a law in that wide sense in which law means a rule of action.^[66]

Some writers regard international law as a form of customary law. They define it as consisting of the rules actually observed by states in their conduct towards each other. We shall consider this opinion in a later section of the present chapter. Civil law, as we have defined it, is a form of customary law, inasmuch as it consists of the rules actually observed by the state in the administration of justice. It is the custom of the judicature. The relation between popular custom and the civil law is an important matter which will be considered in a later chapter. It is sufficient here to make the following remarks with regard to it:—

56(1) Popular custom has not in itself the nature of civil law; for the essence of civil law lies in its recognition by the state in the administration of justice.

(2) Popular custom is one of the primitive substitutes for civil law, men being governed by custom before the state has been established or has undertaken the function of making and administering law.

(3) Popular custom is one of the sources of the civil law; for that law, when it comes into existence, is largely modelled on the pre-existing customs of the community. Civil law, which is the custom of the state, is based to a large extent on that precedent customary law which is merely the custom of the society.

§ 20. Practical Law.

Yet another kind of law is that which consists of rules for the attainment of some practical end, and which, for want of a better name, we may term practical law. These laws are the rules which guide us to the fulfilment of our purposes; which inform us as to what we ought to do, or must do, in order to attain a certain end.^[67] Examples of such are the laws of health, the laws of musical and poetical composition, the laws of style, the laws of architecture, the rules for the efficient conduct of any art or business. The laws of a game, such as whist, are of two kinds: some are conventional, being the rules agreed upon by the players; others are practical, being the rules for the successful playing of the game.

§ 21. International Law.

International law or the law of nations consists of those rules which govern sovereign states in their relations and conduct towards each other. All men agree that such a body of law exists, and that states do in fact act in obedience to it; but when we come to inquire what is the essential nature and source of this law, we find in the writings of those who deal with it a very curious absence of definiteness and 57unanimity. The opinion which we shall here adopt as correct is that the law of nations is essentially a species of conventional law—that it has its source in international agreement—that it consists of the rules which sovereign states have agreed to observe in their dealings with each other.

This law has been defined by Lord Russell of Killowen^[68] as “the aggregate of the rules to which nations have agreed to conform in their conduct towards one another.” “The law of nations,” says Lord Chief Justice Coleridge,^[69] “is that collection of usages which civilised states have agreed to observe in their dealings with each other.” “The authorities seem to me,” says Lord Esher,^[70] “to make it clear that the consent of nations is requisite to make any proposition part of the law of nations.” “To be binding,” says Lord Cockburn,^[71] “the law must have received the assent of the nations who are to be bound by it. This assent may be express, as by treaty or the acknowledged concurrence of governments, or may be implied from established usage.”

The international agreement which thus makes international law is of two kinds, being either express or implied. Express agreement is contained in treaties and international conventions, such as the Declaration of Paris or the Convention of the Hague. Implied agreement is evidenced chiefly by the custom or practice of states. By observing certain rules of conduct in the past, states have impliedly agreed to abide by them in the future; by claiming the observance of such customs from other states, they have impliedly agreed to be bound by them themselves. International law derived from express agreement is called in a narrow sense the conventional law of nations, although in a wider sense the whole of that law is conventional; that part which is based on implied agreement is called the customary law of nations. The tendency of historical development is for the whole body of the law to be reduced to the first of these two forms—to be codified and expressed in the form of an international 58convention, to which all civilised states have given their express consent. Just as customary civil law tends to be absorbed in enacted law, so customary international law tends to be merged in treaty law.

International law is further divisible into two kinds, which may be distinguished as the common law of nations and the particular law of nations. The common law is that which prevails universally or at least generally among all civilised states, being based on their unanimous or general agreement, express or implied. The particular law is that which is in force solely between two or more states, by virtue of an agreement made between them alone, and derogating from the common law.

International law exists only between those states which have expressly or impliedly agreed to observe it. Those states (which now include all civilised communities and some which are as yet only imperfectly civilised) are said to constitute the family or society of nations—an international society governed by the law of nations, just as each national society is governed by its own civil law. New states are received into this society by mutual agreement, and thereby obtain the rights and become subject to the duties created and imposed by international law.

Writers are, however, as we have already indicated, far from being unanimous in their analysis of the essential nature of the law of nations, and the various competing theories may be classified as follows:—

(1) That the law of nations is, or at least includes, a branch of natural law, namely, the rules of natural justice as applicable to the relations of states inter se.

(2) That it is a kind of customary law, namely the rules actually observed by states in their relations to each other.

(3) That it is a kind of imperative law, namely the rules enforced upon states by international opinion or by the threat or fear of war.

59(4) That it is a kind of conventional law, as already explained. Having accepted the last of these theories as correct, let us shortly consider the nature and claims of the three others.

§ 22. The Law of Nations as Natural Law.

All writers on international law may be divided into three classes by reference to their opinions as to the relation between this law and the principles of natural justice. The first class consists of those who hold that the law of nations is wholly included within the law of nature—that it consists merely of the principles of natural justice so far as applicable to sovereign states in their relations and conduct towards each other—that the study of international law is simply a branch of moral philosophy—and that there is no such thing as a positive law of nations, consisting of a body of artificial rules established by states themselves. Thus Hobbes says:^[72] “As for the law of nations, it is the same with the law of nature. For that which is the law of nature between man and man, before the constitution of commonwealth, is the law of nations between sovereign and sovereign after.” The same opinion is expressed by Christian Thomasius,^[73] Pufendorf,^[74] Burlamaqui,^[75] and others, but is now generally discredited, though it is not destitute of support even yet.

A second opinion is that international law is both natural and positive—that it is divisible into two parts, distinguished as the natural law of nations, which consists of the rules of natural justice as between states, and the positive law of nations, consisting of rules established by states by agreement, custom, or in some other manner, for the government of their conduct towards each other. The natural law of nations is supplementary or subsidiary to the positive law, being applicable only when no positive rule has been established on the point. Representatives of this opinion are Grotius, Wolf, Vattel, Blackstone, Halleck, Wheaton, 60Phillimore, Fiore, Twiss, and others. The third opinion is that international law is wholly positive—that it consists exclusively of a set of rules actually established in some way by the action of sovereign states themselves—and that the rules of natural justice are not in themselves rules of international law at all, but pertain to that law only if, and only so far as, they have been actually incorporated into the established system of positive law. This is now the prevalent opinion, and we have here accepted it as the correct one.^[76] By those who maintain it the rules of natural justice as between states are called international morality, and are distinguished by this name from international law. These two bodies of rules are partly coincident and partly discordant. The conduct of a state may be a breach of international morality but not of international law, or a breach of law though in accordance with morality, or it may be both immoral and illegal.

The question whether rules of natural justice are to be included as a part of international law is, indeed, in one aspect, a mere question of words. For these rules exist, and states are in honour bound by them, and the question is merely as to the name to be given to them. Nevertheless, questions of words are often questions of practical importance, and it is of undoubted importance to emphasise by a difference of nomenclature the difference between rules of international morality, by which, indeed, states are bound whether they have agreed to them or not, but which are uncertain and subject to endless dispute, and those rules of international law, which by means of international agreement have been defined and established and removed from the sphere of the discussions and insoluble doubts of moral casuistry.

§ 23. The Law of Nations as Customary Law.

Even those writers who agree in the opinion that international law is or at least includes a system of positive law, differ among themselves as to the essential nature and source 61of these rules; and we proceed to consider the various answers that have been given to this question. Some writers consider that international law has its source in international custom—that it consists essentially and exclusively of the rules which are actually observed by sovereign states in their dealings with one another.^[77] This view, however, is not prevalent, and is, it is believed, unsound. International custom is not in itself international law; it is nothing more than one kind of evidence of the international agreement in which all such law has its source. There are many customs which, because they are based on no such underlying agreement, have not the force of law, states being at liberty to depart from them when they please. Conversely there is much law which is not based on custom at all, but on express international conventions. These conventions, if observed, will of course create a custom in conformity with the law; but they constitute law themselves from the time of their first making, and do not wait to become law until they have been embodied in actual practice. New rules of warfare established by convention in time of peace are law already in time of peace.

§ 24. The Law of Nations as Imperative Law.

By some writers international law is regarded as a form of imperative law; it consists, they say, of rules enforced upon states by the general opinion of the society of states, and also in extreme cases by war waged against the offender by the state injured or by its allies. Thus Austin says:^[78] “Laws or rules of this species, which are imposed upon nations or sovereigns by opinions current among nations, are usually 62styled the law of nations or international law.” In considering this view it is to be admitted that in many cases the rules of the law of nations are thus sanctioned and enforced by international opinion and force. But the question to be answered is whether this sanction is of the essence of the matter; because, if it is so, all rules so sanctioned must be, and no others can be, rules of international law. It is clear, however, that the sanction of war cannot be the essential test; for in the first place this sanction is but seldom applied even to undoubted violations of international law, and in the second place it is at least as often resorted to when there is no violation of such law at all. What then shall be said of the alternative sanction of international opinion? Is this the test and essence of a rule of international law? For the following reasons it is submitted that it is not:—

(1) Many forms of state action are censured by public opinion, which are admittedly no violation of the law of nations. A state may act within its legal rights, and yet so oppressively or unjustly as to excite the adverse opinion of other nations.

(2) There may be violations of international law which are in the particular circumstances regarded as excusable, and approved by international opinion.

(3) Public opinion is variable from day to day—dependent on the special circumstances of the individual case—not uniform as we pass from state to state—not uniform even throughout the population of the same state. International law, on the other hand, is a permanent, uniform system of settled rules, independent of the fickle breath of public approbation or censure—made and unmade by the express or implied agreements of sovereign governments, and not by the mere opinions and prejudices which for the moment are in public favour. International law is one thing, international positive morality is another thing; but the doctrine here criticised identifies and confounds them as one. International law is made, as has been said, by the acts and contracts of governments; international opinion is made chiefly by journalists and the writers of books. Opinion, if sufficiently 63uniform and sufficiently permanent, will doubtless in time constrain the law into conformity with it; but it is not the same thing.

(4) Public opinion cannot be made the basis of any rational or scientific body of rules or legal doctrines. For such opinion is simply the belief of the public that certain forms of conduct are in conformity with natural justice. So far as this belief is well founded, the law based upon it is simply the law of nature; so far as it is erroneous, the law based on it is simply a mistake which disappears ipso facto on being recognised as such. It is impossible to recognise as a subject of scientific interpretation and investigation any international law based on erroneous public opinion; and if based on true opinion, it is nothing save the principles of natural justice.

Certain writers seek to avoid the first of these objections by so defining international law as to include only one portion of the body of rules approved and sanctioned by international opinion, the remaining portion constituting international positive morality. According to this opinion international law consists of those rules which international opinion not merely approves, but also regards as rightly enforceable by way of war. International positive morality, on the other hand, consists of those rules of which opinion approves, but of the enforcement of which by way of war it would not approve. That is to say, international law is distinguished from international morality by an application of the distinction familiar to the older moralists between duties of perfect and duties of imperfect obligation.^[79]

This view would seem to be exposed to all the objections already made to the cruder theory which we have just considered, with the exception of the first; and it is also exposed to this further criticism, that it is impossible thus to divide public opinion sharply into two parts by reference to the justification of war or any other kind of forcible compulsion. 64Whether such compulsion is right is a matter to be determined not by the application of any fixed or predetermined rules, but by a consideration of all the circumstances of the individual instance; and even then opinion will in most cases be hopelessly discordant. Moreover, there are forms of state action which are not the violation of any established rule of international law, and which nevertheless are so contrary to the rightful interests of another state that they would be held to be rightly prevented or redressed by way of war. Conversely there are rules of undoubted law which are of such minor importance, that a war for the vindication of them would be viewed by international opinion as a folly and a crime.

§ 25. Necessity of the Administration of Justice.

“A herd of wolves,” it has been said,^[80] “is quieter and more at one than so many men, unless they all had one reason in them, or have one power over them.” Unfortunately they have not one reason in them, each being moved by his own interests and passions; therefore the other alternative is the sole resource. For the cynical emphasis with which he insists upon this truth, the name and reputation of the philosopher Hobbes have suffered much. Yet his doctrine, however hyperbolically expressed, is true in substance. Man is by nature a fighting animal, and force is the ultima ratio, not of kings alone, but of all mankind. Without “a common power to keep them all in awe,” it is impossible for men to cohere in any but the most primitive forms of society. Without it, civilisation is unattainable, injustice is unchecked and triumphant, and the life of man is, as the author of Leviathan tells us, “solitary, poor, nasty, brutish, and short.”^[81] However orderly a society may be, and to whatever extent men may appear to obey the law of reason rather than that of force, and to be bound together by the bonds of sympathy rather than by those of physical constraint, the element of force is 66none the less present and operative. It has become partly or wholly latent, but it still exists. A society in which the power of the state is never called into actual exercise marks not the disappearance of governmental control, but the final triumph and supremacy of it.

It has been thought and said by men of optimistic temper, that force as an instrument for the coercion of mankind is merely a temporary and provisional incident in the development of a perfect civilisation. We may well believe, indeed, that with the progress of civilisation we shall see the gradual cessation of the actual exercise of force, whether by way of the administration of justice or by way of war. To a large extent already, in all orderly societies, this element in the administration of justice has become merely latent; it is now for the most part sufficient for the state to declare the rights and duties of its subjects, without going beyond declaration to enforcement. In like manner the future may see a similar destiny overtake that international litigation which now so often proceeds to the extremity of war. The overwhelming power of the state or of the international society of states may be such as to render its mere existence a sufficient substitute for its exercise. But this, as already said, would be the perfection, not the disappearance, of the rule of force. The administration of justice by the state must be regarded as a permanent and essential element of civilisation, and as a device that admits of no substitute. Men being what they are, their conflicting interests, real or apparent, draw them in diverse ways; and their passions prompt them to the maintenance of these interests by all methods possible, notably by that method of private force to which the public force is the only adequate reply.

The constraint of public opinion is a valuable and indeed indispensable supplement to that of law, but an entirely insufficient substitute for it. The relation between these two is one of mutual dependence. If the administration of justice requires for its efficiency the support of a healthy national conscience, that conscience is in its turn equally dependent on the protection of the law and the public force. 67A coercive system based on public opinion alone, no less than one based on force alone, contains within itself elements of weakness that would be speedily fatal to efficiency and permanence. The influence of the public censure is least felt by those who need it most. The law of force is appointed, as all law should be, not for the just, but for the unjust; while the law of opinion is set rather for the former than for the latter, and may be defied with a large measure of impunity by determined evildoers. The rewards of successful iniquity are upon occasion very great; so much so that any law which would prevail against it, must have sterner sanctions at its back than any known to the public censure. It is also to be observed that the influence of the national conscience, unsupported by that of the national force, would be counteracted in any but the smallest and most homogeneous societies by the internal growth of smaller societies or associations possessing separate interests and separate antagonistic consciences of their own. It is certain that a man cares more for the opinion of his friends and immediate associates, than for that of all the world besides. The censure of ten thousand may be outweighed by the approval of ten. The honour of thieves finds its sanction and support in a law of professional opinion, which is opposed to, and prevails over that of national opinion. The social sanction, therefore, is an efficient instrument only so far as it is associated with, and supplemented by the concentrated and irresistible force of the incorporate community. Men being what they are—each keen to see his own interest and passionate to follow it—society can exist only under the shelter of the state, and the law and justice of the state is a permanent and necessary condition of peace, order, and civilisation.

§ 26. Origin of the Administration of Justice.

The administration of justice is the modern and civilised substitute for the primitive practices of private vengeance and violent self-help. In the beginning a man redressed his wrongs and avenged himself upon his enemies by his own hand, aided, if need be, by the hands of his friends and 68kinsmen; but at the present day he is defended by the sword of the state. For the expression of this and other elements involved in the establishment of political government, we may make use of the contrast, familiar to the philosophy of the seventeenth and eighteenth centuries, between the civil state and the state of nature. This state of nature is now commonly rejected as one of the fictions which nourished in the era of the social contract, but such treatment is needlessly severe. The term certainly became associated with much false or exaggerated doctrine touching the golden age on the one hand and the bellum omnium contra omnes of Hobbes on the other, but in itself it nevertheless affords a convenient mode for the expression of an undoubted truth. As long as there have been men, there has probably been some form of human society. The state of nature, therefore, is not the absence of society, but the absence of a society so organised on the basis of physical force, as to constitute a state. Though human society is coeval with mankind, the rise of political society, properly so called, is an event in human history.

One of the most important elements, then, in the transition from the natural to the civil state is the substitution of the force of the incorporate community for the force of individuals, as the instrument of the redress and punishment of injuries. Private vengeance is transmuted into the administration of criminal justice; while civil justice takes the place of violent self-help. As Locke says,^[82] in the state of nature the law of nature is alone in force, and every man is in his own case charged with the execution of it. In the civil state, on the other hand, the law of nature is supplemented by the civil law, and the maintenance of the latter by the force of the organised community renders unnecessary and impermissible the maintenance of the former by the forces of private men. The evils of the earlier system were too great and obvious to escape recognition even in the most primitive communities. Every man was constituted by it a judge in his own cause, and might was made the sole measure of right. 69Nevertheless the substitution was effected only with difficulty and by slow degrees. The turbulent spirits of early society did not readily abandon the liberty of fighting out their quarrels, or submit with good grace to the arbitrament of the tribunals of the state. There is much evidence that the administration of justice was in the earlier stages of its development merely a choice of peaceable arbitration, offered for the voluntary acceptance of the parties, rather than a compulsory substitute for self-help and private war. Only later, with the gradual growth of the power of government, did the state venture to suppress with the strong hand the ancient and barbarous system, and to lay down the peremptory principle that all quarrels shall be brought for settlement to the courts of law.

All early codes show us traces of the hesitating and gradual method in which the voice and force of the state became the exclusive instruments of the declaration and enforcement of justice. Trial by battle, which endured in the law of England until the beginning of the nineteenth century,^[83] is doubtless a relic of the days when fighting was the approved method of settling a dispute, and the right and power of the state went merely to the regulation, not to the suppression, of this right and duty of every man to help and guard himself by his own hand. In later theory, indeed, this mode of trial was classed with the ordeal as judicium Dei—the judgment of Heaven as to the merits of the case, made manifest by the victory of the right. But this explanation was an afterthought; it was applied to public war, as the litigation of nations, no less than to the judicial duel, and it is not the root of either practice. Among the laws of the Saxon kings we find no absolute prohibition of private vengeance, but merely its regulation and restriction.^[84] In due measure and in 70fitting manner it was the right of every man to do for himself that which in modern times is done for him by the state. As royal justice grows in strength, however, the law begins to speak in another tone, and we see the establishment of the modern theory of the exclusive administration of justice by the tribunals of the state.^[85]

§ 27. Civil and Criminal Justice.

The administration of justice has been already defined as the maintenance of right within a political community by means of the physical force of the state. It is the application by the state of the sanction of force to the rule of right. We have now to notice that it is divisible into two parts, which are distinguished as the administration of civil and that of criminal justice. In applying the sanction of physical force to the rules of right, the tribunals of the state may act in one or other of two different ways. They may either enforce rights, or punish wrongs. In other words, they may either compel a man to perform the duty which he owes, or they 71may punish him for having failed to perform it. Hence the distinction between civil and criminal justice. The former consists in the enforcement of rights, the latter in the punishment of wrongs. In a civil proceeding the plaintiff claims a right, and the court secures it for him by putting pressure upon the defendant to that end; as when one claims a debt that is due to him, or the restoration of property wrongfully detained from him, or damages payable to him by way of compensation for wrongful harm, or the prevention of a threatened injury by way of injunction. In a criminal proceeding, on the other hand, the prosecutor claims no right, but accuses the defendant of a wrong. He is not a claimant, but an accuser. The court makes no attempt to constrain the defendant to perform any duty, or to respect any right. It visits him, instead, with a penalty for the duty already disregarded and for the right already violated; as where he is hanged for murder, or imprisoned for theft.

Both in civil and in criminal proceedings there is a wrong (actual or threatened) complained of. For the law will not enforce a right except as against a person who has already violated it, or who has at the least already shown an intention of doing so. Justice is administered only against wrongdoers, in act or in intent. Yet the complaint is of an essentially different character in civil and in criminal cases. In civil justice it amounts to a claim of right; in criminal justice it amounts merely to an accusation of wrong. Civil justice is concerned primarily with the plaintiff and his rights; criminal justice with the defendant and his offences. The former gives to the plaintiff, the latter to the defendant, that which he deserves.

A wrong regarded as the subject-matter of civil proceedings is called a civil wrong; one regarded as the subject-matter of criminal proceedings is termed a criminal wrong or a crime. The position of a person who has, by actual or threatened wrongdoing, exposed himself to legal proceedings, is termed liability or responsibility, and it is either civil or criminal according to the nature of the proceedings to which the wrongdoer is exposed.

72The same act may be both a civil injury and a crime, both forms of legal remedy being available. Reason demands that in general these two remedies shall be concurrent, and not merely alternative. If possible, the law should not only compel men to perform their disregarded duties, but should by means of punishment guard against the repetition of such wrongdoing in the future. The thief should not only be compelled to restore his plunder, but should also be imprisoned for having taken it, lest he and others steal again. To this duplication of remedies, however, there are numerous exceptions. Punishment is the sole resource in cases where enforcement is from the nature of things impossible, and enforcement is the sole remedy in those cases in which it is itself a sufficient precautionary measure for the future. Not to speak of the defendant’s liability for the costs of the proceedings, the civil remedy of enforcement very commonly contains, as we shall see later, a penal element which is sufficient to render unnecessary or unjustifiable any cumulative criminal responsibility.

We have defined a criminal proceeding as one designed for the punishment of a wrong done by the defendant, and a civil proceeding as one designed for the enforcement of a right vested in the plaintiff. We have now to consider a very different explanation which has been widely accepted. By many persons the distinction between crimes and civil injuries is identified with that between public and private wrongs. By a public wrong is meant an offence committed against the state or the community at large, and dealt with in a proceeding to which the state is itself a party. A private wrong is one committed against a private person, and dealt with at the suit of the individual so injured. The thief is criminally prosecuted by the Crown, but the trespasser is civilly sued by him whose right he has violated. Criminal libel, it is said, is a public wrong, and is dealt with as such at the suit of the Crown; civil libel is a private wrong and is dealt with accordingly by way of an action for damages by the person libelled. Blackstone’s statement of this view may be 73taken as representative: “Wrongs,” he says,^[86] “are divisible into two sorts or species, private wrongs and public wrongs. The former are an infringement or privation of the private or civil rights belonging to individuals, considered as individuals, and are thereupon frequently termed civil injuries; the latter are a breach and violation of public rights and duties which affect the whole community considered as a community; and are distinguished by the harsher appellation of crimes and misdemeanours.”^[87]

But this explanation is insufficient. In the first place all public wrongs are not crimes. A refusal to pay taxes is an offence against the state, and is dealt with at the suit of the state; but it is a civil wrong for all that, just as a refusal to repay money lent by a private person is a civil wrong. The breach of a contract made with the state is no more a criminal offence than is the breach of a contract made with a subject. An action by the state for the recovery of a debt, or for damages, or for the restoration of public property, or for the enforcement of a public trust, is purely civil, although in each case the person injured and suing is the state itself.

Conversely, and in the second place, all crimes are not public wrongs. Most of the very numerous offences that are now punishable on summary conviction may be prosecuted at the suit of a private person; yet the proceedings are undoubtedly criminal none the less.

We must conclude, therefore, that the divisions between public and private wrongs and between crimes and civil injuries are not coincident but cross divisions. Public rights are often enforced, and private wrongs are often punished. The distinction between criminal and civil wrongs is based 74not on any difference in the nature of the right infringed, but on a difference in the nature of the remedy applied.

The plausibility of the theory in question is chiefly attributable to a certain peculiarity in the historical development of the administration of justice. Where the criminal remedy of punishment is left in the hands of the individuals injured, to be claimed or not as they think fit, it invariably tends to degenerate into the civil remedy of pecuniary compensation. Men barter their barren rights of vengeance for the more substantial solatium of coin of the realm. Offenders find no difficulty in buying off the vengeance of those they have offended, and a system of money payments by way of composition takes the place of a system of true punishments. Hence it is, that in primitive codes true criminal law is almost unknown. Its place is taken by that portion of civil law which is concerned with pecuniary redress. Murder, theft, and violence are not crimes to be punished by loss of life, limb, or liberty, but civil injuries to be paid for. This is a well-recognised characteristic of the early law both of Rome and England. In the Jewish law we notice an attempt to check this process of substitution, and to maintain the law of homicide, at least, as truly criminal. “Ye shall take no satisfaction for the life of a murderer, which is guilty of death: but he shall be surely put to death.”^[88] Such attempts, however, will be for the most part vain, until the state takes upon itself the office of prosecutor, and until offences worthy of punishment cease to be matters between private persons, and become matters between the wrongdoer and the community at large. Only when the criminal has to answer for his deed to the state itself, will true criminal law be successfully established and maintained. Thus at Rome the more important forms of criminal justice pertained to the sovereign assemblies of the people, while civil justice was done in the courts of the praetor and other magistrates. So in England indictable crimes are in legal theory offences against “the peace of our Lord the King, his crown and dignity,” and it was only under the rule of royal justice that true criminal law was 75superadded to the more primitive system of pecuniary compensation. Even at the present day, for the protection of the law of crime, it is necessary to prohibit as itself a crime the compounding of a felony, and to prevent in courts of summary jurisdiction the settlement of criminal proceedings by the parties without the leave of the court itself. Such is the historical justification of the doctrine which identifies the distinction between civil injuries and crimes with that between public and private wrongs. The considerations already adduced should be sufficient to satisfy us that the justification is inadequate.

§ 28. The Purposes of Criminal Justice; Deterrent Punishment.

The ends of criminal justice are four in number, and in respect of the purposes so served by it, punishment may be distinguished as (1) Deterrent, (2) Preventive, (3) Reformative, and (4) Retributive. Of these aspects the first is the essential and all-important one, the others being merely accessory. Punishment is before all things deterrent, and the chief end of the law of crime is to make the evildoer an example and a warning to all that are like-minded with him. Offences are committed by reason of a conflict between the interests, real or apparent, of the wrongdoer and those of society at large. Punishment prevents offences by destroying this conflict of interests to which they owe their origin—by making all deeds which are injurious to others injurious also to the doers of them—by making every offence, in the words of Locke, “an ill bargain to the offender.” Men do injustice because they have no sufficient motive to seek justice, which is the good of others rather than that of the doer of it. The purpose of the criminal law is to supply by art the motives which are thus wanting in the nature of things.

§ 29. Preventive Punishment.

Punishment is in the second place preventive or disabling. Its primary and general purpose being to deter by fear, its secondary and special purpose is, wherever possible and 76expedient, to prevent a repetition of wrongdoing by the disablement of the offender. We hang murderers not merely that we may put into the hearts of others like them the fear of a like fate, but for the same reason for which we kill snakes, namely, because it is better for us that they should be out of the world than in it. A similar secondary purpose exists in such penalties as imprisonment, exile, and forfeiture of office.

§ 30. Reformative Punishment.

Punishment is in the third place reformative. Offences are committed through the influence of motives upon character, and may be prevented either by a change of motives or by a change of character. Punishment as deterrent acts in the former method; punishment as reformative in the latter. This curative or medicinal function is practically limited to a particular species of penalty, namely, imprisonment, and even in this case pertains to the ideal rather than to the actual. It would seem, however, that this aspect of the criminal law is destined to increasing prominence. The new science of criminal anthropology would fain identify crime with disease, and would willingly deliver the criminal out of the hands of the men of law into those of the men of medicine. The feud between the two professions touching the question of insanity threatens to extend itself throughout the whole domain of crime.

It is plain that there is a necessary conflict between the deterrent and the reformative theories of punishment, and that the system of criminal justice will vary in important respects according as the former or the latter principle prevails in it. The purely reformative theory admits only such forms of punishment as are subservient to the education and discipline of the criminal, and rejects all those which are profitable only as deterrent or disabling. Death is in this view no fitting penalty; we must cure our criminals, not kill them. Flogging and other corporal inflictions are condemned as relics of barbarism by the advocates of the new doctrine; such penalties are said to be degrading and brutalizing both to those who suffer and to those who inflict 77them, and so fail in the central purpose of criminal justice. Imprisonment, indeed, as already indicated, is the only important instrument available for the purpose of a purely reformative system. Even this, however, to be fitted for such a purpose, requires alleviation to a degree quite inadmissible in the alternative system. If criminals are sent to prison in order to be there transformed into good citizens by physical, intellectual, and moral training, prisons must be turned into dwelling-places far too comfortable to serve as any effectual deterrent to those classes from which criminals are chiefly drawn. A further illustration of the divergence between the deterrent and the reformative theories is supplied by the case of incorrigible offenders. The most sanguine advocate of the curative treatment of criminals must admit that there are in the world men who are incurably bad, men who by some vice of nature are even in their youth beyond the reach of reformative influences, and with whom crime is not so much a bad habit as an ineradicable instinct. What shall be done with these? The only logical inference from the reformative theory is that they should be abandoned in despair as no fit subjects for penal discipline. The deterrent and disabling theories, on the other hand, regard such offenders as being pre-eminently those with whom the criminal law is called upon to deal. That they may be precluded from further mischief, and at the same time serve as a warning to others, they are justly deprived of their liberty, and in extreme cases of life itself.

The application of the purely reformative theory, therefore, would lead to astonishing and inadmissible results. The perfect system of criminal justice is based on neither the reformative nor the deterrent principle exclusively, but is the result of a compromise between them. In this compromise it is the deterrent principle which possesses predominant influence, and its advocates who have the last word. This is the primary and essential end of punishment, and all others are merely secondary and accidental. The present tendency to attribute exaggerated importance to the reformative element is a reaction against the former tendency to neglect it 78altogether, and like most reactions it falls into the falsehood of extremes. It is an important truth, unduly neglected in times past, that to a very large extent criminals are not normal and healthy human beings, and that crime is in great measure the product of physical and mental abnormality and degeneracy. It has been too much the practice to deal with offenders on the assumption that they are ordinary types of humanity. Too much attention has been paid to the crime, and too little to the criminal. Yet we must be careful not to fall into the opposite extreme. If crime has become the monopoly of the abnormal and the degenerate or even the mentally unsound, the fact must be ascribed to the selective influence of a system of criminal justice based on a sterner principle than that of reformation. The more efficient the coercive action of the state becomes, the more successful it is in restraining all normal human beings from the dangerous paths of crime, and the higher becomes the proportion of degeneracy among those who break the law. Even with our present imperfect methods the proportion of insane persons among murderers is very high; but if the state could succeed in making it impossible to commit murder in a sound mind without being indubitably hanged for it afterwards, murder would become, with scarcely an exception, limited to the insane.

If, after this consummation had been reached, the opinion were advanced that inasmuch as all murderers are insane, murder is not a crime which needs to be suppressed by the strong arm of the penal law, and pertains to the sphere of medicine rather than to that of jurisprudence, the fallacy of the argument would be obvious. Were the state to act on any such principle, the proposition that all murderers are insane would very rapidly cease to be true. The same fallacy, though in a less obvious form, is present in the more general argument that, since the proportion of disease and degeneracy among criminals is so great, the reformative function of punishment should prevail over, and in a great measure exclude, its deterrent and coercive functions. For it is chiefly through the permanent influence and operation of these latter 79functions, partly direct in producing a fear of evildoing, partly indirect in establishing and maintaining those moral habits and sentiments which are possible only under the shelter of coercive law, that crime has become limited, in such measure as it has, to the degenerate, the abnormal, and the insane. Given an efficient penal system, crime is too poor a bargain to commend itself, save in exceptional circumstances, to any except those who lack the self-control, the intelligence, the prudence, or the moral sentiments of the normal man. But apart from criminal law in its sterner aspects, and apart from that positive morality which is largely the product of it, crime is a profitable industry, which will flourish exceedingly, and be by no means left as a monopoly to the feebler and less efficient members of society.

Although the general substitution of the reformative for the deterrent principle would lead to disaster, it may be argued that the substitution is possible and desirable in the special case of the abnormal and degenerate. Purely reformative treatment is now limited to the insane and the very young; should it not be extended to include all those who fall into crime through their failure to attain to the standard of normal humanity? No such scheme, however, seems practicable. In the first place, it is not possible to draw any sharp line of distinction between the normal and the degenerate human being. It is difficult enough in the only case of degeneracy now recognised by the law, namely insanity; but the difficulty would be a thousand-fold increased had we to take account of every lapse from the average type. The law is necessarily a rough and ready instrument, and men must be content in general to be judged and dealt with by it on the basis of their common humanity, and not on that of their special idiosyncrasies. In the second place, even in the case of those who are distinctly abnormal, it does not appear, except in the special instance of mental unsoundness, that the purely deterrent influences of punishment are not effective and urgently required. If a man is destitute of the affections and social instincts of humanity, the judgment of common sense upon 80him is not that he should be treated more leniently than the normal evildoer—not that society should cherish him in the hope of making him a good citizen—but that by the rigour of penal discipline his fate should be made a terror and a warning to himself and others. And in this matter sound science approves the judgment of common sense. Even in the case of the abnormal it is easier and more profitable to prevent crime by the fear of punishment than to procure by reformative treatment the repentance and amendment of the criminal.

It is needful, then, in view of modern theories and tendencies, to insist on the primary importance of the deterrent element in criminal justice. The reformative element must not be overlooked, but neither must it be allowed to assume undue prominence. To what extent it may be permitted in particular instances to overrule the requirements of a strictly deterrent theory is a question of time, place, and circumstance. In the case of youthful criminals the chances of effective reformation are greater than in that of adults, and the rightful importance of the reformative principle is therefore greater also. In orderly and law-abiding communities concessions may be safely made in the interests of reformation, which in more turbulent societies would be fatal to the public welfare.

§ 31. Retributive Punishment.

We have considered criminal justice in three of its aspects—namely as deterrent, disabling, and reformative—and we have now to deal with it under its fourth and last aspect as retributive. Retributive punishment, in the only sense in which it is admissible in any rational system of administering justice, is that which serves for the satisfaction of that emotion of retributive indignation which in all healthy communities is stirred up by injustice. It gratifies the instinct of revenge or retaliation, which exists not merely in the individual wronged, but also by way of sympathetic extension in the society at large. Although the system of private revenge has been suppressed, the emotions and instincts that 81lay at the root of it are still extant in human nature, and it is a distinct though subordinate function of criminal justice to afford them their legitimate satisfaction. For although in their lawless and unregulated exercise and expression they are full of evil, there is in them none the less an element of good. The emotion of retributive indignation, both in its self-regarding and its sympathetic forms, is even yet the mainspring of the criminal law. It is to the fact that the punishment of the wrongdoer is at the same time the vengeance of the wronged, that the administration of justice owes a great part of its strength and effectiveness. Did we punish criminals merely from an intellectual appreciation of the expediency of so doing, and not because their crimes arouse in us the emotion of anger and the instinct of retribution, the criminal law would be but a feeble instrument. Indignation against injustice is, moreover, one of the chief constituents of the moral sense of the community, and positive morality is no less dependent on it than is the law itself. It is good, therefore, that such instincts and emotions should be encouraged and strengthened by their satisfaction; and in civilised societies this satisfaction is possible in any adequate degree only through the criminal justice of the state. There can be little question that at the present day the sentiment of retributive indignation is deficient rather than excessive, and requires stimulation rather than restraint. Unquestionable as have been the benefits of that growth of altruistic sentiment which characterises modern society, it cannot be denied that in some respects it has taken a perverted course and has interfered unduly with the sterner virtues. A morbid sentimentality has made of the criminal an object of sympathetic interest rather than of healthy indignation, and Cain occupies in our regards a place that is better deserved by Abel. We have too much forgotten that the mental attitude which best becomes us, when fitting justice is done upon the evildoer, is not pity, but solemn exultation.^[89]

82The foregoing explanation of retributive punishment as essentially an instrument of vindictive satisfaction is by no means that which receives universal acceptance. It is a very widely held opinion that retribution is in itself, apart altogether from any deterrent or reformative influences exercised by it, a right and reasonable thing, and the just reward of iniquity. According to this view, it is right and proper, without regard to ulterior consequences, that evil should be returned for evil, and that as a man deals with others so should he himself be dealt with. An eye for an eye and a tooth for a tooth is deemed a plain and self-sufficient rule of natural justice. Punishment as so regarded is no longer a mere instrument for the attainment of the public welfare, but has become an end in itself. The purpose of vindictive satisfaction has been eliminated without any substitute having been provided. Those who accept this view commonly advance retribution to the first place among the various aspects of punishment, the others being relegated to subordinate positions.

This conception of retributive justice still retains a prominent place in popular thought. It flourishes also in the writings of theologians and of those imbued with theological modes of thought, and even among the philosophers it does not lack advocates. Kant, for example, expresses the opinion that punishment cannot rightly be inflicted for the sake of any benefit to be derived from it either by the criminal himself or by society, and that the sole and sufficient reason and justification of it lies in the fact that evil has been done by him who suffers it.^[90] Consistently with this view, he derives the measure of punishment, not from any elaborate considerations as to the amount needed for the repression of crime, but from the simple principle of the lex talionis: 83“Thine eye shall not pity; but life shall go for life, eye for eye, tooth for tooth, hand for hand, foot for foot.”^[91] No such principle, indeed, is capable of literal interpretation; but subject to metaphorical and symbolical applications it is in Kant’s view the guiding rule of the ideal scheme of criminal justice.

It is scarcely needful to observe that from the utilitarian point of view hitherto taken up by us such a conception of retributive punishment is totally inadmissible. Punishment is in itself an evil, and can be justified only as the means of attaining a greater good. Retribution is in itself not a remedy for the mischief of the offence, but an aggravation of it. The opposite opinion may be regarded as a product of the incomplete transmutation of the conception of revenge into that of punishment. It results from a failure to appreciate the rational basis of the instinct of retribution—a failure to refer the emotion of retributive indignation to the true source of its rational justification—so that retaliation is deemed an end in itself, and is regarded as the essential element in the conception of penal justice.

A more definite form of the idea of purely retributive punishment is that of expiation. In this view, crime is done away with, cancelled, blotted out, or expiated, by the suffering of its appointed penalty. To suffer punishment is to pay a debt due to the law that has been violated. Guilt plus punishment is equal to innocence. “The wrong,” it has been said,^[92] “whereby he has transgressed the law of right, has incurred a debt. Justice requires that the debt be paid, that the wrong be expiated.... This is the first object of punishment—to make satisfaction to outraged law.” This conception, like the preceding, marks a stage in the transformation of revenge into criminal justice. Until this transformation is complete, the remedy of punishment is more or less assimilated to that of redress. Revenge is the right of the injured person. The penalty of wrongdoing is a debt which the offender owes to his victim, and when the punishment has 84been endured the debt is paid, the liability is extinguished, innocence is substituted for guilt, and the vinculum juris forged by crime is dissolved. The object of true redress is to restore the position demanded by the rule of right, to substitute justice for injustice, to compel the wrongdoer to restore to the injured person that which is his own. A like purpose is assigned to punishment, so long as it is imperfectly differentiated from that retributive vengeance which is in some sort a reparation for wrongdoing. The fact that in the expiatory theory satisfaction is conceived as due rather to the outraged majesty of the law, than to the victim of the offence, merely marks a further stage in the refinement and purification of the primitive conception.

§ 32. Civil Justice; Primary and Sanctioning Rights.

We proceed now to the consideration of civil justice and to the analysis of the various forms assumed by it. It consists, as we have seen, in the enforcement of rights, as opposed to the punishment of wrongs. The first distinction to be noticed is that the right so enforced is either a Primary or a Sanctioning right. A sanctioning right is one which arises out of the violation of another right. All others are primary; they are rights which have some other source than wrongs. Thus my right not to be libelled or assaulted is primary; but my right to obtain pecuniary compensation from one who has libelled or assaulted me is sanctioning. My right to the fulfilment of a contract made with me is primary; but my right to damages for its breach is sanctioning.

The administration of civil justice, therefore, falls into two parts, according as the right enforced belongs to the one or the other of these two classes. Sometimes it is impossible for the law to enforce the primary right; sometimes it is possible but not expedient. If by negligence I destroy another man’s property, his right to this property is necessarily extinct and no longer enforceable. The law, therefore, gives him in substitution for it a new and sanctioning right to receive from me the pecuniary value of the property that 85he has lost. If on the other hand I break a promise of marriage, it is still possible, but it is certainly not expedient, that the law should specifically enforce the right, and compel me to enter into that marriage; and it enforces instead a sanctioning right of pecuniary satisfaction. A sanctioning right almost invariably consists of a claim to receive money from the wrongdoer, and we shall here disregard any other forms, as being quite exceptional.

The enforcement of a primary right may be conveniently termed specific enforcement. For the enforcement of a sanctioning right there is no very suitable generic term, but we may venture to call it sanctional enforcement.

Examples of specific enforcement are proceedings whereby a defendant is compelled to pay a debt, to perform a contract, to restore land or chattels wrongfully taken or detained, to refrain from committing or continuing a trespass or nuisance, or to repay money received by mistake or obtained by fraud. In all these cases the right enforced is the primary right itself, not a substituted sanctioning right. What the law does is to insist on the specific establishment or re-establishment of the actual state of things required by the rule of right, not of another state of things which may be regarded as its equivalent or substitute.

Sanctioning rights may be divided into two kinds by reference to the purpose of the law in creating them. This purpose is either (1) the imposition of a pecuniary penalty upon the defendant for the wrong which he has committed, or (2) the provision of pecuniary compensation for the plaintiff in respect of the damage which he has suffered from the defendant’s wrongdoing. Sanctioning rights, therefore, are either (1) rights to exact and receive a pecuniary penalty, or (2) rights to exact and receive damages or other pecuniary compensation.

The first of these kinds is rare in modern English law, though it was at one time of considerable importance both in our own and in other legal systems. But it is sometimes the 86case even yet, that the law creates and enforces a sanctioning right which has in it no element of compensation to the person injured, but is appointed solely as a punishment for the wrongdoer. For example, a statute may make provision for a pecuniary penalty payable to a common informer, that is to say, to any one who shall first sue the offender for it. Such an action is called a penal action, as being brought for the recovery of a penalty. But it is none the less a purely civil, and in no respect a criminal proceeding. Primarily and immediately, it is an action for the enforcement of a right, not for the punishment of a wrong. It pertains, therefore, to the civil administration of justice, no less than an ordinary action for the recovery of a debt. The mere fact that the sanctioning right thus enforced is created by the law for the purpose of punishment does not bring the action within the sphere of criminal justice. In order that a proceeding should be criminal it is necessary that its direct and immediate purpose should be punishment; it is not enough that its purpose should be the enforcement of a right which has been created by way of punishment. A proceeding is civil if it is one for the enforcement of a right, and the source, nature, and purpose of the right so enforced are irrelevant.^[93]

The second form of sanctioning right—the right to pecuniary compensation or damages—is in modern law by far the more important. It may be stated as a general rule, that the violation of a private right gives rise, in him whose right it is, to a sanctioning right to receive compensation for the injury so done to him. Such compensation must itself be divided into two kinds, which may be distinguished as Restitution and Penal Redress. In respect of the person injured, indeed, these two are the same in their nature and operation; 87but in respect of the wrongdoer they are very different. In restitution the defendant is compelled to give up the pecuniary value of some benefit which he has wrongfully obtained at the expense of the plaintiff; as when he who has wrongfully taken or detained another’s goods is made to pay him the pecuniary value of them, or when he who has wrongfully enriched himself at another’s expense is compelled to account to him for all money so obtained.

Penal redress, on the other hand, is a much more common and important form of legal remedy than mere restitution. The law is seldom content to deal with a wrongdoer by merely compelling him to restore all benefits which he has derived from his wrong; it commonly goes further, and compels him to pay the amount of the plaintiff’s loss; and this may far exceed the profit, if any, which he has himself received. It is clear that compensation of this kind has a double aspect and nature; from the point of view of the plaintiff it is compensation and nothing more, but from that of the defendant it is a penalty imposed upon him for his wrongdoing. The compensation of the plaintiff is in such cases the instrument which the law uses for the punishment of the defendant, and because of this double aspect we call it penal redress. Thus if I burn down my neighbour’s house by negligence, I must pay him the value of it. The wrong is then undone with respect to him, indeed, for he is put in as good a position as if it had not been committed. Formerly he had a house, and now he has the worth of it. But the wrong is not undone with respect to me, for I am the poorer by the value of the house, and to this extent I have been punished for my negligence.

§ 33. A Table of Legal Remedies.

The result of the foregoing analysis of the various forms assumed by the administration of justice, civil and criminal, may be exhibited in a tabular form as follows:—

§ 34. Penal and Remedial Proceedings.

It will be noticed that in the foregoing Table legal proceedings have been divided into five distinct classes, namely: (1) actions for specific enforcement, (2) actions for restitution, (3) actions for penal redress, (4) penal actions, and (5) criminal prosecutions. It must now be observed that the last three of these contain a common element which is absent from the others, namely the idea of punishment. In all these three forms of procedure the ultimate purpose of the law is in whole or in part the punishment of the defendant. This is equally so, whether he is imprisoned, or compelled to pay a pecuniary penalty to a common informer, or is held liable in damages to the person injured by him. All these proceedings, therefore, may be classed together as penal, and as the sources of penal liability. The other forms, namely specific enforcement and restitution, contain no such penal element; the idea of punishment is entirely foreign to them; and they may be classed together as remedial, and as the sources of remedial liability. From the point of view of legal theory this distinction between penal and remedial liability is, as we shall see, of even greater importance than that between criminal and civil liability. It will be noted that all criminal proceedings are at the same time penal, but that the 89converse is not true, some civil proceedings being penal while others are merely remedial.

It may be objected that this explanation fails to distinguish between penal liability and criminal, inasmuch as punishment is stated to be the essential element in each. The answer to this objection is that we must distinguish between the ulterior and the immediate purposes of the law. Proceedings are classed as criminal or civil in respect of their immediate aim; they are distinguished as penal or remedial in respect of their entire purpose, remote as well as immediate. One way of punishing a wrongdoer is to impose some new obligation upon him, and to enforce the fulfilment of it. He may be compelled to pay a penalty or damages. Whenever this course is adopted, the immediate design of the law is the enforcement of the right to the penalty or damages, but its ulterior design is the punishment of the wrong out of which this right arose. In respect of the former the proceedings are civil, not criminal; while in respect of the latter they are penal, not remedial. Penal proceedings, therefore, may be defined as those in which the object of the law, immediate or ulterior, is or includes the punishment of the defendant. All others are remedial, the purpose of the law being nothing more than the enforcement of the plaintiff’s right, and the idea of punishment being irrelevant and inapplicable.

§ 35. Secondary Functions of Courts of Law.

Hitherto we have confined our attention to the administration of justice in the narrowest and most proper sense of the term. In this sense it means, as we have seen, the application by the state of the sanction of physical force to the rules of justice. It is the forcible defence of rights and suppression of wrongs. The administration of justice properly so called, therefore, involves in every case two parties, the plaintiff and the defendant, a right claimed or a wrong complained of by the former as against the latter, a judgment in favour of the one or the other, and execution of this judgment by the power of the state if need be. We have now to notice that the administration of justice in a wider sense includes all the 90functions of courts of justice, whether they conform to the foregoing type or not. It is to administer justice in the strict sense that the tribunals of the state are established, and it is by reference to this essential purpose that they must be defined. But when once established, they are found to be useful instruments, by virtue of their constitution, procedure, authority, or special knowledge, for the fulfilment of other more or less analogous functions. To these secondary and non-essential activities of the courts, no less than to their primary and essential functions, the term administration of justice has been extended. They are miscellaneous and indeterminate in character and number, and tend to increase with the advancing complexity of modern civilisation. They fall chiefly into four groups:

(1) Petitions of Right.—The courts of law exercise, in the first place, the function of adjudicating upon claims made by subjects against the state itself. If a subject claims that a debt is due to him from the Crown, or that the Crown has broken a contract with him, or wrongfully detains his property, he is at liberty to take proceedings by way of petition of right in a court of law for the determination of his rights in the matter. The petition is addressed to the Crown itself, but is referred for consideration to the courts of justice, and these courts will investigate the claim in due form of law, and pronounce in favour of the petitioner or of the Crown, just as in an action between two private persons. But this is not the administration of justice properly so called, for the essential element of coercive force is lacking. The state is the judge in its own cause, and cannot exercise constraint against itself. Nevertheless in the wider sense the administration of justice includes the proceedings in a petition of right, no less than a criminal prosecution or an action for debt or damages against a private individual.

(2) Declarations of Right.—The second form of judicial action which does not conform to the essential type is that which results, not in any kind of coercive judgment, but merely in a declaration of right. A litigant may claim the 91assistance of a court of law, not because his rights have been violated, but because they are uncertain. What he desires may be not any remedy against an adversary for the violation of a right, but an authoritative declaration that the right exists. Such a declaration may be the ground of subsequent proceedings in which the right, having been violated, receives enforcement, but in the meantime there is no enforcement nor any claim to it. Examples of declaratory proceedings are declarations of legitimacy, declarations of nullity of marriage, advice to trustees or executors as to their legal powers and duties, and the authoritative interpretation of wills.

(3) Administrations.—A third form of secondary judicial action includes all those cases in which courts of justice undertake the management and distribution of property. Examples are the administration of a trust, the liquidation of a company by the court, and the realisation and distribution of an insolvent estate.

(4) Titles of Right.—The fourth and last form includes all those cases in which judicial decrees are employed as the means of creating, transferring, or extinguishing rights. Instances are a decree of divorce or judicial separation, an adjudication of bankruptcy, an order of discharge in bankruptcy, a decree of foreclosure against a mortgagor, an order appointing or removing trustees, a grant of letters of administration, and vesting or charging orders. In all these cases the judgment or decree operates not as the remedy of a wrong, but as the title of a right.

These secondary forms of judicial action are to be classed under the head of the civil administration of justice. Here, as in its other uses, the term civil is merely residuary; civil justice is all that is not criminal.

We have defined the law as consisting of the rules observed in the administration of justice. We have now seen that the latter term is used in a double sense, and the question therefore arises whether it is the strict or the wide sense that is to be adopted in our definition of the law. There can be no doubt, however, that logic admits, and convenience requires, the adoption of the wider application. We must recognise as law the sum 92total of the rules that are applied by courts of justice in the exercise of any of their functions, whether these are primary and essential or secondary and accidental. The principles in accordance with which the courts determine a petition of right, decree a divorce, or grant letters of administration, are as truly legal principles as those which govern an action of debt or a suit for specific performance.

SUMMARY.

§ 36. The Nature and Essential Functions of the State.

A complete analysis of the nature of law involves an inquiry into the nature of the state, for it is in and through the state alone that law exists. Jurisprudence is concerned, however, only with the elements and first principles of this matter. An exhaustive theory of political government pertains not to jurisprudence, but to the allied science of politics. From the lawyer nothing more is required than such an understanding of the essential nature of the state, as is sufficient and necessary for the establishment of sound juridical theory.

A state or political society is an association of human beings established for the attainment of certain ends by certain means. It is the most important of all the various kinds of society in which men unite, being indeed the necessary basis and condition of peace, order, and civilisation. What then is the essential difference between this and other forms of association? In what does the state essentially differ from such other societies as a church, a university, a joint-stock company, or a trade union? The difference is clearly one of function. The state must be defined by reference to such of its activities and purposes as are essential and characteristic.

But the modern state does many things, and different things at different times and places. It is a common carrier of letters and parcels, it builds ships, it owns and manages railways, it conducts savings banks, it teaches children, and feeds the poor. All these cannot be of its essence. It is possible, however, to distinguish, among the multitudinous operations of government, two which are set apart as primary and essential. These two are war and the administration of 94justice. The fundamental purpose and end of political society is defence against external enemies, and the maintenance of peaceable and orderly relations within the community itself. It would be easy to show by a long succession of authorities that these two have always been recognised as the essential duties of governments. The Israelites demanded a king, that he “may judge us, and go out before us, and fight our battles;”^[94] and this conception of the primary end and aim of sovereignty obtains recognition still as true and adequate. Leviathan, as Hobbes^[95] tells us, carries two swords, the sword of war and that of justice. This is the irreducible minimum of governmental action. Every society which performs these two functions is a political society or state, and none is such which does not perform them. How much activity in other directions may be profitably combined with them is a question with which we are not here concerned. We are dealing with the definition, and therefore with the essence, not with the accidents of political society.^[96]

It is not difficult to show that war and the administration of justice, however diverse in appearance, are merely two different species of a single genus. The essential purpose of each is the same, though the methods are different. Each consists in the exercise of the organised physical force of the community, and in each case this force is made use of to the same end, namely, the maintenance of the just rights of the community and its members. We have already seen that in administering justice the state uses its physical power to enforce 95rights and to suppress and punish wrongs. Its purpose in waging war—that is to say, just war, which is the only kind which can be regarded as an essential form of state activity—is the same. These two primary functions are simply the two different ways in which a political society uses its power in the defence of itself and its members against external and internal enemies. They are the two methods in which a state fulfils its appointed purpose of establishing right and justice by physical force.

What, then, is the essential difference between these two functions? It lies apparently in this, that the administration of justice is the judicial, while war is the extrajudicial use of the force of the state in the maintenance of right. Force is judicial, when it is applied by or through a tribunal, whose business it is to judge or arbitrate between the parties who are at issue. It is extrajudicial when it is applied by the state directly, without the aid or intervention of any such judge or arbitrator. Judicial force involves trial and adjudication, as a condition precedent to its application; extrajudicial force does not. Judicial force does not move to the maintenance of rights or the suppression of wrongs, until these rights and wrongs have been authoritatively declared and ascertained by the formal judgment of a court. The primary purpose of judicial force is to execute judgment against those who will not voluntarily yield obedience to it. Only indirectly, and through such judgment, does it enforce rights and punish wrongs. But extrajudicial force strikes directly at the offender. It recognises no trial or adjudication as a condition of its exercise. It requires no authoritative judicial declaration of the rights protected or of the wrongs punished by it. When a rebellion or a riot is suppressed by troops, this is the extrajudicial use of force; but when, after its suppression, the rebels or rioters are tried, sentenced, and punished by the criminal courts, the force so used is judicial. To shoot a man on the field of battle or at a barricade is war; to shoot him after capture and condemnation by a court martial is the administration of justice.^[97]

96In addition to the essential difference which we have just noticed, there are several minor and unessential differences, which are commonly, though not invariably present. The chief of these are the following:

1. Judicial force is regulated by law, while the force of arms is usually exempt from such control. Justice is according to law; war is according to the good pleasure of those by whom it is carried on. Inter arma leges silent is a maxim which is substantially, though not wholly, true. The civil law has little to say as to the exercise by the state of its military functions. As between the state and its external enemies, it is absolutely silent; and even as to the use of extrajudicial force within the body politic itself, as in the suppression of riots, insurrections, or forcible crimes, the law lays down no principle save this, that such force is allowable when, and only when, it is necessary. Necessitas non habet legem. Within the community the law insists that all force shall be judicial if possible. This protection against extrajudicial force—this freedom from all constraint save that which operates through the courts of law and justice—is one of the chief privileges of the members of the body politic. We accept it now as a matter of course, but in older and more turbulent days it was recognised as a benefit to be striven for and maintained with anxious vigilance.^[98]

2. In the second place judicial force is commonly exercised against private persons, extrajudicial force against states. It 97is clear, however, that this is not necessarily or invariably the case. It is not impossible that one state should administer justice between two others, or between another state and itself. And on the other hand, it may wage war with its own subjects, or with pirates or other persons who do not constitute a political society.

3. Thirdly, the administration of justice is generally the internal, while war is generally the external exercise of the power of the state. In other words, the state commonly proceeds against internal enemies by way of judicial, and against external enemies by way of extrajudicial force. The administration of justice is the right and privilege of the members of the body politic itself. Those who stand outside the community—whether they are individuals or states—have no claim to the impartial arbitrament of judicial tribunals, and may be struck at directly by the armed and heavy hand of the state. Yet this also is merely a general, and not an invariable rule.

4. Fourthly and lastly, in the administration of justice the element of force is commonly latent or dormant, whereas in war it is seen in actual exercise. Those persons against whom the state administers justice are commonly so completely within its power, that they have no choice save voluntary submission and obedience. It is enough that the state possesses irresistible force and threatens to use it; its actual use is seldom called for. In war, on the other hand, there is commonly no such overwhelming disparity of power, and a state which in this fashion seeks to impose its will on others must usually go beyond threats to their actual execution. Hence it is, that in the administration of justice the element of trial and adjudication is in appearance far more predominant and important than that of force. Viewed externally and superficially, this function of the state looks like the elimination of force as a method of the settlement of controversies, and the substitution of peaceful arbitration. But it is not so. Force is the essence of the administration of justice, no less than of war; but for the most part it lies latent and concealed. The establishment of courts of justice 98marks not the substitution of arbitration for force, but the substitution of one kind of force for another—of public force for private, of judicial force for extrajudicial, of latent and threatened force for that which is actually exercised. As states increase in power, this difference between their two essential functions is intensified. In feeble, turbulent, and ill-governed states the element of force in the administration of justice tends to come to the surface. The will of the state no longer receives implicit obedience from those that are subject to its jurisdiction. It may be necessary to execute the judgments of the courts by military force, and there may be little difference of external aspect between the use of judicial force in the execution of a judgment, and the use of extrajudicial force in the suppression of riot, rebellion, or civil war.^[99]

§ 37. Secondary Functions of the State.

The secondary functions of the state may be divided into two classes. The first consists of those which serve to secure the efficient fulfilment of the primary functions, and the chief of these are two in number, namely legislation and taxation. Legislation is the formulation of the principles in accordance with which the state intends to fulfil its function of administering justice. Taxation is the instrument by which the state obtains that revenue which is the essential condition of all its activities. The remaining class of secondary functions comprises all other forms of activity which are for any reason deemed specially fit to be undertaken by the state. This special fitness may proceed from various sources. It is derived partly from the fact that the state represents the whole population of an extensive territory; partly from the fact that it possesses, through the organised physical force at its command, powers of coercion which are non-existent elsewhere; and partly from the fact that its financial resources (due to the exercise of its coercive powers by way of 99taxation) are immensely beyond those of all other persons and societies. Considerations such as these have, especially in modern times, induced the state to assume a great number of secondary and unessential functions which, in a peaceful and law-abiding community, tend even to overshadow and conceal from view those primary functions in which the essential nature of the state is to be found.

§ 38. The Territory of the State.

The territory of a state is that portion of the earth’s surface which is in its exclusive possession and control. It is that region throughout which the state makes its will permanently supreme, and from which it permanently excludes all alien interference. This exclusive possession of a defined territory is a characteristic feature of all civilised and normal states. It is found to be a necessary condition of the efficient exercise of governmental functions. But we cannot say that it is essential to the existence of a state. A state without a fixed territory—a nomadic tribe for example—is perfectly possible. A non-territorial society may be organised for the fulfilment of the essential functions of government, and if so, it will be a true state. Such a position of things is, however, so rare and unimportant, that it is permissible to disregard it as abnormal. It is with the territorial state that we are alone concerned, and with reference to it we may accordingly define a state as a society of men established for the maintenance of peace and justice within a determined territory by way of force.

§ 39. The Membership of the State.

Who then are the members of this society, and by what title do men obtain entrance into it? In all civilised communities the title of state-membership is twofold, and the members of the body politic are of two classes accordingly. These two titles are citizenship and residence. The former is a personal, the latter merely a territorial bond between the state and the individual. The former is a title of permanent, the latter one of temporary membership of the political community. The state, therefore, consists, in the first place, of all those who by virtue of this personal and permanent 100relationship are its citizens or subjects, and in the second place, of all those who for the time being reside within its territory, and so possess a temporary and territorial title to state-membership. Both classes are equally members of the body politic, so long as their title lasts; for both have claims to the protection of the laws and government of the state, and to such laws and government both alike owe obedience and fidelity. They are alike subject to the dominion of the state, and it is in the interests of both that the state exists and fulfils its functions.

These two titles of state-membership are to a great extent united in the same persons. Most British subjects inhabit British territory, and most inhabitants of that territory are British subjects. Yet the coincidence is far from complete, for many men belong to the state by one title only. They are British subjects, but not resident within the dominions of the Crown; or they are resident within those dominions, but are not British subjects. In other words, they are either non-resident subjects or resident aliens. Non-resident aliens, on the other hand, possess no title of membership, and stand altogether outside the body politic. They are not within the power and jurisdiction of the state; they owe no obedience to the laws, nor fidelity to the government; it is not for them or in their interests that the state exists.^[100]

101The practical importance of the distinction between the two forms of state-membership lies chiefly in the superior privileges possessed by citizens or subjects. Citizenship is a title to rights which are not available for aliens. Citizens are members optimo jure, while aliens stand on a lower level in the scale of legal right. Thus British subjects alone possess political as opposed to merely civil rights;^[101] until a few years ago they alone were capable of inheriting or holding land in England; to this day they alone can own a British ship or any share in one; they alone are entitled when abroad to the protection of their government against other states, or to the protection of English courts of law against illegal acts of the English executive; they alone can enter British territory as of right; they alone are entitled to the benefit of certain statutes from the operation of which aliens are expressly or by implication excluded. It is true, indeed, that we must set off against these special privileges certain corresponding burdens and liabilities. Subjects alone remain within the power and jurisdiction of the Crown, even when they are outside its dominions. Wheresoever they are, they owe fidelity and obedience to the laws and government of their own state, while an alien may release himself at will from all such ties of subjection. Nevertheless the status of a subject is a privilege and not a disability, a benefit and not a burden. Citizenship is the superior, residence the inferior title of state-membership.

Viewing the matter historically, we may say that citizenship is a legal conception the importance of which is continuously diminishing. The consistent tendency of legal development is to minimise the peculiar rights and liabilities of subjects, and to make residence rather than citizenship the essential and sufficient title of state-membership. The acquisition and loss of citizenship are being gradually made easier, while the legal effects of its acquisition and loss are being 102gradually made less. The present state of things is, indeed, a compromise between two fundamentally different ideas as to the constitution of a political society. Citizenship and its remaining privileges are the outcome of the primitive conception of the state as a personal and permanent union of determinate individuals, for whose exclusive benefit the laws and government of the state exist. Residence, regarded as a title of membership and protection, is the product of the more modern conception of the state, as consisting merely of the inhabitants for the time being of a certain territory. The personal idea is gradually giving place to the territorial, and the present twofold title of membership is the outcome of a compromise between these two coexistent and competing principles. It is not suggested, indeed, that the final issue of legal development will be the total disappearance of personal in favour of territorial membership. A compromise between the two extreme principles, in some such form as that which has now been attained to, may well prove permanent. In the present condition of international relations it is clearly necessary.

We have seen that citizens are those members of a state, whose relation to it is personal and permanent, and who by virtue of this relation receive from the state special rights, powers, and privileges. If we ask further, what is the title of citizenship, or how this special bond of union is constituted, no general answer is possible. This is a matter of law, varying in different systems, and from time to time in the same system. English law claims as subjects all who are born within the dominions of the Crown, regardless of their descent; while French law, on the contrary, attaches French citizenship to French blood and descent, regardless in general of the place of birth.^[102] Viewed, however, in respect of its 103historical origin and primitive form, we may say that citizenship has its source in nationality. Fellow citizens are those who belong not merely to the same state but also to the same nation.

It is quite common to use the term citizenship and nationality as synonymous, and this usage, though incorrect, is significant of a very real connexion between the two ideas. Nationality is membership of a nation; citizenship is one kind of membership of a state. A nation is a society of men united by common blood and descent, and by the various subsidiary bonds incidental thereto, such as common speech, religion, and manners. A state, on the other hand, is a society of men united under one government. These two forms of society are not necessarily coincident. A single nation may be divided into several states, and conversely a single state may comprise several nations or parts of nations. The Hellenes were of one blood, but formed many states, while the Roman empire included many nations, but was one state. Nevertheless nations and states tend mutually to coincidence. The ethnic and the political unity tend to coalesce. In every nation there is an impulse, more or less powerful, to develop into a state—to add to the subsisting community of descent a corresponding community of government and political existence. Conversely every state tends to become a nation; that is to say, the unity of political organisation eliminates in course of time the national diversities within its borders, infusing throughout all its population a new and common nationality, to the exclusion of all remembered relationship with those beyond the limits of the state.

The historical origin of the conception of citizenship is to be found in the fact that the state has grown out of the nation. Speaking generally we may say that the state is in its origin the nation politically organised. It is the nation incorporated for the purposes of government and self-defence. The citizens are the members of a nation which has thus developed into a state. Citizenship is nationality that has become political. Men become united as fellow-citizens, because they are, or are deemed to be, already united by the 104bond of common kinship. It is for their benefit and protection that the body politic has been established, and they are its only members. Their citizenship is simply a legal and artificial bond of union superimposed upon the pre-existing bond of a common nationality. With aliens this national state has no concern. It was not created on their behalf, and they have no part or lot in it, for its law and government are the exclusive birthright of its citizens. Only by slow degrees does the notion of territorial membership arise and make good its claim to legal recognition. Gradually the government and the laws cease to be exclusively national and personal, and become in part territorial also. The new principle makes its way, that the state exists for the benefit and protection of the whole population of a certain territory, and not merely on behalf of a certain nationality. The law becomes more and more that of a country, rather than that of a people. State-membership becomes twofold, residence standing side by side with citizenship. It becomes possible to belong to the Roman state without being a Roman. The citizens consent to share their rights with outsiders, but the two classes never reach equality, and the personal union stands permanently on a higher level than the territorial. The special privileges retained by citizens at the present day are the scanty relics of the once exclusive claims of the nation to the protection and activities of the state.^[103]

The relation between a state and its members is one of reciprocal obligation. The state owes protection to its members, while they in turn owe obedience and fidelity to it. Men belong to a state in order that they may be defended by it against each other and against external enemies. But this defence is not a privilege to be had for nothing, and in return for its protection the state exacts from its members services and sacrifices to which outsiders are not constrained. From its members it collects its revenue; from them it 105requires the performance of public duties; from them it demands an habitual submission to its will, as the price of the benefits of its guardianship. Its members, therefore, are not merely in a special manner under the protection of the state, but are also in a special manner under its coercion.

This special duty of assistance, fidelity, and obedience, is called allegiance, and is of two kinds, corresponding to the two classes of members from whom it is required. Subjects owe permanent allegiance to the state, just as they are entitled to its permanent protection. Resident aliens owe temporary allegiance during the period of their residence, just as their title to state protection is similarly limited. An alien, when in England, must be faithful to the state, must submit to its will, and obey its laws, even as an Englishman; but when he leaves English shores, he leaves behind him his obligation of allegiance, together with his title to protection. A British subject, on the other hand, takes both of these things with him on his travels. The hand of the state is still upon him for good and evil. If he commits treason abroad he will answer for it in England. The courts of justice will grant him redress even against the agents of the Crown itself; while the executive will see that no harm befalls him at the hands of foreign governments.^[104]

§ 40. The Constitution of the State.

In the definition of a state as a society with a special end and function, there is implied a permanent and definite organisation—a determinate and systematic form, structure, 106and operation. A body politic is not constituted by a temporary and casual union of individuals, for the purpose of repelling an external enemy, or of executing judgment on some domestic evildoer. The transition from natural to political society is effected only when the union of individuals has assumed a certain measure of permanence and organisation, and when their combined operations in pursuit of their common end have become in a certain degree systematic and definite. It is only when a society has acquired such an organisation, whether by way of agreement, custom, forcible imposition, or otherwise, that it takes on the nature of a body politic or state. It is only then, that there comes into existence the organ which is essential to the performance of those functions which constitute political government.

The organisation of a modern state is of extraordinary complexity, and it is usual to regard it as divisible into two distinct parts. The first consists of its fundamental or essential elements; the second consists of its secondary elements—the details of state structure and state action. The first, essential, and basal portion is known as the constitution of the state. The second has no generic title.

Constitutional law is, as its name implies, the body of those legal rules which determine the constitution of the state. It is not possible to draw any hard and fast line between the constitution and the remaining portions of the state’s organisation; neither, therefore, is it possible to draw any such line between constitutional law and other branches of the legal system. The distinction is one of degree, rather than one of kind, and is drawn for purposes of practical convenience, rather than in obedience to any logical requirement. The more important, fundamental, and far-reaching any principle or practice is, the more likely it is to be classed as constitutional. Conversely, the more special, detailed, and limited in its application, the less likely it is to find a place in any exposition of the law and practice of the constitution. The structure of the supreme legislature and the methods of its action pertain to constitutional law; the structure and operations of subordinate legislatures, such as those possessed 107by the colonies, are justly entitled to the same position; but those of such subordinate legislatures as a borough council would by general consent be treated as not sufficiently important and fundamental to be deemed part of the constitution. So the organisation and powers of the Supreme Court of Judicature, treated in outline and not in detail, pertain to constitutional law; while it is otherwise with courts of inferior jurisdiction, and with the detailed structure and practice of the Supreme Court itself.

In some states, though not in England, the distinction between constitutional law and the remaining portions of the legal system is accentuated and made definite by the embodiment of the former in a special and distinct enactment, the terms of which cannot be altered by the ordinary forms of legislation. Such constitutions are said to be rigid, as opposed to those which are flexible. That of the United States of America, for example, is set forth in a document agreed upon by the founders of the Commonwealth as containing all those principles of state structure and action sufficiently important to be deemed fundamental and therefore constitutional. The provisions of this document cannot be altered without the consent of three-fourths of the legislatures of the different states. The English constitution on the other hand is flexible; it is defined and set apart in no distinct document, and is not distinguishable from the residue of the law in respect of the methods of its alteration.

We have defined constitutional law as the body of those legal principles which determine the constitution of a state—which determine, that is to say, the essential and fundamental portions of the state’s organisation. We have here to face an apparent difficulty and a possible objection. How, it may be asked, can the constitution of a state be determined by law at all? There can be no law unless there is already a state whose law it is, and there can be no state without a constitution. The state and its constitution are therefore necessarily prior to the law. How then does the law determine the constitution? Is constitutional law in reality law at all? Is not the constitution a pure matter of fact, with which the law has no concern? The answer is, that the constitution is both a matter of fact and a matter of law. The constitution as it exists de facto underlies of necessity the constitution as it exists de jure. Constitutional law involves concurrent 108constitutional practice. It is merely the reflection, within courts of law, of the external objective reality of the de facto organisation of the state. It is the theory of the constitution, as received by courts of justice. It is the constitution, not as it is in itself, but as it appears when looked at through the eye of the law.

The constitution as a matter of fact is logically prior to the constitution as a matter of law. In other words constitutional practice is logically prior to constitutional law. There may be a state and a constitution without any law, but there can be no law without a state and a constitution. No constitution, therefore, can have its source and basis in the law. It has of necessity an extra-legal origin, for there can be no talk of law, until some form of constitution has already obtained de facto establishment by way of actual usage and operation. When it is once established, but not before, the law can and will take notice of it. Constitutional facts will be reflected with more or less accuracy in courts of justice as constitutional law. The law will develop for itself a theory of the constitution, as it develops a theory of most other things which may come in question in the administration of justice.

As an illustration of the proposition that every constitution has an extra-legal origin, we may take the United States of America. The original constituent states achieved their independence by way of rebellion against the lawful authority of the English Crown. Each of these communities thereupon established a constitution for itself, by way of popular consent expressed directly or through representatives. By virtue of what legal power or authority was this done? Before these constitutions were actually established, there was no law in these colonies save that of England, and it was not by the authority of this law, but in open and forcible defiance of it, that these colonial communities set up new states and new constitutions. Their origin was not merely extra-legal; it was illegal. Yet so soon as these constitutions succeeded in obtaining de facto establishment in the rebellious colonies, they received recognition as legally valid from the courts of those colonies. Constitutional law followed hard upon the 109heels of constitutional fact. Courts, legislatures, and law had alike their origin in the constitution, therefore the constitution could not derive its origin from them. So also with every constitution that is altered by way of illegal revolution. By what legal authority was the Bill of Rights passed, and by what legal title did William III. assume the Crown? Yet the Bill of Rights is now good law, and the successors of King William have held the Crown by valid titles. Quod fieri non debet, factum valet.

Constitutional law, therefore, is the judicial theory, reflection, or image of the constitution de facto, that is to say, of constitutional practice. Here, as elsewhere, law and fact may be more or less discordant. The constitution as seen by the eye of the law may not agree in all points with the objective reality. Much constitutional doctrine may be true in law but not in fact, or true in fact but not in law. Power may exist de jure but not de facto, or de facto but not de jure. In law, for example, the consent of the Crown is no less necessary to legislation, than is that of the two houses of Parliament. Yet in fact the Crown has no longer any power of refusing its consent. Conversely, the whole system of cabinet government, together with the control exercised by the House of Commons over the executive, is as unknown in law as it is well established in fact. Even in respect of the boundaries of the state’s territories the law and the fact may not agree. A rebellious province may have achieved its de facto independence, that is to say, it may have ceased to be in the de facto possession and control of the state, long before this fact receives de jure recognition.

Nowhere is this discordance between the constitution in fact and in law more serious and obvious than in England. A statement of the strict legal theory of the British constitution would differ curiously from a statement of the actual facts. Similar discrepancies exist, however, in most other states. A complete account of a constitution, therefore, involves a statement of constitutional custom as well as of constitutional law. It involves an account of the organised state as it exists in practice and in fact, as well as of the 110reflected image of this organisation as it appears in legal theory.

Although the constitution de jure and the constitution de facto are not necessarily the same, they nevertheless tend towards coincidence. Constitutional law and practice react upon each other, each striving to assimilate the other to itself. The objective facts of state organisation tend to mould legal theory into conformity with themselves. They seek expression and recognition through legislation, or through the law-creating functions of the courts. Conversely, the accepted legal theory endeavours to realise itself in the facts. The law, although it necessarily involves a pre-existing constitution, may nevertheless react upon and influence the constitution from which it springs. It cannot create a constitution ex nihilo, but it may modify to any extent one which already exists. Constitutional practice may alter, while constitutional law remains the same, and vice versa, but the most familiar and effective way of altering the practice is to alter the law. The will of the body politic, as expressed through the legislature and the courts, will commonly realise itself in constitutional fact no less than in constitutional theory.

§ 41. The Government of the State.

Political or civil power is the power vested in any person or body of persons of exercising any function of the state. It is the capacity of evoking and directing the activities of the body politic. It is the ability to make one’s will effective in any department of governmental action. The aggregate of all the persons or groups of persons who possess any share of this civil power constitutes the Government of the state. They are the agents through whom the state, as a corporate unity, acts and moves and fulfils its end.

Legislative, judicial, and executive power.—In respect of its subject-matter, civil power is of three kinds, distinguished as legislative, judicial, and executive; and the government is similarly divisible into three great departments, namely, the legislature, the judicature, and the executive. The functions which pertain to the first and second of these departments 111have been already sufficiently explained. The executive is simply the residue of the government, after deducting the legislature and the judicature.

Sovereign and subordinate power.—In respect of its extent civil power, whether legislative, judicial, or executive, is of two kinds, being either sovereign or subordinate. Sovereign or supreme power is that which is absolute and uncontrolled within its own sphere. Within its appointed limits, if any, its exercise and effective operation are not dependent on or subject to the power of any other person. An act of sovereign power is one which cannot be prevented or annulled by any other power recognised by the constitution of the state. Subordinate power, on the other hand, is that which, even in its own sphere of operation, is in some degree subject to external control. There exists some other constitutional power which is superior to it, and which can prevent, restrict, or direct its exercise, or annul its operation.^[105]

§ 42. Independent and Dependent States.

States may be classified in two different ways: (1) with respect to their external relations to other states and (2) with respect to their internal composition. The former mode has regard to their international, the latter to their constitutional position and structure. Classified internationally or externally, all states are of two kinds, being either independent or dependent. Classified constitutionally or internally, they are also of two kinds, being either unitary or composite.

An independent or sovereign state is one which possesses a separate existence, being complete in itself, and not merely a part of a larger whole to whose government it is subject. A dependent or non-sovereign state, on the other hand, is one which is not thus complete and self-existent, but is merely a 112constituent portion of a greater state which includes both it and others, and to whose government it is subject. The British Empire, the United States of America, and the Kingdom of Italy are independent states. But the Commonwealth of Australia, the Dominion of Canada, and the States of California and New York are dependent, for they are not self-existent, but merely parts of the British Empire and of the United States of America respectively, and subject to their control and government.

It is maintained by some writers that a dependent state is not, properly speaking, a state at all—that the constituent and dependent parts of an independent state may be termed colonies, provinces, territories, and so on, but have no valid claim to the name of state. This objection, however, seems unfounded. It is contrary to the received usage of speech, and that usage seems capable of logical justification. Whether a part of a thing is entitled to the same name as the whole depends on whether the whole and the part possess the same essential nature. A part of a rope is itself a rope, if long enough to serve the ordinary purposes of one; but part of a shilling is not itself a shilling. Whether, therefore, any territorial division of a state is to be classed as itself a state depends on whether, in itself and in isolation, it possesses and fulfils the essential functions of one. This in its turn depends on the extent of the autonomy or independent activity which is permitted to it by the constitution. Speaking generally, we may say that any such division which possesses a separate legislature, judicature, and executive, and is thus separately organised for the maintenance of peace and justice, is entitled to be regarded as itself a state. The Commonwealth of Australia is a true state, though merely a part of the larger state of the British Empire, for it conforms to the definition of a state, as a society established and organised for the administration of justice and for external defence. Were it to become independent, it could, without altering its constitution, or taking upon itself any further function than those which it now possesses, stand alone as a distinct and self-sufficient 113political community. But a municipal corporation or a district council has not in itself the nature of a political society, for it does not in itself fulfil the essential ends of one.

International law takes account only of independent or sovereign states, for it consists of the rules which regulate the relations of such states to one another. A dependent state is not an international unit, and possesses no international personality. Internationally regarded, its existence is simply a detail of the internal constitution of the larger and independent state of which it forms a part. This internal structure pertains exclusively to the constitutional law of the state itself, and the law of nations is not concerned with it. The existence of the Dominion of Canada or of the State of Victoria is a constitutional, not an international fact, for in the eye of the law of nations the whole British Empire is a single undivided unit.^[106]

Independent states are themselves of two kinds, distinguished as fully sovereign and semi-sovereign. A fully sovereign state is, as its name imports, one whose sovereignty is in no way derogated from by any control exercised over it by another state. It is possessed of absolute and complete autonomy. A semi-sovereign state, on the other hand, is one which is to a greater or less extent subordinate to some other, its sovereignty or autonomy being imperfect by reason of external control. The authority so exercised over it is termed a protectorate or sometimes suzerainty. Most independent states are fully sovereign, the others being few in number and anomalous in character. An example is Zanzibar, which stands in this relation to the British Empire.

It is carefully to be noticed that semi-sovereign states are independent, in the sense already explained. They are self-existent, international units, and not merely parts of the 114state under whose control they are. Zanzibar is not part of the British Empire. These are two distinct states, bearing towards each other a relation which is international and external, and not merely constitutional and internal. In order that a state should be dependent or non-sovereign, it is not enough that it should be under the control of another state; it must also be a constituent part of the state under whose control it is. The mere exercise of a partial dominion by one state over another does not of necessity incorporate the two into a higher unity. The establishment of a protectorate is not equivalent to annexation. The acts of the one state are not imputed to the other; the property and territory of the one are not those of the other also; the subjects of the one are not those of the other; one may be at peace while the other is at war. The Ionian Islands were formerly a protected state under the control of Great Britain; but during the Crimean War they remained neutral and at peace.

A semi-sovereign state is in a position of unstable equilibrium. It is the outcome of a compromise between dependence and independence, which, save in exceptional circumstances, is not likely to be permanent. The control exercised by one independent state over another is in most cases destined either to disappear altogether, so that the semi-sovereign state becomes fully sovereign, or to develop until the separate international existence of the inferior is merged in that of the superior, the semi-sovereign state descending to the lower level of dependency, and becoming merely a constitutional subdivision of the state to which it is subordinate.

§ 43. Unitary and Composite States.

Classified constitutionally, in respect of their internal structure, instead of internationally, in respect of their external relations, states are of two kinds, being either unitary or composite. A unitary or simple state is one which is not made up of territorial divisions which are states themselves. A composite state on the other hand is one which is itself 115an aggregate or group of constituent states. The British Empire is composite, because many of its territorial divisions are possessed of such autonomy as to be states themselves. Some of these constituent states are also composite in their turn, Australia and Canada, for example, being composed of unitary states such as Queensland and Quebec.

Composite states (whether dependent or independent) are of two kinds, which may be distinguished as imperial and federal. The difference is to be found in the nature of that common government which is the essential bond of union between the constituent states. In an imperial state the government of one of the parts is at the same time the common government of the whole. In a federal state, on the contrary, the common government is not that of one of the parts, but a central government in which all the constituent states participate. The constitution of the British Empire is imperial; that of the United States of America is federal. In the former, one of the parts, namely, Great Britain and Ireland, is preferred before the others, as supplying the authority which binds all of them into a single whole. The government of the United Kingdom possesses a double capacity, local and imperial. In its local capacity it administers the affairs of England, Scotland, and Ireland, just as the government at Cape Town administers the affairs of Cape Colony. But in another capacity it is the government of the whole empire, and provides the bond of common authority which unites all the constituent states of the empire into a single body politic. In a federal, as contrasted with an imperial constitution, there is no such predominance of one of the constituent states. The government of the whole is one in which all the parts have their allotted shares. The unity of an imperial state is a relation of all the other parts to one of them; the unity of a federal state is a relation of all the parts to a central and common authority.^[107]

§ 44. Formal and Material Sources.

The expression source of law (fons juris) has several meanings which it is necessary to distinguish clearly. We must distinguish in the first place between the formal and the material sources of the law. A formal source is that from which a rule of law derives its force and validity. It is that from which the authority of the law proceeds. The material sources, on the other hand, are those from which is derived the matter, not the validity of the law. The material source supplies the substance of the rule to which the formal source gives the force and nature of law.

The formal source of the whole body of the civil law is one and the same, namely, the will and power of the state as manifested in courts of justice. Whatever rules have the sanction and authority of the body politic in the administration of justice have thereby the force of law; and in such force no other rules whatever have any share. The matter of the law may be drawn from all kinds of material sources, but for its legal validity it must look to the tribunals of the state and to them alone. Customary law, for example, has its material source in the usages of those who are subject to it; but it has its formal source in the will of the state, no less than statutory law itself.

§ 45. Legal and Historical Sources.

Though the formal source of the law is one, its material sources are many, and they are divisible into two classes which may be distinguished as legal and historical. The former are those sources which are recognised as such by the 118law itself. The latter are those sources which are such in fact, but are nevertheless destitute of legal recognition. This is an important distinction which calls for careful consideration. In respect of its material origin a rule of law is often of long descent. The immediate source of it may be the decision of an English court of justice. But that court may have drawn the matter of its decision from the writings of some lawyer, let us say the celebrated Frenchman, Pothier; and Pothier in his turn may have taken it from the compilations of the Emperor Justinian, who may have obtained it from the praetorian edict. In such a case all these things—the decision, the works of Pothier, the corpus juris civilis, and the edictum perpetuum—are the successive material sources of the rule of English law. But there is a difference between them, for the precedent is the legal source of the rule, and the others are merely its historical sources. The precedent is its source not merely in fact, but in law also; the others are its sources in fact, but obtain no legal recognition as such. Our law knows well the nature and effect of precedents, but it knows nothing of Pothier, or of Tribonian, or of the Urban Praetor. The proposition that every principle embodied in a judicial decision has for the future the force of law is not merely a statement of historical fact as to the growth of English law; it is itself a rule of law. But the proposition that much of the law of Rome has become incorporated into the law of England is simply a statement of fact, which has in law no relevance or recognition.

The legal sources of law are authoritative, the historical are unauthoritative. The former are allowed by the law courts as of right; the latter have no such claim; they influence more or less extensively the course of legal development, but they speak with no authority. No rule of law demands their recognition. Thus both the statute-book and the works of Jeremy Bentham are material sources of English law. The historians of that system have to take account of both of them. Much that is now established law has its source in the ponderous volumes of the great law-reformer. Yet there is an essential difference between the two cases. 119What the statute-book says becomes law forthwith and ipso jure; but what Bentham says may or may not become law, and if it does, it is by no claim of right but solely through the unconstrained good pleasure of the legislature or the courts. So the decisions of English courts are a legal and authoritative source of English law, but those of American courts are in England merely an historical and unauthoritative source. They are treated with respect by English judges, and are in fact the ground and origin of an appreciable portion of English law, but their operation is persuasive merely, not authoritative, and no rule of English law extends recognition to them.

The legal sources are the only gates through which new principles can find entrance into the law. Historical sources operate only mediately and indirectly. They are merely the various precedent links in that chain of which the ultimate link must be some legal source to which the rule of law is directly attached.

We are here concerned solely with the legal sources of the law. Its formal source is involved in the definition of the law itself, and has been already sufficiently dealt with. Its historical sources pertain to legal history, not to legal theory. Hereafter, when we speak of the sources of law, we shall mean by that term the legal sources exclusively.

It may help us to attain a clearer understanding of a somewhat difficult matter if we attempt to reach a definition of these sources from another standpoint. In every progressive community the law undergoes a continuous process of growth and change. This process of legal evolution does not proceed by haphazard. It is not left to the discretion of the judges to apply one law to-day and another to-morrow, for the growth of the law is itself a matter governed by the law. Every legal system contains certain rules determining the establishment of new law and the disappearance of old. That is to say, it contains certain rules to this effect: that all new principles which conform to such and such requirements are to be recognised as new principles of law, and applied accordingly in substitution for, or as supplementary to the old. Thus it is itself a principle of English law that any 120principle involved in a judicial decision has the force of law. Similar legal recognition is extended to the law-producing effect of statutes and immemorial customs. Rules such as these establish the sources of the law. A source of law, then, is any fact which in accordance with the law determines the judicial recognition and acceptance of any new rule as having the force of law. It is the legal cause of the admittance by the judicature of any new principle as one which will be observed for the future in the administration of justice.

§ 46. A List of Legal Sources.

We cannot deduce from the nature of law the nature of its sources, for these are merely contingent, not necessary; they differ in different systems and even in the same system at different periods of its growth. It is possible, however, to distinguish five sources which in England or elsewhere have possessed predominant influence. These are Legislation, Custom, Precedent, Professional Opinion, and Agreement. Legislation is the declaration or enunciation of a principle by some adequate authority in the body politic; custom is the realisation or embodiment of a principle in a uniformity of practice; precedent is the judicial application of a principle to its appropriate facts; professional or expert opinion is the approval or recognition of a principle by the general voice of those whose business it is to know the law; agreement is the adoption of a principle by the consent of those whose interests are affected by it. Such declaration, realisation, application, approval, and adoption determine in each case the judicial recognition as law of the principle so dealt with, and therefore constitute the sources of the law.

Law which has its source in legislation is called statute, enacted, or written law. That which is based on custom is customary law. Precedent produces case-law, and agreement conventional law. That which is created by professional or expert opinion has no recognised title, but in analogy to German usage we may call it juristic law (Juristenrecht).

There are two chief reasons for allowing law-creative 121operation to these various sources. In the first place there is a presumption that principles proceeding from them are principles of truth and justice, worthy of adoption by the judicature. A statute is an attempt made by the legislature to formulate the rules of right for the use and direction of the judicature. This attempt is not always successful, for law and justice are sometimes far apart; yet no better device has been discovered, and the courts accept the rules so formulated as authoritative and final. A similar presumption of truth and justice is one of the grounds of the operation of precedent also. When one of the superior courts of law has, after solemn argument and full consideration, laid down a certain principle as one fit to be applied to the case in hand, there is a reasonable presumption that this decision is correct, and that the principle is a just one fit to be applied to all similar cases in the future, that is to say, fit to receive permanent recognition as a new rule of law. Res judicata pro veritate accipitur.^[108] So also in the case of custom. Customary law has as one of its foundations the presumption that whatever is customary is just and expedient. The popular conscience embodies itself in popular usage, and the law courts accept as authoritative the principles so sanctioned and approved. Professional opinion—the opinion of lawyers—is merely an historical, not a legal source of English law. In other systems, however, and chiefly in that of Rome, it has shown itself capable of serving as one of the most important of legal sources. Almost all that is of special value in Roman law has this as its origin; the Digest of Justinian consists wholly of extracts from the writings of Roman lawyers. It is clear that one of the grounds for the allowance of such opinion as a source of law is to be found in a reasonable confidence in the skill and knowledge of the expert. Cuique in sua arte credendum est. Finally we may see the same influence at work in the case of the fifth and last source, namely agreement. Every man may be trusted to see to his own interests and to claim his own rights. Whatever rule, therefore, is freely agreed upon by two or more persons as defining their mutual rights and obligations may be 122confidently accepted by the law courts as a true and just rule between those who have so consented to it. As to them, it is fit and proper to be applied as law.

There is, however, a second ground of not less importance on which the efficacy of these legal sources rests. They are not merely presumptive evidence of the justice and truth of the principles proceeding from them, but they are the basis of a rational expectation on the part of all persons concerned that these principles will be consistently acted on in the future. Justice demands that such expectations shall be fulfilled. Even when a rule does not accurately conform to the ideal standard, it may be a right and reasonable thing to adhere to it, when it has once been formulated. For men act on the faith of it; and to overturn an imperfect rule with all the expectations built upon it will often do more harm than can be counterbalanced by any benefits to be derived from the substitution of a better principle. Thus legislation is an announcement to all the world that in future certain principles will be applied in the administration of justice. Forthwith the expectations, dealings, and contracts of all men concerned are based upon the principles so declared, and the disregard of them by the judicature would be a breach of faith and an ill service to the cause of justice. Similarly the decision of a court may not be perfectly wise or just; but whether it is or not, all men expect that like decisions will for the future be given in like cases. It is often more important that the course of judicial decision should be uniform and within the limits of human foresight, than that it should be ideally just. So with all the other sources of law. That which has always been customary in the past is entitled for this reason alone to a certain measure of allowance and recognition in the future. That which is approved by the general opinion of the legal profession serves so largely as the basis of the actions and expectations of men, that the courts of law will not lightly depart from it. That which all parties interested have agreed to, and which they have declared as valid law to bind them, may not, for all that, be absolutely just and reasonable; but they must be held bound by it none 123the less, otherwise there will be no certainty of dealing among mankind.

§ 47. The Sources of Law as Constitutive and Abrogative.

The process of legal evolution is threefold. It comprises in the first place the increase or growth of law—that is to say, the substitution of legal principles for the discretion of courts, and the transformation of fact into law. It involves in the second place the opposite process of the decrease of law—the reconquest by the arbitrium judicis of domains formerly occupied by legal principle—the transformation of law into fact. Finally it includes the alteration of law—that is to say, the destruction of one legal principle and the substitution of another in its stead.

To carry out this threefold process, it is clear that we require instruments of legal development which are capable not merely of creating new law, but of destroying old. It is not sufficient to obtain new law which stands side by side with the old, as a supplement to it; it is necessary to obtain new law which excludes the old, as a substitute for it. We must possess instruments of abrogative, and not merely instruments of constitutive power. So far we have considered the sources of law only in respect of this latter operation. We have yet to consider to what extent they possess the power of destroying law, as well as of creating it. The conservative virtue of the law has at all times been very great. We find, accordingly, that the constitutive operation of the sources is much more general than the abrogative. It by no means follows that, because a certain fact is capable of giving rise to a new rule, it is equally capable of getting rid of an old one. Legislation, indeed, is pre-eminent in this respect above all other legal sources. Alone among the instruments of legal development, it works with equal facility in both ways; and it is this peculiarity which makes it so efficient a method of legal reform.

In the strict theory of the law, precedent is wholly constitutive, being quite destitute of abrogative power. When the 124law is already settled, the judges have no authority save to obey and administer it. Their power of making new law by way of judicial decision is limited to those vacant spaces where there is as yet no other law which they can apply. Precedents make law, but cannot alter it.

Mercantile custom resembles precedent. So long as the ground is vacant—so long as there is no rule of the common law in pari materia—the proved custom of merchants will be allowed by the courts as a source of new law. But so soon as from this or any other source principles have been once established in the matter, there is no longer any room for new rules thus arising. Immemorial custom, on the other hand, has full power to derogate from the common law, though the statute law is beyond its operation.

Agreement possesses considerable, though not complete, abrogative power. A great part of the law is subject to supersession and modification by the consent of all persons interested. Modus et conventio vincunt legem. It is law only until and unless there is some agreement to the contrary. The residue of the law, however, is peremptory, and not to be thus excluded by consent. Agreements which attempt to derogate from it, and to establish special law in place of it, are illegal and void.

§ 48. Sources of Law and Sources of Rights.

The sources of law may also serve as sources of rights. By a source or title of rights is meant some fact which is legally constitutive of rights. It is the de facto antecedent of a legal right just as a source of law is the de facto antecedent of a legal principle. An examination of any legal system will show that to a large extent the same classes of facts which operate as sources of law operate as sources of rights also. The two kinds of sources form intersecting circles. Some facts create law but not rights; some create rights but not law; some create both at once. An act of Parliament for example is a typical source of law; but there are numerous private acts which are clearly titles of legal rights. Such is an act of divorce, or an act granting a pension for public services, or an act incorporating a company. So in the case of precedent, the judicial decision is a source of rights as between the parties to it, though a source of law as regards the world at large. Regarded as creative of rights, it is called a judgment; regarded as creative of law, it is called a precedent. So also immemorial custom does upon occasion give rise to rights as well as to law. 125In respect of the former operation, it is specifically distinguished as prescription, while as a source of law it retains the generic title of custom. That an agreement operates as a source of rights is a fact too familiar to require illustration. The proposition which really needs emphatic statement in this case is that agreement is not exclusively a title of rights, but is also operative as a source of law.

§ 49. Ultimate Legal Principles.

All rules of law have historical sources. As a matter of fact and history they have their origin somewhere, though we may not know what it is. But not all of them have legal sources. Were this so, it would be necessary for the law to proceed ad infinitum in tracing the descent of its principles. It is requisite that the law should postulate one or more first causes, whose operation is ultimate, and whose authority is underived. In other words there must be found in every legal system certain ultimate principles, from which all others are derived, but which are themselves self-existent. Before there can be any talk of legal sources, there must be already in existence some law which establishes them and gives them their authority. The rule that a man may not ride a bicycle on the footpath may have its source in the by-laws of a municipal council; the rule that these by-laws have the force of law has its source in an act of Parliament. But whence comes the rule that acts of Parliament have the force of law? This is legally ultimate; its source is historical only, not legal. The historians of the constitution know its origin, but lawyers must accept it as self-existent. It is the law because it is the law, and for no other reason that it is possible for the law itself to take notice of. No statute can confer this power upon Parliament, for this would be to assume and act on the very power that is to be conferred. So also the rule that judicial decisions have the force of law is legally ultimate and underived. No statute lays it down. It is certainly recognised by many precedents, but no precedent can confer authority upon precedent. It must first possess authority before it can confer it.

If we inquire as to the number of these ultimate principles, the answer is that a legal system is free to recognise 126any number of them, but is not bound to recognise more than one. From any one ultimate legal source it is possible for the whole law to be derived, but one such there must be. A statute for example may at any time give statutory authority to the operation of precedent,^[109] and so reduce it from an ultimate to a derivative source of law.^[110]

SUMMARY.

§ 50. The Nature of Legislation.

Legislation is that source of law which consists in the declaration of legal rules by a competent authority. It is such an enunciation or promulgation of principles as confers upon them the force of law. It is such a declaration of principles as constitutes a legal ground for their recognition as law for the future by the tribunals of the state.

Although this is the strict and most usual application of the term legislation, there are two other occasional uses of it which require to be distinguished. It is sometimes used in a wide sense to include all methods of law-making. To legislate is to make new law in any fashion. Any act done with the intent and the effect of adding to or altering the law is, in this wider sense, an act of legislative authority. As so used, legislation includes all the sources of law, and not merely one of them. “There can be no law,” says Austin,^[111] “without a legislative act.” Thus when judges establish a new principle by means of a judicial decision, they may be said to exercise legislative, and not merely judicial power. Yet this is clearly not legislation in the strict sense already defined. The law-creative efficacy of precedent is to be found not in the mere declaration of new principles but in the actual application of them. Judges have in certain cases true legislative power—as where they issue rules of court-but in ordinary cases the judicial declaration of the law, unaccompanied by the judicial application of it, has no legal authority whatever. So the act of the parties to a contract, in laying down rules of special law for themselves to the exclusion of 128the common law, may be regarded as an exercise of legislative power. But though they have made law, they have made it by way of mutual agreement for themselves, not by way of authoritative declaration for other persons.

The writers who make use of the term in this wide sense divide legislation into two kinds, which they distinguish as direct and indirect. The former is legislation in the narrow sense—the making of law by means of the declaration of it. Indirect legislation, on the other hand, includes all other modes in which the law is made.^[112]

In a third sense legislation includes every expression of the will of the legislature, whether directed to the making of law or not. In this use, every act of Parliament is an instance of legislation, irrespective altogether of its purpose and effect. The judicature, as we have seen, does many things which do not fall within the administration of justice in its strict sense; yet in a wider use the term is extended to include all the activities of the courts. So here, the legislature does not confine its action to the making of law, yet all its functions are included within the term legislation. An act of Parliament may do no more than ratify a treaty with a foreign state, or alter the calendar, or establish a uniform time throughout the realm, or make some change in the style and title of the reigning sovereign, or alter the coinage, or appropriate public money, or declare war or make peace, or grant a divorce, or annex or abandon territory. All this is legislation in a wide sense, but it is not that declaration of legal principles with which, as one of the sources of law, we are here alone concerned.

Law that has its source in legislation may be most accurately termed enacted law, all other forms being distinguished as unenacted. The more familiar term, however, is statute law as opposed to the common law; but this, though sufficiently correct for most purposes, is defective, inasmuch as the word statute does not extend to all modes of legislation, but is limited to acts of Parliament. Blackstone and other writers use the expressions written and unwritten law to indicate the 129distinction in question. Much law, however, is reduced to writing, even in its inception, besides that which originates in legislation. The terms are derived from the Romans, who meant by jus non scriptum customary law, all other, whether enacted or unenacted, being jus scriptum. We shall see later, that according to the older theory, as we find it in Blackstone and his predecessors, all English law proceeds either from legislation or from custom. The common law was customary, and therefore, adopting the Roman usage, unwritten law. All the residue was enacted, and therefore written law.^[113]

§ 51. Supreme and Subordinate Legislation.

Legislation is either supreme or subordinate. The former is that which proceeds from the supreme or sovereign power in the state, and which is therefore incapable of being repealed, annulled, or controlled by any other legislative authority. Subordinate legislation is that which proceeds from any authority other than the sovereign power, and is therefore dependent for its continued existence and validity on some superior or supreme authority. The legislation of the Imperial Parliament is supreme, for “what the parliament doth, no authority upon earth can undo.”^[114] All other forms of legislative activity recognised by the law of England are subordinate. They may be regarded as having their origin in a delegation of the power of Parliament to inferior authorities, which in the exercise of their delegated functions remain subject to the control of the sovereign legislature.

The chief forms of subordinate legislation are five in number.

(1) Colonial.—The powers of self-government entrusted to the colonies and other dependencies of the Crown are subject to the control of the Imperial legislature. The Parliament at Westminster may repeal, alter, or supersede any colonial 130enactment, and such enactments constitute, accordingly, the first and most important species of subordinate legislation.

(2) Executive.—The essential function of the executive is to conduct the administrative departments of the state, but it combines with this certain subordinate legislative powers which have been expressly delegated to it by Parliament, or pertain to it by the common law. A statute, for example, occasionally entrusts to some department of the executive government the duty of supplementing the statutory provisions by the issue of more detailed regulations bearing on the same matter. So it is part of the prerogative of the Crown at common law to make laws for the government of territories acquired by conquest, and not yet possessed of representative local legislatures.

(3) Judicial.—In the same way, certain delegated legislative powers are possessed by the judicature. The superior courts have the power of making rules for the regulation of their own procedure. This is judicial legislation in the true sense of the term, differing in this respect from the so-called legislative action of the courts in creating new law by way of precedent.

(4) Municipal.—Municipal authorities are entrusted by the law with limited and subordinate powers of establishing special law for the districts under their control. The enactments so authorised are termed by-laws, and this form of legislation may be distinguished as municipal.

(5) Autonomous.—All the kinds of legislation which we have hitherto considered proceed from the state itself, either in its supreme or in one or other of its many subordinate departments. But this is not necessarily the case, for legislation is not a function that is essentially limited to the state. The declaration of new principles amounts to legislation not because it is the voice of the state, but because it is accepted by the state as a sufficient legal ground for giving effect to those new principles in its courts of justice. The will of the state is, indeed, as we have already seen, the one and only formal source of law; but it does not follow from this that the word of the state is the sole form of that material source 131of the law which is called legislation. In the allowance of new law the state may hearken to other voices than its own. In general, indeed, the power of legislation is far too important to be committed to any person or body of persons save the incorporate community itself. The great bulk of enacted law is promulgated by the state in its own person. But in exceptional cases it has been found possible and expedient to entrust this power to private hands. The law gives to certain groups of private individuals limited legislative authority touching matters which concern themselves. A railway company, for example, is able to make by-laws for the regulation of its undertaking. A university may make statutes binding upon its members. A registered company may alter those articles of association by which its constitution and management are determined. Legislation thus effected by private persons, and the law so created, may be distinguished as autonomic.

There is a close resemblance between autonomic law and conventional law, but there is also a real distinction between them. The creation of each is a function entrusted by the state to private persons. But conventional law is the product of agreement, and therefore is law for none except those who have consented to its creation. Autonomic law, on the contrary, is the product of a true form of legislation, and is imposed by superior authority in invitos. The act of a general meeting of shareholders in altering the articles of association is an act of autonomous legislation, because the majority has the power of imposing its will in this respect upon a dissentient minority. All the shareholders may in fact agree, but the law-creating efficacy of their resolution is independent of any such accidental unanimity. We may say, if we please, that with respect to consenting shareholders the resolution is an agreement, while with respect to dissentients it is an act of legislative authority. The original articles of association, on the other hand, as they stand when the company is first formed, constitute a body of conventional, not autonomic law. They are law for all shareholders by virtue of their own agreement to become members of the company, and are not 132the outcome of any subsequent exercise of legislative authority vested in the majority.^[115]

§ 52. Relation of Legislation to other Sources.

So great is the superiority of legislation over all other methods of legal evolution, that the tendency of advancing civilisation is to acknowledge its exclusive claim, and to discard the other instruments as relics of the infancy of law. The expressed will of the state tends to obtain recognition not only as the sole formal source of law, but as its exclusive material source also. Statute law has already become the type or standard, from which the other forms are more or less abnormal variations. Nothing is more natural than this from our modern point of view, nothing less natural from that of primitive jurisprudence. Early law is conceived as jus (the principles of justice), rather than as lex (the will of the state). The function of the state in its earlier conception is to enforce the law, not to make it. The rules so to be enforced are those rules of right which are found realised in the immemorial customs of the nation, or which are sanctioned by religious faith and practice, or which have been divinely revealed to men. It is well known that the earliest codes were the work, not of mortal men, but of the gods.^[116] That the material contents of the law depend upon the express or tacit will of the state, that principles sanctioned by religion or immemorial usage are laws only so long as the prince chooses to retain them unaltered, that it is within the powders and functions of political rulers to change and subvert the laws at their own good pleasure, are beliefs which mark considerable progress along the road of political and legal development. Until such progress has been made, and until the petrifying influence of the primitive alliance of law with religion and immutable custom has been to some extent dissolved, the part played by human legislation in the development 133of the legal system is necessarily small, and may be even non-existent. As it is the most powerful, so it is the latest of the instruments of legal growth.

In considering the advantages of legislation, it will be convenient to contrast it specially with its most formidable rival, namely precedent. So considered, the first virtue of legislation lies in its abrogative power. It is not merely a source of new law, but is equally effective in abolishing that which already exists. But precedent possesses merely constitutive efficacy; it is capable of producing very good law—better in some respects than that which we obtain by way of legislation—but its defect is that, except in a very imperfect and indirect manner, its operation is irreversible. What it does, it does once for all. It cannot go back upon its footsteps, and do well what it has once done ill. Legislation, therefore, is the indispensable instrument, not indeed of legal growth, but of legal reform. As a destructive and reformative agent it has no equivalent, and without it all law is as that of the Medes and Persians.

The second respect in which legislation is superior to precedent is that it allows an advantageous division of labour, which here, as elsewhere, results in increased efficiency. The legislature becomes differentiated from the judicature, the duty of the former being to make law, while that of the latter is to interpret and apply it. Speaking generally, a legal system will be best administered, when those who administer it have this as their sole function. Precedent, on the contrary, unites in the same hands the business of making the law and that of enforcing it.

It is true, however, that legislation does not necessarily involve any such division of functions. It is not of the essence of this form of legal development that it should proceed from a distinct department of the state, whose business it is to give laws to the judicature. It is perfectly possible for the law to develop by a process of true legislation, in the absence of any legislative organ other than the courts of justice themselves. We have already noticed the existence of this judicial legislation, in considering the various 134forms of subordinate legislative power. The most celebrated instance of it is the case of the Roman praetor. In addition to his purely judicial functions, he possessed the jus edicendi, that is to say, legislative powers in respect of the matters pertaining to his office. It was customary for each praetor at the commencement of his term of office to publish an edictum containing a declaration of the principles which he intended to observe in the exercise of his judicial functions. Each such edict was naturally identical in its main outlines with that which preceded it, the alterations made in the old law by each successive praetor being for the most part accepted by his successors. By this exercise of legislative power on the part of judicial officers, a very considerable body of new law was in course of time established, distinguished as the jus praetorium from the older jus civile. Powers of judicial legislation, similar in kind, though less in extent, are at the present day very generally conferred upon the higher courts of justice. Yet though not theoretically necessary, it is certainly expedient, that at least in its higher forms the function of law-making should be vested in a department of the state superior to and independent of the judicature.

A third advantage of statute law is that the formal declaration of it is a condition precedent to its application in courts of justice. Case-law, on the contrary, is created and declared in the very act of applying and enforcing it. Legislation satisfies the requirement of natural justice that laws shall be known before they are enforced; but case-law operates retrospectively, being created pro re nata, and applied to facts which are prior in date to the law itself.^[117]

Fourthly, legislation can by way of anticipation make rules for cases that have not yet arisen, whereas precedent must needs wait until the actual concrete instance comes before 135the courts for decision. Precedent is dependent on, legislation independent of, the accidental course of litigation. So far as precedent is concerned, a point of law must remain unsettled, until by chance the very case arises. Legislation can fill up a vacancy, or settle a doubt in the legal system, as soon as the existence of this defect is called to the attention of the legislature. Case-law, therefore, is essentially incomplete, uncertain, and unsystematic; while if statute law shows the same defects, it is only through the lethargy or incapacity of the legislature. As a set-off against this demerit of precedent, it is to be observed that a rule formulated by the judicature in view of the actual case to which it is to be applied is not unlikely to be of better workmanship, and more carefully adapted to the ends to be served by it, than one laid down a priori by the legislature.

Finally, statute law is greatly superior to case-law in point of form. The product of legislation assumes the form of abstract propositions, but that of precedent is merged in the concrete details of the actual cases to which it owes its origin. Statute law, therefore is brief, clear, easily accessible and knowable, while case-law is buried from sight and knowledge in the huge and daily growing mass of the records of bygone litigation. Case-law is gold in the mine—a few grains of the precious metal to the ton of useless matter—while statute law is coin of the realm ready for immediate use.

This very perfection of form, however, brings with it a defect of substance from which case-law is free. Statute law is embodied in an authoritative form of written words, and this literary expression is an essential part of the law itself. It is the duty of the courts to apply the letter of the law. They are concerned with the spirit and reason of it only so far as the spirit and reason have succeeded in finding expression through the letter. Case-law, on the contrary, has no letter. It has no authoritative verbal expression, and there is no barrier between the courts of justice and the very spirit and purpose of the law which they are called on to administer. In interpreting and applying statute law, the courts are concerned with words and their true meaning; in interpreting 136and applying case-law, they are dealing with ideas and principles and their just and reasonable contents and operation. Statute law is rigid, straitly bound within the limits of authoritative formulae; case-law, with all its imperfections, has at least this merit, that it remains in living contact with the reason and justice of the matter, and draws from this source a flexibility and a power of growth and adaptation which are too much wanting in the litera scripta of enacted law.

§ 53. Codification.

The advantages of enacted law so greatly outweigh its defects that there can be no doubt as to the ultimate issue of its rivalry with the other forms of legal development and expression. The whole tendency in modern times is towards the process which, since the days of Bentham, has been known as codification, that is to say, the reduction of the whole corpus juris, so far as practicable, to the form of enacted law. In this respect England lags far behind the Continent. Since the middle of the eighteenth century the process has been going on in European countries, and is now all but complete. Nearly everywhere the old medley of civil, canon, customary, and enacted law has given place to codes constructed with more or less skill and success. Even in England, and the other countries to which English law has spread, tentative steps are being taken on the same road. Certain isolated and well-developed portions of the common law, such as the law of bills of exchange, of partnership, and of sale, have been selected for transformation into statutory form. The process is one of exceeding difficulty, owing to the complexity and elaboration of English legal doctrine. Many portions of the law are not yet ripe for it, and premature codification is worse than none at all. But the final result is not doubtful.

Codification must not be understood to involve the total abolition of precedent as a source of law. Case-law will continue to grow, even when the codes are complete. The old theory, now gradually disappearing, but still true 137in most departments of the law, is that the common law is the basis and groundwork of the legal system, legislation being nothing more than a special instrument for its occasional modification or development. Unenacted law is the principal, and enacted law is merely accessory. The activity of the legislature is called for only on special occasions to do that which lies beyond the constructive or remedial efficacy of the common law. Codification means not the total disappearance of case-law, but merely the reversal of this relation between it and statute law. It means that the substance and body of the law shall be enacted law, and that case-law shall be incidental and supplementary only. In the most carefully prepared of codes subtle ambiguities will come to light, real or apparent inconsistencies will become manifest, and omissions will reveal themselves. No legislative skill can effectually anticipate the complexity and variety of the facts. The function of precedent will be to supplement, to interpret, to reconcile, and to develop the principles which the code contains. Out of the code itself, therefore, a body of case-law will grow, as a judicial commentary and supplement. It will be expedient from time to time that this supplementary and explanatory case-law be itself codified and incorporated into successive editions of the code. But so often as this is done, the process of interpretation will begin again with the like results.

§ 54. The Interpretation of Enacted Law.

We have seen that one of the characteristics of enacted law is its embodiment in authoritative formulae. The very words in which it is expressed—the litera scripta—constitute a part of the law itself. Legal authority is possessed by the letter, no less than by the spirit of the enactment. Other forms of law (with the exception of written conventional law, which in this respect stands by the side of statutory) have no fixed and authoritative expression. There is in them no letter of the law, to stand between the spirit of the law and its judicial application. Hence it is that in the case of enacted law a process of judicial interpretation or construction 138is necessary, which is not called for in respect of customary or case-law. By interpretation or construction is meant the process by which the courts seek to ascertain the meaning of the legislature through the medium of the authoritative forms in which it is expressed.

Interpretation is of two kinds, which Continental lawyers distinguish as grammatical and logical. The former is that which regards exclusively the verbal expression of the law. It does not look beyond the litera legis. Logical interpretation, on the other hand, is that which departs from the letter of the law, and seeks elsewhere for some other and more satisfactory evidence of the true intention of the legislature. It is essential to determine with accuracy the relations which subsist between these two methods. It is necessary to know in what circumstances grammatical interpretation is alone legitimate, and when on the contrary it is allowable to accept, instead, the divergent results that may be attainable by way of logical interpretation. In other words, we have to determine the relative claims of the letter and the spirit of enacted law.

The true principles on this matter seem to be the following. The duty of the judicature is to discover and to act upon the true intention of the legislature—the mens or sententia legis. The essence of the law lies in its spirit, not in its letter, for the letter is significant only as being the external manifestation of the intention that underlies it. Nevertheless in all ordinary cases the courts must be content to accept the litera legis as the exclusive and conclusive evidence of the sententia legis. They must in general take it absolutely for granted that the legislature has said what it meant, and meant what it has said. Ita scriptum es is the first principle of interpretation. Judges are not at liberty to add to or take from or modify the letter of the law, simply because they have reason to believe that the true sententia legis is not completely or correctly expressed by it. That is to say, in all ordinary cases grammatical interpretation is the sole form allowable.

To this general principle there are two exceptions. There are two cases in which the litera legis need not be taken as conclusive, and in which the sententia legis may be sought from other indications. The first of these cases is that in 139which the letter of the law is logically defective, that is to say, when it fails to express some single, definite, coherent, and complete idea.

The logical defects by which the litera legis may be affected are three in number. The first is ambiguity; for a statute, instead of meaning one thing, may mean two or more different things. In such case it is the right and duty of the courts to go behind the letter of the law, and to ascertain from other sources, as best they can, the true intention which has thus failed to attain perfect expression.

When a statutory provision is capable of two meanings, it is commonly, though not invariably, the case that one of these is more natural, obvious, and consonant with the ordinary use of language than the other. The interpretation of an ambiguous law is therefore of two kinds, according as it accepts the more natural and obvious meaning, or rejects it in favour of another which conforms better to the intention of the legislature, though worse to the familiar usages of speech. The former mode of interpretation is termed literal or strict, and the latter may be distinguished as equitable. The general principle is that interpretation must be literal, unless there is some adequate reason to the contrary. In the absence of sufficient indications that the legislature has used words in some less natural and obvious sense, their literal and ordinary signification will be attributed to them. The maintenance of a just balance between the competing claims of these two forms of interpretation is one of the most important elements in the administration of statute law. On each side there are dangers to be avoided. Undue laxity, on the one hand, sacrifices the certainty and uniformity of the law to the arbitrary discretion of the judges who administer it; while undue strictness, on the other hand, sacrifices the true intent of the legislature and the rational development of the law to the tyranny of words. Scire leges, said the Romans,^[118] non hoc est verba earum tenere, sed vim ac potestatem.^[119]

140A second logical defect of statutory expression is inconsistency. A law, instead of having more meanings than one, may have none at all, the different parts of it being repugnant, so as to destroy each other’s significance. In this case it is the duty of the judicature to ascertain in some other way the true sententia legis, and to correct the letter of the law accordingly.

Lastly, the law may be logically defective by reason of its incompleteness. The text, though neither ambiguous nor inconsistent, may contain some lacuna which prevents it from expressing any logically complete idea. For example, where there are two alternative cases, the law may make provision for one of them, and remain silent as to the other. Such omissions the courts may lawfully supply by way of logical interpretation. It is to be noted, however, that the omission must be such as to make the statute logically incomplete. It is not enough that the legislature meant more than it said, and failed to express its whole mind. If what it has said is logically complete—giving expression to a single, intelligible, and complete idea—the courts have no lawful concern with anything else that the legislature may have meant but not said. Their duty is to apply the letter of the law, therefore they may alter or add to it so far as is necessary to make its application possible, but they must do nothing more.

It has been already said that there are two cases in which logical interpretation is entitled to supersede grammatical. The first of these, namely that of some logical defect in the litera legis, has been considered. The second is that in which the text leads to a result so unreasonable that it is self-evident that the legislature could not have meant what it has said. For example, there may be some obvious clerical error in the text, such as a reference to a section by the wrong number, or the omission of a negative in some passage in which it is clearly required.

In considering the logical defects of the litera legis, we have tacitly assumed that by going behind the defective text it is 141always possible to discover a logically perfect sententia legis. We have assumed that the whole duty of the courts is to ascertain the true and perfect intention which has received imperfect expression. This is not so, however. In a great number of cases the defects of the litera legis are simply the manifestation of corresponding defects in the sententia. If the legislature speaks ambiguously, it is often because there is no single and definite meaning to be expressed. If the words of the legislature are self-contradictory, it is possibly due to some repugnancy and confusion in the intention itself. If the text contains omissions which make it logically imperfect, the reason is more often that the case in question has not occurred to the mind of the legislature, than that there exists with respect to it a real intention which by inadvertence has not been expressed.

What, then, is the rule of interpretation in such cases? May the courts correct and supplement the defective sententia legis, as well as the defective litera legis? The answer is that they may and must. If the letter of the law is logically defective, it must be made logically perfect, and it makes no difference in this respect whether the defect does or does not correspond to one in the sententia legis itself. Where there is a genuine and perfect intention lying behind the defective text, the courts must ascertain and give effect to it; where there is none, they must ascertain and give effect to the intention which the legislature presumably would have had, if the ambiguity, inconsistency, or omission had been called to mind. This may be regarded as the dormant or latent intention of the legislature, and it is this which must be sought for as a substitute in the absence of any real and conscious intention.^[120]

In the case of the sententia, as formerly in that of the litera legis, it is to be noticed that the only defects which the courts may remedy are logical defects. That the intention of the 142legislature is ethically defective, is not a fact with which the judicature has any concern. The sententia legis might have been wiser, juster, or more expedient, had it been wider, or narrower, or other than it actually is. But the courts have no authority to detract from it, add to it, or alter it, on that account. It may be that had a certain case been brought to the notice of the legislature, the statute would have been extended to cover it; but so long as it is logically complete and workable without the inclusion of this case, it must stand as it is. If a statute makes a provision as to sheep, which in common sense ought to have been extended to goats also, this is the affair of the legislature, not of the courts. To correct the sententia legis on logical grounds is a true process of interpretation; it fulfils the ultimate or dormant, if not the immediate or conscious intention of the legislature. But to correct it on ethical grounds is to assume and exercise legislative power.

SUMMARY.

§ 55. The Early Importance of Customary Law.

The importance of custom as a source of law continuously diminishes as the legal system grows. As an instrument of the development of English law in particular, it has now almost ceased to operate, partly because it has to a large extent been superseded by legislation and precedent, and partly because of the very stringent limitations imposed upon its law-creating efficacy, the legal requirements of a valid custom being such as few customs can at the present day conform to. In earlier times, however, it was otherwise. It was long the received and official theory of English law that whatever was not the product of legislation had its source in custom. Law was either the written statute law, or the unwritten, common, or customary law. Precedent was not conceived as being itself a legal source at all, for it was held to operate only as evidence of those customs from which the common law proceeded. Lex et consuetudo Angliae was the familiar title of our legal system. The common law of the realm and the common custom of the realm were synonymous expressions. It may be gravely doubted whether at any time this doctrine expressed the truth of the matter, but it is clear that it was much truer in the early days of our legal history, than it subsequently became; and it remained the accepted theory long after it had ceased to retain any semblance of the truth. For some centuries past, the true sources of the great bulk of our law have been statute and precedent, not statute and custom, and the common law is essentially case-law, not customary law. Yet we find Hale^[121] in the seventeenth century, and 144Blackstone in the eighteenth, laying down the older doctrine as still valid. In the words of Blackstone:^[122] “The municipal law of England ... may with sufficient propriety be divided into two kinds; the lex non scripta, the unwritten, or common law; and the lex scripta, the written, or statute law. The lex non scripta, or unwritten law, includes not only general customs, or the common law properly so called; but also the particular customs of certain parts of the kingdom; and likewise those particular laws that are by custom observed only in certain courts and jurisdictions.” Such language is an echo of the past, not an accurate account of the facts of the present day. Nevertheless even now custom has not wholly lost its efficacy. It is still one of the legal sources of the law of England, and an examination of its nature and operation pertains to modern juridical theory, and not merely to legal history or antiquities.

§ 56. Reasons for the Reception of Customary Law.

The reasons for attributing to custom the force of law have been already briefly indicated in relation to legal sources in general. We have seen that, in the first place, custom is the embodiment of those principles which have commended themselves to the national conscience as principles of truth, justice and public utility. The fact that any rule has already the sanction of custom raises a presumption that it deserves to obtain the sanction of law also. Via trita via tuta. Speaking generally, it is well that the courts of justice, in seeking for those principles of right which it is their duty to administer, should be content to accept those which have already in their favour the prestige and authority of long acceptance, rather than attempt the more dangerous task of fashioning a set of principles for themselves by the light of nature. The national conscience may well be accepted by the courts as an authoritative guide; and of this conscience national custom is the external and visible sign.

Custom is to society what law is to the state. Each is the expression and realisation, to the measure of men’s insight 145and ability, of the principles of right and justice. The law embodies those principles as they commend themselves to the incorporate community in the exercise of its sovereign power. Custom embodies them as acknowledged and approved not by the power of the state, but by the public opinion of the society at large. Nothing, therefore, is more natural than that, when the state begins to evolve out of the society, the law of the state should in respect of its material contents be in great part modelled upon and coincident with the customs of the society. When the state takes up its function of administering justice, it accepts as true and valid the rules of right already accepted by the society of which it is itself a product, and it finds those principles already realised in the customs of the realm. As those customs develop and alter with change of circumstance and the growth of public enlightenment, the state is wisely content to allow such development and modification to reflect themselves in the law which it administers. This influence of custom upon law, however, is characteristic rather of the beginnings of the legal system than of its mature growth. When the state has grown to its full strength and stature, it acquires more self-confidence, and seeks to conform national usage to the law, rather than the law to national usage. Its ambition is then to be the source not merely of the form, but of the matter of the law also. But in earlier times it has perforce to content itself with conferring the form and nature of law upon the material contents supplied to it by custom.

A second ground of the law-creative efficacy of custom is to be found in the fact that the existence of an established usage is the basis of a rational expectation of its continuance in the future. Justice demands that, unless there is good reason to the contrary, men’s rational expectations shall, so far as possible, be fulfilled rather than frustrated. Even if customs are not ideally just and reasonable, even if it can be shown that the national conscience has gone astray in establishing them, even if better rules might be formulated and enforced by the wisdom of the judicature, it may yet be wise to accept them as they are, rather than to overturn 146all those expectations which are based upon established practice.

§ 57. The Requisites of a Valid Custom.

In order that a custom may be valid and operative as a source of law, it must conform to certain requirements laid down by law. The chief of these are the following:—

1. Reasonableness.—A custom must be reasonable. Malus usus abolendus est.^[123] The authority of usage is not absolute, but conditional on a certain measure of conformity with justice and public utility. It is not meant by this that the courts are at liberty to disregard a custom whenever they are not satisfied as to its absolute rectitude and wisdom, or whenever they think that a better rule could be formulated in the exercise of their own judgment. This would be to deprive custom of all authority, either absolute or conditional. The true rule is that a custom, in order to be deprived of legal efficacy, must be so obviously and seriously repugnant to right and reason, that to enforce it as law would do more mischief than that which would result from the overturning of the expectations and arrangements based on its presumed continuance and legal validity. We shall see, when we come to discuss the theory of precedent, how the authority of judicial decisions is, in general, similarly conditional rather than absolute; a precedent which is plainly and seriously unreasonable may be overruled instead of followed. We are told in the old books that a similar rule obtains in respect of the authority of acts of Parliament themselves. It was once held to be good law, that an unreasonable act of Parliament was void.^[124] This, indeed, is no longer so; for the law-creating authority of Parliament is absolute. Certain forms of subordinate legislation, however, are still subject to the rule in question; an unreasonable by-law, for example, is as void and unauthoritative as an unreasonable custom or precedent.

1472. Opinio necessitatis.—The second requisite of a valid custom is that which commentators on the civil law term opinio necessitatis.^[125] By this is meant the conviction on the part of those who use a custom that it is obligatory, and not merely optional.^[126] Custom, merely as such, has no legal authority at all; it is legally effective only because and in so far as it is the expression of an underlying principle of right approved by those who use it. When it is based on no such ethical conviction or opinio necessitatis—when those who use it hold themselves free to depart from it if they will—it is of no legal significance. The only customs which are a source of law are those which are observed by the community as determining the rights and duties of its members.

3. Conformity with statute law.—The third condition of legal validity is that a custom must not be contrary to an act of Parliament. We shall see that certain forms of custom possess not merely constitutive, but also limited abrogative power, being capable of derogating from the old law, as well as of creating new. But no custom of any sort is of any validity as against statute law. The authority of legislation is in English law higher than that of custom. By no length of desuetude can a statute become invalid, and by no length of contrary usage can its provisions be modified in the smallest particular. The common law will yield to immemorial usage, but the enacted law stands for ever.^[127]

It must not be supposed that this rule is one of necessity, derived by logical inference from the nature of things. It is nothing more than a positive principle of the law of England, and a very different rule was adopted by Roman law,^[128] and by the various Continental systems derived from 148it. There the recognised maxim is Lex posterior derogat priori. The later rule prevails over the earlier, regardless of their respective origins. Legislation has no inherent superiority in this respect over custom. If the enacted law comes first, it can be repealed or modified by later custom; if the customary law is the earlier, it can be similarly dealt with by later enacted law. “If,” says Savigny,^[129] “we consider customs and statutes with respect to their legal efficacy, we must put them on the same level. Customary law may complete, modify, or repeal a statute; it may create a new rule, and substitute it for the statutory rule which it has abolished.” So Windscheid:^[130] “The power of customary law is equal to that of statutory law. It may, therefore, not merely supplement, but also derogate from the existing law. And this is true not merely of rules of customary law inter se, but also of the relations of customary to statute law.”^[131]

4. Immemorial antiquity.—The fourth requisite of the validity of a custom relates to the length of time during which it has been established. Here it is necessary to distinguish between two kinds of customs, namely, those which are general—the customs of the realm, prevailing throughout the whole territory governed by the legal system—and those which are local, being limited to some special part of the realm.^[132] The rule of English law with respect to the necessary duration of a custom is that one which is merely local must have existed from time immemorial. In the case of other customs, however, there is no such requirement. It is there sufficient that the usage should be definitely established, and its duration is immaterial. A local custom must make up for the limited extent of its application by the long duration of its existence, but other customs derive from their 149generality such a measure of authority as does not require to be supplemented by length of days.

We shall see later, how the idea of immemorial custom was derived by the law of England from the canon law, and by the canon from the civil law. Time immemorial, or time whereof the memory of man runs not, means in the civil and canon law, and in the systems derived therefrom, and originally meant in England also, time so remote that no living man can remember it, or give evidence respecting it. Custom was immemorial, when its origin was so ancient that the beginning of it was beyond human memory, so that no testimony was available as to a time when it did not as yet exist.^[133] In the thirteenth century, however, a very singular change took place in the meaning of the term. The limit of human memory ceased to be a question of fact, and was determined by a very unreasonable rule of law which still remains in force. In consequence of the interpretation put by the judges upon the Statute of Westminster I., passed in the year 1275, it became an established legal principle that the time of memory reached back as far as the commencement of the reign of Richard I. and no further. From that day to this the law has remained unaltered. The discordance between the memory of man as it is in fact, and as it is in law, has been steadily growing with the lapse of years, so that at the present day the law of England imputes to living men a faculty of remembrance extending back for seven centuries. There is perhaps no more curious example of the conservatism of our law.^[134]

150The rule, therefore, that a particular custom is invalid unless immemorial means in practice this: that if he who disputes its validity can prove its non-existence at any time between the present day and the twelfth century, it will not receive legal recognition. It is not necessary for the upholder of it to prove affirmatively its existence during the whole of that period. If he can prove that it has existed for a moderate period, say twenty years, from the present day, this will raise a presumption of its immemorial antiquity, which must be rebutted by him who disputes it.^[135]

It is not difficult to understand the reason which induced the law to impose this stringent limitation upon the efficacy of local customs. It was designed in the interests of a uniform system of common law for the whole realm. Had all manner of usages been recognised without any such limitation, as having the force of special law, the establishment and maintenance of a system of common law would have been rendered all but impossible. Customary laws and customary rights, infinitely various and divergent, would have grown up so luxuriantly, as to have choked that uniform system of law and rights which it was the purpose of the royal courts of justice to establish throughout the realm.^[136]

Origin of the rule as to time of memory.—The requirement of immemorial antiquity was introduced into the English law courts of the twelfth 151or thirteenth century from the canon law. In two respects the Canonists developed and rendered more definite the somewhat vague and indeterminate theory of customary law which we find in the writings of the Roman lawyers. In the first place, clear recognition was accorded to the distinction between jus commune and consuetudines, the former being the common, general, or written law of the whole Church, while the latter consisted of the divergent local and personal customs which were added to, or substituted for the jus commune in particular places or in respect of particular persons. This nomenclature, with the conceptions expressed by it, passed from the canon law to the law of England.

In the second place the Canonists attempted to supply a defect of the civil law by laying down a fixed rule as to the necessary duration of customs. They determined that no consuetudo was to be held valid, so as to derogate from the jus commune, unless it was praescripta, that is to say, unless it had endured during the legal period of prescription. Consuetudo praescripta praejudicat juri communi.^[137]

What, then, was the period of prescription thus required? On this point we find no agreement among the doctors, for there were several different forms of prescription known to Roman law, and there was no unanimity among the Canonists in the selection of any one of them as a test of the validity of custom. Many favoured the adoption of the ordinary decennial prescription of Roman land law, and held that a custom must have endured for ten years at least, but need have lasted no longer.^[138] Others demanded forty years, since this is the prescription required as against the Church by the legislation of Justinian.^[139] At one time, however, there was a widely held opinion that the true time of prescription required to enable a custom to derogate from the common law of the Church was time immemorial. Illa consuetudo praejudicat juri, cuius non exstat memoria hominum.^[140]

This conception of time of memory as a period of prescription was derived from the civil law. Immemorial prescription was there a mode of acquiring servitudes. Ductus aquae cuius origo memoriam excessit, jure constituti loco habetur.^[141] The Canon law adopted this rule, and made a more extensive use of it. Immemorial prescription became a supplementary mode of acquisition, available in all cases in which there was no shorter period of prescription to which a claimant might have recourse. 152From the canon law it passed into the laws of France, Germany, and England.^[142]

As already stated, then, many Canonists recognised time immemorial not merely as a period of prescription, but as a condition of the validity of customary law. Suarez, writing at the end of the sixteenth century, tells us, indeed, in the course of an exhaustive examination of the theory of customary law, that in his day this doctrine was no longer received.^[143] Long before Suarez, however, it had established for itself a secure place in the law of England. The canonical principles of consuetudo rationabilis et praescripta and of tempus immemoriale were in the thirteenth century at the latest incorporated in our legal system by those ecclesiastical lawyers who laid the foundations of it. This, indeed, was the only form of prescription which obtained recognition from the common law. We find the rule settled with perfect definiteness in the earliest Year Books of Edward I.^[144]

5. Conformity with the common law.—The fifth and last requirement of a valid custom is that, unless immemorial, it must be consistent with the common law. That it must be consistent with statute law is, as we have already seen, a rule applicable to all customs whatever, whether immemorial or not. That it must be consistent with the common law is a rule applicable only to recent customs, and not to those which have the prestige and authority of immemorial antiquity. Modern custom possesses constitutive, but no abrogative power; it must operate in the spaces left vacant by the law already established; it may supplement the law, but cannot derogate from it. Immemorial custom, on the other hand, can destroy as well as create, so far as the common law is concerned; though as against the statute law it is as powerless as the most ephemeral usage.^[145]

153The combined effect of the various rules which we have considered is to render custom less and less important as a source of new law. As the legal system develops, the sphere within which custom is operative grows gradually smaller. For, in the first place, custom cannot derogate from statute law, and this latter tends progressively to absorb into itself the whole of the common law. In the second place, the requirement of immemorial antiquity precludes local custom from operating as an instrument of fresh legal growth. Such customs may now be proved and applied for the first time, but they cannot now for the first time come into existence. In the third place, all recent custom must be consistent with the law as already established, whether common or statutory. As the law develops and completes itself, therefore, there is less and less room left for the constitutive operation of custom. There are fewer vacancies within which customary law may grow. It is for this reason that the growth of general customary law has already all but ceased. Until a comparatively recent date, a great part of mercantile law was so imperfectly developed as to leave very considerable scope for the operation of mercantile custom. The law as to negotiable instruments, for example, was chiefly customary law. But at the present day our mercantile law is so complete that it is only in comparatively rare cases that the custom of merchants has any opportunity of serving as the ground of new principles.

§ 58. Conventional Custom.

Custom which does not fulfil all the requirements hitherto considered by us does not necessarily fail of all legal effect. It cannot, indeed, operate as a source of law by virtue of its own inherent authority. Yet it may nevertheless become legally operative by being incorporated into agreements, through the tacit consent of those who make them. Customs so operative may be distinguished as conventional. It is a rule of English law, as well as of other systems, that 154where a contract is made in any matter in respect of which an established custom exists, it must be interpreted by reference to that custom, and the parties must be deemed to have intended (in the absence of any expression of contrary intent) to adopt it as one of the terms of their agreement. In contractibus tacite veniunt ea quae sunt moris et consuetudinis.^[146]

For example, if a lease of agricultural land is made in any district in which there are established usages as to the mode of agriculture and as to the relative rights and liabilities of landlord and tenant, the parties must be taken to have agreed to those usages as terms of the bargain, unless they have expressly or implicitly shown an intention to the contrary. In the same way, a mercantile contract must be taken to incorporate any usages of trade which are relevant to its subject-matter. In this manner customs which are not in themselves authoritative as sources of law or rights may become indirectly operative through the added authority of agreement. But the law and rights so produced are in reality conventional and not customary. It is sometimes not easy to determine whether a custom is operative directly and as such, or only indirectly as accessory to a contract, and the distinction has not always been sufficiently adverted to.

§ 59. Theories of Customary Law.

So far we have been concerned rather with those positive rules of English law which determine the validity and effect of custom, than with the abstract theory of the matter. This portion of juridical theory, however, has been the subject of considerable discussion and difference of opinion, and it is not free from apparent difficulties. We have to consider two opinions which differ materially from that which is here accepted as correct. The first of these is a characteristic feature of foreign and more especially of German jurisprudence, its reception being chiefly due to the influence of Puchta and Savigny. It essentially consists in this, that custom is rightly to be considered as a formal, and not merely as a material source of law. According to this doctrine, custom 155does itself confer the force and validity of law upon the principles embodied in it. It does not merely provide the material contents which derive their validity as law from the will of the state. It operates directly through its own inherent force and authority; not indirectly by reason of its recognition and allowance by the supreme authority and force of the state. The will of the state is not admitted to be the exclusive source of legal validity. It has no pre-eminence in this respect above the will of the people, as manifested in national usage. Custom is regarded as the expression of the national will and conscience, and as such it confers immediately the authority of law upon all principles approved by it. The will of the state is simply a special form of the popular will, and these are of equal authority. Customary law, therefore, has an existence independent of the state. It will be enforced by the state through its courts of justice because it is already law; it is not because it will be so enforced, that it is law.

Thus it is said by Arndts,^[147] a German jurist of repute: “Customary law contains the ground of its validity in itself. It is law by virtue of its own nature, as an expression of the general consciousness of right, not by virtue of the sanction, express or tacit, of any legislature.” So Windscheid:^[148] “In custom is manifested the conviction of those who use it that such custom is law (Recht), and this conviction is the source of the authority and validity of customary law. For the ultimate source of all positive law is national reason.... And this national reason can establish law in two different ways, namely, mediately and immediately. Mediately, through representation, it creates law by means of legislation. Immediately, it creates law by means of custom.”

Notwithstanding the credit of the great names by which this theory is sanctioned, it is rightly and all but unanimously rejected by English jurists. Custom is a material, not a formal source of law. Its only function is to supply the principles to which the will of the state gives legal force. Law is law only because it is applied and enforced by the state, and where there is no state there can be no law. The popular conscience is in itself as powerless to establish or 156alter the law of the land, as it is to deal in like fashion with the laws of nature. From custom, as from any other source, the state may draw the material contents of the rules to which it gives the form and nature of law, but from no other source than the will of the state itself can this form or nature be itself derived.

A second theory of customary law is that which we may term the Austinian, as having been advanced by Austin, and generally received by his followers. Austin rightly repudiates the German theory on the ground, already indicated, that custom is not a formal but merely a material source of law. The rejection of this and other allied confusions of thought is, indeed, one of the great services which he and his school have rendered to legal science. Nevertheless his own theory cannot be regarded as wholly satisfactory. For he in his turn confounds the legal and the historical sources of the law, and erroneously regards custom as one of the latter, rather than as one of the former. He considers that the true legal source of customary law is to be found in the precedents in which customs receive for the first time judicial recognition and enforcement. Customary law is for him simply a variety of case-law. It is case-law in which pre-existing customs have served as the historical sources from which the courts have drawn the matter of their decisions. The judges are conceived as basing their judgments upon custom, just as, on other occasions, they may base them on Justinian’s Digest or on the law of nature. It follows from this that a custom does not acquire the force of law until it has actually come to the notice of the courts and received judicial approval and application. If it is never disputed, and therefore never requires enforcement, it never acquires the force of law at all. “Law styled customary,” says Austin,^[149] “is not to be considered a distinct kind of law. It is nothing but judiciary law, founded on an anterior custom.”

This opinion, however, seems inconsistent with the established doctrines of English law as to this matter. Custom 157is law not because it has been recognised by the courts, but because it will be so recognised, in accordance with fixed rules of law, if the occasion arises. Its legal validity is not dependent on the accidents of litigation. A custom does not wait to put on the nature of law until it has been actually enforced by the courts, any more than an Act of Parliament or an agreement is destitute of legal efficacy until it has required and received judicial recognition. This recognition may make a custom part of the common law, as being thereafter entitled to judicial notice, but it was part of the law already. The Austinian theory forgets that the operation of custom is determined by fixed legal principles, just as much as the operation of precedent itself. These two are co-ordinate legal sources, and each operates independently of the other. Custom does not enter the law through precedent, any more than precedent through custom. A custom is taken as the ground of a judicial decision, just as an Act of Parliament is so taken. In each case the law has been already made, and the judicial decision merely applies it.

§ 60. Custom and Prescription.

The relation between custom and prescription is such as to demand attention here, although the theory of the latter will receive further consideration in another place. Custom is long usage operating as a source of law; prescription is long usage operating as a source of rights. That all the lands in a certain borough have from time immemorial, on the death of an owner intestate, descended to his youngest son, is a custom, and is the source of a rule of special and customary law excluding in that borough the common law of primogeniture. But that John Styles, the owner of a certain farm, and all his predecessors in title, from time immemorial have used a way over the adjoining farm is a prescription, and is the source of a prescriptive right of way vested in John Styles.

Regarded historically, the law of prescription is merely a branch of the law of custom. A prescription was originally conceived as a personal custom, that is to say, a custom limited to a particular person and his ancestors or predecessors in title. It was distinguished from a local custom, which was limited to an individual place, not to an individual person. Local and personal customs were classed as the two species of particular customs, and as together opposed to the general customs of the realm. Coke distinguishes as follows between custom (i.e. local custom) and prescription.^[150] “In the common law, a prescription which is personal is for 158the most part applied to persons, being made in the name of a certain person and of his ancestors, or those whose estate he hath; or in bodies politique or corporate and their predecessors.... And a custome, which is local, is alleged in no person, but layd within some mannor or other place.”

Since prescription and custom were thus regarded as two species of the same thing, we find, as might be expected, that they are originally governed by essentially similar rules of law. The requisites of a valid prescription were in essence the same as those of a valid custom. Both must be reasonable, both must be immemorial, both must be consistent with statute law, and so on. It was only by a process of gradual differentiation, and by the later recognition of other forms of prescription not known to the early law, that the difference between the creation of customary law and the creation of prescriptive rights has been brought clearly into view. In the case of custom, for example, the old rule as to time immemorial still subsists, but in the case of prescription it has been superseded by the statutory rules contained in that most unfortunate specimen of legislative skill, the Prescription Act. A prescriptive right to light, for instance, is now finally acquired by enjoyment for twenty years. Usage during this period is now an absolute title, instead of, as at common law, merely evidence of usage during time of memory.

SUMMARY.

Historical importance of customary law.

Reasons for the recognition of customary law.

Requisites of a valid custom:

1.

Reasonableness.

2.

Opinio necessitatis.

3.

Consistency with statute law.

4.

Immemorial antiquity (unless general).

History of this rule.

5.

Consistency with the common law (unless immemorial).

Conventional customs.

Theories of the operation of custom as a source of law:

1.

Savigny’s—custom a formal source.

2.

Austin’s—custom an historical source.

Relations between custom and prescription.

§ 61. The Authority of Precedents.

The importance of judicial precedents has always been a distinguishing characteristic of English law. The great body of the common or unwritten law is almost entirely the product of decided cases, accumulated in an immense series of reports extending backwards with scarcely a break to the reign of Edward the First at the close of the thirteenth century. Orthodox legal theory, indeed, long professed to regard the common law as customary law, and judicial decisions as merely evidence of custom and of the law derived therefrom. This, however, was never much better than an admitted fiction. In practice, if not in theory, the common law in England has been created by the decisions of English judges. Neither Roman law, however, nor any of those modern systems which are founded upon it, allows any such place or authority to precedent. They allow to it no further or other influence than that which is possessed by any other expression of expert legal opinion. A book of reports and a text-book are on the same level. They are both evidences of the law; they are both instruments for the persuasion of judges; but neither of them is anything more.^[151] English law, on the other hand, draws a sharp distinction between them. A judicial precedent speaks in England with authority; it is not merely evidence of the law but a source of it; and the courts are bound to follow the law that is so established.

It seems clear that we must attribute this feature of English 160law to the peculiarly powerful and authoritative position which has been at all times occupied by English judges. From the earliest times the judges of the king’s courts have been a small and compact body of legal experts. They have worked together in harmony, imposing their own views of law and justice upon the whole realm, and establishing thereby a single homogeneous system of common law. Of this system they were the creators and authoritative interpreters, and they did their work with little interference either from local custom or from legislation. The centralization and concentration of the administration of justice in the royal courts gave to the royal judges a power and prestige which would have been unattainable on any other system. The authority of precedents was great in England because of the power, the skill, and the professional reputation of the judges who made them. In England the bench has always given law to the bar; in Rome it was the other way about, for in Rome there was no permanent body of professional judges capable of doing the work that has been done for centuries in England by the royal courts.

§ 62. Declaratory and Original Precedents.

In proceeding to consider the various kinds of precedents and the methods of their operation, we have in the first place to distinguish between those decisions which are creative of the law and those which are merely declaratory of it. A declaratory precedent is one which is merely the application of an already existing rule of law; an original precedent is one which creates and applies a new rule. In the former case the rule is applied because it is already law; in the latter case it is law for the future because it is now applied. In any well-developed system such as that of modern England, declaratory precedents are far more numerous than those of the other class; for on most points the law is already settled, and judicial decisions are therefore commonly mere declarations of pre-existing principles. Original precedents, however, though fewer in number, are greater in importance. For they alone develop the law; the others leave it as it was, 161and their only use is to serve as good evidence of it for the future. Unless required for this purpose, a merely declaratory decision is not perpetuated as an authority in the law reports. When the law is already sufficiently well evidenced, as when it is embodied in a statute or set forth with fulness and clearness in some comparatively modern case, the reporting of declaratory decisions is merely a needless addition to the great bulk of our case-law.

It must be understood, however, that a declaratory precedent is just as truly a source of law as is one belonging to the other class. The legal authority of each is exactly the same. Speaking generally, the authority and legal validity of a precedent do not depend on whether it is, or is not, an accurate statement of previously existing law. Whether it is or is not, it may establish as law for the future that which it now declares and applies as law. The distinction between the two kinds turns solely on their relation to the law of the past, and not at all on their relation to that of the future. A declaratory precedent, like a declaratory statute, is a source of law, though it is not a source of new law. Here, as elsewhere, the mere fact that two sources overlap, and that the same legal principle is established by both of them, does not deprive either of them of its true nature as a legal source. Each remains an independent and self-sufficient basis of the rule.

We have already referred to the old theory that the common law is customary, not case-law. This doctrine may be expressed by saying that according to it all precedents are declaratory merely, and that their original operation is not recognised by the law of England. Thus Hale says in his History of the Common Law:—

“It is true the decisions of courts of justice, though by virtue of the laws of this realm they do bind as a law between the parties thereto, as to the particular case in question, till reversed by error or attaint, yet they do not make a law properly so called: for that only the king and parliament can do; yet they have a great weight and authority in expounding, declaring, and publishing what the law of this kingdom is; especially when such decisions hold a consonancy and congruity with resolutions and decisions of former times.”^[152]

162Hale, however, is evidently troubled in mind as to the true position of precedent, and as to the sufficiency of the declaratory theory thus set forth by him, for elsewhere he tells us inconsistently that there are three sources of English law, namely, (1) custom, (2) the authority of Parliament, and (3) “the judicial decisions of courts of justice consonant to one another in the series and succession of time.”^[153]

In the Court of Chancery this declaratory theory never prevailed, nor indeed could it, having regard to the known history of the system of equity administered by that court. There could be no pretence that the principles of equity were founded either in custom or legislation, for it was a perfectly obvious fact that they had their origin in judicial decisions. The judgments of each Chancellor made law for himself and his successors.

“It must not be forgotten,” says Sir George Jessel, “that the rules of courts of equity are not, like the rules of the common law, supposed to have been established from time immemorial. It is perfectly well known that they have been established from time to time—altered, improved, and refined from time to time. In many cases we know the names of the Chancellors who invented them. No doubt they were invented for the purpose of securing the better administration of justice, but still they were invented.”^[154]

Both at law and in equity, however, the declaratory theory must be totally rejected if we are to attain to any sound analysis and explanation of the true operation of judicial decisions. We must admit openly that precedents make law as well as declare it. We must admit further that this effect is not merely accidental and indirect, the result of judicial error in the interpretation and authoritative declaration of the law. Doubtless judges have many times altered the law while endeavouring in good faith to declare it. But we must recognise a distinct law-creating power vested in them and openly and lawfully exercised. Original precedents are the outcome of the intentional exercise by the courts of their privilege of developing the law at the same time that they administer it.

Decisions are further divisible into two classes, which may be distinguished as authoritative and persuasive. These two differ in respect of the kind of influence which they exercise upon the future course of the administration of justice. An authoritative precedent is one which judges must follow whether they approve of it or not. It is binding upon them and excludes their judicial discretion for the future. A persuasive precedent is one which the judges are under no obligation to follow, but which they will take into consideration, and to which they will attach such weight as it seems to them to deserve. It depends for its influence upon its own merits, not upon any legal claim which it has to recognition. In other words, authoritative precedents are legal sources of law, while persuasive precedents are merely historical. The former establish law in pursuance of a definite rule of law which confers upon them that effect, while the latter, if they succeed in establishing law at all, do so indirectly, through serving as the historical ground of some later authoritative precedent. In themselves they have no legal force or effect.

The authoritative precedents recognised by English law are the decisions of the superior courts of justice in England. The chief classes of persuasive precedents are the following:

(1) Foreign judgments, and more especially those of American courts.^[155]

(2) The decisions of superior courts in other portions of the British Empire, for example, the Irish courts.^[156]

(3) The judgments of the Privy Council when sitting as the final court of appeal from the Colonies.^[157]

(4) Judicial dicta, that is to say, statements of law which go beyond the occasion, and lay down a rule that is irrelevant 164or unnecessary for the purpose in hand. We shall see later that the authoritative influence of precedents does not extend to such obiter dicta, but they are not equally destitute of persuasive efficacy.^[158]

§ 64. The Absolute and Conditional Authority of Precedents.

Authoritative precedents are of two kinds, for their authority is either absolute or conditional. In the former case the decision is absolutely binding and must be followed without question, however unreasonable or erroneous it may be considered to be. It has a legal claim to implicit and unquestioning obedience. Where, on the other hand, a precedent possesses merely conditional authority, the courts possess a certain limited power of disregarding it. In all ordinary cases it is binding, but there is one special case in which its authority may be lawfully denied. It may be overruled or dissented from, when it is not merely wrong, but so clearly and seriously wrong that its reversal is demanded in the interests of the sound administration of justice. Otherwise it must be followed, even though the court which follows it is persuaded that it is erroneous or unreasonable. The full significance of this rule will require further consideration shortly. In the meantime it is necessary to state what classes of decisions are recognised by English law as absolutely, and what as merely conditionally authoritative.

Absolute authority exists in the following cases:—

(1) Every court is absolutely bound by the decisions of all courts superior to itself. A court of first instance cannot question a decision of the Court of Appeal, nor can the Court of Appeal refuse to follow the judgments of the House of Lords.

(2) The House of Lords is absolutely bound by its own decisions. “A decision of this House once given upon a point of law is conclusive upon this House afterwards, and it is 165impossible to raise that question again as if it was res integra and could be re-argued, and so the House be asked to reverse its own decision.”^[159]

(3) The Court of Appeal is, it would seem, absolutely bound by its own decisions and by those of older courts of co-ordinate authority, for example, the Court of Exchequer Chamber.^[160]

In all other cases save these three, it would seem that the authority of precedents is merely conditional. It is to be noticed, however, that the force of a decision depends not merely on the court by which it is given but also on the court in which it is cited. Its authority may be absolute in one court, and merely conditional in another. A decision of the Court of Appeal is absolutely binding on a court of first instance, but is only conditionally binding upon the House of Lords.

§ 65. The Disregard of a Precedent.

In order that a court may be justified in disregarding a conditionally authoritative precedent, two conditions must be fulfilled. In the first place, the decision must, in the opinion of the court in which it is cited, be a wrong decision; and it is wrong in two distinct cases: first, when it is contrary to law, and secondly, when it is contrary to reason. It is wrong as contrary to law, when there is already in existence an established rule of law on the point in question, and the decision fails to conform to it. When the law is already settled, the sole right and duty of the judges is to declare and apply it. A precedent must be declaratory whenever it can be, that is to say, whenever there is any law to declare.

But in the second place, a decision may be wrong as being contrary to reason. When there is no settled law to declare 166and follow, the courts may make law for the occasion. In so doing, it is their duty to follow reason, and so far as they fail to do so, their decisions are wrong, and the principles involved in them are of defective authority. Unreasonableness is one of the vices of a precedent, no less than of a custom and of certain forms of subordinate legislation.

It is not enough, however, that a decision should be contrary to law or reason, for there is a second condition to be fulfilled before the courts are entitled to reject it. If the first condition were the only one, a conditionally authoritative precedent would differ in nothing from one which is merely persuasive. In each case the precedent would be effective only so far as its own intrinsic merits commended it to the minds of successive judges. But where a decision is authoritative, it is not enough that the court to which it is cited should be of opinion that it is wrong. It is necessary in innumerable cases to give effect to precedents notwithstanding that opinion. It does not follow that a principle once established should be reversed simply because it is not as perfect and rational as it ought to be. It is often more important that the law should be certain than that it should be ideally perfect. These two requirements are to a great extent inconsistent with each other, and we must often choose between them. Whenever a decision is departed from, the certainty of the law is sacrificed to its rational development, and the evils of the uncertainty thus produced may far outweigh the very trifling benefit to be derived from the correction of the erroneous doctrine. The precedent, while it stood unreversed, may have been counted on in numerous cases as definitely establishing the law. Valuable property may have been dealt with in reliance on it; important contracts may have been made on the strength of it; it may have become to a great extent a basis of expectation and the ground of mutual dealings. Justice may therefore imperatively require that the decision, though founded in error, shall stand inviolate none the less. Communis error facit jus.^[161]

167“It is better,” said Lord Eldon, “that the law should be certain than that every judge should speculate upon improvements in it.”^[162]

It follows from this that, other things being equal, a precedent acquires added authority from the lapse of time. The longer it has stood unquestioned and unreversed, the more harm in the way of uncertainty and the disappointment of reasonable expectations will result from its reversal. A decision which might be lawfully overruled without hesitation while yet new, may after the lapse of a number of years acquire such increased strength as to be practically of absolute and no longer of merely conditional authority. This effect of lapse of time has repeatedly received judicial recognition.

“Viewed simply as the decision of a court of first instance, the authority of this case, notwithstanding the respect due to the judges who decided it, is not binding upon us; but viewed in its character and practical results, it is one of a class of decisions which acquire a weight and effect beyond that which attaches to the relative position of the court from which they proceed. It constitutes an authority which, after it has stood for so long a period unchallenged, should not, in the interests of public convenience, and having regard to the protection of private rights, be overruled by this court except upon very special considerations. For twelve years and upwards the case has continued unshaken by any judicial decision or criticism.”^[163]

“When an old decided case has made the law on a particular subject, the Court of Appeal ought not to interfere with it, because people have considered it as establishing the law and have acted upon it.”^[164]

The statement that a precedent gains in authority with age must be read subject to an important qualification. Up to a certain point a human being grows in strength as he grows in age; but this is true only within narrow limits. So with the authority of judicial decisions. A moderate lapse of time will give added vigour to a precedent, but after a still longer time the opposite effect may be produced, not indeed directly, but indirectly through the accidental conflict of the 168ancient and perhaps partially forgotten principle with later decisions. Without having been expressly overruled or intentionally departed from, it may become in course of time no longer really consistent with the course of judicial decision. In this way the tooth of time will eat away an ancient precedent, and gradually deprive it of all its authority. The law becomes animated by a different spirit and assumes a different course, and the older decisions become obsolete and inoperative.

To sum the matter up, we may say that to justify the disregard of a conditionally authoritative precedent, it must be erroneous, either in law or in reason, and the circumstances of the case must not be such as to make applicable the maxim, Communis error facit jus. The defective decision must not, by the lapse of time or otherwise, have acquired such added authority as to give it a title to permanent recognition notwithstanding the vices of its origin.

The disregard of a precedent assumes two distinct forms, for the court to which it is cited may either overrule it, or merely refuse to follow it. Overruling is an act of superior jurisdiction. A precedent overruled is definitely and formally deprived of all authority. It becomes null and void, like a repealed statute, and a new principle is authoritatively substituted for the old. A refusal to follow a precedent, on the other hand, is an act of co-ordinate, not of superior jurisdiction. Two courts of equal authority have no power to overrule each other’s decisions. Where a precedent is merely not followed, the result is not that the later authority is substituted for the earlier, but that the two stand side by side conflicting with each other. The legal antinomy thus produced must be solved by the act of a higher authority, which will in due time decide between the competing precedents, formally overruling one of them, and sanctioning the other as good law. In the meantime the matter remains at large, and the law uncertain.

§ 66. Precedents Constitutive, not Abrogative.

We have already seen the falsity of the theory that all precedents are declaratory. We have seen that they possess 169a distinct and legally recognised law-creating power. This power, however, is purely constitutive and in no degree abrogative. Judicial decisions may make law, but they cannot alter it, for where there is settled law already on any point the duty of the judges is to apply it without question, and they have no authority to substitute for it law of their own making. Their legislative power is strictly limited to supplying the vacancies of the legal system, to filling up with new law the gaps which exist in the old, to supplementing the imperfectly developed body of legal doctrine.

This statement, however, requires two qualifications. In the first place, it must be read subject to the undoubted power of the courts to overrule or disregard precedents in the manner already described. In its practical effect this is equivalent to the exercise of abrogative power, but in legal theory it is not so. The overruling of a precedent is not the abolition of an established rule of law; it is an authoritative denial that the supposed rule of law has ever existed. The precedent is so treated not because it has made bad law, but because it has never in reality made any law at all. It has not conformed to the requirements of legal efficacy. Hence it is that the overruling of a precedent, unlike the repeal of a statute, has retrospective operation. The decision is pronounced to have been bad ab initio. A repealed statute, on the contrary, remains valid and applicable as to matters arising before the date of its repeal. The overruling of a precedent is analogous not to the repeal of a statute, but to the judicial rejection of a custom as unreasonable or as otherwise failing to conform to the requirements of customary law.

In the second place, the rule that a precedent has no abrogative power must be read subject to the maxim, Quod fieri non debet, factum valet. It is quite true that judges ought to follow the existing law whenever there is any such law to follow. They are appointed to fulfil the law, not to subvert it. But if by inadvertence or otherwise this rule is broken through, and a precedent is established which conflicts with pre-existing law, it does not follow from this alone that this decision is destitute of legal efficacy. For it is a well-known 170maxim of the law that a thing which ought not to have been done may nevertheless be valid when it is done. If, therefore, a precedent belongs to the class which is absolutely authoritative, it does not lose this authority simply because it is contrary to law and ought not to have been made. No court, for example, will be allowed to disregard a decision of the House of Lords on such a ground; it must be followed without question, whether it is in harmony with prior law or not. So also with those which are merely conditionally authoritative. We have already seen that error is only one of two conditions, both of which are requisite to render allowable the disregard of such a precedent, and in this respect it makes no difference whether the error consists in a conflict with law or in a conflict with reason. It may well be better to adhere to the new law which should not have been made than to recur to the old law which should not have been displaced.

§ 67. Grounds of the Authority of Precedents.

The operation of precedents is based on the legal presumption of the correctness of judicial decisions. It is an application of the maxim, Res judicata pro veritate accipitur. A matter once formally decided is decided once for all. The courts will listen to no allegation that they have been mistaken, nor will they reopen a matter once litigated and determined. That which has been delivered in judgment must be taken for established truth. For in all probability it is true in fact, and even if not, it is expedient that it should be held as true none the less. Expedit reipublicae ut sit finis litium. When, therefore, a question has once been judicially considered and answered, it must be answered in the same way in all subsequent cases in which the same question again arises. Only through this rule can that consistency of judicial decision be obtained, which is essential to the proper administration of justice. Hence the effect of judicial decisions in excluding the arbitrium judicis for the future, in providing predetermined answers for the questions calling for 171consideration in future cases, and therefore in establishing new principles of law.

The questions to which judicial answers are required are either questions of law or of fact. To both kinds the maxim, Res judicata pro veritate accipitur, is applicable. In the case of questions of law, this maxim means that the court is presumed to have correctly ascertained and applied the appropriate legal principle. The decision operates, therefore, as proof of the law. It is, or at all events is taken to be, a declaratory precedent. If the law so declared is at all doubtful, the precedent will be worth preserving as useful evidence of it. But if the law is already clear and certain, the precedent will be useless; to preserve it would needlessly cumber the books of reports, and it will be allowed to lapse into oblivion.

In the case of questions of fact, on the other hand, the presumption of the correctness of judicial decisions results in the creation of new law, not in the declaration and proof of old. The decision becomes, in a large class of cases, an original precedent. That is to say, the question thus answered ceases to be one of fact, and becomes for the future one of law. For the courts are now provided with a predetermined answer to it, and it is no longer a matter of free judicial discretion. The arbitrium judicis is now excluded by one of those fixed and authoritative principles which constitute the law.

For example, the meaning of an ambiguous statute is at first a pure question of fact. When for the first time the question arises whether the word “cattle” as used by the statute includes horses, the court is bound by no authority to determine the matter in one way or the other. The occasion is one for the exercise of common sense and interpretative skill. But when the question has once been decided, it is for the future one of law and no longer one of fact; for it is incumbent on the courts in subsequent cases to act on the maxim Res judicata pro veritate accipitur, and to answer the question in the same way as before.

The operation of original precedents is, therefore, the 172progressive transformation of questions of fact into questions of law. Ex facto oritur jus. The growth of case-law involves the gradual elimination of that judicial liberty to which it owes its origin. In any system in which precedents are authoritative the courts are engaged in forging fetters for their own feet. There is of course a limit to this process, for it is absurd to suppose that the final result of legal development will be the complete transformation of all questions of fact into questions of law. The distinction between law and fact is permanent and essential. What, then, is the limit? To what extent is precedent capable of effecting this absorption of fact into law?

In respect of this law-creating operation of precedents, questions of fact are divisible into two classes. For some of them do, and some do not, admit of being answered on principle. The former are those the answer to which is capable of assuming the form of a general principle: the latter are those the answer to which is necessarily specific. The former are answered by way of abstraction, that is to say, by the elimination of the immaterial elements in the particular case, the result being a general rule applicable not merely to that single case, but to all others which resemble it in its essential features. The other class of questions consists of those in which no such process of abstraction, no such elimination of immaterial elements, as will give rise to a general principle, is possible. The answer to them is based on the circumstances of the concrete and individual case, and therefore produces no rule of general application. The operation of precedent is limited to one only of these classes of questions. Judicial decisions are a source of law only in the case of those questions of fact which admit of being answered on principle. These only are transformed by decision into questions of law, for in this case only does the judicial decision give rise to a rule which can be adopted for the future as a rule of law. Those questions which belong to the other class are permanently questions of fact, and their judicial solution leaves behind it no permanent results in the form of legal principles.

173For example, the question whether the defendant did or did not make a certain statement is a question of fact, which does not admit of any answer save one which is concrete and individual. It cannot be answered on principle. It necessarily remains, therefore, a pure question of fact; the decision of it is no precedent, and establishes no rule of law. On the other hand, the question whether the defendant in making such a statement was or was not guilty of fraud or negligence, though it may be equally a question of fact, nevertheless belongs to the other class of such questions. It may well be possible to lay down a general principle on a matter such as this. For it is a matter which may be dealt with in abstracto, not necessarily in concreto. If, therefore, the decision is arrived at on principle, it will amount to an original precedent, and the question, together with every other essentially resembling it, will become for the future a question of law, predetermined by the rule thus established.

A precedent, therefore, is a judicial decision which contains in itself a principle. The underlying principle which thus forms its authoritative element is often termed the ratio decidendi. The concrete decision is binding between the parties to it, but it is the abstract ratio decidendi which alone has the force of law as regards the world at large. “The only use of authorities or decided cases,” says Sir George Jessel, “is the establishment of some principle, which the judge can follow out in deciding the case before him.”^[165] “The only thing,” says the same distinguished judge in another case, “in a judge’s decision binding as an authority upon a subsequent judge is the principle upon which the case was decided.”^[166]

This is the true significance of the familiar contrast between authority and principle. It is often said by judges that inasmuch as the matter before them is not covered by authority, they must decide it upon principle. The statement is a sure indication of the impending establishment of an original 174precedent. It implies two things: first, that where there is any authority on the point, that is to say, where the question is already one of law, the duty of the judge is simply to follow the path so marked out for him; and secondly, that if there is no authority, and if, therefore, the question is one of pure fact, it is his duty, if possible, to decide it upon principle, that is to say, to formulate some general rule and to act upon it, thereby creating law for the future. It may be, however, that the question is one which does not admit of being answered either on authority or on principle, and in such a case a specific or individual answer is alone possible, no rule of law being either applied or created.^[167]

Although it is the duty of courts of justice to decide questions of fact on principle if they can, they must take care in this formulation of principles to limit themselves to the requirements of the case in hand. That is to say, they must not lay down principles which are not required for the due decision of the particular case, or which are wider than is necessary for this purpose. The only judicial principles which are authoritative are those which are thus relevant in their subject-matter and limited in their scope. All others, at the best, are of merely persuasive efficacy. They are not true rationes decidendi, and are distinguished from them under the name of dicta or obiter dicta, things said by the way. The prerogative of judges is not to make law by formulating and declaring it—this pertains to the legislature—but to make law by applying it. Judicial declaration, unaccompanied by judicial application, is of no authority.

§ 68. The Sources of Judicial Principles.

Whence, then, do the courts derive those new principles, or rationes decidendi, by which they supplement the existing 175law? They are in truth nothing else than the principles of natural justice, practical expediency, and common sense. Judges are appointed to administer justice—justice according to law, so far as the law extends, but so far as there is no law, then justice according to nature. Where the civil law is deficient, the law of nature takes its place, and in so doing puts on its character also. But the rules of natural justice are not always such that any man may know them, and the light of nature is often but an uncertain guide. Instead of trusting to their own unguided instincts in formulating the rules of right and reason, the courts are therefore wisely in the habit of seeking guidance and assistance elsewhere. In establishing new principles, they willingly submit themselves to various persuasive influences which, though destitute of legal authority, have a good claim to respect and consideration. They accept a principle, for example, because they find it already embodied in some system of foreign law. For since it is so sanctioned and authenticated, it is presumably a just and reasonable one. In like manner the courts give credence to persuasive precedents, to judicial dicta, to the opinions of text-writers, and to any other forms of ethical or juridical doctrine which seem good to them. There is, however, one source of judicial principles which is of special importance, and calls for special notice. This is the analogy of pre-existing law. New rules are very often merely analogical extensions of the old. The courts seek as far as possible to make the new law the embodiment and expression of the spirit of the old—of the ratio juris, as the Romans called it. The whole thereby becomes a single and self-consistent body of legal doctrine, containing within itself an element of unity and of harmonious development. At the same time it must be remembered that analogy is lawfully followed only as a guide to the rules of natural justice. It has no independent claim to recognition. Wherever justice so requires, it is the duty of the courts, in making new law, to depart from the ratio juris antiqui, rather than servilely to follow it.

It is surprising how seldom we find in judicial utterances 176any explicit recognition of the fact that in deciding questions on principle, the courts are in reality searching out the rules and requirements of natural justice and public policy. The measure of the prevalence of such ethical over purely technical considerations is the measure in which case-law develops into a rational and tolerable system as opposed to an unreasoned product of authority and routine. Yet the official utterances of the law contain no adequate acknowledgment of this dependence on ethical influences. “The very considerations,” it has been well said, “which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life.”^[168] The chief reason of this peculiarity is doubtless to be found in the fictitious declaratory theory of precedent, and in the forms of judicial expression and reasoning which this theory has made traditional. So long as judges affect to be looking for and declaring old law, they cannot adequately express the principles on which they are in reality making new.

§ 69. Respective Functions of Judges and Juries.

The division of judicial functions between judge and jury creates a difficulty in the theory of precedent which requires some consideration. It is commonly said that all questions of fact are for the jury, and all questions of law for the judge. But we have already seen that original precedents are answers to questions of fact, transforming them for the future into questions of law. Are such precedents, then, made by juries instead of by judges? It is clear that they neither are nor can be. No jury ever answers a question on principle; it gives decisions, but no reasons; it decides in concreto, not in abstracto. In this respect the judicial action of juries differs fundamentally from that of judges. The latter decide on principle, whenever this is possible; they formulate the ratio decidendi which underlies their decision; they strive after the general and the abstract, instead of adhering to the concrete and the individual. Hence it is that the decision of a judge may constitute a precedent, while that of a jury cannot. But in composite tribunals, where the jury decides 177the facts and the judge the law, how does the judge obtain any opportunity of establishing precedents and creating new law? If the matter is already governed by law, it will of course fall within his province; but if it is not already so governed, is it not a pure question of fact which must be submitted to the jury, to the total destruction of all opportunity of establishing any precedent in respect of it? The truth of the matter is that, although all questions of law are for the judge, it is very far from being true that all questions of fact are for the jury. There are very extensive and important portions of the sphere of fact which fall within the jurisdiction of the judge, and it is within those portions that the law-creating operation of judicial decisions takes place. No jury, for example, is ever asked to interpret a statute or, speaking generally, any other written document. Yet unless there is already some authoritative construction in existence, this is pure matter of fact. Hence that great department of case-law which has its origin in the judicial interpretation of statute law. The general rule—consistently acted on, though seldom expressly acknowledged—is that a judge will not submit to a jury any question which he is himself capable of answering on principle. Such a question he answers for himself; for since it can be answered on principle, it provides a fit occasion for the establishment of a precedent and a new rule of law. It ought to be a matter of law, and can only become what it ought to be, by being kept from the jury and answered in abstracto by the judge. The only questions which go to a jury are those questions of fact which admit of no principle, and are therefore the appropriate subject-matter of those concrete and unreasoned decisions which juries give.^[169]

We have said that this rule, though acted on, is not expressly acknowledged. The reason is that judges are enabled to avoid the acknowledgment through recourse to the declaratory theory of precedent. As between judge and jury this theory is still in full force and effect, although when the rights 178and privileges of juries are not concerned, the courts are ready enough at the present day to acknowledge the essential truth of the matter. As between judge and jury, questions of fact are withdrawn from the exclusive cognizance of the latter by means of the legal fiction that they are already questions of law. They are treated proleptically as being already that which they are about to become. In a completely developed legal system they would be already true questions of law; the principle for their decision would have been already authoritatively determined. Therefore the judges make bold to deal with them as being already that which they ought to be, and thus the making of the law by way of precedent is prevented from openly infringing upon the rights of juries to decide all questions which have not already been decided by the law.

SUMMARY.

§ 70. Wrongs.

We have seen that the law consists of the principles in accordance with which justice is administered by the state, and that the administration of justice consists in the use of the physical force of the state in enforcing rights and punishing the violation of them. The conception of a right is accordingly one of fundamental significance in legal theory, and the purpose of this chapter is to analyse it, and to distinguish its various applications. Before attempting to define a right, however, it is necessary to define two other terms which are closely connected with it, namely, wrong and duty.

A wrong is simply a wrong act—an act contrary to the rule of right and justice. A synonym of it is injury, in its true and primary sense of injuria (that which is contrary to jus), though by a modern perversion of meaning this term has acquired the secondary sense of harm or damage (damnum) whether rightful or wrongful, and whether inflicted by human agency or not.

Wrongs or injuries are divisible for our present purpose into two kinds, being either moral or legal. A moral or natural wrong is an act which is morally or naturally wrong, being contrary to the rule of natural justice. A legal wrong is an act which is legally wrong, being contrary to the rule of legal justice and a violation of the law. It is an act which is authoritatively determined to be wrong by a rule of law, and is therefore treated as a wrong in and for the purposes of the administration of justice by the state. It may or may not be a wrong in deed and in truth, and conversely a moral wrong may or may not be a wrong in law. Natural and legal 180wrongs, like natural and legal justice, form intersecting circles, this discordance between law and fact being partly intentional and partly the result of imperfect historical development.

In all ordinary cases the legal recognition of an act as a wrong involves the suppression or punishment of it by the physical force of the state, this being the essential purpose for which the judicial action of the state is ordained. We shall see later, however, that such forcible constraint is not an invariable or essential incident, and that there are other possible forms of effective legal recognition. The essence of a legal wrong consists in its recognition as wrong by the law, not in the resulting suppression or punishment of it. A legal wrong is a violation of justice according to law.

§ 71. Duties.

A duty is an obligatory act, that is to say, it is an act the opposite of which would be a wrong. Duties and wrongs are correlatives. The commission of a wrong is the breach of a duty, and the performance of a duty is the avoidance of a wrong. A synonym of duty is obligation, in its widest sense, although in a special and technical application the latter term denotes one particular kind of duty only, as we shall see later.

Duties, like wrongs, are of two kinds, being either moral or legal. A moral or natural duty is an act the opposite of which would be a moral or natural wrong. A legal duty is an act the opposite of which would be a legal wrong. It is an act recognised as a duty by the law, and treated as such in and for the purposes of the administration of justice by the state. These two classes are partly coincident and partly distinct. A duty may be moral but not legal, or legal but not moral, or both at once.

When the law recognises an act as a duty, it commonly enforces the performance of it, or punishes the disregard of it. But this sanction of legal force is in exceptional cases absent. A duty is legal because it is legally recognised, not necessarily because it is legally enforced or sanctioned. There are legal duties of imperfect obligation, as they are 181called, which will be considered by us at a later stage of our inquiry.

§ 72. Rights.

A right is an interest recognised and protected by a rule of right. It is any interest, respect for which is a duty, and the disregard of which is a wrong.

All that is right or wrong, just or unjust, is so by reason of its effects upon the interests of mankind,^[170] that is to say upon the various elements of human well-being, such as life, liberty, health, reputation, and the uses of material objects. If any act is right or just, it is so because and in so far as it promotes some form of human interest. If any act is wrong or unjust, it is because the interests of men are prejudicially affected by it. Conduct which has no influence upon the interests of any one has no significance either in law or morals.

Every wrong, therefore, involves some interest attacked by it, and every duty involves some interest to which it relates, and for whose protection it exists. The converse, however, is not true. Every attack upon an interest is not a wrong, either in fact or in law, nor is respect for every interest a duty, either legal or natural. Many interests exist de facto and not also de jure; they receive no recognition or protection from any rule of right. The violation of them is no wrong, and respect for them is no duty. For the interests of men conflict with each other, and it is impossible for all to receive rightful recognition. The rule of justice selects some for protection, and the others are rejected.

The interests which thus receive recognition and protection from the rules of right are called rights. Every man who has a right to any thing has an interest in it also, but he may have an interest without having a right. Whether his interest amounts to a right depends on whether there exists with respect to it a duty imposed upon any other 182person. In other words, a right is an interest the violation of which is a wrong.

Every right corresponds to a rule of right, from which it proceeds, and it is from this source that it derives its name. That I have a right to a thing means that it is right that I should have that thing. All right is the right of him for whose benefit it exists, just as all wrong is the wrong of him whose interests are affected by it. In the words of Windscheid,^[171] “Das Recht ist sein Recht geworden.”

Rights, like wrongs and duties, are either moral or legal. A moral or natural right is an interest recognised and protected by a rule of natural justice—an interest the violation of which would be a moral wrong, and respect for which is a moral duty. A legal right, on the other hand, is an interest recognised and protected by a rule of legal justice—an interest the violation of which would be a legal wrong done to him whose interest it is, and respect for which is a legal duty. “Rights,” says Ihering,^[172] “are legally protected interests.”

Bentham set the fashion, still followed by many, of denying that there are any such things as natural rights at all. All rights are legal rights and the creation of the law. “Natural law, natural rights,” he says,^[173] “are two kinds of fictions or metaphors, which play so great a part in books of legislation, that they deserve to be examined by themselves.... Rights properly so called are the creatures of law properly so called; real laws give rise to real rights. Natural rights are the creatures of natural law; they are a metaphor which derives its origin from another metaphor.” “In many of the cultivated,” says Spencer,^[174] criticising this opinion, “there has been produced a confirmed and indeed contemptuous denial of rights. There are no such things, say they, except such as are conferred by law. Following Bentham, they affirm that the state is the originator of rights, and that apart from it there are no rights.”

A complete examination of this opinion would lead us far 183into the regions of ethical rather than juridical conceptions, and would here be out of place. It is sufficient to make two observations with respect to the matter. In the first place, he who denies the existence of natural rights must be prepared at the same time to reject natural or moral duties also. Rights and duties are essentially correlative, and if a creditor has no natural right to receive his debt, the debtor is under no moral duty to pay it to him. In the second place, he who rejects natural rights must at the same time be prepared to reject natural right. He must say with the Greek Sceptics that the distinction between right and wrong, justice and injustice, is unknown in the nature of things, and a matter of human institution merely. If there are no rights save those which the state creates, it logically follows that nothing is right and nothing wrong save that which the state establishes and declares as such. If natural justice is a truth and not a delusion, the same must be admitted of natural rights.^[175]

It is to be noticed that in order that an interest should become a legal right, it must obtain not merely legal protection, but also legal recognition. The interests of beasts are to some extent protected by the law, inasmuch as cruelty to animals is a criminal offence. But beasts are not for this reason possessed of legal rights. The duty of humanity so enforced is not conceived by the law as a duty towards beasts, but merely as a duty in respect of them. There is no bond of legal obligation between mankind and them. The only interest and the only right which the law recognises in such a case is the interest and right of society as a whole in the welfare of the animals belonging to it. He who ill-treats a child violates a duty which he owes to the child, and a right which is vested in him. But he who ill-treats a dog breaks no vinculum juris between him and it, though he disregards the obligation of humane conduct which he owes to society or the state, and the correlative right which society or the state possesses. Similarly a man’s interests may obtain legal protection as against himself, as when drunkenness or suicide is made a crime. But he has not for this reason a legal right against himself. The duty to refrain from drunkenness is not conceived by the law as a duty owing by a man to himself, but as one owing by him to the community. The only interest which receives legal recognition is that of the society in the sobriety of its members.

184Although a legal right is commonly accompanied by the power of instituting legal proceedings for the enforcement of it, this is not invariably the case, and does not pertain to the essence of the conception. As we shall see, there are classes of legal rights which are not enforceable by any legal process; for example, debts barred by prescription or the lapse of time. Just as there are imperfect and unenforceable legal duties, so there are imperfect and unenforceable legal rights.

Rights and duties are necessarily correlative. There can be no right without a corresponding duty, or duty without a corresponding right, any more than there can be a husband without a wife, or a father without a child. For every duty must be a duty towards some person or persons, in whom, therefore, a correlative right is vested. And conversely every right must be a right against some person or persons, upon whom, therefore, a correlative duty is imposed. Every right or duty involves a vinculum juris or bond of legal obligation, by which two or more persons are bound together. There can be no duty unless there is some one to whom it is due; there can be no right unless there is some one from whom it is claimed; and there can be no wrong unless there is some one who is wronged, that is to say, whose right has been violated.

We must therefore reject the opinion of those writers who distinguish between relative and absolute duties, the former being those which have rights corresponding to them, and the latter being those which have none.^[176] This opinion is held by those who conceive it to be of the essence of a right, that it should be vested in some determinate person, and be enforceable by some form of legal process instituted by him. On this view, duties towards the public at large or towards indeterminate portions of the public have no correlative rights; the duty, for example, to refrain from committing a public nuisance. There seems no sufficient reason, however, for defining a right in so exclusive a manner. All duties towards the public correspond to rights vested in the public, and a public wrong is necessarily the 185violation of a public right. All duties correspond to rights, though they do not all correspond to private rights vested in determinate individuals.

§ 73. The Elements of a Legal Right.

In every legal right the five following elements are involved:—

(1) A person in whom it is vested, and who may be distinguished as the owner of the right, the subject of it, or the person entitled.

(2) A person against whom the right avails, and upon whom the correlative duty lies. He may be distinguished as the person bound, or as the subject of the duty.

(3) An act or omission which is obligatory on the person bound in favour of the person entitled. This may be termed the content of the right.

(4) Some thing to which the act or omission relates, and which may be termed the object or subject-matter of the right.

(5) A title: that is to say, certain facts or events by reason of which the right has become vested in its owner.

Thus if A. buys a piece of land from B., A. is the subject or owner of the right so acquired. The persons bound by the correlative duty are persons in general, for a right of this kind avails against all the world. The content of the right consists in non-interference with the purchaser’s exclusive use of the land. The object or subject-matter of the right is the land. And finally the title of the right is the conveyance by which it was acquired from its former owner.^[177]

Every right, therefore, involves a threefold relation in which the owner of it stands:—

186(1) It is a right against some person or persons.

(2) It is a right to some act or omission of such person or persons.

(3) It is a right over or to some thing to which that act or omission relates.

An ownerless right is an impossibility. There cannot be a right without a subject in whom it inheres, any more than there can be weight without a heavy body; for rights are merely attributes of persons, and can have no independent existence. Yet although this is so, the ownership of a right may be merely contingent or uncertain. The owner of it may be a person indeterminate. He may even be a person who is not yet born, and may therefore never come into existence. Although every right has an owner, it need not have a vested and certain owner. Thus the fee simple of land may be left by will to a person unborn at the death of the testator. To whom does it belong in the meantime? We cannot say that it belongs to no one, for the reasons already indicated. We must say that it is presently owned by the unborn person, but that his ownership is contingent on his birth.

Who is the owner of a debt in the interval between the death of the creditor intestate and the vesting of his estate in an administrator? Roman law in such a case personified the inheritance itself, and regarded the rights contingently belonging to the heir as presently vested in the inheritance by virtue of its fictitious personality. According to English law before the Judicature Act, 1873, the personal property of an intestate, in the interval between death and the grant of letters of administration, was deemed to be vested in the Judge of the Court of Probate, and it may be assumed that it now vests either in the President of the Probate, Divorce and Admiralty Division, or in the Judges of the High Court collectively. But neither the Roman nor the English fiction is essential. There is no difficulty in saying that the estate of an intestate is presently owned by an incerta persona, namely by him who is subsequently appointed the administrator of it. The law, however, abhors a temporary vacuum 187of vested ownership. It prefers to regard all rights as presently vested in some determinate person, subject, if need be, to be divested on the happening of the event on which the title of the contingent owner depends.^[178]

Certain writers define the object of a right with such narrowness that they are forced to the conclusion that there are some rights which have no objects. They consider that the object of a right means some material thing to which it relates; and it is certainly true that in this sense an object is not an essential element in the conception. Others admit that a person, as well as a material thing, may be the object of a right; as in the case of a husband’s right in respect of his wife, or a father’s in respect of his children. But they go no further, and consequently deny that the right of reputation, for example, or that of personal liberty, or the right of a patentee, or a copyright, has any object at all.

The truth seems to be, however, that an object is an essential element in the idea of a right. A right without an object in respect of which it exists is as impossible as a right without a subject to whom it belongs. A right is, as we have said, a legally protected interest; and the object of the right is the thing in which the owner has this interest. It is the thing, material or immaterial, which he desires to keep or to obtain, and which he is enabled to keep or to obtain by means of the duty which the law imposes on other persons. We may illustrate this by classifying the chief kinds of rights by reference to their objects.

(1) Rights over material things.—In respect of their number and variety, and of the great mass of legal rules relating to them, these are by far the most important of legal rights. Their nature is too familiar to require illustration.

(2) Rights in respect of one’s own person.—I have a right not to be killed, and the object of this right is my life. I have a right not to be physically injured or assaulted, and the object of this right is my bodily health and integrity. I have a right not to be imprisoned save in due course of 188law; the object of this right is my personal liberty—that is to say, my power of going where I will. I have a right not to be coerced or deceived into acting contrary to my desires or interests; the object of this right is my ability to fulfil my desires and protect and promote my interests by my own activities.

(3) The right of reputation.—In a man’s reputation, that is to say, in the good opinion that other persons have of him, he has an interest, just as he has an interest in the money in his pockets. In each case the interest has obtained legal recognition and protection as a right, and in each case the right involves an object in respect of which it exists.

(4) Rights in respect of domestic relations.—Every man has an interest and a right in the society, affections, and security of his wife and children. Any person who without just cause interferes with this interest, as by the seduction of his wife or daughter, or by taking away his child, is guilty of a violation of his rights. The wrongdoer has deprived him of something which was his, no less than if he had robbed him of his purse.

(5) Rights in respect of other rights.—In many instances a right has another right as its subject-matter. I may have a right against A., that he shall transfer to me some right which is now vested in himself. If I contract with him for the sale of a piece of land to me, I acquire thereby a right against him, that he shall so act as to make me the owner of certain rights now belonging to himself. By the contract I acquire a right to the right of ownership, and when the conveyance has been executed, I acquire the right of ownership itself. Similarly a promise of marriage vests in the woman a right to the rights of a wife; but the marriage vests in her those rights themselves.^[179]

It is commonly a question of importance, whether the right acquired by an agreement or other transaction is merely a right to a right, or is one having something else than another right as its immediate object. If I buy a ton of coal or a flock of sheep, the right which I thereby acquire 189may be of either of these kinds according to circumstances. I may become forthwith the owner of the coal or the sheep; that is to say, my right may have these material things as its immediate and direct object. On the other hand, I may acquire merely a right against the seller, that he by delivery or otherwise shall make me the owner of the things so purchased. In this case I acquire a right which has, as its immediate and direct object, nothing more than another right; though its mediate and indirect object may be said, truly enough, to be the material things purchased by me.

(6) Rights over immaterial property.—Examples of these are patent rights, copyrights, trade-marks, and commercial good-will. The object of a patent-right is an invention, that is to say, the idea of a new process, instrument, or manufacture. The patentee has a right to the exclusive use of this idea. Similarly the object of literary copyright is the form of literary expression produced by the author of a book. In this he has a valuable interest by reason of the disposition of the public to purchase copies of the book, and by the Copyright Act this interest has been raised to the level of a legal right.

(7) Rights to services.—Finally we have to take account of rights vested in one person to the services of another: the rights, for example, which are created by a contract between master and servant, physician and patient, or employer and workman. In all such cases the object of the right is the skill, knowledge, strength, time, and so forth, of the person bound. If I hire a physician, I obtain thereby a right to the use and benefit of his skill and knowledge, just as, when I hire a horse, I acquire a right to the use and benefit of his strength and speed.

Or we may say, if we prefer it, that the object of a right of personal service is the person of him who is bound to render it. A man may be the subject-matter of rights as well as the subject of them. His mind and body constitute an instrument which is capable of certain uses, just as a horse or a steam-engine is. In a law which recognises slavery, the man may be bought and sold, just as the horse or steam-engine 190may. But in our own law this is not so, and the only right that can be acquired over a human being is a temporary and limited right to the use of him, created by voluntary agreement with him—not a permanent and general right of ownership over him.

§ 74. Legal Rights in a wider sense of the term.

Hitherto we have confined our attention to legal rights in the strictest and most proper sense. It is in this sense only that we have regarded them as the correlatives of legal duties, and have defined them as the interests which the law protects by imposing duties with respect to them upon other persons. We have now to notice that the term is also used in a wider and laxer sense, to include any legally recognised interest, whether it corresponds to a legal duty or not. In this generic sense a legal right may be defined as any advantage or benefit which is in any manner conferred upon a person by a rule of law. Of rights in this sense there are at least three distinct kinds, sufficiently important to call for separate classification and discussion. These are (1) Rights (in the strict sense), (2) Liberties, and (3) Powers. Having already sufficiently considered the first of these, we shall now deal briefly with the others.

§ 75. Liberties.

Just as my legal rights (in the strict sense) are the benefits which I derive from legal duties imposed upon other persons, so my legal liberties are the benefits which I derive from the absence of legal duties imposed upon myself. They are the various forms assumed by the interest which I have in doing as I please. They are the things which I may do without being prevented by the law. The sphere of my legal liberty is that sphere of activity within which the law is content to leave me alone. It is clear that the term right is often used in a wide sense to include such liberty. I have a right (that is to say, I am at liberty) to do as I please with my own; but I have no right and am not at liberty to interfere with what is another’s. I have a right to express my opinions on 191public affairs, but I have no right to publish a defamatory or seditious libel. I have a right to defend myself against violence, but I have no right to take revenge upon him who has injured me.

The interests of unrestrained activity thus recognised and allowed by the law constitute a class of legal rights clearly distinguishable from those which we have already considered. Rights of the one class are concerned with those things which other persons ought to do for me; rights of the other class are concerned with those things which I may do for myself. The former pertain to the sphere of obligation or compulsion; the latter to that of liberty or free will. Both are legally recognised interests; both are advantages derived from the law by the subjects of the state; but they are two distinct species of one genus.

It is often said that all rights whatsoever correspond to duties; and by those who are of this opinion a different explanation is necessarily given of the class of rights which we have just considered. It is said that a legal liberty is in reality a legal right not to be interfered with by other persons in the exercise of one’s activities. It is alleged that the real meaning of the proposition that I have a legal right to express what opinions I please, is that other persons are under a legal duty not to prevent me from expressing them. So that even in this case the right is the correlative of a duty. Now there is no doubt that in most cases a legal liberty of acting is accompanied by a legal right not to be hindered in so acting. If the law allows me a sphere of lawful and innocent activity, it usually takes care at the same time to protect this sphere of activity from alien interference. But in such a case there are in reality two rights and not merely one; and there are instances in which liberties are not thus accompanied by protecting rights. I may have a legal liberty which involves no such duty of non-interference imposed on others. If a landowner gives me a licence to go upon his land, I have a right to do so, in the sense in which a right means a liberty; but I have no right to do so, in the sense in which a right vested in me is the correlative of a duty imposed upon him. Though I have a liberty or right to go on his land, he has an equal right or liberty to prevent me. The licence has no other effect than to make that lawful which would otherwise be unlawful. The right which I so acquire is nothing more than an extension of the sphere of my rightful activity. So a trustee has a right to receive from the beneficiaries remuneration for his trouble in administering the estate, in the sense that in doing so he does no wrong. But he has no right to receive remuneration, in the sense that the beneficiaries are under any duty to give it to him. So an alien has a right, in the sense of liberty, to enter British dominions, but the executive 192government has an equal right, in the same sense, to keep him out.^[180] That I have a right to destroy my property does not mean that it is wrong for other persons to prevent me; it means that it is not wrong for me so to deal with that which is my own. That I have no right to commit theft does not mean that other persons may lawfully prevent me from committing such a crime, but that I myself act illegally in taking property which is not mine.^[181]

§ 76. Powers.

Yet another class of legal rights consists of those which are termed powers. Examples of such are the following: the right to make a will, or to alienate property; the power of sale vested in a mortgagee; a landlord’s right of re-entry; the right to marry one’s deceased wife’s sister; that power of obtaining in one’s favour the judgment of a court of law, which is called a right of action; the right to rescind a contract for fraud; a power of appointment; the right of issuing execution on a judgment; the various powers vested in judges and other officials for the due fulfilment of their functions. All these are legal rights—they are legally recognised interests—they are advantages conferred by the law—but they are rights of a different species from the two classes which we have already considered. They resemble liberties, and differ from rights stricto sensu, inasmuch as they have no duties corresponding to them. My right to make a will corresponds to no duty in any one else. A mortgagee’s power of sale is not the correlative of any duty imposed upon the mortgagor; though it is otherwise with his right to receive payment of the mortgage debt. A debt is not the same thing as a right of action for its recovery. The former is a right in the strict and proper sense, corresponding to the duty of the debtor to pay; the latter is a legal power, corresponding to the liability of the debtor to be sued. That the two are distinct appears from the fact that the right of action may be destroyed (as by prescription) while the debt remains.

193It is clear, therefore, that a power is not the same thing as a right of the first class. Neither is it identical with a right of the second class, namely, a liberty. That I have a right to make a will does not mean that in doing so I do no wrong. It does not mean that I may make a will innocently; it means that I can make a will effectively. That I have a right to marry my cousin does not mean that such a marriage is legally innocent, but that it is legally valid. It is not a liberty that I have, but a power. That a landlord has a right of re-entry on his tenant does not mean that in re-entering he does the tenant no wrong, but that by so doing he effectively terminates the lease.^[182]

A power may be defined as ability conferred upon a person by the law to determine, by his own will directed to that end, the rights, duties, liabilities, or other legal relations, either of himself or of other persons. Powers are either public or private. The former are those which are vested in a person as an agent or instrument of the functions of the state; they comprise the various forms of legislative, judicial, and executive authority. Private powers, on the other hand, are those which are vested in persons to be exercised for their own purposes, and not as agents of the state. Power is either ability to determine the legal relations of other persons, or ability to determine one’s own. The first of these—power over other persons—is commonly called authority; the second—power over oneself—is usually termed capacity.^[183]

These, then, are the three chief classes of benefits, privileges, or rights conferred by the law: liberty, when the law allows to my will a sphere of unrestrained activity; power, when the law actively assists me in making my will effective; right in the strict sense, when the law limits the liberty of 194others in my behalf. A liberty is that which I may do innocently; a power is that which I can do effectively; a right in the narrow sense is that which other persons ought to do on my behalf. I use my liberties with the acquiescence of the law; I use my powers with its active assistance in making itself the instrument of my will; I enjoy my rights through the control exercised by it over the acts of others on my behalf.^[184][185]

§ 77. Duties, Disabilities, and Liabilities.

There is no generic term which is the correlative of right in the wide sense, and includes all the burdens imposed by the law, as a right includes all the benefits conferred by it. These legal burdens are of three kinds, being either Duties, Disabilities, or Liabilities. A duty is the absence of liberty; a disability is the absence of power; a liability is the presence either of liberty or of power vested in some one else as against the person liable. Examples of liabilities correlative to liberties are the liability of a trespasser to be forcibly ejected, that of a defaulting tenant to have his goods seized for rent, and that of the owner of a building to have his windows darkened or his foundations weakened by the building or excavations of his neighbours. Examples of liabilities correlative 195to powers are the liability of a tenant to have his lease determined by re-entry, that of a mortgagor to have the property sold by the mortgagee, that of a judgment debtor to have execution issued against him, and that of an unfaithful wife to be divorced.

The most important form of liability is that which corresponds to the various powers of action and prosecution arising from the different forms of wrongdoing. There is accordingly a narrow sense of the word liability, in which it covers this case exclusively. Liability in this sense is the correlative of a legal remedy. A synonym for it is responsibility. It is either civil or criminal according as it corresponds to a right of action or to a right of prosecution.^[186][187]

SUMMARY.

§ 78. Perfect and Imperfect Rights.

Recognition by the law in the administration of justice is common to all legal rights and duties, but the purposes and effects of this recognition are different in different cases. All are not recognised to the same end. Hence a division of rights and duties into two kinds, distinguishable as perfect and imperfect. A perfect right is one which corresponds to a perfect duty; and a perfect duty is one which is not merely recognised by the law, but enforced. A duty is enforceable when an action or other legal proceeding, civil or criminal, will lie for the breach of it, and when judgment will be executed against the defendant, if need be, through the physical force of the state.^[188] Enforceability is the general rule. In all ordinary cases, if the law will recognise a right at all, it will not stop short of the last remedy of physical compulsion against him on whom the correlative duty lies. Ought, in the mouth of the law, commonly means must. In all fully developed legal systems, however, there are rights and duties which, though undoubtedly recognised by the law, yet fall short of this typical and perfect form.^[189]

198Examples of such imperfect legal rights are claims barred by lapse of time; claims unenforceable by action owing to the absence of some special form of legally requisite proof (such as a written document); claims against foreign states or sovereigns, as for interest due on foreign bonds; claims unenforceable by action as exceeding the local limits of a court’s jurisdiction, such as claims in respect of foreign land; debts due to an executor from the estate which he administers. In all those cases the duties and the correlative rights are imperfect. No action will lie for their maintenance; yet they are, for all that, legal rights and legal duties, for they receive recognition from the law. The statute of limitations, for example, does not provide that after a certain time a debt shall become extinct, but merely that no action shall thereafter be brought for its recovery. Lapse of time, therefore, does not destroy the right, but merely reduces it from the rank of one which is perfect to that of one which is imperfect. It remains valid for all purposes save that of enforcement. In like manner he from whom a chattel is taken wrongfully, and detained for six years, loses all right to sue the taker for its recovery; but he does not cease to be the owner of it. Nor is his ownership merely an empty title; for in divers ways it may lead him, with the assistance of the law, to the possession and enjoyment of his own again. All these cases of imperfect rights are exceptions to the maxim, Ubi jus ibi remedium. The customary union between the right and the right of action has been for some special reason severed, but the right survives.

For what purposes the law will recognise an imperfect right is a question relating to the concrete details of a legal system, and cannot be fully discussed here. We may, however, distinguish 199the following effects as those of greatest importance and most general application.

1. An imperfect right may be good as a ground of defence, though not as a ground of action. I cannot sue on an informal contract, but if money is paid or property delivered to me in pursuance of it, I can successfully defend any claim for its recovery.

2. An imperfect right is sufficient to support any security that has been given for it. A mortgage or pledge remains perfectly valid, although the debt secured by it has ceased to be recoverable by action.^[190] But if the debt is discharged, instead of becoming merely imperfect, the security will disappear along with it.

3. An imperfect right may possess the capacity of becoming perfect. The right of action may not be non-existent, but may be merely dormant. An informal verbal contract may become enforceable by action, by reason of the fact that written evidence of it has since come into existence. In like manner part-payment or acknowledgment will raise once more to the level of a perfect right a debt that has been barred by the lapse of time.

§ 79. The Legal Nature of Rights against the State.

A subject may claim rights against the state, no less than against another subject. He can institute proceedings against the state for the determination and recognition of those rights in due course of law, and he can obtain judgment in his favour, recognising their existence or awarding to him compensation for their infringement. But there can be no enforcement of that judgment. What duties the state recognises as owing by it to its subjects, it fulfils of its own free will and unconstrained good pleasure. The strength of the law is none other than the strength of the state, and cannot be turned or used against the state whose strength it is. The rights of the subject against the state are therefore imperfect. They obtain legal recognition but no legal enforcement.

200The fact that the element of enforcement is thus absent in the case of rights against the state, has induced many writers to deny that these are legal rights at all. But as we have already seen, we need not so narrowly define the term legal right, as to include only those claims that are legally enforced. It is equally logical and more convenient to include within the term all those claims that are legally recognised in the administration of justice. All rights against the state are not legal, any more than all rights against private persons are legal. But some of them are; those, namely, which can be sued for in courts of justice, and the existence and limits of which will be judicially determined in accordance with fixed principles of law, redress or compensation being awarded for any violation of them. To hold the contrary, and to deny the name of legal right or duty in all cases in which the state is the defendant, is to enter upon a grave conflict with legal and popular speech and thought. In the language of lawyers, as in that of laymen, a contract with the state is as much a source of legal rights and obligations, as is a contract between two private persons; and the right of the holder of consols is as much a legal right, as is that of a debenture holder in a public company. It is not to the point to say that rights against the state are held at the state’s good pleasure, and are therefore not legal rights at all; for all other legal rights are in the same position. They are legal rights not because the state is bound to recognise them, but because it does so.

Whether rights against the state can properly be termed legal depends simply on whether judicial proceedings in which the state is the defendant are properly included within the administration of justice. For if they are rightly so included, the principles by which they are governed are true principles of law, in accordance with the definition of law, and the rights defined by these legal principles are true legal rights. The boundary line of the administration of justice has been traced in a previous chapter. We there saw sufficient reason for including not only the direct enforcement of justice, but all other judicial functions exercised by courts of justice. 201This is the ordinary use of the term, and it seems open to no logical objection.^[191]

§ 80. Positive and Negative Rights.

In respect of their contents, rights are of two kinds, being either positive or negative. A positive right corresponds to a positive duty, and is a right that he on whom the duty lies shall do some positive act on behalf of the person entitled. A negative right corresponds to a negative duty, and is a right that the person bound shall refrain from some act which would operate to the prejudice of the person entitled. The same distinction exists in the case of wrongs. A positive wrong or wrong of commission is the breach of a negative duty and the violation of a negative right. A negative wrong or wrong of omission is the breach of a positive duty, and the infringement of a positive right. A negative right entitles the owner of it to the maintenance of the present position of things; a positive right entitles him to an alteration of this position for his advantage. The former is merely a right not to be harmed; the latter is a right to be positively benefited. The former is a right to retain what one already has; the latter is a right to receive something more than one already has.

In the case of a negative right the interest which is its de facto basis is of such a nature that it requires for its adequate maintenance or protection nothing more than the passive acquiescence of other persons. All that is asked by the owner of the interest is to be left alone in the enjoyment of it. In the case of a positive right, on the other hand, the interest is of a less perfect and self-sufficient nature, inasmuch as the person entitled requires for the realisation and enjoyment of his right the active assistance of other persons. In the former case I stand in an immediate and direct relation to the object of my right, and claim from others nothing more than that they shall not interfere between me and it. In the latter case I stand in a mediate and indirect relation to the object, so that I can attain to it only through the active help of others. My right to the money in my pocket is an example 202of the first class; my right to the money in the pocket of my debtor is an instance of the second.

The distinction is one of practical importance. It is much easier, as well as much more necessary, for the law to prevent the infliction of harm than to enforce positive beneficence. Therefore while liability for hurtful acts of commission is the general rule, liability for acts of omission is the exception. Generally speaking, all men are bound to refrain from all kinds of positive harm, while only some men are bound in some ways actively to confer benefits on others. No one is entitled to do another any manner of hurt, save with special ground of justification; but no one is bound to do another any manner of good save on special grounds of obligation. Every man has a right against every man that the present position of things shall not be interfered with to his detriment; whilst it is only in particular cases and for special reasons that any man has a right against any man that the present position shall be altered for his advantage. I have a right against every one not to be pushed into the water; if I have a right at all to be pulled out, it is only on special grounds against determinate individuals.

§ 81. Real and Personal Rights.

The distinction between real and personal rights is closely connected but not identical with that between negative and positive rights. It is based on a difference in the incidence of the correlative duties. A real right corresponds to a duty imposed upon persons in general; a personal right corresponds to a duty imposed upon determinate individuals. A real right is available against the world at large; a personal right is available only against particular persons. The distinction is one of great prominence in the law, and we may take the following as illustrations of it. My right to the peaceable occupation of my farm is a real right, for all the world is under a duty towards me not to interfere with it. But if I grant a lease of the farm to a tenant, my right to receive the rent from him is personal; for it avails exclusively against the tenant himself. For the same reason my right to the possession and 203use of the money in my purse is real; but my right to receive money from some one who owes it to me is personal. I have a real right against every one not to be deprived of my liberty or my reputation; I have a personal right to receive compensation from any individual person who has imprisoned or defamed me. I have a real right to the use and occupation of my own house; I have a personal right to receive accommodation at an inn.

A real right, then, is an interest protected against the world at large; a personal right is an interest protected solely against determinate individuals. The distinction is clearly one of importance. The law confers upon me a greater advantage in protecting my interests against all persons, than in protecting them only against one or two. The right of a patentee, who has a monopoly as against all the world, is much more valuable than the right of him who purchases the good-will of a business and is protected only against the competition of his vendor. If I buy a chattel, it is an important question, whether my interest in it is forthwith protected against every one, or only against him who sells it to me. The main purpose of mortgages and other forms of real security is to supplement the imperfections of a personal right by the superior advantages inherent in a right of the other class. Furthermore, these two kinds of rights are necessarily very different in respect of the modes of their creation and extinction. The indeterminate incidence of the duty which corresponds to a real right, renders impossible many modes of dealing with it which are of importance in the case of personal rights.

The distinction which we are now considering is closely connected with that between positive and negative rights. All real rights are negative, and most personal rights are positive, though in a few exceptional cases they are negative. It is not difficult to see the reason for this complete or partial coincidence. A real right, available against all other persons, can be nothing more than a right to be left alone by those persons—a right to their passive non-interference. No person can have a legal right to the active assistance of 204all the world. The only duties, therefore, that can be of general incidence are negative. It may be objected to this, that though a private person cannot have a positive right against all other persons, yet the state may have such a right against all its subjects. All persons, for example, may be bound to pay a tax or to send in census returns. Are not these duties of general incidence, and yet positive? The truth is, however, that the right of the state in all such cases is personal and not real. The right to receive a tax is not one right, but as many separate rights as there are taxpayers. If I owe ten pounds to the state as income tax, the right of the state against me is just as personal as is that of any other creditor, and it does not change its nature because other persons or even all my fellow-citizens owe a similar amount on the like account. My debt is not theirs, nor are their debts mine. The state has not one real right available against all, but an immense number of personal rights, each of which avails against a determinate tax-payer. On the other hand, the right of the state that no person shall trespass on a piece of Crown land is a single interest protected against all the world, and is therefore a single real right. The unity of a real right consists in the singleness of its subject-matter. The right of reputation is one right, corresponding to an infinite number of duties; for the subject-matter is one thing, belonging to one person, and protected against all the world.

Although all real rights are negative, it is not equally true that all personal rights are positive. This is so, indeed, in the great majority of cases. The merely passive duty of non-interference, when it exists at all, usually binds all persons in common. There are, however, exceptional cases in which this is not so. These exceptional rights, which are both negative and personal, are usually the product of some agreement by which some particular individual has deprived himself of a liberty which is common to all other persons. Thus all tradesmen may lawfully compete with each other in the ordinary way of business, even though the result of this competition is the ruin of the weaker competitors. But in selling to another the good-will of my business I may lawfully deprive 205myself of this liberty by an express agreement with the purchaser to that effect. He thereby acquires against me a right of exemption from competition, and this right is both personal and negative. It is a monopoly, protected not against the world at large, but against a determinate individual. Such rights belong to an intermediate class of small extent, standing between rights which are both real and negative on the one side and those which are both personal and positive on the other.

In defining a real right as one availing against the world at large, it is not meant that the incidence of the correlative duty is absolutely universal, but merely that the duty binds persons in general, and that if any one is not bound his case is exceptional. Similarly a personal right is not one available against a single person only, but one available against one or more determinate individuals. The right of the creditor of a firm is personal, though the debt may be due from any number of partners. Even as so explained, however, it can scarcely be denied, that if intended as an exhaustive classification of all possible cases, the distinction between real and personal rights—between duties of general and of determinate incidence—is logically defective. It takes no account of the possibility of a third and intermediate class. Why should there not be rights available against particular classes of persons, as opposed both to the whole community and to persons individually determined, for example, a right available only against aliens? An examination, however, of the contents of any actual legal system will reveal the fact that duties of this suggested description either do not exist at all, or are so exceptional that we are justified in classing them as anomalous. As a classification, therefore, of the rights which actually obtain legal recognition, the distinction between real and personal rights may be accepted as valid.

The distinction between a real and a personal right is otherwise expressed by the terms right in rem (or in re) and right in personam. These expressions are derived from the commentators on the civil and canon law. Literally interpreted, jus in rem means a right against or in respect of a thing, jus in personam a right against or in respect of a person. In truth, however, every right is at the same time one in respect of some thing, namely its object, and against some person, namely, the person bound. In other words, every right involves not only a real, but also a personal relation. Yet although these two relations are necessarily coexistent, their relative prominence and importance are not always the same. In real 206rights it is the real relation that stands in the forefront of the juridical conception; such rights are emphatically and conspicuously in rem. In personal rights, on the other hand, it is the personal relation that forms the predominant factor in the conception; such rights are before all things in personam. For this difference there is more than one reason. In the first place, the real right is a relation between the owner and a vague multitude of persons, no one of whom is distinguished from any other; while a personal right is a definite relation between determinate individuals, and the definiteness of this personal relation raises it into prominence. Secondly, the source or title of a real right is commonly to be found in the character of the real relation, while a personal right generally derives its origin from the personal relation. In other words, if the law confers upon me a real right, it is commonly because I stand in some special relation to the thing which is the object of the right. If on the contrary it confers on me a personal right, it is commonly because I stand in some special relation to the person who is the subject of the correlative duty. If I have a real right in a material object, it is because I made it, or found it, or first acquired possession of it, or because by transfer or otherwise I have taken the place of some one who did originally stand in some such relation to it. But if I have a personal right to receive money from another, it is commonly because I have made a contract with him, or have come in some other manner to stand in a special relation to him. Each of these reasons tends to advance the importance of the real relation in real rights, and that of the personal relation in personal rights. The former are primarily and pre-eminently in rem; the latter primarily and pre-eminently in personam.

The commonest and most important kind of jus in personam is that which has been termed by the civilians and canonists jus ad rem. I have a jus ad rem, when I have a right that some other right shall be transferred to me or otherwise vested in me. Jus ad rem is a right to a right. We have already seen, in the previous chapter, that it is possible for one right to be in this way the subject-matter of another. 207A debt, a contract to assign property, and a promise of marriage are examples of this. It is clear that such a right to a right must be in all cases in personam. The right which is to be transferred, however—the subject-matter of the jus ad rem—may be either real or personal, though it is more commonly real. I may agree to assign or mortgage a debt, or the benefit of a contract, no less than lands or chattels. An agreement to assign a chattel creates a jus ad jus in rem; an agreement to assign a debt or a contract creates a jus ad jus in personam.^[192]

The terms jus in rem and jus in personam were invented by the commentators on the civil law, and are not found in the original sources. The distinction thereby expressed, however, received adequate recognition from the Roman lawyers. They drew a broad line of demarcation between dominium on the one side and obligatio on the other, the former including real, and the latter personal rights. Dominium is the relation between the owner of a real right (dominus) and the right so vested in him. Obligatio is the relation between the owner of a personal right (creditor) and the person on whom the correlative duty lies. Obligatio, in other words, is the legal bond by which two or more determinate individuals are bound together. Our modern English obligation has lost this specific meaning, and is applied to any duty, whether it corresponds to a real or to a personal right. It is to be noticed, however, that both dominium and obligatio are limited by the Romans to the sphere of what, in the succeeding part of this chapter, we term proprietary rights. A man’s right to his personal liberty or reputation, for example, falls neither within the sphere of dominium nor within that of obligatio. The distinction between real and personal rights, on the other hand, is subject to no such limitation.

The terms jus in rem and jus in personam are derived from the Roman terms actio in rem and actio in personam. An actio in rem was an action for the recovery of dominium; one in which the plaintiff claimed that a certain thing belonged to him and ought to be restored or given up to him. An actio in personam was one for the enforcement of an obligatio; one in which the plaintiff claimed the payment of money, the performance of a contract, or the protection of some other personal right vested in him as against the defendant.^[193] Naturally enough, the right protected by an actio in rem came to be called jus in rem, and a right protected by an actio in personam, jus in personam.

§ 82. Proprietary and Personal Rights.

Another important distinction is that between proprietary and personal rights. The aggregate of a man’s proprietary 208rights constitutes his estate, his assets, or his property in one of the many senses of that most equivocal of legal terms. German jurisprudence is superior to our own in possessing a distinct technical term for this aggregate of proprietary rights, namely Vermögen, the rights themselves being Vermögensrechte. The French speak in the same fashion of avoir or patrimoine. The sum total of a man’s personal rights, on the other hand, constitutes his status or personal condition, as opposed to his estate. If he owns land, or chattels, or patent rights, or the good-will of a business, or shares in a company, or if debts are owing to him, all these rights pertain to his estate. But if he is a free man and a citizen, a husband and a father, the rights which he has as such pertain to his status or standing in the law.^[194]

What, then, is the essential nature of this distinction? It lies in the fact that proprietary rights are valuable, and personal rights are not. The former are those which are worth money; the latter are those that are worth none. The former are the elements of a man’s wealth; the latter are merely elements in his well-being. The former possess not merely juridical, but also economic significance; while the latter possess juridical significance only.^[195]

It makes no difference in this respect, whether a right is jus in rem or jus in personam. Rights of either sort are proprietary, and make up the estate of the possessor, if they 209are of economic value. Thus my right to the money in my pocket is proprietary; but not less so is my right to the money which I have in the bank. Stock in the funds is part of a man’s estate, just as much as land and houses; and a valuable contract, just as much as a valuable chattel. On the other hand, a man’s rights of personal liberty, and of reputation, and of freedom from bodily harm are personal, not proprietary. They concern his welfare, not his wealth; they are juridical merely, not also economic. So also with the rights of a husband and father with respect to his wife and children. Rights such as these constitute his legal status, not his legal estate. If we go outside the sphere of private, into that of public law, we find the list of personal rights greatly increased. Citizenship, honours, dignities, and official position in all its innumerable forms pertain to the law of status, not to that of property.^[196]

With respect to the distinction between proprietary and personal rights—estate and status—there are the following supplementary observations to be made.

1. The distinction is not confined to rights in the strict sense, but is equally applicable to other classes of rights also. A person’s estate is made up not merely of his valuable claims against other persons, but of such of his powers and liberties, as are either valuable in themselves, or are accessory to other rights which are valuable. A landlord’s right of re-entry is proprietary, no less than his ownership of the land; and a mortgagee’s right of sale, no less than the debt secured. A general power of appointment is proprietary, but the power of making a will or a contract is personal.

2. The distinction between personal and proprietary rights has its counterpart in that between personal and proprietary duties and liabilities. The latter are those which relate to a person’s estate, and diminish the value of it. They represent a loss of money, just as a proprietary right represents the acquisition of it. All others are personal. A liability to be sued for a debt is proprietary, but a liability to be prosecuted for a crime is personal. The duty of fulfilling a contract for the purchase of goods is proprietary, but the duty of fulfilling a contract to marry is personal.

3. Although the term estate includes only rights (in the generic sense), the term status includes not only rights, but also duties, liabilities, and disabilities. A minor’s contractual disabilities are part of his status, 210though a man’s debts are not part of his estate. Status is the sum of one’s personal duties, liabilities, and disabilities, as well as of one’s personal rights.

4. A person’s status is made up of smaller groups of personal rights, duties, liabilities, and disabilities, and each of these constituent groups is itself called a status. Thus the same person may have at the same time the status of a free man, of a citizen, of a husband, of a father, and so on. So we speak of the status of a wife, meaning all the personal benefits and burdens of which marriage is the legal source and title in a woman. In the same way we speak of the status of an alien, a lunatic, or an infant.

5. It may be thought that proprietary rights should be defined as those which are transferable, rather than as those which are valuable. As to this, it seems clear that all transferable rights are also proprietary; for if they can be transferred, they can be sold, and are therefore worth money. But it is not equally true that all proprietary rights are transferable. Popular speech does not, and legal theory need not, deny the name of property to a valuable right, merely because it is not transferable. A pension may be inalienable; but it must be counted, for all that, as wealth or property. Debts were originally incapable of assignment; but even then they were elements of the creditor’s estate. A married woman may be unable to alienate her estate; but it is an estate none the less. The true test of a proprietary right is not whether it can be alienated, but whether it is equivalent to money; and it may be equivalent to money, though it cannot be sold for a price. A right to receive money or something which can itself be turned into money, is a proprietary right, and is to be reckoned in the possessor’s estate, even though inalienable.

6. It is an unfortunate circumstance that the term status is used in a considerable variety of different senses. Of these we may distinguish the following:

(a) Legal condition of any kind, whether personal or proprietary. This is the most comprehensive use of the term. A man’s status in this sense includes his whole position in the law—the sum total of his legal rights, duties, liabilities, or other legal relations, whether proprietary or personal, or any particular group of them separately considered. Thus we may speak of the status of a landowner, of a trustee, of an executor, of a solicitor, and so on. It is much more common, however, to confine the term in question to some particular description of legal condition—some particular kind of status in this wide sense. Hence the other and specific meanings of the term.

(b) Personal legal condition; that is to say, a man’s legal condition, only so far as his personal rights and burdens are concerned, to the exclusion of his proprietary relations. It is in this sense that we have hitherto used the term. Thus we speak of the status of an infant, of a married woman, of a father, of a public official, or of a citizen; but not of a landowner or of a trustee.

(c) Personal capacities and incapacities, as opposed to the other elements 211of personal status. By certain writers the term status is applied not to the whole sphere of personal condition, but only to one part of it, namely that which relates to personal capacity and incapacity.^[197] The law of status in this sense would include the rules as to the contractual capacities and incapacities of married women, but not the personal rights and duties existing between her and her husband. So it would include the law as to infant’s contracts, but not the law as to the mutual rights of parent and child. This law of status in the sense of personal capacity is considered as a special branch of the law, introductory to the main body of legal doctrine, on the ground that a knowledge of the different capacities of different classes of persons to acquire rights and to enter into legal relations is pre-supposed in the exposition of those rights and legal relations themselves. It cannot be doubted that there are certain rules which so permeate the law, that it is necessary in any well-arranged system to dispose of them once for all in a preliminary portion of the code, instead of constantly repeating them in connexion with every department of the law in which they are relevant; but it may be doubted whether the rules of personal capacity belong to this category. Surely the contractual capacity of a minor is best dealt with in the law of contracts, his capacity to commit a tort in the law of tort, his capacity to commit a crime in the criminal law, his capacity to marry in the law of marriage. Moreover, even if personal capacity is a suitable subject for separate and introductory treatment in the law, there seems little justification for confining the term status to this particular branch of personal condition.

(d) Compulsory as opposed to conventional personal condition. Status is used by some writers to signify a man’s personal legal condition, so far only as it is imposed upon him by the law without his own consent, as opposed to the condition which he has acquired for himself by agreement. The position of a slave is a matter of status, the position of a free servant is a matter of contract. Marriage creates a status in this sense, for although it is entered into by way of consent, it cannot be dissolved in that way, and the legal condition created by it is determined by the law, and cannot be modified by the agreement of the parties. A business partnership, on the other hand, pertains to the law of contract, and not to that of status.^[198]

7. The law of persons and the law of things. Certain of the Roman lawyers, for example Gaius, divided the whole of the substantive law into two parts, which they distinguished as jus quod ad personas pertinet and jus quod ad res pertinet, terms which are commonly translated as the law of persons and the law of things. There has been much discussion as 212to the precise significance of this distinction, and it is possible that it was based on no clear and consistent logical analysis at all. Any adequate investigation of the matter would here be out of place, but it is suggested that the true basis of the division is the distinction between personal and proprietary rights, between status and property. The jus quod ad res pertinet is the law of property, the law of proprietary rights; the jus quod ad personas pertinet is the law of status, the law of personal rights, so far as such rights require separate consideration, instead of being dealt with in connexion with those portions of the law of property to which they are immediately related.^[199]

§ 83. Rights in re propria and Rights in re aliena.

Rights may be divided into two kinds, distinguished by the civilians as jura in re propria and jura in re aliena. The latter may also be conveniently termed encumbrances, if we use that term in its widest permissible sense.^[200] A right in re aliena or encumbrance is one which limits or derogates from some more general right belonging to some other person in respect of the same subject-matter. All others are jura in re propria. It frequently happens that a right vested in one person becomes subject or subordinate to an adverse right vested in another. It no longer possesses its full scope or normal compass, part of it being cut off to make room for the limiting and superior right which thus derogates from it. Thus the right of a landowner may be subject to and limited by that of a tenant to the temporary use of the property; or to the right of a mortgagee to sell or take possession; or to the right of a neighbouring landowner to the use of a way or other easement; or to the right of the vendor of land in respect of restrictive covenants entered into by the purchaser as to the use of it; for example, a covenant not to build upon it.

A right subject to an encumbrance may be conveniently designated as servient, while the encumbrance which derogates from it may be contrasted as dominant. These expressions are derived from, and conform to, Roman usage in the 213matter of servitudes. The general and subordinate right was spoken of figuratively by the Roman lawyers as being in bondage to the special right which prevailed over and derogated from it. The term servitus, thus derived, came to denote the superior right itself rather than the relation between it and the other; just as obligatio came to denote the right of the creditor, rather than the bond of legal subjection under which the debtor lay.^[201]

The terms jus in re propria and jus in re aliena were devised by the commentators on the civil law, and are not to be found in the original sources. Their significance is clear. The owner of a chattel has jus in re propria—a right over his own property; the pledgee or other encumbrancer of it has jus in re aliena—a right over the property of some one else.

There is nothing to prevent one encumbrance from being itself subject to another. Thus a tenant may sublet; that is to say, he may grant a lease of his lease, and so confer upon the sub-lessee a jus in re aliena of which the immediate subject-matter is itself merely another right of the same quality. The right of the tenant in such a case is dominant with regard to that of the landowner, but servient with regard to that of the sub-lessee. So the mortgagee of land may grant a mortgage of his mortgage; that is to say, he may create what is called a sub-mortgage. The mortgage will then be a dominant right in respect of the ownership of the land, but a servient right with respect to the sub-mortgage. So the easements appurtenant to land are leased or mortgaged along with it; and therefore, though themselves encumbrances, they are themselves encumbered. Such a series of rights, each limiting and derogating from the one before it, may in theory extend to any length.

A right is not to be classed as encumbered or servient, merely on account of its natural limits and restrictions. Otherwise all rights would fall within this category, since 214none of them are unlimited in their scope, all being restrained within definite boundaries by the conflicting interests and rights of other persons. All ownership of material things, for example, is limited by the maxim, sic utere tuo ut alienum non laedas. Every man must so restrain himself in the use of his property, as not to infringe upon the property and rights of others. The law confers no property in stones, sufficiently absolute and unlimited to justify their owner in throwing them through his neighbour’s windows. No landowner may by reason of his ownership inflict a nuisance upon the public or upon adjoining proprietors. But in these and all similar cases we are dealing merely with the normal and natural boundaries of the right, not with those exceptional and artificial restrictions which are due to the existence of jura in re aliena vested in other persons. A servient right is not merely a limited right, for all are limited; it is a right so limited that its ordinary boundaries are infringed. It is a right which, owing to the influence of some other and superior right, is prevented from attaining its normal scope and dimensions. Until we have first settled the natural contents and limits of a right, there can be no talk of other rights which qualify and derogate from it.

It is essential to an encumbrance, that it should, in the technical language of our law, run with the right encumbered by it. In other words the dominant and the servient rights are necessarily concurrent. By this it is meant that an encumbrance must follow the encumbered right into the hands of new owners, so that a change of ownership will not free the right from the burden imposed upon it. If this is not so—if the right is transferable free from the burden—there is no true encumbrance. For the burden is then merely personal to him who is subject to it, and does not in truth limit or derogate from the right itself. This right still exists in its full compass, since it can be transferred in its entirety to a new owner. For this reason an agreement to sell land vests an encumbrance or jus in re aliena in the purchaser; but an agreement to sell a chattel does not. The former agreement runs with the property, while the 215latter is non-concurrent. So the fee simple of land may be encumbered by negative agreements, such as a covenant not to build; for speaking generally, such obligations will run with the land into the hands of successive owners. But positive covenants are merely personal to the covenantor, and derogate in no way from the fee simple vested in him, which he can convey to another free from any such burdens.

Concurrence, however, may exist in different degrees; it may be more or less perfect or absolute. The encumbrance may run with the servient right into the hands of some of the successive owners and not into the hands of others. In particular, encumbrances may be concurrent either in law or merely in equity. In the latter case the concurrence is imperfect or partial, since it does not prevail against the kind of owner known in the language of the law as a purchaser for value without notice of the dominant right. Examples of encumbrances running with then servient rights at law are easements, leases, and legal mortgages. On the other hand an agreement for a lease, an equitable mortgage, a restrictive covenant as to the use of land, and a trust will run with their respective servient rights in equity but not at law.

It must be carefully noted that the distinction between jura in re propria and jura in re aliena is not confined to the sphere of real rights or jura in rem. Personal, no less than real rights may be encumbrances of other rights. Personal, no less than real rights may be themselves encumbered. A debtor, for example, may grant a security over the book debts owing to him in his business or over his shares in a company, as well as over his stock in trade. A life tenancy of money in the public funds is just as possible as a life tenancy of land. There can be a lien over a man’s share in a trust fund, as well as over a chattel belonging to him. The true test of an encumbrance is not whether the encumbrancer has a jus in rem available against all the world, but whether he has a right which will avail against subsequent owners of the encumbered property.

216The chief classes of encumbrances are four in number, namely, Leases, Servitudes, Securities, and Trusts. In a later chapter we shall consider these more at length, and in the meantime it is sufficient briefly to indicate their nature.

1. A lease is the encumbrance of property vested in one man by a right to the possession and use of it vested in another.

2. A servitude is a right to the limited use of a piece of land unaccompanied either by the ownership or by the possession of it; for example, a right of way or a right to the passage of light or water across adjoining land.

3. A security is an encumbrance vested in a creditor over the property of his debtor, for the purpose of securing the recovery of the debt; a right, for example, to retain possession of a chattel until the debt is paid.

4. A trust is an encumbrance in which the ownership of property is limited by an equitable obligation to deal with it for the benefit of someone else. The owner of the encumbered property is the trustee; the owner of the encumbrance is the beneficiary.

§ 84. Principal and Accessory Rights.

The relation between principal and accessory rights is the reverse of that just considered as existing between servient and dominant rights. For every right is capable of being affected to any extent by the existence of other rights; and the influence thus exercised by one upon another is of two kinds, being either adverse or beneficial. It is adverse, when one right is limited or qualified by another vested in a different owner. This is the case already dealt with by us. It is beneficial, on the other hand, when one right has added to it a supplementary right vested in the same owner. In this case the right so augmented may be termed the principal, while the one so appurtenant to it is the accessory right. Thus a security is accessory to the right secured; a servitude is accessory to the ownership of the land for whose benefit it exists; the rent and covenants of a lease are accessory to the landlord’s ownership of the property; covenants for title in a conveyance are accessory to the estate conveyed; and a right of action is accessory to the right for whose enforcement it is provided.

A real right may be accessory to a personal; as in the case of a debt secured by a mortgage of land. A personal right may be accessory to a real; as in the case of the covenants of a lease. A real right may be accessory to a real; as in 217the case of servitudes appurtenant to land. And finally a personal right may be accessory to a personal; as in the case of a debt secured by a guarantee.

A right which is dominant with respect to one right, is often at the same time accessory with respect to another. It limits one right, and at the same time augments another. A typical example is a servitude over land. The owner of Whiteacre has a right of way over the adjoining farm Blackacre to the highway. This right of way is dominant with respect to Blackacre, and accessory with respect to Whiteacre. For the burden of it goes with Blackacre, and the benefit of it with Whiteacre. Blackacre is accordingly called the servient, and Whiteacre the dominant tenement. So a mortgage is a dominant right with respect to the property subject to it, and an accessory right with respect to the debt secured by it. In like manner a landlord’s right to his rent is dominant with regard to the lease, but accessory with regard to the reversion. This double character, however, is not necessary or universal. A public right of way is an encumbrance of the land subject to it, but it is not accessory to any other land. So a lease is a dominant right which is not at the same time accessory to any principal.

§ 85. Legal and Equitable Rights.

In a former chapter we considered the distinction between common law and equity. We saw that these two systems of law, administered respectively in the courts of common law and the Court of Chancery, were to a considerable extent discordant. One of the results of this discordance was the establishment of a distinction between two classes of rights, distinguishable as legal and equitable. Legal rights are those which were recognised by the courts of common law. Equitable rights (otherwise called equities) are those which were recognised solely in the Court of Chancery. Notwithstanding the fusion of law and equity by the Judicature Act, 1873, this distinction still exists, and must be reckoned with as an inherent part of our legal system. That which 218would have been merely an equitable right before the Judicature Act is merely an equitable right still.

Inasmuch as all rights, whether legal or equitable, now obtain legal recognition in all courts, it may be suggested that the distinction is now of no importance. This is not so however, for in two respects at least, these two classes of rights differ in their practical effects.

1. The methods of their creation and disposition are different. A legal mortgage of land must be created by deed, but an equitable mortgage may be created by a written agreement or by a mere deposit of title-deeds. A similar distinction exists between a legal and an equitable lease, a legal and an equitable servitude, a legal and an equitable charge on land, and so on.

2. Equitable rights have a more precarious existence than legal rights. Where there are two inconsistent legal rights claimed adversely by different persons over the same thing, the first in time prevails. Qui prior est tempore potior est jure. A similar rule applies to the competition of two inconsistent equitable rights. But when a legal and an equitable right conflict, the legal will prevail over and destroy the equitable, even though subsequent to it in origin, provided that the owner of the legal right acquired it for value and without notice of the prior equity. As between a prior equitable mortgage, for example, and a subsequent legal mortgage, preference will be given to the latter. The maxim is: Where there are equal equities, the law will prevail. This liability to destruction by conflict with a subsequent legal right is an essential feature and a characteristic defect of all rights which are merely equitable.^[202]

SUMMARY.

§ 86. The Definition of Ownership.

Ownership, in its most comprehensive signification, denotes the relation between a person and any right that is vested in him. That which a man owns is in all cases a right. When, as is often the case, we speak of the ownership of a material object, this is merely a convenient figure of speech. To own a piece of land means in truth to own a particular kind of right in the land, namely, the fee simple of it.

Ownership, in this generic sense, extends to all classes of rights, whether proprietary or personal, in rem or in personam, in re propria or in re aliena. I may own a debt, or a mortgage, or a share in a company, or money in the public funds, or a copyright, or a lease, or a right of way, or the fee simple of land. Every right is owned; and nothing can be owned except a right. Every man is the owner of the rights which are his.

Ownership, in its generic sense, as the relation in which a person stands to any right vested in him, is opposed to two other possible relations between a person and a right. It is opposed in the first place to possession. This very difficult juridical conception will be considered by us in the succeeding chapter. We shall see that the possession of a right (possessio juris, Rechtsbesitz) is the de facto relation of continuing exercise and enjoyment, as opposed to the de jure relation of ownership. A man may possess a right without owning it, as where the wrongful occupant of land makes use of a right of way or other casement appurtenant to it. Or he may own a right without possessing it. Or finally ownership and possession may be united, as indeed they usually are, the de 221jure and the de facto relations being coexistent and coincident.

The ownership of a right is, in the second place, opposed to the encumbrance of it. The owner of the right is he in whom the right itself is vested; while the encumbrancer of it is he in whom is vested, not the right itself, but some adverse, dominant, and limiting right in respect of it. A. may be the owner of property, B. the lessee of it, C. the sub-lessee, D. the first mortgagee, E. the second mortgagee, and so on indefinitely. Legal nomenclature, however, does not supply separate names for every distinct kind of encumbrancer. There is no distinctive title, for example, by which we may distinguish from the owner of the property him who has an easement over it or the benefit of a covenant which runs with it.

Although encumbrance is thus opposed to ownership, every encumbrancer is nevertheless himself the owner of the encumbrance. The mortgagee of the land is the owner of the mortgage. The lessee of the land is the owner of the lease. The mortgagee of the mortgage is the owner of the sub-mortgage. That is to say, he in whom an encumbrance is vested stands in a definite relation not merely to it, but also to the right encumbered by it. Considered in relation to the latter, he is an encumbrancer; but considered in relation to the former, he is himself an owner.

Ownership is of various kinds, and the following distinctions are of sufficient importance and interest to deserve special examination:

1. Corporeal and Incorporeal Ownership.

2. Sole Ownership and Co-ownership.

3. Trust-Ownership and Beneficial Ownership.

4. Legal and Equitable Ownership.

5. Vested and Contingent Ownership.

§ 87. Corporeal and Incorporeal Ownership.

Although the true subject-matter of ownership is in all cases a right, a very common form of speech enables us to speak of the ownership of material things. We speak of 222owning, acquiring, or transferring, not rights in land or chattels, but the land or chattels themselves. That is to say, we identify by way of metonymy the right with the material thing which is its object. This figure of speech is no less convenient than familiar. The concrete reference to the material object relieves us from the strain of abstract thought. Rights are dim abstractions, while material things are visible realities; and it is easier to think and speak of the latter than of the former, even though the substitution is a mere figure of speech. This device, moreover, is an aid to brevity, no less than to ease of comprehension.

This figurative identification of a right with its object is, however, not always permissible. I may be said to own the money in my hand; but as to that which is due to me, I own not the money, but a right to it. In the one case I own the material coins; in the other the immaterial debt or chose in action. So I own my land, but merely a right of way over the land of my neighbour. If we look, therefore, no deeper than the mere usages of speech, it would seem as if the subject-matter of ownership were sometimes a material object and at other times a right. This, of course, would be a logical absurdity. Ownership may conceivably be in all cases a relation to a material object; or it may in all cases be a relation to a right; but it cannot be sometimes the one and sometimes the other. So long as we remember that the ownership of a material thing is nothing more than a figurative substitute for the ownership of a particular kind of right in that thing, the usage is one of great convenience; but so soon as we attempt to treat it as anything more than a figure of speech, it becomes a fertile source of confusion of thought.

In what cases, then, do we use this figure of speech? What is it that determines whether we do or do not identify a right with its object? How is the line drawn between corporeal and incorporeal ownership? The usage is to some extent arbitrary and uncertain. The application of figurative language is a matter not of logic but of variable practice and opinion. Speaking generally, however, we may say that the ownership of a material thing means the ownership of a jus 223in re propria in respect of that thing. No man is said to own a piece of land or a chattel, if his right over it is merely an encumbrance of some more general right vested in some one else. The ownership of a jus in re aliena is always incorporeal, even though the object of that right is a corporeal thing. I am not said to own a chattel, merely because I own a right to have it transferred to me, or because I own a lien over it or a right to the temporary use of it.

When, on the other hand, a right is not a mere encumbrance of another right—when it is a self-existent jus in re propria—it is identified with the material thing which is its subject-matter. It is not difficult to perceive the origin and reason of this usage of speech. In its full and normal compass a jus in re propria over a material object is a right to the entirety of the lawful uses of that object. It is a general right of use and disposal, all jura in re aliena being merely special and limited rights derogating from it in special respects. It is only this absolute and comprehensive right—this universum jus—that is identified with its object. For it is in some sense coincident with its object, and exhausts the juridical significance of it. It is the greatest right which can exist in respect of the thing, including all lesser rights within itself, and he who owns it may therefore conveniently be said to own the thing itself.

We have said that in its full and normal compass corporeal ownership is the ownership of a right to the entirety of the lawful uses of a corporeal thing. This compass, however, may be limited to any extent by the adverse influences of jura in re aliena vested in other persons. The right of the owner of a thing may be all but eaten up by the dominant rights of lessees, mortgagees, and other encumbrancers. His ownership may be reduced to a mere name rather than a reality. Yet he none the less remains the owner of the thing, while all others own nothing more than rights over it. For he still owns that jus in re propria which, were all encumbrances removed from it, would straightway expand to its normal dimensions as the universum jus of general and permanent 224use. He then, is the owner of a material object, who owns a right to the general or residuary uses of it,^[203] after the deduction of all special and limited rights of use vested by way of encumbrance in other persons.^[204]

What, then, is the name of the right which we thus identify, for convenience of speech, with its material object? What shall we call the right which enables the owner of it to say that he owns a piece of land or a chattel? Unfortunately for the lucidity of legal nomenclature, there is, unless we are prepared to use the somewhat awkward Latin term jus in re propria, no other name for it than ownership itself. This is a use of the term which is quite different from that hitherto considered by us. Ownership, as a particular kind of right, must be clearly distinguished from ownership, as a particular kind of relation to rights of all descriptions. We cannot class together the right of ownership and the ownership of a right. This use of the term to denote a right is the natural outcome of the figurative use of it already considered. When we not only speak of the ownership of land, but interpret such language literally, it is clear that ownership must be taken as the name of the right which the owner has in the land.^[205]

Closely connected with the distinction between corporeal and incorporeal ownership is that between corporeal and incorporeal things. The term thing (res, chose, sache) is used in three distinct senses by legal writers:—

1. In its first and simplest application it means merely a material object, regarded as the subject-matter of a right.^[206] According to this use, some rights are rights to or over things, and some are not. The owner of a house owns a thing; the owner of a patent does not.

2. In a second and wider sense the term thing includes every subject-matter of a right, whether a material object or not. In this signification every right is a right in or to some thing. A man’s life, reputation, health, and liberty are things in law, no less than are his land and chattels.^[207] Things in this sense are either material or immaterial, but the distinction thus indicated must not be confounded with that now to be explained between things corporeal and incorporeal.

3. In a third and last application the term thing means whatever a man owns as part of his estate or property. It is any subject-matter of ownership within the sphere of proprietary or valuable rights. Now we have already seen that according to the current usage of figurative speech ownership is sometimes that of a material object and sometimes that of a right. Things, therefore, as the objects of ownership, are of two kinds also. A corporeal thing (res corporalis) is the subject-matter of corporeal ownership; that is to say, a material object. An incorporeal thing (res incorporalis) is the subject-matter of incorporeal ownership; that is to say, it is any proprietary right except that right of full dominion over a material object which, as already explained, is figuratively identified with the object itself. If I own a field and a right of way over another, my field is a res corporalis and my right 226of way is a res incorporalis. If I own a pound in my pocket and a right to receive another from my debtor, the first pound is a thing corporeal, and the right to receive the second is a thing incorporeal; it is that variety of the latter, which is called, in the technical language of English law, a chose in action or thing in action; while the pound in my pocket is a chose or thing in possession.^[208]

It is clear that if literally interpreted, this distinction is illogical and absurd. We cannot treat in this way rights and the objects of rights as two species of one genus. If we use the term thing in each case to mean a right, then the right of an owner of land is just as incorporeal as is that of his tenant. On the other hand, if the term is to be taken in each case to mean the object of a right, then the object of the tenant’s right is just as corporeal as is that of his landlord. The distinction between corporeal and incorporeal things is based on the same figure of speech as is that between corporeal and incorporeal ownership. Both distinctions become intelligible, so soon as we recognise the metonymy involved in the substitution of the subject-matter of a right for the right itself.^[209]

§ 89. Sole Ownership and Co-ownership.

As a general rule a right is owned by one person only at a time, but duplicate ownership is perfectly possible. Two or more persons may at the same time have the same right vested in them. This may happen in several distinct ways, but the simplest and most obvious case is that of co-ownership. Partners, for example, are co-owners of the chattels which constitute their stock in trade, of the lease of the premises on which their business is conducted, and of the debts 227owing to them by their customers. It is not correct to say that a right owned by co-owners is divided between them, each of them owning a separate part. The right is an undivided unity, which is vested at the same time in more than one person. If two partners have at their bank a credit balance of 1000l., there is one debt of 1000l. owing by the bank to both of them at once, not two separate debts of 500l. due to each of them individually. Each partner is entitled to the whole sum, just as each would owe to the bank the whole of the firm’s overdraft. The several ownership of a part is a different thing from the co-ownership of the whole. So soon as each of two co-owners begins to own a part of the right instead of the whole of it, the co-ownership has been dissolved into sole ownership by the process known as partition. Co-ownership involves the undivided integrity of the right owned.

Co-ownership, like all other forms of duplicate ownership, is possible only so far as the law makes provision for harmonising in some way the conflicting claims of the different owners inter se. In the case of co-owners the title of the one is rendered consistent with that of the other by the existence of reciprocal obligations of restricted use and enjoyment.

Co-ownership may assume different forms by virtue of the different incidents attached to it by law. Its two chief kinds in English law are distinguished as ownership in common and joint ownership. The most important difference between these relates to the effect of the death of one of the co-owners. In ownership in common the right of a dead man descends to his successors like any other inheritable right. But on the death of one of two joint owners his ownership dies with him, and the survivor becomes the sole owner by virtue of this right of survivorship or jus accrescendi.

§ 90. Trust and Beneficial Ownership.

A trust is a very important and curious instance of duplicate ownership. Trust property is that which is owned by two persons at the same time, the relation between the two owners being such that one of them is under an obligation to use his ownership for the benefit of the other. The former is 228called the trustee, and his ownership is trust-ownership; the latter is called the beneficiary, and his is beneficial ownership.^[210]

The trustee is destitute of any right of beneficial enjoyment of the trust property. His ownership, therefore, is a matter of form rather than of substance, and nominal rather than real. If we have regard to the essence of the matter rather than to the form of it, a trustee is not an owner at all, but a mere agent, upon whom the law has conferred the power and imposed the duty of administering the property of another person. In legal theory, however, he is not a mere agent but an owner. He is a person to whom the property of some one else is fictitiously attributed by the law, to the intent that the rights and powers thus vested in a nominal owner shall be used by him on behalf of the real owner. As between trustee and beneficiary, the law recognises the truth of the matter; as between these two, the property belongs to the latter and not to the former. But as between the trustee and third persons, the fiction prevails. The trustee is clothed with the rights of his beneficiary, and is so enabled to personate or represent him in dealings with the world at large.

The purpose of trusteeship is to protect the rights and interests of persons who for any reason are unable effectively to protect them for themselves. The law vests those rights and interests for safe custody, as it were, in some other person who is capable of guarding them and dealing with them, and who is placed under a legal obligation to use them for the benefit of him to whom they in truth belong. The chief classes of persons in whose behalf the protection of trusteeship is called for are four in number. In the first place, property may belong to persons who are not yet born; and in order that it may be adequately safeguarded and administered, it is commonly vested in the meantime in trustees, who hold and deal with it on account of its unborn owners. In the 229second place, similar protection is required for the property of those who lie under some incapacity in respect of the administration of it, such as infancy, lunacy, or absence. Thirdly, it is expedient that property in which large numbers of persons are interested in common should be vested in trustees. The complexities and difficulties which arise from co-ownership become so great, so soon as the number of co-owners ceases to be small, that it is essential to avoid them; and one of the most effective devices for this purpose is that scheme of duplicate ownership which we term a trust. Fourthly, when persons have conflicting interests in the same property (for example, an owner and an encumbrancer, or different kinds of encumbrancers) it is often advisable that the property should be vested in trustees, whose power and duty it is to safeguard the interests of each of those persons against the conflicting claims of the others.

A trust is to be distinguished from two other relations which resemble it. It is to be distinguished, in the first place, from a mere contractual obligation to deal with one’s property on behalf of some one else. A trust is more than an obligation to use one’s property for the benefit of another; it is an obligation to use it for the benefit of another in whom it is already concurrently vested. The beneficiary has more than a mere personal right against his trustee to the performance of the obligations of the trust. He is himself an owner of the trust property. That which the trustee owns, the beneficiary owns also. If the latter owned nothing save the personal obligation between the trustee and himself, there would be no trust at all. Thus if a husband gratuitously covenants with his wife to settle certain property upon her, he remains the sole owner of it, until he has actually transferred it in fulfilment of his contract; and in the meantime the wife owns nothing save the contractual obligation created by the covenant. There is therefore no trust. If, on the other hand, the husband declares himself a trustee of the property for his wife, the effect is very different. Here also he is under a personal obligation to transfer the property to her, but this is not all. The beneficial ownership of the 230property passes to the wife forthwith, yet the ownership of the husband is not destroyed. It is merely transformed into a trust-ownership consistent with the concurrent beneficial title of his wife.

In the second place, a trust is to be distinguished from the relation in which an agent stands towards the property which he administers on behalf of his principal. In substance, indeed, as already indicated, these two relations are identical, but in form and in legal theory they are essentially different. In agency the property is vested solely in the person on whose behalf the agent acts, but in trusteeship it is vested in the trustee himself, no less than in the beneficiary. A trustee is an agent for the administration of property, who is at the same time the nominal owner of the property so administered by him.

A trust is created by any act or event which separates the trust-ownership of any property from the beneficial ownership of it, and vests them in different persons. Thus the direct owner of property may declare himself a trustee for some one else, who thereupon becomes the beneficial owner; or the direct owner may transfer the property to some one else, to hold it in trust for a third. Conversely, a trust is destroyed by any act or event which reunites in the same hands the two forms of ownership which have become thus separated. The trustee, for example, may transfer the property to the beneficiary, who then becomes the direct owner; or the beneficiary may transfer it to his trustee, with the like result.

Trust-ownership and beneficial ownership are independent of each other in their destination and disposition. Either of them may be transferred, while the other remains unaffected. The trustee may assign to another, who thereupon becomes a trustee in his stead, while the beneficiary remains the same; or the beneficiary may assign to another, while the trust-ownership remains where it was. In like manner, either kind of ownership may be independently encumbered. The trustee may, in pursuance of the powers of the trust, lease or mortgage the property without the concurrence of the beneficiary; and the beneficiary may deal in the same way with his beneficial ownership independently of the trustee.

Whenever the beneficial ownership has been encumbered, either by the creator of the trust or by the beneficial owner himself, the trustee holds the property not only on behalf of the beneficial owner but also on behalf of the beneficial encumbrancers. That is to say, the relation of trusteeship exists between the trustee and all persons beneficially interested in the property, either as owners or encumbrancers. Thus if property is transferred to A., in trust for B. for life, with remainder to C., A. is a trustee not merely for C., the beneficial owner, but also for B., the beneficial 231encumbrancer. Both are beneficiaries of the trust, and between the trustee and each of them there exists the bond of a trust-obligation.^[211]

§ 91. Legal and Equitable Ownership.

Closely connected but not identical with the distinction between trust and beneficial ownership, is that between legal and equitable ownership. One person may be the legal and another the equitable owner of the same thing at the same time. Legal ownership is that which has its origin in the rules of the common law, while equitable ownership is that which proceeds from rules of equity divergent from the common law. The courts of common law refused to recognise equitable ownership, and denied that the equitable owner was an owner at all. The Court of Chancery adopted a very different attitude. Here the legal owner was recognised no less than the equitable, but the former was treated as a trustee for the latter. Chancery vindicated the prior claims of equity, not by denying the existence of the legal owner, but by taking from him by means of a trust the beneficial enjoyment of his property. The fusion of law and equity effected by the Judicature Act, 1873, has not abolished this distinction; it has simply extended the doctrines of the Chancery to the courts of common law, and as equitable ownership did not extinguish or exclude legal ownership in Chancery, it does not do so now.

The distinction between legal and equitable ownership is not identical with that mentioned in a previous chapter as existing between legal and equitable rights. These two forms of ownership would still exist even if all rights were legal. The equitable ownership of a legal right is a different thing from the ownership of an equitable right. Law and equity are discordant not merely as to the existence of rights, but also as to the ownership of the rights which they both recognise. When a debt is verbally assigned by A. to B., A. remains the legal owner of it none the less, but B. becomes the equitable owner of it. But there are not for that reason 232two debts. There is only one as before, though it has now two owners. So if A., the legal owner of a share in a company, makes a declaration of trust in favour of B., B. becomes forthwith the equitable owner of the share; but it is the same share as before, and not another. The thing which he thus equitably owns is a legal right, which is at the same time legally owned by A. Similarly the ownership of an equitable mortgage is a different thing from the equitable ownership of a legal mortgage.

Nor is the distinction between legal and equitable ownership merely equivalent to that between trust and beneficial ownership. It is true that, whenever the legal estate is in one man and the equitable estate in another, there is a trust. A legal owner is always a trustee for the equitable owner, if there is one. But an equitable owner may himself be merely a trustee for another person. A man may settle upon trust his equitable interest in a trust fund, or his equitable estate in his mortgaged land. In such a case neither trustee nor beneficiary will have anything more than equitable ownership.

If an equitable owner can be a trustee, can a legal owner be a beneficiary? As the law now stands, he cannot. But this is a mere accident of historical development, due to the fact that the courts of common law refused to recognise trusts at all. There is no more theoretical difficulty in allowing that a trustee and his beneficiary may both be legal owners, than in allowing that they may both be equitable owners. Had the courts of common law worked out a doctrine of trusts for themselves, this twofold legal ownership would have actually existed.

The practical importance of the distinction between legal and equitable ownership is the same as that already indicated as pertaining to the distinction between legal and equitable rights.^[212]

§ 92. Vested and Contingent Ownership.

Ownership is either vested or contingent. It is vested when the owner’s title is already perfect; it is contingent when his 233title is as yet imperfect, but is capable of becoming perfect on the fulfilment of some condition. In the former case he owns the right absolutely; in the latter he owns it merely conditionally. In the former case the investitive fact from which he derives the right is complete in all its parts; in the latter it is incomplete, by reason of the absence of some necessary element, which is nevertheless capable of being supplied in the future. In the meantime, therefore, his ownership is contingent, and it will not become vested until the necessary condition is fulfilled. A testator, for example, may leave property to his wife for her life, and on her death to A., if he is then alive, but if A. is then dead, to B. A. and B. are both owners of the property in question, but their ownership is merely contingent. That of A. is conditional on his surviving the testator’s widow; while that of B. is conditional on the death of A. in the widow’s lifetime.

The contingent ownership of a right does not necessarily involve its contingent existence. It need not be a contingent right, because it is contingently owned. Shares and other choses in action may have an absolute existence, though the ownership of them may be contingently and alternately in A. and B. Money in a bank may be certainly owing to some one, though it may depend on a condition, whether it is owing to C. or D. On the other hand, it may be that the right is contingent in respect of its existence, no less than in respect of its ownership. This is so whenever there is no alternative owner, and when, therefore, the right will belong to no one unless it becomes vested in the contingent owner by the fulfilment of the condition.

It is to be noticed that the contingent ownership of a right is something more than a simple chance or possibility of becoming the owner of it. It is more than a mere spes acquisitionis. I have no contingent ownership of a piece of land merely because I may buy it, if I so wish; or because peradventure its owner may leave it to me by his will. Contingent ownership is based not upon the mere possibility of future acquisition, but upon the present existence of an inchoate or incomplete title.

234The conditions on which contingent ownership depends are termed conditions precedent to distinguish them from another kind known as conditions subsequent. A condition precedent is one by the fulfilment of which an inchoate title is completed; a condition subsequent is one on the fulfilment of which a title already completed is extinguished. In the former case I acquire absolutely what I have already acquired conditionally. In the latter case I lose absolutely what I have already lost conditionally. A condition precedent involves an inchoate or incomplete investitive fact; a condition subsequent involves an incomplete or inchoate divestitive fact.^[213] He who owns property subject to a power of sale or power of appointment vested in some one else, owns it subject to a condition subsequent. His title is complete, but there is already in existence an incomplete divestitive fact, which may one day complete itself and cut short his ownership.

It is to be noticed that ownership subject to a condition subsequent is not contingent but vested. The condition is attached not to the commencement of vested ownership, but to the continuance of it. Contingent ownership is that which is not yet vested, but may become so in the future; while ownership subject to a condition subsequent is already vested, but may be divested and destroyed in the future. In other words ownership subject to a condition subsequent is not contingent but determinable. It is ownership already vested, but liable to premature determination by the completion of a divestitive fact which is already present in part.

It is clear that two persons may be contingent owners of the same right at the same time. The ownership of each is alternative to that of the other. The ownership of one is destined to become vested, while that of the other is appointed to destruction. Similarly the vested ownership of one man may coexist with the contingent ownership of another. For the event which in the future will vest the right in the one, will at the same time divest it from the other. Thus a testator may leave property to his wife, with a provision 235that if she marries again, she shall forfeit it in favour of his children. His widow will have the vested ownership of the property, and his children the contingent ownership at the same time. Her marriage is a condition subsequent in respect of her own vested ownership, and a condition precedent in respect of the contingent ownership of the children.^[214]

SUMMARY.

§ 93. Introduction.

In the whole range of legal theory there is no conception more difficult than that of possession. The Roman lawyers brought their usual acumen to the analysis of it, and since their day the problem has formed the subject of a voluminous literature, while it still continues to tax the ingenuity of jurists. Nor is the question one of mere curiosity or scientific interest, for its practical importance is not less than its difficulty. The legal consequences which flow from the acquisition and loss of possession are many and serious. Possession, for example, is evidence of ownership; the possessor of a thing is presumed to be the owner of it, and may put all other claimants to proof of their title. Long possession is a sufficient title even to property which originally belonged to another. The transfer of possession is one of the chief methods of transferring ownership. The first possession of a thing which as yet belongs to no one is a good title of right. Even in respect of property already owned, the wrongful possession of it is a good title for the wrongdoer, as against all the world except the true owner. Possession is of such efficacy, also, that a possessor may in many cases confer a good title on another, even though he has none himself; as when I obtain a bank-note from a thief, or goods from a factor who disposes of them in fraud of his principal. These are some, though some only, of the results which the law attributes to possession, rightful or wrongful. They are sufficient to show the importance of this conception, and the necessity of an adequate analysis of its essential nature.

It is necessary to bear in mind from the outset the distinction between possession in fact and possession in law. We have to remember the possibility of more or less serious divergences between legal principles and the truth of things. Not everything which is recognised as possession by the law need be such in truth and in fact. And conversely the law, by reasons good or bad, may be moved to exclude from the limits of the conception facts which rightly fall within them. There are three possible cases in this respect. First, possession may and usually does exist both in fact and in law. The law recognises as possession all that is such in fact, and nothing that is not such in fact, unless there is some special reason to the contrary. Secondly, possession may exist in fact but not in law. Thus the possession by a servant of his master’s property is for some purposes not recognised as such by the law, and he is then said to have detention or custody rather than possession. Thirdly, possession may exist in law but not in fact; that is to say, for some special reason the law attributes the advantages and results of possession to some one who as a matter of fact does not possess. The possession thus fictitiously attributed to him is by English lawyers termed constructive. The Roman lawyers distinguished possession in fact as possessio naturalis, and possession in law as possessio civilis.^[215]

In consequence of this divergence, partly intentional and avowed, partly accidental and unavowed, between the law and the fact of possession, it is impossible that any abstract theory should completely harmonise with the detailed rules to be found in any concrete body of law. Such harmony would be possible only in a legal system which had developed with absolute logical rigour, undisturbed by historical accidents, and unaffected by any of those special considerations 238which in all parts of the law prevent the inflexible and consistent recognition of general principles.

It follows from this discordance between law and fact, that a complete theory of possession falls into two parts: first an analysis of the conception itself, and secondly an exposition of the manner in which it is recognised and applied in the actual legal system. It is with the first of those matters that we are here alone concerned.

It is to be noticed that there are not two ideas of possession—a legal and a natural. Were this so, we could dispense altogether with the discussion of possession in fact. There is only one idea, to which the actual rules of law do more or less imperfectly conform. There is no conception which will include all that amounts to possession in law, and will include nothing else, and it is impossible to frame any definition from which the concrete law of possession can be logically deduced. Our task is merely to search for the idea which underlies this body of rules, and of which they are the imperfect and partial expression and application.

The complexities of the English law are increased by the curious circumstance that two distinct kinds of legal possession are recognised in that system. These are distinguished as seisin and possession. To a considerable extent they are governed by different rules and have different effects. I may have seisin of a piece of land but not possession of it, or possession but not seisin, or both at once; and in all those cases I may or may not at the same time have possession in fact. The doctrine of seisin is limited to land; it is one of the curiosities of that most curious of the products of the human intellect, the English law of real property. The doctrine of possession, on the other hand, is common, with certain variations, to land and chattels. The divergence between these two forms of possession in law is a matter of legal history, not of legal theory.

Extraordinary importance was until a comparatively recent period attributed by our law to the acquisition and retention of seisin by the owner of land. Without seisin his right was a mere shadow of ownership, rather than the full reality of it. For many purposes a man had only what he possessed—and the form of his possession must be that which amounted to seisin. A dispossessed owner was deprived of his most effective remedies; he could neither alienate his estate, nor leave it by his will; neither did his heirs inherit it after him. The tendency of modern law is to eliminate the whole doctrine of seisin, as an archaic survival of 239an earlier process of thought, and to recognise a single form of legal possession.^[216]

§ 95. Corporeal and Incorporeal Possession.

We have seen in a former chapter that ownership is of two kinds, being either corporeal or incorporeal. A similar distinction is to be drawn in the case of possession. Corporeal possession is the possession of a material object—a house, a farm, a piece of money. Incorporeal possession is the possession of anything other than a material object—for example, a way over another man’s land, the access of light to the windows of a house, a title of rank, an office of profit, and such like. All these things may be possessed as well as owned. The possessor may or may not be the owner of them, and the owner of them may or may not be in possession of them. They may have no owner at all, having no existence de jure, and yet they may be possessed and enjoyed de facto.

Corporeal possession is termed in Roman law possessio corporis. Incorporeal possession is distinguished as possessio juris, the possession of a right, just as incorporeal ownership is the ownership of a right. The Germans distinguish in like fashion between Sachenbesitz, the possession of a material thing, and Rechtsbesitz, the possession of a right. The significance of this nomenclature and the nature of the distinction indicated by it will be considered by us later.

It is a question much debated whether incorporeal possession is in reality true possession at all. Some are of opinion that all genuine possession is corporeal, and that the other is related to it by way of analogy merely. They maintain that there is no single generic conception which includes possessio corporis and possessio juris as its two specific forms. The Roman lawyers speak with hesitation and even inconsistency on the point. They sometimes include both forms under the title of possessio, while at other times they are careful to qualify incorporeal possession as quasi possessio—something 240which is not true possession, but is analogous to it. The question is one of no little difficulty, but the opinion here accepted is that the two forms do in truth belong to a single genus. The true idea of possession is wider than that of corporeal possession, just as the true idea of ownership is wider than that of corporeal ownership. The possession of a right of way is generically identical with the possession of the land itself, though specifically different from it.

This being so, the strictly logical order of exposition involves the analysis, in the first place, of the generic conception, in its full compass, followed by an explanation of the differentia, which distinguishes possessio corporis from possessio juris. We shall, however, adopt a different course, confining our attention in the first place to possessio corporis, and proceeding thereafter to the analysis of possessio juris and to the exposition of the generic idea which comprises both of them. This course is advisable for two reasons. In the first place, the matter is of such difficulty that it is easier to proceed from the specific idea to the generic, than conversely. And in the second place, the conception of corporeal possession is so much more important than that of incorporeal, that it is permissible to treat the latter simply as a supplement to the former, rather than as co-ordinate with it.

§ 96. Corporeal Possession.

Corporeal possession is clearly some form of continuing relation between a person and a material object. It is equally clear that it is a relation of fact and not one of right. It may be, and commonly is, a title of right; but it is not a right itself. A man may possess a thing in defiance of the law, no less than in accordance with it. Nor is this in any way inconsistent with the proposition, already considered by us, that possession may be such either in law or in fact. A thief has possession in law, although he has acquired it contrary to law. The law condemns his possession as wrongful, but at the same time recognises that it exists, 241and attributes to it most, if not all, of the ordinary consequences of possession.^[217]

What, then, is the exact nature of that continuing de facto relation between a person and a thing, which is known as possession? The answer is apparently this: The possession of a material object is the continuing exercise of a claim to the exclusive use of it. It involves, therefore, two distinct elements, one of which is mental or subjective, the other physical or objective. The one consists in the intention of the possessor with respect to the thing possessed, while the other consists in the external facts in which this intention has realised, embodied, or fulfilled itself. These two constituent elements of possession were distinguished by the Roman lawyers as animus and corpus, and the expressions are conveniently retained by modern writers. The subjective element is called more particularly the animus possidendi, animus sibi habendi, or animus domini.

Apiscimur possessionem, so runs a celebrated sentence of the Roman lawyer Paul,^[218] corpore et animo, neque per se animo aut per se corpore. Neither of these is sufficient by itself. Possession begins only with their union, and lasts only until one or other of them disappears. No claim or animus, however strenuous or however rightful, will enable a man to acquire or retain possession, unless it is effectually realised or exercised in fact. No mere intent to appropriate a thing will amount to the possession of it. Conversely, the corpus without the animus is equally ineffective. No mere physical relation of person to thing has any significance in this respect, unless it is the outward form in which the needful animus or intent has fulfilled and realised itself. A man does not possess a field because he is walking about in it, unless he has the intent to exclude other persons from the use of it. I may be alone in a room with money that does not belong to me lying ready to my hand on the table. I 242have absolute physical power over this money; I can take it away with me if I please; but I have no possession of it, for I have no such purpose with respect to it.

§ 97. The Animus Possidendi.

We shall consider separately these two elements in the conception. And first of the animus possidendi. The intent necessary to constitute possession is the intent to appropriate to oneself the exclusive use of the thing possessed. It is an exclusive claim to a material object. It is a purpose of using the thing oneself and of excluding the interference of other persons. As to this necessary mental attitude of the possessor there are the following observations to be made.

1. The animus sibi habendi is not necessarily a claim of right. It may be consciously wrongful. The thief has a possession no less real than that of a true owner. The possessor of a thing is not he who has, or believes that he has, a right to it, but he who intends to act as if he had such a right. To possession in good faith the law may and does allow special benefits which are cut off by fraud, but to possession as such—the fulfilment of the self-assertive will of the individual—good faith is irrelevant.

2. The claim of the possessor must be exclusive. Possession involves an intent to exclude other persons from the uses of the thing possessed. A mere intent or claim of unexclusive use cannot amount to possession of the material thing itself, though it may and often does amount to some form of incorporeal possession. He who claims and exercises a right of way over another man’s land is in possession of this right of way; but he is not in possession of the land itself, for he has not the necessary animus of exclusion.

The exclusion, however, need not be absolute. I may possess my land notwithstanding the fact that some other person, or even the public at large, possesses a right of way over it. For, subject to this right of way, my animus possidendi is still a claim of exclusive use. I intend to exclude all 243alien interference except such as is justified by the limited and special right of use vested in others.

3. The animus possidendi need not amount to a claim or intent to use the thing as owner. A tenant, a borrower, or a pledgee may have possession no less real than that of the owner himself. Any degree or form of intended use, however limited in extent or in duration, may, if exclusive for the time being, be sufficient to constitute possession.

4. The animus possidendi need not be a claim on one’s own behalf. I may possess a thing either on my own account or on account of another. A servant, agent, or trustee may have true possession, though he claims the exclusive use of the thing on behalf of another than himself.^[219]

5. The animus possidendi need not be specific, but may be merely general. That is to say, it does not necessarily involve any continuous or present knowledge of the particular thing possessed or of the possessor’s relation to it. A general intent with respect to a class of things is sufficient (if coupled with the necessary physical relation) to confer possession of the individual objects belonging to that class, even though their individual existence is unknown. Thus I possess all the books in my library, even though I may have forgotten the existence of many of them. So if I set nets to catch fish, I have a general intent and claim with respect to all the fish that come therein; and my ignorance whether there are any there or not does in no way affect my possession of such as are there. So I have a general purpose to possess my flocks and herds, which is sufficient to confer possession of their increase though unknown to me. So if I receive a letter, I have forthwith the animus possidendi with respect to its enclosure; and I do not first acquire possession of the cheque that is inside it, when I open the envelope and see it.^[220] But 244if, on the other hand, I buy a cabinet believing it to be empty, whereas it contains money hid in a secret drawer, I do not acquire possession of the money until I actually find it; for until then I have no animus with respect to it, either general or specific.^[221]

§ 98. The Corpus of Possession.

To constitute possession the animus domini is not in itself sufficient, but must be embodied in a corpus. The claim of the possessor must be effectively realised in the facts; that is to say, it must be actually and continuously exercised. The will is sufficient only when manifested in an appropriate environment of fact, just as the fact is sufficient only when it is the expression and embodiment of the required intent and will. Possession is the effective realisation in fact of the animus sibi habendi.

One of the chief difficulties in the theory of possession is that of determining what amounts to such effective realisation. The true answer seems to be this: that the facts must amount to the actual present exclusion of all alien interference with the thing possessed, together with a reasonably sufficient security for the exclusive use of it in the future. Then, and then only, is the animus or self-assertive will of the possessor satisfied and realised. Then, and only then, is there a continuing de facto exercise of the claim of exclusive use. Whether this state of facts exists depends on two things: (1) on the relation of the possessor to other persons, and (2) on the relation of the possessor to the thing possessed. We shall consider these two elements of the corpus possessionis separately.

§ 99. The Relation of the Possessor to other Persons.

So far as other persons are concerned, I am in possession of a thing when the facts of the case are such as to create a reasonable expectation that I will not be interfered with in the use of it. I must have some sort of security for their acquiescence and non-interference. “The reality,” it has 245been well said,^[222] “of de facto dominion is measured in inverse ratio to the chances of effective opposition.” A security for enjoyment may, indeed, be of any degree of goodness or badness, and the prospect of enjoyment may vary from a mere chance up to moral certainty. At what point in the scale, then, are we to draw the line? What measure of security is required for possession? We can only answer: Any measure which normally and reasonably satisfies the animus domini. A thing is possessed, when it stands with respect to other persons in such a position that the possessor, having a reasonable confidence that his claim to it will be respected, is content to leave it where it is. Such a measure of security may be derived from many sources, of which the following are the most important.^[223]

1. The physical power of the possessor. The physical power to exclude all alien interference (accompanied of course by the needful intent) certainly confers possession; for it constitutes an effective guarantee of enjoyment. If I own a purse of money, and lock it up in a burglar-proof safe in my house, I certainly have possession of it. I have effectively realised my animus possidendi, for no one can lay a finger on the thing without my consent, and I have full power of using it myself. Possession thus based on physical power may be looked on as the typical and perfect form. Many writers, however, go so far as to consider it the only form, defining possession as the intention, coupled with the physical power, of excluding all other persons from the use of a material object. We shall see reason to conclude that this is far too narrow a view of the matter.

2. The personal presence of the possessor. This source of security must be distinguished from that which has just been mentioned. The two commonly coincide, indeed, but not 246necessarily. Bolts, bars, and stone walls will give me the physical power of exclusion without any personal presence on my part; and on the other hand there may be personal presence without any real power of exclusion. A little child has no physical power as against a grown man; yet it possesses the money in its hand. A dying man may retain or acquire possession by his personal presence, but certainly not by any physical power left in him. The occupier of a farm has probably no real physical power of preventing a trespass upon it, but his personal presence may be perfectly effective in restraining any such interference with his rights. The respect shown to a man’s person will commonly extend to all things claimed by him that are in his immediate presence.

3. Secrecy. A third source of de facto security is secrecy. If a man will keep a thing safe from others, he may hide it; and he will gain thereby a reasonable guarantee of enjoyment and is just as effectively in possession of the thing, as is the strong man armed who keeps his goods in peace.

4. Custom. Such is the tendency of mankind to acquiesce in established usage, that we have here a further and important source of de facto security and possession. Did I plough and sow and reap the harvest of a field last year and the year before? Then unless there is something to the contrary, I may reasonably expect to do it again this year, and I am in possession of the field.

5. Respect for rightful claims. Possession is a matter of fact and not a matter of right. A claim may realise itself in the facts whether it is rightful or wrongful. Yet its rightfulness, or rather a public conviction of its rightfulness, is an important element in the acquisition of possession. A rightful claim will readily obtain that general acquiescence which is essential to de facto security, but a wrongful claim will have to make itself good without any assistance from the law-abiding spirit of the community. An owner will possess his property on much easier terms than those on which a thief will possess his plunder.^[224] The two forms of security, de facto and de jure, 247tend to coincidence. Possession tends to draw ownership after it, and ownership attracts possession.

6. The manifestation of the animus domini. An important element in the de facto security of a claim is the visibility of the claim. Possession essentially consists, it is true, not in the manifestation of the animus, but in the realisation of it. But a manifested intent is much more likely to obtain the security of general acquiescence than one which has never assumed a visible form. Hence the importance of such circumstances as entry, apprehension, and actual use.^[225]

7. The protection afforded by the possession of other things. The possession of a thing tends to confer possession of any other thing that is connected with the first or accessory to it. The possession of land confers a measure of security, which may amount to possession, upon all chattels situated upon it. The possession of a house may confer the possession of the chattels inside it. The possession of a box or a packet may bring with it the possession of its contents. Not necessarily, however, in any of those cases. A man effectually gives delivery of a load of bricks by depositing them on my land, even in my absence; but he could not deliver a roll of bank-notes by laying them upon my doorstep. In the former case the position of the thing is normal and secure; in the latter it is abnormal and insecure.

Notwithstanding some judicial dicta to the contrary, it does not seem to be true, either in law or in fact, that the possession of land necessarily confers possession of all chattels that are on or under it; or that the possession of a receptacle such as a box, bag, or cabinet, necessarily confers possession of its contents. Whether the possession of one thing will bring with it the possession of another that is thus connected with it depends upon the circumstances of the particular case. A chattel may be upon my land, and yet I shall have no possession of it unless the animus and corpus possessionis both exist. I may have no animus; as when my neighbour’s sheep, with or without my knowledge, stray into my field. There may 248be no corpus; as when I lose a jewel in my garden, and cannot find it again. There may be neither corpus nor animus; as when, unknown to me, there is a jar of coins buried somewhere upon my estate. So in the case of chattels, the possession of the receptacle does not of necessity carry with it the possession of its contents. As already stated, if I buy a cabinet containing money in a secret drawer, I acquire no possession of the money, till I actually discover it. For I have no animus possidendi with respect to any such contents, but solely with respect to the cabinet itself.

That this is so in law, no less than in fact, appears from the following cases:—

In Bridges v. Hawkesworth^[226] a parcel of bank-notes was dropped on the floor of the defendant’s shop, where they were found by the plaintiff, a customer. It was held that the plaintiff had a good title to them as against the defendant. For the plaintiff, and not the defendant, was the first to acquire possession of them. The defendant had not the necessary animus, for he did not know of their existence.

In R. v. Moore^[227] a bank-note was dropped in the shop of the prisoner, who on discovering it, picked it up and converted it to his own use, well knowing that the owner could be found. It was held that he was rightly convicted of larceny; from which it follows that he was not in possession of the note until he actually discovered it.

In Merry v. Green^[228] the plaintiff purchased a bureau at auction, and subsequently discovered money in it, hidden in a secret drawer and belonging to the vendor. The plaintiff thereupon appropriated the money; and it was held that in doing so he committed theft, as he obtained possession of the money not when he innocently bought the bureau, but when he fraudulently abstracted the contents of it.

In Cartwright v. Green^[229] a bureau was delivered for the purpose of repairs to a carpenter, who discovered in a secret drawer money which he converted to his own use. It was held that he committed larceny, by feloniously taking the money into his possession.

On the other hand the possession of the receptacle may confer possession of the contents, even though their existence is unknown; for there may at the time of taking the receptacle be a general intent to take its contents also. He who steals a purse, not knowing whether there is money in it, steals the money in it at the same time.

249Thus in R. v. Mucklow^[230] a letter containing a bank-draft was delivered by mistake to the prisoner, whose name was identical with that of the person for whom the letter was intended. He received the letter innocently; but on subsequently opening it and finding that it was not meant for him, he appropriated the draft. It was held that he was not guilty of larceny. For the innocent possession of the letter brought with it the innocent possession of its contents, and no subsequent fraudulent dealing with the thing thus innocently obtained could amount to theft.

There are, however, certain cases which seem to indicate that the possessor of land possesses whatever is in it or under it.

In Elwes v. Brigg Gas Co.^[231] the defendant company took a lease of land from the plaintiff for the purpose of erecting gas works, and in the process of excavation found a prehistoric boat six feet below the surface. It was held that the boat belonged to the landlord, and not to the tenants who discovered it. Chitty, J., says of the plaintiff: “Being entitled to the inheritance ... and in lawful possession, he was in possession of the ground, not merely of the surface, but of everything that lay beneath the surface down to the centre of the earth, and consequently in possession of the boat.... In my opinion it makes no difference in these circumstances that the plaintiff was not aware of the existence of the boat.”

So in South Staffordshire Water Co. v. Sharman^[232] the defendant was employed by the plaintiff company to clean out a pond upon their land, and in doing so he found certain gold rings at the bottom of it. It was held that the company was in first possession of these rings, and the defendant, therefore, had acquired no title to them.

Cases such as these, however, are capable of explanation on other grounds, and do not involve any necessary conflict either with the theory of possession or with the cases already cited, such as Bridges v. Hawkesworth. The general principle is that the first finder of a thing has a good title to it against all but the true owner, even though the thing is found on the property of another person (Armory v. Delamirie,^[233] Bridges v. Hawkesworth). This principle, however, is subject to important exceptions, in which, owing to the special circumstances of the case, the better right is in him on whose property the thing is found. The chief of these exceptional cases are the following:—

1. When he on whose property the thing is found is already in possession not merely of the property, but of the thing itself; as in certain circumstances, even without specific knowledge, he undoubtedly may be. His prior possession will then confer a better right as against the finder. If I sell a coat in the pocket of which, unknown to me, there is a purse which I picked up in the street, and the purchaser of the coat finds the purse in it, it may be assumed with some confidence that I have a better right to it than he has, though it does not belong to either of us.

2502. A second limitation of the right of a finder is that, if any one finds a thing as the servant or agent of another, he finds it not for himself, but for his employer. If I instruct a carpenter to break open a locked box for me, he must give up to me whatever he finds in it. This seems a sufficient explanation of such a case as Sharland’s. The rings found at the bottom of the pond were not in the Company’s possession in fact; and it seems contrary to other cases to hold that they were so in law. But though Sharland was the first to obtain possession of them, he obtained it for his employers, and could claim no title for himself.^[234]

3. A third case in which a finder obtains no title is that in which he gets possession only through a trespass or other act of wrongdoing. If a trespasser seeks and finds treasure in my land, he must give it up to me, not because I was first in possession of it (which is not the case), but because he cannot be suffered to retain any advantage derived from his own wrong. This seems a sufficient explanation of Elwes v. Brigg Gas Co. “The boat,” says Chitty, J.,^[235] “was embedded in the land. A mere trespasser could not have taken possession of it; he could only have come at it by further acts of trespass involving spoil and waste of the inheritance.” According to the true construction of the lease the tenants, though entitled to excavate and remove soil, were not entitled to remove anything else. They must leave the premises as they found them, save in so far as they were authorised to do otherwise by the terms of their lease.

§ 100. Relation of the Possessor to the Thing Possessed.

The second element in the corpus possessionis is the relation of the possessor to the thing possessed, the first being that which we have just considered, namely, the relation of the possessor to other persons. To constitute possession the animus domini must realise itself in both of those relations. The necessary relation between the possessor and the thing possessed is such as to admit of his making such use of it as accords with the nature of the thing and of his claim to it. There must be no barrier between him and it, inconsistent with the nature of the claim he makes to it. If I desire to catch fish, I have no possession of them till I have them securely in my net or on my line. Till then my animus domini has not been effectively embodied in the facts. So possession once gained may be lost by the loss of my power of using the thing; as when a bird escapes from its cage, or I drop a jewel in the sea. It is not necessary that there should 251be anything in the nature of physical presence or contact. So far as the physical relation between person and thing is concerned, I may be in possession of a piece of land at the other side of the world. My power of using a thing is not destroyed by my voluntary absence from it, for I can go to it when I will.

Some amount of difficulty or even uncertainty in coming to the enjoyment of a thing is not inconsistent with the present possession of it. My cattle have strayed, but they will probably be found. My dog is away from home, but he will probably return. I have mislaid a book, but it is somewhere within my house and can be found with a little trouble. These things, therefore, I still possess, though I cannot lay my hands on them at will. I have with respect to them a reasonable and confident expectation of enjoyment. But if a wild bird escapes from its cage, or a thing is hopelessly mislaid, whether in my house or out of it, I have lost possession of it. Such a loss of the proper relation to the thing itself is very often at the same time the loss of the proper relation to other persons. Thus if I drop a shilling in the street, I lose possession on both grounds. It is very unlikely that I shall find it myself, and it is very likely that some passer-by will discover and appropriate it.

§ 101. Immediate and Mediate Possession.

One person may possess a thing for and on account of some one else. In such a case the latter is in possession by the agency of him who so holds the thing on his behalf. The possession thus held by one man through another may be termed mediate, while that which is acquired or retained directly or personally may be distinguished as immediate or direct. If I go myself to purchase a book, I acquire direct possession of it; but if I send my servant to buy it for me, I acquire mediate possession of it through him, until he has brought it to me, when my possession becomes immediate.

Of mediate possession there are three kinds.^[236] The first is that which I acquire through an agent or servant; that is to say through some one who holds solely on my account and claims no interest of his own. In such a case I undoubtedly acquire or retain possession; as, for example, when I allow my servant to use my tools in his work, or when I send him to buy or borrow a chattel for me, or when I deposit goods with a warehouseman who holds them on my account, or when I send my boots to a shoemaker to be repaired. In all such cases, though the immediate possession is in the servant, warehouseman, or artisan, the mediate possession is in me; for the immediate possession is held on my account, and my animus domini is therefore sufficiently realised in the facts.

253The second kind of mediate possession is that in which the direct possession is in one who holds both on my account and on his own, but who recognises my superior right to obtain from him the direct possession whenever I choose to demand it. That is to say, it is the case of a borrower, hirer, or tenant at will. I do not lose possession of a thing because I have lent it to some one who acknowledges my title to it and is prepared to return it to me on demand, and who in the meantime holds it and looks after it on my behalf. There is no difference in this respect between entrusting a thing to a servant or agent and entrusting it to a borrower. Through the one, as well as through the other, I retain as regards all other persons a due security for the use and enjoyment of my property. I myself possess whatever is possessed for me on those terms by another.^[237]

There is yet a third form of mediate possession, respecting which more doubt may exist, but which must be recognised by sound theory as true possession. It is the case in which the immediate possession is in a person who claims it for himself until some time has elapsed or some condition has been fulfilled, but who acknowledges the title of another for whom he holds the thing, and to whom he is prepared to deliver it when his own temporary claim has come to an end: as for example when I lend a chattel to another for a fixed time, or deliver it as a pledge to be returned on the payment of a debt. Even in such a case I retain possession of the thing, so far as third persons are concerned. The animus and the corpus are both present; the animus, for I have not ceased, subject to the temporary right of another person, to claim the exclusive use of the thing for myself; the corpus, inasmuch as through the instrumentality of the 254bailee or pledgee, who is keeping the thing safe for me, I am effectually excluding all other persons from it, and have thereby attained a sufficient security for its enjoyment. In respect of the effective realisation of the animus domini, there seems to be no essential difference between entrusting a thing to an agent, entrusting it to a bailee at will, and entrusting it to a bailee for a fixed term, or to a creditor by way of pledge. In all these cases I get the benefit of the immediate possession of another person, who, subject to his own claim, if any, holds and guards the thing on my account. If I send a book to be bound, can my continued possession of it depend on whether the binder has or has not a lien over it for the price of the work done by him? If I lend a book to a friend, can my possession of it depend on whether he is to return it on demand or may keep it till to-morrow? Such distinctions are irrelevant, and in any alternative my possession as against third persons is unaffected.

A test of the existence of a true mediate possession in all the foregoing cases is to be found in the operation of the law of prescription. A title by prescription is based on long and continuous possession. But he who desires to acquire ownership in this way need not retain the immediate possession of the thing. He may let his land to a tenant for a term of years, and his possession will remain unaffected, and prescription will continue to run in his favour. If he desires to acquire a right of way by prescription, his tenant’s use of it is equivalent to his own. For all the purposes of the law of prescription mediate possession in all its forms is as good as immediate. In Haig v. West^[238] it is said by Lindley, L. J.: “The vestry by their tenants occupied and enjoyed the lanes as land belonging to the parish.... The parish have in our opinion gained a title to these parish lanes by the Statute of Limitations. The vestry have by their tenants occupied and enjoyed the lanes for more than a century.”

In the case of chattels a further test of the legal recognition of mediate possession in all its forms is to be found in the law as to delivery by attornment. In Elmore v. Stone^[239] A. bought a horse from B., a livery stable keeper, and at the same time agreed that it should remain at livery with B. It was held that by this agreement the horse had been effectually delivered by B. to A., though it had remained continuously in the physical custody of B. That is to say, A. had acquired mediate possession, through the direct possession which B. held on his behalf. The case of Marvin v. Wallace^[240] goes still further. A. bought a horse from B., and, without any 255change in the immediate possession, lent it to the seller to keep and use as a bailee for a month. It was held that the horse had been effectually delivered by B. to A. This was mediate possession of the third kind, being acquired and retained through a bailee for a fixed term. Crompton, J., referring to Elmore v. Stone, says:^[241] “In the one case we have a bailment of a description different from the original possession; here we have a loan; but in each case the possession of the bailee is the possession of the bailor; it would be dangerous to distinguish between such cases.”

In all cases of mediate possession two persons are in possession of the same thing at the same time. Every mediate possessor stands in relation to a direct possessor through whom he holds. If I deposit goods with an agent, he is in possession of them as well as I. He possesses for me, and I possess through him. A similar duplicate possession exists in the case of master and servant, landlord and tenant, bailor and bailee, pledgor and pledgee. In all such cases, however, there is an important distinction to be noticed. Mediate possession exists as against third persons only, and not as against the immediate possessor. Immediate possession, on the other hand, is valid as against all the world, including the mediate possessor himself. Thus if I deposit goods with a warehouseman, I retain possession as against all other persons; because as against them I have the benefit of the warehouseman’s custody. But as between the warehouseman and myself, he is in possession and not I. For as against him I have in no way realised my animus possidendi nor in any way obtained a security of use and enjoyment. So in the case of a pledge, the debtor continues to possess quoad the world at large; but as between debtor and creditor, possession is in the latter. The debtor’s possession is mediate and relative; the creditor’s is immediate and absolute. So also with landlord and tenant, bailor and bailee, master and servant, principal and agent, and all other cases of mediate possession.

Here also we may find a test in the operation of prescription. As between landlord and tenant, prescription, if it runs at all, will run in favour of the tenant; but at the same time it may run in favour of the landlord as against the true owner of the property. Let us suppose, for 256example, that possession for twenty years will in all cases give a good title to land, and that A. takes wrongful possession of land from X., holds it for ten years, and then allows B. to have the gratuitous use of it as tenant at will. In ten years more A. will have a good title as against X., for, as against him, A. has been continuously in possession. But in yet another ten years B., the tenant, will have a good title as against his landlord A., for, as between these two, the possession has been for twenty years in B.

To put the matter in a general form, prescription runs in favour of the immediate against the mediate possessor, but in favour of the mediate possessor as against third persons.

§ 102. Concurrent Possession.

It was a maxim of the civil law that two persons could not be in possession of the same thing at the same time. Plures eandem rem in solidum possidere non possunt.^[242] As a general proposition this is true; for exclusiveness is of the essence of possession. Two adverse claims of exclusive use cannot both be effectually realised at the same time. Claims, however, which are not adverse, and which are not, therefore, mutually destructive, admit of concurrent realisation. Hence there are several possible cases of duplicate possession.

1. Mediate and immediate possession coexist in respect of the same thing as already explained.

2. Two or more persons may possess the same thing in common, just as they may own it in common. This is called compossessio by the civilians.

3. Corporeal and incorporeal possession may coexist in respect of the same material object, just as corporeal and incorporeal ownership may. Thus A. may possess the land, while B. possesses a right of way over it. For it is not necessary, as we have already seen, that A.’s claim of exclusive use should be absolute; it is sufficient that it is general.

§ 103. The Acquisition of Possession.

Possession is acquired whenever the two elements of corpus and animus come into coexistence, and it is lost so soon as either of them disappears. The modes of acquisition are two in number, namely Taking and Delivery. Taking is the acquisition of possession without the consent of the previous 257possessor. The thing taken may or may not have been already in the possession of some one else, and in either case the taking of it may be either rightful or wrongful. Delivery, on the other hand, is the acquisition of possession with the consent and co-operation of the previous possessor. It is of two kinds, distinguished by English lawyers as actual and constructive.^[243] Actual delivery is the transfer of immediate possession; it is such a physical dealing with the thing as transfers it from the hands of one person to those of another. It is of two kinds, according as the mediate possession is or is not retained by the transferor. The delivery of a chattel by way of sale is an example of delivery without any reservation of mediate possession; the delivery of a chattel by way of loan or deposit is an instance of the reservation of mediate possession on the transfer of immediate.

Constructive delivery, on the other hand, is all which is not actual, and it is of three kinds. The first is that which the Roman lawyers termed traditio brevi manu, but which has no recognised name in the language of English law. It consists in the surrender of the mediate possession of a thing to him who is already in immediate possession of it. If, for example, I lend a book to some one, and afterwards, while he still retains it, I agree with him to sell it to him, or to make him a present of it, I can effectually deliver it to him in fulfilment of this sale or gift, by telling him that he may keep it. It is not necessary for him to go through the form of handing it back to me and receiving it a second time from my hands. For he has already the immediate possession of it, and all that is needed for delivery under the sale or gift is the destruction of the animus through which mediate possession is still retained by me.^[244]

The second form of constructive delivery is that which the commentators on the civil law have termed constitutum possessorium (that is to say, an agreement touching possession). 258This is the converse of traditio brevi manu. It is the transfer of mediate possession, while the immediate possession remains in the transferor. Any thing may be effectually delivered by means of an agreement that the possessor of it shall for the future hold it no longer on his own account but on account of some one else. No physical dealing with the thing is requisite, because by the mere agreement mediate possession is acquired by the transferee, through the immediate possession retained by the transferor and held on the other’s behalf. Therefore, if I buy goods from a warehouseman, they are delivered to me so soon as he has agreed with me that he will hold them as warehouseman on my account. The position is then exactly the same as if I had first taken actual delivery of them, and then brought them back to the warehouse, and deposited them there for safe custody.^[245]

The third form of constructive delivery is that which is known to English lawyers as attornment.^[246] This is the transfer of mediate possession, while the immediate possession remains outstanding in some third person. The mediate possessor of a thing may deliver it by procuring the immediate possessor to agree with the transferee to hold it for the future on his account, instead of on account of the transferor. Thus if I have goods in the warehouse of A., and sell them to B., I have effectually delivered them to B., so soon as A. has agreed with B. to hold them for him, and no longer for me. Neither in this nor in any other case of constructive delivery is any physical dealing with the thing required, the change in the animus of the persons concerned being adequate in itself.^[247]

§ 104. Possession not essentially the Physical Power of Exclusion.

According to a widely accepted theory the essence of corporeal possession is to be found in the physical power of 259exclusion. The corpus possessionis, it is said, is of two kinds, according as it relates to the commencement or to the continuance of possession. The corpus required at the commencement is the present or actual physical power of using the thing oneself and of excluding all other persons from the use of it. The corpus required for the retention of a possession once acquired may, on the other hand, consist merely in the ability to reproduce this power at will. Thus I acquire possession of a horse if I take him by the bridle, or ride upon him, or otherwise have him in my immediate personal presence, so that I can prevent all other persons from interfering with him. But no such immediate physical relation is necessary to retain the possession so acquired. I can put the horse in my stable, or let him run in a field. So long as I can go to him when I wish, and reproduce at will the original relation of physical power, my possession has not ceased. To this view of the matter, however, the following objections may be made.^[248]

1. Even at the commencement a possessor need have no physical power of excluding other persons. What physical power of preventing trespass does a man acquire by making an entry upon an estate which may be some square miles in extent? Is it not clear that he may have full possession of land that is absolutely unfenced and unprotected, lying open to every trespasser? There is nothing to prevent even a child from acquiring effective possession as against strong men, nor is possession impossible on the part of him who lies in his bed at the point of death. If I stretch a net in the sea, do I not acquire the possession of the fish caught in it, so soon as they are caught? Yet every other fisherman that passes by has more power of excluding me than I have of excluding him. So if I set traps in the forest, I possess the animals which I catch in them, though there is neither physical presence nor physical power. If in my absence a vendor deposits 260a load of stone or timber on my land, do I not forthwith acquire possession of it? Yet I have no more physical power over it than any one else has. I may be a hundred miles from my farm, without having left any one in charge of it; but I acquire possession of the increase of my sheep and cattle.

In all such cases the assumption of physical power to exclude alien interference is no better than a fiction. The true test is not the physical power of preventing interference, but the improbability of any interference, from whatever source this improbability arises. Possession is the security of enjoyment, and there are other means of attaining this security than personal presence or power. It is true that in time of war the possession of a place must be obtained and defended by cannon and bayonets; but in the peaceful intercourse of fellow-citizens under the rule of law, possession can be acquired and retained on much easier terms and in much simpler fashion. The chances of hostile interference are determined by other considerations than that of the amount of physical force at the disposal of the claimant. We have to take account of the customs and opinions of the community, the spirit of legality and of respect for rightful claims, and the habit of acquiescence in established facts. We have to consider the nature of the uses of which the thing admits, the nature of the precautions which are possibly or usually taken in respect of it, the opinion of the community as to the rightfulness of the claim seeking to realise itself, the extent of lawless violence that is common in the society, the opportunities for interference and the temptations to it, and lastly but not exclusively the physical power of the possessor to defend himself against aggression. If, having regard to these circumstances and to such as these, it appears that the animus possidendi has so prospered as to have acquired a reasonable security for its due fulfilment, there is true possession, and if not, not.

2. In the second place it is by no means clear how it is possible for possession at its commencement and possession in its continuance to be made up of different elements. How can it be that possession at its inception involves actual 261physical power of exclusion, while in its continuance it involves merely the power of reproducing this primary relationship? Possession is a continuing de facto relation between a person and a thing. Surely, therefore, it must from beginning to end have the same essential nature. What is that nature? Savigny’s theory affords no answer. It tells us, at the most, how possession begins, and how it ceases; but we wish to know what it essentially and continuously is.

3. Thirdly and lastly, the theory which we are considering is inapplicable to the possession of incorporeal things. Even if it successfully explained the possession of land, it would afford no explanation of the possession of a right of way or other servitude. Here there is neither exclusion nor the power of exclusion. It is, on the contrary, the possessor of the servient land who has the physical power of excluding the possessor of the servitude. If I possess an easement of light, what power have I to prevent its infringement by the building operations of my neighbour? It is true that this is not a conclusive objection to Savigny’s analysis; for it remains perfectly open to him to rejoin that possession in its proper sense is limited to the possession of corporeal things, and that its extension to incorporeal things is merely analogical and metaphorical. The fact remains, however, that this extension has taken place; and, other things being equal, a definition of possession which succeeds in including both its forms is preferable to one which is forced to reject one of them as improper.

§ 105. Incorporeal Possession.

Hitherto we have limited our attention to the case of corporeal possession. We have now to consider incorporeal, and to seek the generic conception which includes both these forms. For I may possess not the land itself, but a way over it, or the access of light from it, or the support afforded by it to my land which adjoins it. So also I may possess powers, privileges, immunities, liberties, offices, dignities, services, monopolies. All these things may be possessed as well as owned. They may be possessed by one man, and owned by 262another. They may be owned and not possessed, or possessed and not owned.

Corporeal possession is, as we have seen, the continuing exercise of a claim to the exclusive use of a material object. Incorporeal possession is the continuing exercise of a claim to anything else. The thing so claimed may be either the non-exclusive use of a material object (for example, a way or other servitude over a piece of land) or some interest or advantage unconnected with the use of material objects (for example a trade-mark, a patent, or an office of profit).

In each kind of possession there are the same two elements required, namely the animus and the corpus. The animus is the claim—the self-assertive will of the possessor. The corpus is the environment of fact in which this claim has realised, embodied, and fulfilled itself. Possession, whether corporeal or incorporeal, exists only when the animus possidendi has succeeded in establishing a continuing practice in conformity to itself. Nor can any practice be said to be continuing, unless some measure of future existence is guaranteed to it by the facts of the case. The possession of a thing is the de facto condition of its continuous and secure enjoyment.

In the case of corporeal possession the corpus possessionis consists, as we have seen, in nothing more than the continuing exclusion of alien interference, coupled with ability to use the thing oneself at will. Actual use of it is not essential. I may lock my watch in a safe, instead of keeping it in my pocket; and though I do not look at it for twenty years, I remain in possession of it none the less. For I have continuously exercised my claim to it, by continuously excluding other persons from interference with it. In the case of incorporeal possession, on the contrary, since there is no such claim of exclusion, actual continuous use and enjoyment is essential, as being the only possible mode of exercise. I can acquire and retain possession of a right of way only through actual and repeated use of it. In the case of incorporeal things continuing non-use is inconsistent with possession, though in the case of corporeal things it is consistent with it.

Incorporeal possession is commonly called the possession 263of a right, and corporeal possession is distinguished from it as the possession of a thing. The Roman lawyers distinguish between possessio juris and possessio corporis, and the Germans between Rechtsbesitz and Sachenbesitz. Adopting this nomenclature, we may define incorporeal possession as the continuing exercise of a right, rather than as the continuing exercise of a claim. The usage is one of great convenience, but it must not be misunderstood. To exercise a right means to exercise a claim as if it were a right. There may be no right in reality; and where there is a right, it may be vested in some other person, and not in the possessor. If I possess a way over another’s land, it may or may not be a right of way; and even if it is a right of way, it may be owned by some one else, though possessed by me. Similarly a trade-mark or a patent which is possessed and exercised by me may or may not be legally valid; it may exist de facto and not also de jure; and even if legally valid, it may be legally vested not in me, but in another.^[249]

The distinction between corporeal and incorporeal possession is clearly analogous to that between corporeal and incorporeal ownership. Corporeal possession, like corporeal ownership, is that of a thing; while incorporeal possession, like incorporeal ownership, is that of a right. Now in the case of ownership we have already seen that this distinction between things and rights is merely the outcome of a figure of speech, by which a certain kind of right is identified with the material thing which is its object. A similar explanation is applicable in the case of possession. The possession of a piece of land means in truth the possession of the exclusive use of it, just as the possession of a right of way over land 264means the possession of a certain non-exclusive use of it. By metonymy the exclusive use of the thing is identified with the thing itself, though the non-exclusive use of it is not. Thus we obtain a distinction between the possession of things and the possession of rights, similar to that between the ownership of things and the ownership of rights.^[250]

In essence, therefore, the two forms of possession are identical, just as the two forms of ownership are. Possession in its full compass and generic application means the continuing exercise of any claim or right.

§ 106. Relation between Possession and Ownership.

“Possession,” says Ihering,^[251] “is the objective realisation of ownership.” It is in fact what ownership is in right. Possession is the de facto exercise of a claim; ownership is the de jure recognition of one. A thing is owned by me when my claim to it is maintained by the will of the state as expressed in the law; it is possessed by me, when my claim to it is 265maintained by my own self-assertive will. Ownership is the guarantee of the law; possession is the guarantee of the facts. It is well to have both forms of security if possible; and indeed they normally coexist. But where there is no law, or where the law is against a man, he must content himself with the precarious security of the facts. Even when the law is in one’s favour, it is well to have the facts on one’s side also. Beati possidentes. Possession, therefore, is the de facto counterpart of ownership. It is the external form in which rightful claims normally manifest themselves. The separation of these two things is an exceptional incident, due to accident, wrong, or the special nature of the claims in question. Possession without ownership is the body of fact, uninformed by the spirit of right which usually accompanies it. Ownership without possession is right, unaccompanied by that environment of fact in which it normally realises itself. The two things tend mutually to coincide. Ownership strives to realise itself in possession, and possession endeavours to justify itself as ownership. The law of prescription determines the process by which, through the influence of time, possession without title ripens into ownership, and ownership without possession withers away and dies.^[252]

Speaking generally, ownership and possession have the same subject-matter. Whatever may be owned may be possessed, and whatever may be possessed may be owned. This statement, however, is subject to important qualifications. There are claims which may be realised and exercised in fact without receiving any recognition or protection from 266the law, there being no right vested either in the claimant or in any one else. In such cases there is possession without ownership. For example, men might possess copyrights, trade-marks, and other forms of monopoly, even though the law refused to defend those interests as legal rights. Claims to them might be realised de facto, and attain some measure of security and value from the facts, without any possibility of support from the law.

Conversely there are many rights which can be owned, but which are not capable of being possessed. They are those which may be termed transitory. Rights which do not admit of continuing exercise do not admit of possession either. They cannot be exercised without being thereby wholly fulfilled and destroyed; therefore they cannot be possessed. A creditor, for example, does not possess the debt that is due to him; for this is a transitory right which in its very nature cannot survive its exercise. But a man may possess an easement over land, because its exercise and its continued existence are consistent with each other. It is for this reason that obligations generally (that is to say, rights in personam as opposed to rights in rem) do not admit of possession. It is to be remembered, however, that repeated exercise is equivalent in this respect to continuing exercise. I may possess a right of way through repeated acts of use, just as I may possess a right of light or support through continuous enjoyment. Therefore even obligations admit of possession, provided that they are of such a nature as to involve a series of repeated acts of performance. We may say that a landlord is in possession of his rents, an annuitant of his annuity, a bondholder of his interest, or a master of the services of his servant.^[253]

We may note finally that, although incorporeal possession 267is possible in fact of all continuing rights, it by no means follows that the recognition of such possession, or the attribution of legal consequences to it, is necessary or profitable in law. To what extent incorporeal possession exists in law, and what consequences flow from it, are questions which are not here relevant, but touch merely the details of the legal system.

§ 107. Possessory Remedies.

In English law possession is a good title of right against any one who cannot show a better. A wrongful possessor has the rights of an owner with respect to all persons except earlier possessors and except the true owner himself. Many other legal systems,^[254] however, go much further than this, and treat possession as a provisional or temporary title even against the true owner himself. Even a wrongdoer, who is deprived of his possession, can recover it from any person whatever, simply on the ground of his possession. Even the true owner, who retakes his own, may be forced in this way to restore it to the wrongdoer, and will not be permitted to set up his own superior title to it. He must first give up possession, and then proceed in due course of law for the recovery of the thing on the ground of his ownership. The intention of the law is that every possessor shall be entitled to retain and recover his possession, until deprived of it by a judgment according to law.

Legal remedies thus appointed for the protection of possession even against ownership are called possessory, while those available for the protection of ownership itself may be distinguished as proprietary. In the modern and medieval civil law the distinction is expressed by the contrasted terms petitorium (a proprietary suit) and possessorium (a possessory suit).

This duplication of remedies, with the resulting provisional protection of possession, has its beginnings in Roman law. It was taken up into the canon law, where it received considerable 268extensions, and through the canon law it became a prominent feature of medieval jurisprudence. It is still received in modern Continental systems; but although well known to the earlier law of England, it has been long since rejected by us as cumbrous and unnecessary.

There has been much discussion as to the reasons on which this provisional protection of possession is based. It would seem probable that the considerations of greatest weight are the three following.

1. The evils of violent self-help are deemed so serious that it must be discouraged by taking away all advantages which any one derives from it. He who helps himself by force even to that which is his own must restore it even to a thief. The law gives him a remedy, and with it he must be content. This reason, however, can be allowed as valid only in a condition of society in which the evils and dangers of forcible self-redress are much more formidable than they are at the present day. It has been found abundantly sufficient to punish violence in the ordinary way as a criminal offence, without compelling a rightful owner to deliver up to a trespasser property to which he has no manner of right, and which can be forthwith recovered from him by due course of law. In the case of chattels, indeed, our law has not found it needful to protect possession even to this extent. It seems that an owner who retakes a chattel by force acts within his legal rights. Forcible entry upon land, however, is a criminal offence.

2. A second reason for the institution of possessory remedies is to be found in the serious imperfections of the early proprietary remedies. The procedure by which an owner recovered his property was cumbrous, dilatory, and inefficient. The path of the claimant was strewn with pitfalls, and he was lucky if he reached his destination without disaster. The part of plaintiff in such an action was one of grave disadvantage, and possession was nine points of the law. No man, therefore, could be suffered to procure for himself by violence the advantageous position of defendant, and to force his adversary by such means to assume the dangerous 269and difficult post of plaintiff. The original position of affairs must first be restored; possession must first be given to him who had it first; then, and not till then, would the law consent to discuss the titles of the disputants to the property in question. Yet however cogent such considerations may have been in earlier law, they are now of little weight. With a rational system of procedure the task of the plaintiff is as easy as that of the defendant. The law shows no favour to one rather than to the other.

3. A third reason for possessory remedies, closely connected with the second, is the difficulty of the proof of ownership. It is easy to prove that one has been in possession of a thing, but difficult (in the absence of any system of registration of title) to prove that one is the owner of it. Therefore it was considered unjust that a man should be allowed by violence to transfer the heavy burden of proof from his own shoulders to those of his opponent. Every man should bear his own burden. He who takes a thing by force must restore it to him from whom he has taken it; let him then prove, if he can, that he is the owner of it; and the law will then give to him what it will not suffer him to take for himself. But English law has long since discovered that it is possible to attain this end in a much more satisfactory and reasonable way. It adjusts the burden of proof of ownership with perfect equity, without recourse to any such anomaly as the protection of the possessor against the owner. This it does by the operation of the three following rules:

1. Prior possession is prima facie proof of title. Even in the ordinary proprietary action a claimant need do nothing more than prove that he had an older possession than that of the defendant; for the law will presume from this prior possession a better title. Qui prior est tempore potior est jure.

2. A defendant is always at liberty to rebut this presumption by proving that the better title is in himself.

3. A defendant is not allowed to set up the defence of jus tertii, as it is called; that is to say, he will not be heard to 270allege, as against the plaintiff’s claim, that neither the plaintiff nor he himself, but some third person, is the true owner. Let every man come and defend his own title. As between A. and B. the right of C. is irrelevant.

By the joint operation of these three rules the same purpose is effected as was sought in more cumbrous fashion by the early duplication of proprietary and possessory remedies.^[255]

SUMMARY OF CHAPTERS XIII. AND XIV.

§ 108. The Nature of Personality.

The purpose of this chapter is to investigate the legal conception of personality. It is not permissible to adopt the simple device of saying that a person means a human being, for even in the popular or non-legal use of the term there are persons who are not men. Personality is a wider and vaguer term than humanity. Gods, angels, and the spirits of the dead are persons, no less than men are. And in the law this want of coincidence between the class of persons and that of human beings is still more marked. In the law there may be men who are not persons; slaves, for example, are destitute of legal personality in any system which regards them as incapable of either rights or liabilities. Like cattle, they are things and the objects of rights; not persons and the subjects of them. Conversely there are, in the law, persons who are not men. A joint-stock company or a municipal corporation is a person in legal contemplation. It is true that it is only a fictitious, not a real person; but it is not a fictitious man. It is personality, not human nature, that is fictitiously attributed by the law to bodies corporate.

So far as legal theory is concerned, a person is any being whom the law regards as capable of rights or duties. Any being that is so capable is a person, whether a human being or not, and no being that is not so capable is a person, even though he be a man. Persons are the substances of which rights and duties are the attributes. It is only in this respect that persons possess juridical significance, and this is the exclusive point of view from which personality receives legal recognition.

273But we may go one step further than this in the analysis. No being is capable of rights, unless also capable of interests which may be affected by the acts of others. For every right involves an underlying interest of this nature. Similarly no being is capable of duties, unless also capable of acts by which the interests of others may be affected. To attribute rights and duties, therefore, is to attribute interests and acts as their necessary bases. A person, then, may be defined, for the purposes of the law, as any being to whom the law attributes a capability of interests and therefore of rights, of acts and therefore of duties.

Persons as so defined are of two kinds, distinguishable as natural and legal. A natural person is a being to whom the law attributes personality in accordance with reality and truth. Legal persons are beings, real or imaginary, to whom the law attributes personality by way of fiction, when there is none in fact. Natural persons are persons in fact as well as in law; legal persons are persons in law but not in fact.^[256]

§ 109. The Legal Status of the Lower Animals.

The only natural persons are human beings. Beasts are not persons. They are merely things—often the objects of legal rights and duties, but never the subjects of them. Beasts, like men, are capable of acts and possess interests. Yet their acts are neither lawful nor unlawful; they are not recognised by the law as the appropriate subject-matter either of permission or of prohibition. Archaic codes did not scruple, it is true, to punish with death in due course of law the beast that was guilty of homicide. “If an ox gore a man or a woman that they die: then the ox shall be surely stoned and his flesh shall not be eaten.”^[257] A conception such as this pertains to a stage that is long since past; but modern law shows us a relic of it in the rule that the owner of a beast is liable for its trespasses, just as a master must answer for his servant, or a slave-owner for his slave.^[258] 274This vicarious liability, however, does not involve any legal recognition of the personality of the animal whose misdeeds are thus imputed to its owner.

A beast is as incapable of legal rights as of legal duties, for its interests receive no recognition from the law. Hominum causa omne jus constitutum.^[259] The law is made for men, and allows no fellowship or bonds of obligation between them and the lower animals. If these last possess moral rights—as utilitarian ethics at least need not scruple to admit—those rights are not recognised by any legal system. That which is done to the hurt of a beast may be a wrong to its owner or to the society of mankind, but it is no wrong to the beast. No animal can be the owner of any property, even through the medium of a human trustee. If a testator vests property in trustees for the maintenance of his favourite horses or dogs, he will thereby create no valid trust enforceable in any way by or on behalf of these non-human beneficiaries. The only effect of such provisions is to authorise the trustees, if they think fit, to expend the property or any part of it in the way so indicated; and whatever part of it is not so spent will go to the testator’s representatives as undisposed of.^[260]

There are, however, two cases in which beasts may be thought to possess legal rights. In the first place, cruelty to animals is a criminal offence, and in the second place, a trust for the benefit of particular classes of animals, as opposed to one for individual animals, is valid and enforceable as a public and charitable trust; for example, a provision for the establishment and maintenance of a home for stray dogs or broken-down horses.^[261] Are we driven by the existence of these cases to recognise the legal rights and therefore the legal personality of beasts? There is no occasion for any such conflict with accustomed modes of thought and speech. These duties towards animals are conceived by the law as duties towards society itself. They correspond not to private rights vested in the immediate beneficiaries, but to public 275rights vested in the community at large—for the community has a rightful interest, legally recognised to this extent, in the well-being even of the dumb animals which belong to it.

§ 110. The Legal Status of Dead Men.

Dead men are no longer persons in the eye of the law. They have laid down their legal personality with their lives, and are now as destitute of rights as of liabilities. They have no rights because they have no interests. There is nothing that concerns them any longer, “neither have they any more a portion for ever in anything that is done under the sun.” They do not even remain the owners of their property until their successors enter upon their inheritance. We have already seen how, in the interval between death and the entering of the heir, Roman law preferred to personify the inheritance itself, rather than attribute any continued legal personality or ownership to the dead man.^[262] So in English law the goods of an intestate, before the grant of letters of administration, have been vested in the bishop of the diocese or in the judge of the Court of Probate, rather than left to the dead until they are in truth acquired by the living.

Yet although all a man’s rights and interests perish with him, he does when alive concern himself much with that which shall become of him and his after he is dead. And the law, without conferring rights upon the dead, does in some degree recognise and take account after a man’s death of his desires and interests when alive. There are three things, more especially, in respect of which the anxieties of living men extend beyond the period of their deaths, in such sort that the law will take notice of them. These are a man’s body, his reputation, and his estate. By a natural illusion a living man deems himself interested in the treatment to be awarded to his own dead body. To what extent does the law secure his desires in this matter? A corpse is the property of no one. It cannot be disposed of by will or any other instrument,^[263] and no wrongful dealing with it can amount to 276theft.^[264] The criminal law, however, secures decent burial for all dead men, and the violation of a grave is a criminal offence.^[265] “Every person dying in this country,” it has been judicially declared,^[266] “has a right to Christian burial.” On the other hand the testamentary directions of a man as to the disposal of his body are without any binding force,^[267] save that by statute he is given the power of protecting it from the indignity of anatomical uses.^[268] Similarly a permanent trust for the maintenance of his tomb is illegal and void, this being a purpose to which no property can be permanently devoted.^[269] Even a temporary trust for this purpose (not offending against the rule against perpetuities) has no other effect than that already noticed by us as attributed to trusts for animals, its fulfilment being lawful but not obligatory.^[270] Property is for the uses of the living, not of the dead.

The reputation of the dead receives some degree of protection from the criminal law. A libel upon a dead man will be punished as a misdemeanour—but only when its publication is in truth an attack upon the interests of living persons. The right so attacked and so defended is in reality not that of the dead, but that of his living descendants. To this extent, and in this manner only, has the maxim De mortuis nil nisi bonum obtained legal recognition and obligation.^[271]

By far the most important matter, however, in which the desires of dead men are allowed by the law to regulate the actions of the living is that of testamentary succession. For many years after a man is dead, his hand may continue to regulate and determine the disposition and enjoyment of the property which he owned while living. This, however, is a matter which will receive attention more fitly in another place.

Though the dead possess no legal personality, it is otherwise with the unborn. There is nothing in law to prevent a man from owning property before he is born. His ownership is necessarily contingent, indeed, for he may never be born at all; but it is none the less a real and present ownership. A man may settle property upon his wife and the children to be born of her. Or he may die intestate, and his unborn child will inherit his estate. Yet the law is careful lest property should be too long withdrawn in this way from the uses of living men in favour of generations yet to come; and various restrictive rules have been established to this end. No testator could now direct his fortune to be accumulated for a hundred years and then distributed among his descendants.

A child in its mother’s womb is for many purposes regarded by a legal fiction as already born, in accordance with the maxim, Nasciturus pro jam nato habetur. In the words of Coke: “The law in many cases hath consideration of him in respect of the apparent expectation of his birth.”^[272]

To what extent an unborn person can possess personal as well as proprietary rights is a somewhat unsettled question. It has been held that a posthumous child is entitled to compensation under Lord Campbell’s Act for the death of his father.^[273] Wilful or negligent injury inflicted on a child in the womb, by reason of which it dies after having been born alive, amounts to murder or manslaughter.^[274] A pregnant woman condemned to death is respited as of right, until she has been delivered of her child. On the other hand, in a case in which a claim was made by a female infant against a railway company for injuries inflicted upon her while in her mother’s womb through a collision due to the defendant’s negligence, it was held by an Irish court that no cause of action was disclosed.^[275] The decision of two of the four judges, however, proceeded upon the ground that the company owed no duty 278of care towards a person whose existence was unknown to them, and not upon the ground that an unborn child has in no case any right of immunity from personal harm.

The rights of an unborn person, whether proprietary or personal, are all contingent on his birth as a living human being. The legal personality attributed to him by way of anticipation falls away ab initio if he never takes his place among the living. Abortion is a crime; but it is not homicide, unless the child is born alive before he dies. A posthumous child may inherit; but if he dies in the womb, or is stillborn, his inheritance fails to take effect, and no one can claim through him, though it would be otherwise if he lived for an hour after his birth.

§ 112. Double Personality.

It often happens that a single human being possesses a double personality. He is one man, but two persons. Unus homo, it is said, plures personas sustinet. In one capacity, or in one right as English lawyers say, he may have legal relations with himself in his other capacity or right. He may contract with himself, or owe money to himself, or transfer property to himself. Every contract, debt, obligation, or assignment requires two persons; but those two persons may be the same human being. This double personality exists chiefly in the case of trusteeship. A trustee is, as we have seen, a person in whom the property of another is nominally vested, to the intent that he may represent that other in the management and protection of it. A trustee, therefore, is for many purposes two persons in the eye of the law. In right of his beneficiary he is one person, and in his own right he is another. In the one capacity he may owe money to himself in the other. In the one capacity he may own an encumbrance over property which belongs to himself in the other. He may be his own creditor, or his own landlord; as where a testator appoints one of his creditors as his executor, or makes one of his tenants the trustee of his land.^[276] In all such 279cases, were it not for the recognition of double personality, the obligation or encumbrance would be destroyed by merger, or confusio as the Romans called it, for two persons at least are requisite for the existence of a legal relation. No man can in his own right be under any obligation to himself, or own any encumbrance over his own property. Nulli res sua servit.^[277]

§ 113. Legal Persons.

A legal person is any subject-matter to which the law attributes a merely legal or fictitious personality. This extension, for good and sufficient reasons, of the conception of personality beyond the limits of fact—this recognition of persons who are not men—is one of the most noteworthy feats of the legal imagination, and the true nature and uses of it will form the subject of our consideration during the remainder of this chapter.

The law, in creating legal persons, always does so by personifying some real thing. Such a person has to this extent a real existence, and it is his personality alone that is fictitious. There is, indeed, no theoretical necessity for this, since the law might, if it so pleased, attribute the quality of personality to a purely imaginary being, and yet attain the ends for which this fictitious extension of personality is devised. Personification, however, conduces so greatly to simplicity of thought and speech, that its aid is invariably accepted. The thing personified may be termed the corpus of the legal person so created;^[278] it is the body into which the law infuses the animus of a fictitious personality.

Although all fictitious or legal personality involves personification, the converse is not true. Personification in itself is a mere metaphor, not a legal fiction. Legal personality is a definite legal conception; personification, as such, is a mere artifice of speech devised for compendious expression. In popular language, and in legal language also, when strictness of speech is not called for, the device of personification is 280extensively used. We speak of the estate of a deceased person as if it were itself a person. We say that it owes debts, or has debts owing to it, or is insolvent. The law, however, recognises no legal personality in such a case. The rights and liabilities of a dead man devolve upon his heirs, executors, and administrators, not upon any fictitious person known as his estate. Similarly we speak of a piece of land as entitled to a servitude, such as a right of way over another piece. So, also, in the case of common interests and actions, we personify as a single person the group of individuals concerned, even though the law recognises no body corporate. We speak of a firm as a person distinct from the individual partners. We speak of a jury, a bench of judges, a public meeting, the community itself, as being itself a person instead of merely a group or society of persons. But legal personality is not reached until the law recognises, over and above the associated individuals, a fictitious being which in a manner represents them, but is not identical with them.

Legal persons, being the arbitrary creations of the law, may be of as many kinds as the law pleases. Those which are actually recognised by our own system, however, all fall within a single class, namely corporations or bodies corporate. A corporation is a group or series of persons which by a legal fiction is regarded and treated as itself a person. If, however, we take account of other systems than our own, we find that the conception of legal personality is not so limited in its application, and that there are at least three distinct varieties. They are distinguished by reference to the different kinds of things which the law selects for personification.

1. The first class of legal persons consists of corporations, as already defined, namely those which are constituted by the personification of groups or series of individuals. The individuals who thus form the corpus of the legal person are termed its members. We shall consider this form of fictitious personality more particularly in the sequel.

2. The second class is that in which the corpus, or object selected for personification, is not a group or series of persons, but an institution. The law may, if it pleases, regard a 281church, or a hospital, or a university, or a library, as a person. That is to say, it may attribute personality not to any group of persons connected with the institution, but to the institution itself. Our own law does not, indeed, so deal with the matter. The person known to the law of England as the University of London is not the institution that goes by that name, but a personified and incorporated aggregate of human beings, namely the chancellor, vice-chancellor, fellows, and graduates. It is well to remember, however, that notwithstanding this tradition and practice of English law, fictitious personality is not limited by any logical necessity, or, indeed, by any obvious requirement of expediency, to the incorporation of bodies of individual persons.

3. The third kind of legal person is that in which the corpus is some fund or estate devoted to special uses—a charitable fund, for example, or a trust estate, or the property of a dead man or of a bankrupt. Here, also, English law prefers the process of incorporation. If it chooses to personify at all, it personifies not the fund or the estate, but the body of persons who administer it. Yet the other way is equally possible, and may be equally expedient. The choice of the corpus into which the law shall breathe the breath of a fictitious personality is a matter of form rather than of substance, of lucid and compendious expression rather than of legal principle.

§ 114. Corporations.

We have now to consider more particularly the nature and purposes of the legal conception of incorporation, inasmuch as legal personality goes no further than this in English law. Much of what is said in this special connection, however, will be applicable mutatis mutandis to the other classes of legal persons also.

Corporations are of two kinds, distinguished in English law as corporations aggregate and corporations sole. “Persons,” says Coke,^[279] “are of two sorts, persons natural created of God, ... and persons incorporate or politique created by the 282policy of man (and therefore they are called bodies politique); and those be of two sorts, viz., either sole, or aggregate of many.” A corporation aggregate is an incorporated group of coexisting persons, and a corporation sole is an incorporated series of successive persons. The former is that which has several members at a time, while the latter is that which has only one member at a time. Corporations aggregate are by far the more numerous and important. Examples are a registered company, consisting of all the shareholders, and a municipal corporation, consisting of the inhabitants of the borough. Corporations sole are found only when the successive holders of some public office are incorporated so as to constitute a single, permanent, and legal person. The Sovereign, for example, is a corporation of this kind at common law, while the Postmaster-General,^[280] the Solicitor to the Treasury,^[281] and the Secretary of State for War^[282] have been endowed by statute with the same nature.^[283]

It is essential to recognise clearly the element of legal fiction involved in both those forms of incorporation, for this has been made by some writers a matter of dispute. A company is in law something different from its shareholders or members.^[284] The property of the company is not in law the property of the shareholders. The debts and liabilities of the company are not attributed in law to its members. The company may become insolvent, while its members remain rich. Contracts may be made between the company and a 283shareholder, as if between two persons entirely distinct from each other. The shareholders may become so reduced in number that there is only one of them left; but he and the company will be distinct persons for all that.^[285]

May we not go further still, and say that a company is capable of surviving the last of its members? At common law indeed, a corporation is dissolved by the death of all its members.^[286] There is, however, no logical necessity for any such rule, and it does not apply to corporations sole, for beings of this sort lead a continuous life, notwithstanding the intervals between the death or retirement of each occupant of the office and the appointment of his successor. Nor is there any reason to suppose that such a ground of dissolution is known to the trading corporations which are incorporated under the Companies Acts. Being established by statute, they can be dissolved only in manner provided by the statute to which they owe their origin.^[287] The representatives of a deceased shareholder are not themselves members of the company, unless they become registered as such with their own consent. If, therefore, on the death of the last surviving members of a private company, their executors refuse or neglect to be registered in their stead, the company will no longer have any members. Is it, for that reason, ipso jure dissolved? If not, it is clear that since a company can survive its members and exist without them, it must be something entirely distinct from them.^[288]

In all those respects a corporation is essentially different from an unincorporated partnership. A firm is not a person in the eye of the law; it is nothing else than the sum of its individual members. There is no fictitious being, standing over against the partners, as a company stands over against its shareholders. The property and debts of the firm are nothing else than those of the partners. A change in the list of partners is the substitution of a new firm for the old one, and there is no permanent legal unity, as in the case of the company. There can be no firm which consists of one partner only, as a company may consist of one member. The incorporation of a firm—that process by which an ordinary 284partnership is transmuted into a company—effects a fundamental change in the legal relations of its members. It is nothing less than the birth of a new being, to whom the whole business and property of the partnership is transferred—a being without soul or body, not visible save to the eye of the law, but of a kind whose power and importance, wealth and activity, are already great, and grow greater every day.

In the case of corporations sole, the fictitious nature of their personality is equally apparent. The chief difficulty in apprehending the true nature of a corporation of this description is that it bears the same name as the natural person who is its sole member for the time being, and who represents it and acts for it. Each of them is the Sovereign, or the Solicitor to the Treasury, or the Secretary of State for War. Nevertheless under each of these names two persons live. One is a human being, administering for the time being the duties and affairs of the office. He alone is visible to the eyes of laymen. The other is a mythical being whom only lawyers know of, and whom only the eye of the law can perceive. He is the true occupant of the office; he never dies or retires; the other, the person of flesh and blood, is merely his agent and representative, through whom he performs his functions. The living official comes and goes, but this offspring of the law remains the same for ever.

The doctrine that corporations are personae fictae, though generally received, has not passed unchallenged. Attempts have been made in recent years, especially by German jurists, to establish in place of it a new theory which regards corporate personality as a reality, and not a fictitious construction of the law. A corporation, it is said, is nothing more, in law or in fact, than the aggregate of its members conceived as a unity, and this unity, this organisation of human beings, is a real person and a living organism, possessed of a real will of its own, and capable of actions and of responsibility for them, just as a man is.

With respect to this theory it is to be observed that, even if applicable to corporations aggregate, it must leave corporations sole and the other classes of legal persons to be explained in the older fashion. And even in the case of corporations aggregate it seems impossible to admit that their personality is anything more than the outcome of metaphor and fiction. A society is not a person, but a number of persons. The so-called will of a company is in reality nothing but the wills of a majority of its directors or 285shareholders. Ten men do not become in fact one person, because they associate themselves together for one end, any more than two horses become one animal when they draw the same cart. The apparent absurdity of holding that a rich and powerful joint-stock company is a mere fiction of the law, and possesses no real existence, proceeds not from the fiction-theory, but from a misunderstanding of it. No one denies the reality of the company (that is to say, the group of shareholders). What is in truth denied is the reality of its personality. A group or society of men is a very real thing, but it is only a fictitious person.^[289]

§ 115. The Agents, Beneficiaries, and Members of a Corporation.

Although corporations are fictitious persons, the acts and interests, rights and liabilities, attributed to them by the law are those of real or natural persons, for otherwise the law of corporations would be destitute of any relation to actual fact and of any serious purpose. Every corporation, therefore, involves in the first place some real person or persons whose interests are fictitiously attributed to it, and in the second place some real person or persons whose acts are fictitiously imputed to it. A corporation, having neither soul nor body, cannot act save through the agency of some representative in the world of real men. For the same reason it can have no interests, and therefore no rights, save those which are attributed to it as a trustee for or otherwise on behalf of actual human beings.^[290] Whatever a company is reputed to do in law is done in fact by the directors or the shareholders as its agents and representatives. Whatever interests, rights, 286or property it possesses in law are in fact those of its shareholders, and are held by it for their benefit. Every legal person, therefore, has corresponding to it in the world of natural persons certain agents or representatives by whom it acts, and certain beneficiaries on whose behalf it exists and fulfils its functions. Its representatives may or may not be different persons from its beneficiaries, for these two capacities may or may not be united in the same individuals. The shareholders of a company are not merely the persons for whose benefit it exists; they are also those by whom it acts. In the case of a corporation established for charitable purposes it is otherwise, for the beneficiaries may have no share whatever in the management of its affairs.

The representatives and beneficiaries of a corporation must not be confounded with its members. These last are, as we have seen, the individuals who form the group or series personified by the law, and who so constitute the corpus or body of the fictitious person thus created. Membership of a corporation does not in itself affect in any way the rights or liabilities of the members, for it is nothing more than a matter of form. A man’s privileges and responsibilities in respect of a corporation depend on whether he is one of its representatives or beneficiaries, not on whether he is formally accounted by the law as one of its members. Municipal corporations are constituted by the incorporation of the inhabitants of boroughs; but if by statute it were declared that they should consist for the future of the mayor, aldermen, and councillors, the change would not affect the rights, powers, or liabilities of any human being.

The extent to which the three classes of persons with whom a corporation is concerned, namely its members, its representatives, and its beneficiaries, are coincident and comprise the same persons, is a matter to be determined as the law thinks fit in the particular case. The members of 287a corporation may or may not be those by whom it acts, and they may or may not be those on whose behalf it exists.

It is worth notice that some or all of the members of a corporation may be corporations themselves. There is nothing to prevent the shares of a company from being held by other companies. In this case the fiction of incorporation is duplicated, and the law creates a fictitious person by the personification of a group of persons who themselves possess a merely legal and artificial personality.

§ 110 The Acts and Liabilities of a Corporation.

When a natural person acts by an agent, the authority of the agent is conferred, and its limits are determined, by the will and consent of the principal. In general only those acts of the agent are imputed by the law to the principal, which are within the limits of the agent’s authority as thus created and circumscribed. But in the case of a corporation it is necessarily otherwise. A legal person is as incapable of conferring authority upon an agent to act on its behalf, as of doing the act in propria persona. The authority of the agents and representatives of a corporation is therefore conferred, limited, and determined, not by the consent of the principal, but by the law itself. It is the law that determines who shall act for a corporation, and within what limits his activity must be confined. Any act which lies beyond these legally appointed limits will not be imputed to the corporation, even though done in its name and on its behalf. It is said to be ultra vires of the corporation, and as a corporate act it is null and void.

Speaking generally, we may say that a corporation can do those things only which are incidental to the fulfilment of the purposes for which the law created it. All its acts must be directed to its legally appointed end. Thus the memorandum of association of a company must set forth the purposes for which it is established; and even the unanimous consent of the whole body of shareholders cannot effectively enable the company to act beyond the limits so marked out for its activity.

288It is well settled in the law of England that a corporation may be held liable for wrongful acts, and that this liability extends even to those cases in which malice, fraud, or other wrongful motive or intent is a necessary element. A company may be sued for libel, malicious prosecution, or deceit.^[291] Nor is this responsibility civil only. Corporations, no less than men, are within reach of the arm of the criminal law. They may be indicted or otherwise prosecuted for a breach of their statutory duties, and punished by way of fine and forfeiture.^[292]

Although this is now established law, the theoretical basis of the liability of corporations is a matter of some difficulty and debate. For in the first place it may be made a question whether such liability is consistent with natural justice. To punish a body corporate, either criminally or by the enforcement of penal redress, is in reality to punish the beneficiaries on whose behalf its property is held, for the acts of the agents by whom it fulfils its functions. So far, therefore, as the beneficiaries and the agents are different persons, the liability of bodies corporate is an instance of vicarious responsibility, and it is to be justified on the same principles as are applicable to the vicarious liability of a principal for the unauthorised acts of his agent—principles which will be considered by us at a later stage of our enquiry. For although the representatives of a corporation are in form and legal theory the agents of that fictitious person, yet in substance and fact they are the agents of the beneficiaries. A company is justly held liable for the acts of its directors, because in truth the directors are the servants of the shareholders.

A more serious difficulty in imposing liability upon bodies corporate arises from the following consideration. The wrongful acts so attributed by the law to fictitious persons are in reality the acts of their agents. Now we have already seen that the limits of the authority of those agents are determined by the law itself, and that acts beyond those limits will not be deemed in law to be the acts of the corporation. 289How, then, can an illegal act be imputed to a corporation? If illegal, it cannot be within the limits of lawful authority; and if not within these limits, it cannot be the act of the corporation. The solution of this difficulty is twofold. In the first place, the argument does not extend to wrongful acts of omission, for these are done by the body politic in person, and not merely by its representatives. No fictitious person can do in person what by law it ought not to do, but it can in person fail to do what in law it ought. And in the second place, the liability of a corporation for the acts of its representatives is a perfectly logical application of the law as to an employer’s liability for his servants. The responsibility of a master does not depend on any authority given to his servant to commit the wrongful act. It is the outcome of an absolute rule of law that the employer is himself answerable for all wrongs committed by his servant in the course and process of doing that which he is employed to do. I am liable for the negligence of my servant in driving my carriage, not because I authorised him to be negligent, but because I authorised him to drive the carriage. So in the case of the agents of a corporation: the law imputes to the corporation not only all acts which its agents are lawfully authorised to do, but all unlawful acts which they do in or about the business so authorised. The corporation is responsible not only for what its agents do, being thereunto lawfully authorised, but also for the manner in which they do it. If its agents do negligently or fraudulently that which they might have done lawfully and with authority, the law will hold the corporation answerable.^[293]

§ 117. The Uses and Purposes of Incorporation.

There is probably nothing which the law can do by the aid of the conception of incorporation, which it could not do 290without it. But there are many things which it can by such aid do better or more easily than would otherwise be possible. Among the various reasons for admitting this fictitious extension of personality, we may distinguish one as of general and fundamental importance, namely, the difficulty which the law finds in dealing with common interests vested in large numbers of individuals and with common action in the management and protection of such interests. The normal state of things—that with which the law is familiar, and to which its principles are conformed—is individual ownership. With a single individual the law knows well how to deal, but common ownership is a source of serious and manifold difficulties. If two persons carry on a partnership, or own and manage property in common, complications arise, with which nevertheless the law can deal without calling in the aid of fresh conceptions. But what if there are fifty or a hundred joint owners? With such a state of facts legal principles and conceptions based on the type of individual ownership are scarcely competent to deal. How shall this multitude manage its common interests and affairs? How shall it dispose of property or enter into contracts? What if some be infants, or insane, or absent? What shall be the effect of the bankruptcy or death of an individual member? How shall one of them sell or otherwise alienate his share? How shall the joint and separate debts and liabilities of the partners be satisfied out of their property? How shall legal proceedings be taken by or against so great a number? These questions and such as these are full of difficulty even in the case of a private partnership, if the members are sufficiently numerous. The difficulty is still greater in the case of interests, rights, or property vested not in individuals or in definite associations of individuals, but in the public at large or in indeterminate classes of the public.

In view of these difficulties the aim of the law has been to reduce, so far as may be, the complex form of collective ownership and action to the simple and typical form of individual ownership and action. The law seeks some instrument for the effective expression and recognition of 291the elements of unity and permanence involved in the shifting multitude with whose common interests and activities it has to deal. There are two chief devices for this purpose, namely trusteeship and incorporation. The objects of trusteeship are various, and many of its applications have a source and significance that are merely historical. In general, however, it is used as a mode of overcoming the difficulties created by the incapacity, uncertainty, or multiplicity of the persons to whom property belongs. The property is deemed by the law to be vested, not in its true owners, but in one or more determinate individuals of full capacity, who hold it for safe custody on behalf of those uncertain, incapable, or multitudinous persons to whom it in truth belongs. In this manner the law is enabled to assimilate collective ownership to the simpler form of individual ownership. If the property and rights of a charitable institution or an unincorporated trading association of many members are held in trust by one or two individuals, the difficulties of the problem are greatly reduced.

It is possible, however, for the law to take one step further in the same direction. This step it has taken, and has so attained to the conception of incorporation. This may be regarded from one point of view as merely a development of the conception of trusteeship. For it is plain that so long as a trustee is not required to act, but has merely to serve as a depositary of the rights of beneficiaries, there is no necessity that he should be a real person at all. He may be a mere fiction of the law. And as between the real and the fictitious trustee there are, in large classes of cases, important advantages on the side of the latter. He is one person, and so renders possible a complete reduction of common to individual ownership; whereas the objections to a single trustee in the case of natural persons are serious and obvious. The fictitious trustee, moreover, though not incapable of dissolution, is yet exempt from the inevitable mortality that afflicts mankind. He embodies and expresses, therefore, to a degree impossible in the case of natural trustees, the two elements of unity and of permanence which 292call for recognition in the case of collective interests. An incorporated company is a permanent unity, standing over against the multitudinous and variable body of shareholders whose rights and property it holds in trust.

It is true, indeed, that a fictitious trustee is incapable of acting in the matter of his trust in his proper person. This difficulty, however, is easily avoided by means of agency, and the agents may be several in number, so as to secure that safety which lies in a multitude of counsellors, while the unity of the trusteeship itself remains unaffected.

We have considered the general use and purpose of incorporation. Among its various special purposes there is one which has assumed very great importance in modern times, and which is not without theoretical interest. Incorporation is used to enable traders to trade with limited liability. As the law stands, he who ventures to trade in propria persona must put his whole fortune into the business. He must stake all that he has upon the success of his undertaking, and must answer for all losses to the last farthing of his possessions. The risk is a serious one even for him whose business is all his own, but it is far more serious for those who enter into partnership with others. In such a case a man may be called upon to answer with his whole fortune for the acts or defaults of those with whom he is disastrously associated.

It is not surprising, therefore, that modern commerce has seized eagerly upon a plan for eliminating this risk of ruin. Incorporation has proved admirably adapted to this end. They who wish to trade with safety need no longer be so rash as to act in propria persona, for they may act merely as the irresponsible agents of a fictitious being, created by them for this purpose with the aid and sanction of the Companies Act. If the business is successful, the gains made by the company will be held on behalf of the shareholders; if unsuccessful, the losses must be borne by the company itself. For the debts of a corporation are not the debts of its members. Si quid universitati debetur, singulis non debetur, nec quod debet universitas singuli debent.^[294] The only risk run by its members is that of 293the loss of the capital with which they have supplied or undertaken to supply the company for the purpose of enabling it to carry on its business. To the capital so paid or promised, the creditors of the insolvent corporation have the first claim, but the liability of the shareholders extends no further.

The advantages which traders derive from such a scheme of limited liability are obvious. Nor does it involve any necessary injustice to creditors, for those who deal with companies know, or have the means of knowing, the nature of their security. The terms of the bargain are fully disclosed and freely consented to. There is no reason in the nature of things why a man should answer for his contracts with all his estate, rather than with a definite portion of it only, for this is wholly a matter of agreement between the parties.

§ 118. The Creation and Extinction of Corporations.

The birth and death of legal persons are determined not by nature, but by the law. They come into existence at the will of the law, and they endure during its good pleasure. Corporations maybe established by royal charter, by statute, by immemorial custom, and in recent years by agreement of their members expressed in statutory forms and subject to statutory provisions and limitations. They are in their own nature capable of indefinite duration, this being indeed one of their chief virtues as compared with humanity, but they are not incapable of destruction. The extinction of a body corporate is called its dissolution—the severing of that legal bond by which its members are knit together into a fictitious unity. We have already noticed that a legal person does not of necessity lose its life with the destruction or disappearance of its corpus or bodily substance. There is no reason why a corporation should not continue to live, although the last of its members is dead; and a corporation sole is merely dormant, not extinct, during the interval between two successive occupants of the office. The essence of a body corporate consists 294in the animus of fictitious and legal personality, not in the corpus of its members.^[295]

§ 119. The State as a Corporation.

Of all forms of human society the greatest is the state. It owns immense wealth and performs functions which in number and importance are beyond those of all other associations. Is it, then, recognised by the law as a person? Is the commonwealth a body politic and corporate, endowed with legal personality, and having as its members all those who owe allegiance to it and are entitled to its protection? This is the conclusion to which a developed system of law might be expected to attain. But the law of England has chosen another way. The community of the realm is an organised society, but it is no person or body corporate. It owns no property, is capable of no acts, and has no rights nor any liabilities imputed to it by the law. Whatever is said to the contrary is figure of speech, and not the literal language of our law.

How, then, are we to account for this failure of the law to make so obvious and useful an application of the conception of incorporation and legal personality? Why has it failed to recognise and express in this way the unity and permanence of the state? The explanation is to be found in the existence of monarchical government. The real personality of the King, who is the head of the state, has rendered superfluous any attribution of fictitious personality to the state itself. Public property is in the eye of the law the property of the King. Public liabilities are those of the King; it is he, and he alone, who owes the principal and interest of the national debt. Whatsoever is done by the state is in law done by the King. The public justice administered in the law courts is royal justice administered by the King through his servants the judges. The laws are the King’s laws, which he enacts with the advice and consent of his Parliament. The executive 295government of the state is the King’s government, which he carries on by the hands of his ministers. The state has no army save the King’s army, no navy save the King’s navy, no revenues save the royal revenues, no territory save the dominions of the King. Treason and other offences against the state and the public interest are in law offences against the King, and the public peace is the King’s peace. The citizens of the state are not fellow-members of one body politic and corporate, but fellow-subjects of one sovereign lord.

Insomuch, therefore, as everything which is public in fact is conceived as royal by the law, there is no need or place for any incorporate commonwealth, respublica, or universitas regni. The King holds in his own hands all the rights, powers and activities of the state. By his agency the state acts, and through his trusteeship it possesses property and exercises rights. For the legal personality of the state itself there is no call or occasion.

The King himself, however, is in law no mere mortal man. He has a double capacity, being not only a natural person, but a body politic, that is to say, a corporation sole. The visible wearer of the crown is merely the living representative and agent for the time being of this invisible and undying persona ficta, in whom by our law the powers and prerogatives of the government of this realm are vested. When the King in his natural person dies, the property real and personal which he owns in right of his crown and as trustee for the state, and the debts and liabilities which in such right and capacity have been incurred by him, pass to his successors in office, and not to his heirs, executors, or administrators. For those rights and liabilities pertain to the King who is a corporation sole, and not to the King who is a mortal man.^[296]

296In modern times it has become usual to speak of the Crown rather than of the King, when we refer to the King in his public capacity as a body politic. We speak of the property of the Crown, when we mean the property which the King holds in right of his crown. So we speak of the debts due by the Crown, of legal proceedings by and against the Crown, and so on. The usage is one of great convenience, because it avoids a difficulty which is inherent in all speech and thought concerning corporations sole, the difficulty, namely, of distinguishing adequately between the body politic and the human being by whom it is represented and whose name it bears. Nevertheless we must bear in mind that this reference to the Crown is a mere figure of speech, and not the recognition by the law of any new kind of legal or fictitious person. The Crown is not itself a person in the law. The only legal person is the body corporate constituted by the series of persons by whom the crown is worn. There is no reason of necessity or even of convenience, indeed, why this should be so. It is simply the outcome of the resolute refusal of English law to recognise any legal persons other than corporations aggregate and sole. Roman law, it would seem, found no difficulty in treating the treasure-chest of the Emperor (fiscus) as persona ficta, and a similar exercise of the legal imagination would not seem difficult in respect of the Crown of England.

Just as our law refuses to personify and incorporate the empire as a whole, so it refuses to personify and incorporate the various constituent self-governing states of which the empire is made up. There is no such person known to the law of England as the state or government of India or of Cape Colony.^[297] The King or the Crown represents not merely the empire as a whole, but each of its parts; and the result is a failure of the law to give adequate recognition and expression to the distinct existence of these parts.^[298] The property and liabilities of the government of India are in law those of the 297British Crown. The national debts of the colonies are owing by no person known to the law save the King of England. A contract between the governments of two colonies is in law a nullity, unless the King can make contracts with himself. All this would be otherwise, did the law recognise that the dependencies of the British Empire were bodies politic and corporate, each possessing a distinct personality of its own, and capable in its own name and person of rights, liabilities, and activities. Some of the older colonies were actually in this position, being created corporations aggregate by the royal charters to which they owed their origin: for example, Massachusetts, Rhode Island, and Connecticut. A similar corporate character pertains to modern dependencies such as the Chartered Company of South Africa. Even an unincorporated colony of the ordinary type may become incorporate, and so possessed of separate personality, by virtue of its own legislation.^[299] In the absence of any such separate incorporation of the different portions of the empire, their separate existence can be recognised in law only by way of that doctrine of plural personality which we have already considered in another connection.^[300] Although the King represents the whole empire, it is possible for the law to recognise a different personality in him in respect of each of its component parts. The King who owns the public lands in Cape Colony is not necessarily in the eye of the law the same person who owns the public lands in England. The King, when he borrows money in his capacity as the executive government of Australia, may be deemed in law a different person from the King who owes the English national debt. How far this 298plural personality of the Crown is actually recognised by the common law of England is a difficult question which it is not necessary for us here to answer.^[301] It is sufficient to point out that in the absence of any separate incorporation this is the only effective way of recognising in law the separate rights, liabilities, and activities of the different dependencies of the Crown.

SUMMARY.

§ 120. Vestitive Facts.

We have seen in a former chapter that every right involves a title or source from which it is derived. The title is the de facto antecedent, of which the right is the de jure consequent. If the law confers a right upon one man which it does not confer upon another, the reason is that certain facts are true of him which are not true of the other, and these facts are the title of the right. Whether a right is inborn or acquired, a title is equally requisite. The title to a debt consists in a contract, or a judgment, or other such transaction; but the title to life, liberty, or reputation consists in nothing more than in being born with the nature of a human being. Some rights the law gives to a man on his first appearance in the world; the others he must acquire for himself, for the most part not without labour and difficulty. But neither in the one case nor in the other can there be any right without a basis of fact in which it has its root and from which it proceeds.

Titles are of two kinds, being either original or derivative. The former are those which create a right de novo; the latter are those which transfer an already existing right to a new owner. The catching of fish is an original title of the right of ownership, whereas the purchase of them is a derivative title. The right acquired by the fisherman is newly created; it did not formerly exist in any one. But that which is acquired by the purchaser is in legal theory identical with that which is lost by the vendor. It is an old right transferred, not a new one created. Yet in each case the fact which vests the right is equally a title, in the sense already explained. For the essence of a title is not that it determines the creation of 300rights de novo, but that it determines the acquisition of rights new or old.

As the facts confer rights, so they take them away. All rights are perishable and transient. Some are of feeble vitality, and easily killed by any adverse influence, the bond between them and their owners being fragile and easily severed. Others are vigorous and hardy, capable of enduring and surviving much. But there is not one of them that is exempt from possible extinction and loss. The first and greatest of all is that which a man has in his own life; yet even this the law will deny to him who has himself denied it to others.

The facts which thus cause the loss of rights may be called, after Bentham, divestitive facts. This term, indeed, has never been received into the accepted nomenclature of the law, but there seems no better substitute available. The facts which confer rights received from Bentham the corresponding name of investitive facts. The term already used by us, namely title, is commonly more convenient, however, and has the merit of being well established in the law.^[302] As a generic term to include both investitive and divestitive facts the expression vestitive fact may be permissible.^[303] Such a fact is one which determines, positively or negatively, the vesting of a right in its owner.

We have seen that titles are of two kinds, being either original or derivative. In like manner divestitive facts are either extinctive or alienative. The former are those which divest a right by destroying it. The latter divest a right by transferring it to some other owner. The receipt of payment is divestitive of the right of the creditor; so also is the act of the creditor in selling the debt to a third person; but in the former case the divestitive fact is extinctive, while in the latter it is alienative.

It is plain that derivative titles and alienative facts are not 301two different classes of facts, but are merely the same facts looked at from two different points of view.^[304] The transfer of a right is an event which has a double aspect. It is the acquisition of a right by the transferee, and the loss of it by the transferor. The vestitive fact, if considered with reference to the transferee, is a derivative title, while from the point of view of the transferor it is an alienative fact. Purchase is a derivative title, but sale is an alienative fact; yet they are merely two different sides of the same event.

These distinctions and divisions are exhibited in the following Table:

These different classes of vestitive facts correspond to the three chief events in the life history of a right, namely, its creation, its extinction, and its transfer. By an original title a right comes first into existence, being created ex nihilo; by an extinctive fact it is wholly destroyed; by derivative titles and alienative facts, on the other hand—these being, as we have seen, the same facts viewed from different sides—the existence of the right is in no way affected. The transfer of a right does not in legal theory affect its personal identity; it is the same right as before, though it has now a different owner.^[305]

§ 121. Acts in the Law.

Vestitive facts—whether they create, transfer, or extinguish rights—are divisible into two fundamentally distinct classes, according as they operate in pursuance of the will of the persons concerned, or independently of it. That is to say, 302the creation, transfer, and extinction of rights are either voluntary or involuntary. In innumerable cases the law allows a man to acquire or lose his rights by a manifestation or declaration of his will and intent directed to that end. In other cases it confers rights upon him, or takes them away without regard to any purpose or consent of his at all. If he dies intestate, the law itself will dispose of his estate as it thinks fit; but if he leaves a duly executed will in which he expresses his desires in the matter, the law will act accordingly. So if he sells his property, it passes from him in accordance with his declared intent, which the law adopts as its own; but if his goods are taken in execution by a creditor, or vested in a trustee on his bankruptcy, the transfer is an involuntary one, effected in pursuance of the law’s purposes, and not of his at all.

The distinction between these two classes of vestitive facts may be variously expressed. We may make use, for example, of the contrasted expressions act of the party and act of the law. An act of the party is any expression of the will or intention of the person concerned, directed to the creation, transfer, or extinction of a right, and effective in law for that purpose; such as a contract or a deed of conveyance. An act of the law, on the other hand, is the creation, extinction, or transfer of a right by the operation of the law itself, independent of any consent thereto on the part of him concerned. The expression act of the party is one of some awkwardness, however, and it is more convenient in general to substitute for it the technical term act in the law, as contrasted with those acts of the law which we have already defined.^[306]

Acts in the law are of two kinds, which may be distinguished as unilateral and bilateral. A unilateral act is one in which there is only one party whose will is operative; as in the case of testamentary disposition, the exercise of a power of appointment, the revocation of a settlement, the avoidance of a voidable contract, or the forfeiture of a lease for breach 303of covenant. A bilateral act, on the other hand, is one which involves the consenting wills of two or more distinct parties; as, for example, a contract, a conveyance, a mortgage, or a lease. Bilateral acts in the law are called agreements in the wide and generic sense of that term. There is, indeed, a narrow and specific use, in which agreement is synonymous with contract, that is to say, the creation of rights in personam by way of consent. The poverty of our legal nomenclature is such, however, that we cannot afford thus to use these two terms as synonymous. We shall therefore habitually use agreement in the wide sense, to include all bilateral acts in the law, whether they are directed to the creation, or to the transfer, or to the extinction of rights. In this sense conveyances, mortgages, leases, or releases are agreements no less than contracts are.^[307]

Unilateral acts in the law are divisible into two kinds in respect of their relation to the other party concerned. For in some instances they are adverse to him; that is to say, they take effect not only without his consent, but notwithstanding 304his dissent. His will is wholly inoperative and powerless in the matter. This is so, for example, in the case of a re-entry by a landlord upon a tenant for breach of covenant; or the exercise of a power of appointment, as against the persons entitled in default of appointment; or the avoidance of a voidable contract; or the exercise by a mortgagee of his power of sale. In other cases it is not so; the operation of the unilateral act is subject to the dissent of the other party affected by it, though it does not require his consent. In the meantime, pending the expression of his will, the act has merely a provisional and contingent operation. A will, for example, involves nothing save the unilateral intent and assent of the testator. The beneficiaries need know nothing of it; they need not yet be in existence. But if they subsequently dissent, and reject the rights so transferred to them, the testament will fail of its effect. If, on the other hand, they accept the provisions made on their behalf, the operation of the will forthwith ceases to be provisional and becomes absolute. Similarly a settlement of property upon trust need not be known or consented to ab initio by the beneficiaries. It may be a purely unilateral act, subject however to repudiation and avoidance by the persons intended to be benefited by it. So I may effectually grant a mortgage or other security to a creditor who knows nothing of it.^[308]

Where there are more than two parties concerned in any act in the law, it may be bilateral in respect of some of them and unilateral in respect of others. Thus a conveyance of property by A. to B. in trust for C. may be bilateral as to A. and B. inter se—operating by the mutual consent of these two—while it may at the same time be unilateral as between A. and B. on the one side and C. on the other—C. having no knowledge of the transaction. So the exercise of a mortgagee’s power of sale is bilateral as between mortgagee and purchaser, but unilateral so far as regards the mortgagor.^[309]

Of all vestitive facts, acts in the law are the most important; and among acts in the law, agreements are entitled to the chief place. Unilateral acts are comparatively infrequent and unimportant. The residue of this chapter will therefore be devoted to the consideration of the grounds, modes, and conditions of the operation of agreement as an instrument of the creation, transfer, and extinction of rights. A considerable portion of what is to be said in this connection will, however, be applicable mutatis mutandis to unilateral acts also.

The importance of agreement as a vestitive fact lies in the universality of its operation. There are few rights which cannot be acquired through the assent of the persons upon whom the correlative duties are to be imposed. There are few rights which cannot be transferred to another by the will of him in whom they are presently vested. There are few which are not extinguished when their owner no longer desires to retain them. Of that great multitude of rights and duties of which the adult member of a civilised community stands possessed, the great majority have their origin in agreements made by him with other men. By agreements of contrary intent he may strip himself almost as destitute of rights and duties, as when in the scantiest of juridical vesture he made his first appearance before the law. Invito beneficium non datur,^[310] said the Romans.

By what reasons, then, is the law induced to allow this far-reaching operation to the fact of agreement? Why should the mere consent of the parties be permitted in this manner to stand for a title of right? Are not rights the subject-matter of justice, and is justice a mere matter of convention varying with the wills of men?

The reasons are two in number. Agreement is in the first 306place evidential of right, and in the second place constitutive of it. There is in general no better evidence of the justice of an arrangement than the fact that all persons whose interests are affected by it have freely and with full knowledge consented to it. Men are commonly good judges of their own interests, and in the words of Hobbes “there is not ordinarily a greater sign of the equal distribution of anything, than that every man is contented with his share.” When, therefore, all interests are satisfied, and every man is content, the law may safely presume that justice has been done, and that each has received his own. The determination of the law is needed only in default of the agreement of the parties. Hence it is, that he who agrees with another in any declaration of their respective rights and duties will not be suffered to go back from his word, and will not be heard to dispute the truth of his declaration. The exceptions to this rule are themselves defined by equally rigid rules; and he who would disclaim a duty which he has thus imposed upon himself, or reclaim a right which he has thus transferred or abandoned, must bring himself within one of those predetermined exceptions. Otherwise he will be held bound by his own words.

This conclusive presumption of the truth of consensual declarations of right is, however, only one of the foundations of the law of agreement. Consent is in many cases truly constitutive of right, instead of merely evidential of it. It is one of the leading principles of justice to guarantee to men the fulfilment of their reasonable expectations. In all matters that are otherwise indifferent, expectation is of predominant influence in the determination of the rule of right, and of all the grounds of rational expectation there is none of such general importance as mutual consent. “The human will,” says Aquinas, “is able by way of consent to make a thing just; provided that the thing is not in itself repugnant to natural justice.”^[311]

There is an obvious analogy between agreement and legislation—the former being the private and the latter the public declaration and establishment of rights and duties. By way 307of legislation the state does for its subjects that which in other cases it allows them to do for themselves by way of agreement. As to the respective spheres of these two operations, the leading maxim is Modus et conventio vincunt legem. Save when the interests of the public at large demand a different rule, the autonomy of consenting parties prevails over the legislative will of the state. So far as may be, the state leaves the rule of right to be declared and constituted by the agreement of those concerned with it. So far as possible, it contents itself with executing the rules which its subjects have made for themselves. And in so doing it acts wisely. For in the first place, the administration of justice is enabled in this manner to escape in a degree not otherwise attainable the disadvantages inherent in the recognition of rigid principles of law. Such principles we must have; but if they are established pro re nata by the parties themselves, they will possess a measure of adaptability to individual cases which is unattainable by the more general legislation of the state itself. Amid the infinite diversities and complexities of human affairs the state wisely despairs of truly formulating the rules of justice. So far as possible, it leaves the task to those who by their nearness to the facts are better qualified for it. It says to its subjects: Agree among yourselves as to what is just in your individual concerns, and I shall enforce your agreement as the rule of right.

In the second place, men are commonly better content to bear the burdens which they themselves have taken up, than those placed upon them by the will of a superior. They acquiesce easily in duties of their own imposition, and are well pleased with rights of their own creation. The law or the justice which best commends itself to them is that which they themselves have made or declared. Wherefore, instead of binding its subjects, the state does well in allowing them to bind themselves.

§ 123. The Classes of Agreements.

Agreements are divisible into three classes, for they either create rights, or transfer them, or extinguish them. Those 308which create rights are themselves divisible into two subclasses, distinguishable as contracts and grants. A contract is an agreement which creates an obligation or right in personam between the parties to it. A grant is an agreement which creates a right of any other description; examples being grants of leases, easements, charges, patents, franchises, powers, licences, and so forth. An agreement which transfers a right may be termed generically an assignment. One which extinguishes a right is a release, discharge, or surrender.

As already indicated, a contract is an agreement intended to create a right in personam between the contracting parties. No agreement is a contract unless its effect is to bind the parties to each other by the vinculum juris of a newly created personal right. It commonly takes the form of a promise or set of promises. That is to say, a declaration of the consenting wills of two persons that one of them shall henceforth be under an obligation to the other naturally assumes the form of an undertaking by the one with the other to fulfil the obligation so created. Not every promise, however, amounts to a contract. To constitute a contract there must be not merely a promise to do a certain act, but a promise, express or implied, to do this act as a legal duty. When I accept an invitation to dine at another man’s house, I make him a promise, but enter into no contract with him. The reason is that our wills, though consenting, are not directed to the creation of any legal right or to any alteration of our legal relations towards each other. The essential form of a contract is not: I promise this to you; but: I agree with you that henceforth you shall have a legal right to demand and receive this from me. Promises that are not reducible to this from are not contracts. Therefore the consent that is requisite for the creation of rights by way of contract is essentially the same as that required for their transfer or extinction. The essential element in each case is the express or tacit reference to the legal relations of the consenting parties.

Taking into account the two divisions of the consensual creation of rights, there are, therefore, four distinct kinds of agreements:—

3091. Contracts—creating rights in personam.

2. Grants—creating rights of any other kind.

3. Assignments—transferring rights.

4. Releases—extinguishing rights.

It often happens that an agreement is of a mixed nature, and so falls within two or more of these classes at the same time. Thus the sale of a specific chattel is both a contract and an assignment, for it transfers the ownership of the chattel and at the same time creates an obligation to pay the price. So a lease is both a grant and a contract, for it creates real and personal rights at the same time. In all such cases the agreement must be classed in accordance with its chief or essential operation, its other effects being deemed subsidiary and incidental.

A frequent result of the difference between law and equity, and between legal and equitable rights and ownership, is that the same agreement has one effect in law and another in equity. In law it may be a mere contract, and in equity an assignment or a grant. Thus a written agreement for the sale of land is in law nothing more than a contract, imposing upon the seller a personal obligation to execute a conveyance under seal, but not in itself amounting to a transfer of the ownership of the land. In equity, on the other hand, such an agreement amounts to an assignment. The equitable ownership of the land passes under it to the purchaser forthwith, and the vendor holds the legal ownership in trust for him. Similarly a contract to grant a legal lease or mortgage or servitude is itself the actual grant of an equitable lease, mortgage, or servitude. For it is a maxim of Chancery that equity regards that as already done which ought to be done.

§ 124. Void and Voidable Agreements.

In respect of their legal efficacy agreements are of three kinds, being either valid, void, or voidable. A valid agreement is one which is fully operative in accordance with the intent of the parties. A void agreement is one which entirely fails to receive legal recognition or sanction, the declared will of the parties being wholly destitute of legal efficacy. A voidable agreement stands midway between these two cases. It is not a nullity, but its operation is conditional and not absolute. By reason of some defect in its origin it is liable to be destroyed or cancelled at the option of one of the parties to it. On the exercise of this power the agreement not only ceases to have any efficacy, but is deemed to have been void ab initio. The avoidance of it relates back to the making of 310it. The hypothetical or contingent efficacy which has hitherto been attributed to it wholly disappears, as if it had never existed. In other words, a voidable agreement is one which is void or valid at the election of one of the parties to it. A lease determinable on notice or on re-entry for breach of covenant is not for that reason voidable; because, when determined, it is not destroyed ab initio, but merely from then onwards.^[312]

Void and voidable agreements may be classed together as invalid. The most important causes of invalidity are six in number, namely, (1) incapacity, (2) informality, (3) illegality, (4) error, (5) coercion, and (C) want of consideration.

1. Incapacity. Certain classes of persons are wholly or partially destitute of the power of determining their rights and liabilities by way of consent. They cannot, at least to the same extent as other persons, supersede or supplement the common law by subjecting themselves to conventional law of their own making. In the case of minors, lunatics, and convicts, for example, the common law is peremptory, and not to be derogated from or added to by their agreement. So the agreements of an incorporated company may be invalid because ultra vires, or beyond the capacity conferred upon it by law.

2. Informality. Agreements are of two kinds, which may be distinguished as simple and formal. A simple agreement is one in which nothing is required for its effective operation beyond the manifestation, in whatever fashion, of the consenting wills of the parties. A formal agreement, on the other hand, is one in which the law requires not merely that consent shall exist, but that it shall be manifested in some particular form, in default of which it is held of no account. Thus the intent of the parties may be held effective only if expressed in writing signed by them, or in writing authenticated 311by the more solemn form of sealing; or it must be embodied in some appointed form of words; or it must be acknowledged in the presence of witnesses, or recorded by some form of public registration; or it must be accompanied by some formal act, such as the delivery of the subject-matter of the agreement.

The leading purpose of all such forms is twofold. They are, in the first place, designed as pre-appointed evidence of the fact of consent and of its terms, to the intent that this method of determining rights and liabilities may be provided with the safeguards of permanence, certainty, and publicity. In the second place their purpose is that all agreements may by their help be the outcome of adequate reflection. Any necessary formality has the effect of drawing a sharp line between the preliminary negotiations and the actual agreement, and so prevents the parties from drifting by inadvertence into unconsidered consent.

3. Illegality. In the third place an agreement may be invalid by reason of the purposes with which it is made. To a very large extent men are free to agree together upon any matter as they please; but this autonomous liberty is not absolute. Limitations are imposed upon it, partly in the interests of the parties themselves, and partly on behalf of the public. There is much of the common law which will not suffer itself to be derogated from by any private agreement; and there are many rules which, though they in no way infringe upon the common law, cannot be added to it as supplementary. That is to say, there are many matters in which the common law will admit of no abatement, and many in which it will admit of no addition, by way of conventional law. It is true in great part that Modus et conventio vincunt legem; but over against this principle we must set the qualification, Privatorum conventio juri publico non derogat. By jus publicum is here meant that part of the law which concerns the public interest, and which for this reason the agreements of private persons cannot be allowed to infringe upon.^[313] 312Agreements which in this way overpass the limits allowed by the law are said in a wide sense to be illegal, or to be void for illegality. They may or may not be illegal in a narrower sense, as amounting in their making or in their performance to a criminal or civil wrong.

4. Error or mistake. Error or mistake, as a ground of invalidity, is of two kinds, which are distinguishable as essential and unessential. Essential error is that which is of such a nature as to prevent the existence of any real consent and therefore of any real agreement. The parties have not in reality meant the same thing, and therefore have not in reality agreed to any thing. Their agreement exists in appearance only, and not in reality. This is the case if A. makes an offer to B. which is accepted in mistake by C.; or if A. agrees to sell land to B., but A. is thinking of one piece of land, and B. is thinking of another. The effect of error of this kind is to make the agreement wholly void, inasmuch as there is in truth no agreement at all, but only the external semblance and form of one.^[314]

There is, however, an exception to this rule when the error is due to the negligence of one of the parties and is unknown to the other. For in such a case he who is in fault will be estopped by his own carelessness from raising the defence of essential error, and will be held bound by the agreement in the sense in which the other party understood it.^[315]

Unessential error, on the other hand, is that which does not relate to the nature or contents of the agreement, but only to some external circumstance, serving as one of the inducements which led to the making of it; as when A. agrees to buy B.’s horse because he believes it to be sound, whereas it is in reality unsound. This is not essential error, for there is a true consensus ad idem. The parties have agreed to the same thing in the same sense, though one of them would not have made the agreement had he not been under a mistake. The general rule is that unessential error has no effect on 313the validity of an agreement. Neither party is in any way concerned in law with the reasons which induced the other to give his consent. That which men consent to they must abide by, whether their reasons are good or had. And this is so even though one party is well aware of the error of the other.^[316]

This rule, however, is subject to an important exception, for even unessential error will in general make an agreement voidable at the option of the mistaken party, if it has been caused by the misrepresentation of the other party. He who is merely mistaken is none the less bound by his agreement; but he who is misled has a right to rescind the agreement so procured.^[317]

5. Coercion. In order that consent may be justly allowed as a title of right, it must be free. It must not be the product of any form of compulsion or undue influence; otherwise the basis of its legal operation fails. Freedom, however, is a matter of degree, and it is no easy task to define the boundary line that must be recognised by a rational system of law. We can only say generally, that there must be such liberty of choice as to create a reasonable presumption that the party exercising it has chosen that which he desires, and not merely submitted to that which he cannot avoid. We cannot usefully enter here into any examination of the actual results that have been worked out in this matter by English law.

6. Want of consideration. A further condition very commonly required by English law for the existence of fully efficacious consent is that which is known by the technical name of consideration. This requirement is, however, almost wholly confined to the law of contract, other forms of agreement being generally exempt from it.

A consideration in its widest sense is the reason, motive, or 314inducement, by which a man is moved to bind himself by an agreement. It is not for nothing that he consents to impose an obligation upon himself, or to abandon or transfer a right. It is in consideration of such and such a fact that he agrees to bear new burdens or to forego the benefits which the law already allows him. If he sells his house, the consideration of his agreement is the receipt or promise of the purchase money. If he makes a settlement upon his wife and children, it is in consideration of the natural love and affection which he has for them. If he promises to pay a debt incurred by him before his bankruptcy, the consideration of his promise is the moral obligation which survives his legal indebtedness to his creditors. Using the term in this wide sense, it is plain that no agreement made with knowledge and freedom by a rational man can be destitute of some species of consideration. All consent must proceed from some efficient cause. What, then, is meant by saying that the law requires a consideration as a condition of the validity of an agreement? The answer is that the consideration required by the law is a consideration of a kind which the law itself regards as sufficient. It is not enough that it should be deemed sufficient by the parties, for the law has itself authoritatively declared what facts amount to a valid and sufficient consideration for consent, and what facts do not. If men are moved to agreement by considerations which the law refuses to recognise as good, so much the worse for the agreement. Ex nudo pacto non oritur actio. To bare consent, proceeding from no lawfully sanctioned source, the law allows no operation.

What considerations, then, does the law select and approve as sufficient to support a contract? Speaking generally, we may say that none are good for this purpose save those which are valuable. By a valuable consideration is meant something of value given by one party in exchange for the promise of the other. By English law no promise (unless under seal or of record) is binding unless the promisor receives a quid pro quo from the promisee. Contracts which are purely unilateral, all the obligation being on one side, and nothing either given or promised on the other, are destitute of legal 315operation. Every valid contract^[318] is reducible to the form of a bargain that if I do something for you, you will do something for me.

The thing thus given by way of consideration must be of some value. That is to say, it must be material to the interests of one or other or both of the parties. It must either involve some gain or benefit to the promisor by way of recompense for the burden of his promise, or it must involve some loss or disadvantage to the promisee for which the benefit of the promise is a recompense. Commonly it possesses both of these qualities at once, but either of them is sufficient by itself. Thus if I promise gratuitously to take care of property which the owner deposits with me, I am bound by that promise, although I receive no benefit in recompense for it, because there is a sufficient consideration for it in the detriment incurred by the promisee in entrusting his property to my guardianship. But if the thing given by way of consideration is of no value at all, being completely indifferent to both parties, it is insufficient, and the contract is invalid; as, for example, the doing of something which one is already bound to the other party to do, or the surrender of a claim which is known to be unfounded.

In certain exceptional cases, however, considerations which are not valuable are nevertheless accepted as good and sufficient by the law. Thus the existence of a legal obligation may be a sufficient consideration for a promise to fulfil it; as in the case of a promissory note or other negotiable instrument given for the amount of an existing debt. At one time it was supposed to be the law that a merely moral obligation was in the same manner a sufficient basis for a promise of performance, and though this is no longer true as a general proposition, certain particular applications of the principle still survive, while others have but recently been abolished by statute. Thus a promise made by a discharged bankrupt to pay a creditor in full was until recently a binding contract, because made in consideration of the moral obligation which 316survives the legal indebtedness of an insolvent. For the same reason, a promise made after majority to pay debts incurred during infancy was binding, until the law was altered in this respect by recent legislation. Similarly a promise to pay a debt barred by prescription is legally valid even yet, the consideration being the moral (and imperfect legal) obligation which survives the period of prescription.

With respect to the rational basis of this doctrine, it is to be noticed that the requirement of consideration is not absolute, but conditional on the absence of a certain formality, namely that of a sealed writing. Form and consideration are two alternative conditions of the validity of contracts and of certain other kinds of agreements. It may be surmised, therefore, that they are founded on the same reasons and fulfil the same functions. They are intended as a precaution against the risk of giving legal efficacy to unconsidered promises and to the levities of speech. The law selects certain reasons and inducements, which are normally sufficient for reasoned and deliberate consent, and holds valid all agreements made on these grounds, even though informal. In all other cases it demands the guarantee of solemn form. There can be little doubt, however, that our law has shown itself too scrupulous in this matter; in other legal systems no such precaution is known, and its absence seems to lead to no ill results.

Although the doctrine of consideration, in the form received by English law, is unknown elsewhere, it is simply a modification of a doctrine known to the civil law and to several modern systems, more especially to that of France. Article 1131 of the French Civil Code provides that: “L’obligation sans cause, ou sur une fausse cause, ou sur une cause illicite, ne peut avoir aucun effet.”^[319] This cause or causa is a synonym for consideration, and we find the terms used interchangeably in the earlier English authorities.^[320] There is, however, an essential difference between the English and the Continental principle. Unlike the former, the latter never rejects any 317cause or consideration as insufficient. Whatever motive or inducement is enough to satisfy the contracting parties is enough to satisfy the law, even though it is nothing more than the causa liberalitatis of a voluntary gift. By an obligation sans cause, or contract without consideration, French law does not mean a contract made without any motive or inducement (for there are none such), nor a contract made from an inadequate motive or inducement (for the law makes no such distinctions), but a contract made for a consideration which has failed—causa non secuta, as the Romans called it. The second ground of invalidity mentioned in the Article cited is the falsity of the consideration (falsa causa). A consideration may be based on a mistake, so that it is imaginary and not real; as when I agree to buy a horse which, unknown to me, is already dead, or a ship which has been already wrecked, or give a promissory note for a debt which is not truly owing. Finally a causa turpis, or illegal consideration, is as fatal to a contract in French and Roman law as in English.

In English law the failure of consideration (causa non secuta) and its unreality due to error (causa falsa) are grounds of invalidity, only when the absence of such failure or error is expressly or impliedly made a condition of the contract. In a contract for the sale of a chattel, for example, the present existence of the chattel is an implied condition of the validity of the sale.^[321]

SUMMARY

§ 125. The Nature and Kinds of Liability.

He who commits a wrong is said to be liable or responsible for it. Liability or responsibility is the bond of necessity that exists between the wrongdoer and the remedy of the wrong. This vinculum juris is not one of mere duty or obligation; it pertains not to the sphere of ought but to that of must. It has its source in the supreme will of the state, vindicating its supremacy by way of physical force in the last resort against the unconforming will of the individual. A man’s liability consists in those things which he must do or suffer, because he has already failed in doing what he ought. It is the ultimatum of the law.^[322]

The purpose of this chapter and of the two which follow it is to consider the general theory of liability. We shall investigate the leading principles which determine the existence, the incidence, and the measure of responsibility for wrongdoing. The special rules which relate exclusively to particular kinds of wrongs will be disregarded as irrelevant to the purpose of our inquiry.

Liability is in the first place either civil or criminal, and in the second place either remedial or penal. The nature of these distinctions has been already sufficiently considered in a previous chapter on the Administration of Justice. We there saw that civil liability is liability to civil proceedings, and that a civil proceeding is one whose direct purpose is the enforcement of a right vested in the plaintiff. Criminal 320liability, on the other hand, is liability to criminal proceedings, and a proceeding of this nature is one whose direct purpose is the punishment of a wrong committed by the defendant.^[323]

We also saw that the law often punishes a wrong by creating and enforcing against the wrongdoer a new obligation; for example, that of paying a pecuniary penalty or damages. In such a case the direct purpose of the proceeding is the enforcement of the sanctioning right thus created, though its ulterior purpose is the punishment of the wrong in which this right has its source. Hence the necessity of the further distinction between penal and remedial liability. The former is that in which the purpose of the law, direct or ulterior, is or includes the punishment of a wrongdoer; the latter is that in which the law has no such purpose at all, its sole intent being the enforcement of the plaintiff’s right, and the idea of punishment being wholly irrelevant. The liability of a borrower to repay the money borrowed by him is remedial; that of the publisher of a libel to be imprisoned, or to pay damages to the person injured by him, is penal. All criminal liability is penal; civil liability, on the other hand, is sometimes penal and sometimes remedial.^[324]

§ 126. The Theory of Remedial Liability.

The theory of remedial liability presents little difficulty. It may be laid down as a general principle, that, whenever the law creates a duty, it should enforce the specific fulfilment of it. The sole condition of the existence of remedial liability is the existence of a legal duty binding upon the defendant and unfulfilled by him. What a man ought to do by a rule of law, he ought to be made to do by the force of law. In law ought is normally equivalent to must, and obligation and remedial liability are in general coexistent. To this general principle, however, there are the following exceptions:—

1. In the first place, there are duties of imperfect obligation—duties the breach of which gives no cause of action, and creates no liability at all, either civil or criminal, penal or remedial. A debt barred by the statute of limitations, or due 321by the Crown, is a legal debt, but the payment of it cannot be compelled by any legal proceedings.^[325]

2. Secondly, there are many duties which from their nature cannot be specifically enforced after having once been broken. When a libel has already been published, or an assault has already been committed, it is too late to compel the wrongdoer to perform his duty of refraining from such acts. Wrongs of this description may be termed transitory; once committed, they belong to the irrevocable past. Others, however, are continuing; for example, the non-payment of a debt, the commission of a nuisance, or the detention of another’s property. In such cases the duty violated is in its nature capable of specific enforcement, notwithstanding the violation of it.

3. In the third place, even when the specific enforcement of a duty is possible, it may be, or be deemed to be, more expedient to deal with it solely through the criminal law, or through the creation and enforcement of a substituted sanctioning duty of pecuniary compensation. It is only in special cases, for example, that the law will compel the specific performance of a contract, instead of the payment of damages for the breach of it.

§ 127. The Theory of Penal Liability.

We now proceed to the main subject of our inquiry, namely, the general principles of penal liability. We have to consider the legal theory of punishment, in its application both to the criminal law and to those portions of the civil law in which the idea of punishment is relevant and operative. We have already, in a former chapter, dealt with the purposes of punishment, and we there saw that its end is fourfold, being deterrent, disabling, retributive, and reformative. The first of these purposes, however, is primary and essential, the others being merely secondary. In our present investigation, therefore, we shall confine our attention to punishment as deterrent. The inquiry will fall into three divisions, relating 322(1) to the conditions, (2) to the incidence, and (3) to the measure of penal liability.

The general conditions of penal liability are indicated with sufficient accuracy in the legal maxim, Actus non facit reum, nisi mens sit rea—The act alone does not amount to guilt; it must be accompanied by a guilty mind. That is to say, there are two conditions to be fulfilled before penal responsibility can rightly be imposed, and we may conveniently distinguish these as the material and the formal conditions of liability. The material condition is the doing of some act by the person to be held liable. A man is to be accounted responsible only for what he himself does, not for what other persons do, or for events independent of human activity altogether. The formal condition, on the other hand, is the mens rea or guilty mind with which the act is done. It is not enough that a man has done some act which on account of its mischievous results the law prohibits; before the law can justly punish the act, an inquiry must be made into the mental attitude of the doer. For although the act may have been materially or objectively wrongful, the mind and will of the doer may have been innocent.

We shall see later that the mens rea or guilty mind includes two, and only two, distinct mental attitudes of the doer towards the deed. These are intention and negligence. Generally speaking, a man is penally responsible only for those wrongful acts which he does either wilfully or negligently. Then and only then is the actus accompanied by the mens rea. Then and then only do the two conditions of liability, the material and the formal, coexist. In this case only is punishment justifiable, for it is in this case alone that it can be effective. Inevitable accident or mistake—the absence both of wrongful intention and of culpable negligence—is in general a sufficient ground of exemption from penal responsibility. Impunitus est, said the Romans, qui sine culpa et dolo malo casu quodam damnum committit.^[326]

We shall consider separately these two conditions of liability, analysing first the conception of an act, and secondly 323that of mens rea in its two forms of intention and negligence.^[327]

§ 128. Acts.

The term act is one of ambiguous import, being used in various senses of different degrees of generality. When it is said, however, that an act is one of the essential conditions of liability, we use the term in the widest sense of which it is capable. We mean by it any event which is subject to the control of the human will. Such a definition is, indeed, not ultimate, but it is sufficient for the purpose of the law. As to the nature of the will and of the control exercised by it, it is not for lawyers to dispute, this being a problem of psychology or physiology, not of jurisprudence.

(1) Positive and Negative Acts. Of acts as so defined there are various species. In the first place, they are either positive or negative, either acts of commission or acts of omission. A wrongdoer either does that which he ought not to do, or leaves undone that which he ought to do. The term act is often used in a narrow sense to include merely positive acts, and is then opposed to omissions or forbearances instead of including them. This restriction, however, is inconvenient. Adopting the generic sense, we can easily distinguish the two species as positive and negative; but if we restrict the term to acts of commission, we leave ourselves without a name for the genus, and are compelled to resort to an enumeration of the species.

(2) Internal and external acts. In the second place, acts are either internal or external. The former are acts of the mind, while the latter are acts of the body. In each case the act may be either positive or negative, lying either in bodily activity or passivity, or in mental activity or passivity. To think is an internal act; to speak is an external act. To 324work out an arithmetical problem in one’s head is an act of the mind; to work it out on paper is an act of the body. Every external act involves an internal act which is related to it; but the converse is not true, for there are many acts of the mind which never realise themselves in acts of the body. The term act is very commonly restricted to external acts, but this is inconvenient for the reason already given in respect of the distinction between positive and negative acts.

(3) Intentional and unintentional acts. Acts are further distinguishable as being either intentional or unintentional. The nature of intention is a matter to which particular attention will be devoted later, and it is sufficient to say here that an act is intended or intentional when it is the outcome of a determination of the actor’s will directed to that end. In other words, it is intentional when it was foreseen and desired by the doer, and this foresight and desire realised themselves in the act through the operation of the will. It is unintentional, on the other hand, when, and in so far as, it is not the result of any determination of the will towards a desired issue.

In both cases the act may be either internal or external, positive or negative. The term omission, while often used in a wide sense to include all negative acts, is also used in a narrower signification to include merely unintentional negative acts. It is then opposed to a forbearance, which is an intentional negative act. If I fail to keep an appointment through forgetfulness, my act is unintentional and negative; that is to say, an omission. But if I remember the appointment, and resolve not to keep it, my act is intentional and negative; that is to say, a forbearance.

The term act is very commonly restricted to intentional acts, but this restriction is inadmissible in law. Intention is not a necessary condition of legal liability, and therefore cannot be an essential element in those acts which produce such liability. An act is an event subject to the control of the will; but it is not essential that this control should be actually exercised; there need be no actual determination of the will, for it is enough that such control or determination is possible. If the control of the will is actually exercised, the act 325is intentional; if the will is dormant, the act is unintentional; but in each case, by virtue of the existence of the power of control, the event is equally an act. The movements of a man’s limbs are acts; those of his heart are not. Not to move his arms is an act; not to move his ears is not. To meditate is an act; to dream is not. It is the power possessed by me of determining the issue otherwise which makes any event my act, and is the ground of my responsibility for it.

Every act is made up of three distinct factors or constituent parts. These are (1) its origin in some mental or bodily activity or passivity of the doer, (2) its circumstances, and (3) its consequences. Let us suppose that in practising with a rifle I shoot some person by accident. The material elements of my act are the following: its origin or primary stage, namely a series of muscular contractions, by which the rifle is raised and the trigger pulled; secondly, the circumstances, the chief of which are the facts that the rifle is loaded and in working order, and that the person killed is in the line of fire; thirdly, the consequences, the chief of which are the fall of the trigger, the explosion of the powder, the discharge of the bullet, its passage through the body of the man killed, and his death. A similar analysis will apply to all acts for which a man is legally responsible. Whatever act the law prohibits as being wrongful is so prohibited in respect of its origin, its circumstances, and its consequences. For unless it has its origin in some mental or physical activity or passivity of the defendant, it is not his act at all; and apart from its circumstances and results it cannot be wrongful. All acts are, in respect of their origin, indifferent. No bodily motion is in itself illegal. To crook one’s finger may be a crime, if the finger is in contact with the trigger of a loaded pistol; but in itself it is not a matter which the law is in any way concerned to take notice of.

Circumstances and consequences are of two kinds, according as they are relevant or irrelevant to the question of liability. Out of the infinite array of circumstances and the endless chain of consequences the law selects some few as 326material. They and they alone are constituent parts of the wrongful act. All the others are irrelevant and without legal significance. They have no bearing or influence on the guilt of the doer. It is for the law, at its own good pleasure, to select and define the relevant and material facts in each particular species of wrong. In theft the hour of the day is irrelevant; in burglary it is material.

An act has no natural boundaries, any more than an event or a place has. Its limits must be artificially defined for the purpose in hand for the time being. It is for the law to determine, in each particular case, what circumstances and what consequences shall be counted within the compass of the act with which it is concerned. To ask what act a man has done is like asking in what place he lives.

By some writers the term act is limited to that part of the act which we have distinguished as its origin. According to this opinion the only acts, properly so called, are movements of the body. “An act,” it has been said,^[328] “is always a voluntary muscular contraction and nothing else.” That is to say, the circumstances and consequences of an act are not part of it, but are wholly external to it. This limitation, however, seems no less inadmissible in law than contrary to the common usage of speech. We habitually and rightly include all material and relevant circumstances and consequences under the name of the act. The act of the murderer is the shooting or poisoning of his victim, not merely the muscular contractions by which this result is effected. To trespass on another man’s land is a wrongful act; but the act includes the circumstance that the land belongs to another man, no less than the bodily movements by which the trespasser enters upon it.^[329]

It may be suggested that although an act must be taken to 327include some of its consequences, it does not include all of them, but only those which are direct or immediate. Any such distinction, however, between direct and indirect, proximate and remote consequences, is nothing more than an indeterminate difference of degree, and cannot be made the basis of any logical definition. The distinction between an act and its consequences, between doing a thing and causing a thing, is a merely verbal one; it is a matter of convenience of speech, and not the product of any scientific analysis of the conceptions involved. There is no logical distinction between the act of killing a man and the act of doing something which results (however remotely) in his death.^[330]

§ 129. Two Classes of Wrongful Acts.

Every wrong is an act which is mischievous in the eye of the law—an act to which the law attributes harmful consequences. These consequences, however, are of two kinds, being either actual or merely anticipated. In other words, an act may be mischievous in two ways—either in its actual results or in its tendencies. Hence it is, that legal wrongs are of two kinds. The first consists of those in which the act is wrongful only by reason of accomplished harm which in fact ensues from it. The second consists of those in which the act is wrongful by reason of its mischievous tendencies, as recognised by the law, irrespective of the actual issue. In the first case there is no wrong or cause of action without proof of actual damage; in the second case it is sufficient to prove the act itself, even though in the event no harm has followed it.

For example, if A. breaks his contract with B, it is not necessary for B. to prove that he was thereby disappointed in his reasonable expectations, or otherwise suffered actual loss, for the law takes notice of the fact that breach of contract is an act of mischievous tendency, and therefore treats it as wrongful irrespective of the actual issue. The loss, if any, incurred by B. is relevant to the measure of damages, but not to the existence of a cause of action. So if I walk across another man’s field, or publish a libel upon him, I am 328responsible for the act without any proof of actual harm resulting from it. For trespass and libel belong to the class of acts which are judged wrongful in respect of their tendencies, and not merely in respect of their results. In other cases, on the contrary, actual damage is essential to the cause of action. Slander, for example, is in general not actionable without proof of some loss sustained by the plaintiff, although libel is actionable per se. So if by negligent driving I expose others to the risk of being run over, I am not deemed guilty of any wrong until an accident actually happens. The dangerous tendency of the act is not in this case considered a sufficient ground of liability.

With respect to this distinction between wrongs which do and those which do not, require proof of actual damage, it is to be noticed that criminal wrongs commonly belong to the latter class. Criminal liability is usually sufficiently established by proof of some act which the law deems dangerous in its tendencies, even though the issue is in fact harmless. The formula of the criminal law is usually: “If you do this, you will be held liable in all events,” and not: “If you do this you will be held liable if any harm ensues.” An unsuccessful attempt is a ground of criminal liability, no less than a completed offence. This, however, is not invariably so, for criminal responsibility, like civil, sometimes depends on the accident of the event. If I am negligent in the use of firearms, and kill some one in consequence, I am criminally liable for manslaughter; but if by good luck my negligence results in no accomplished mischief, I am free from all responsibility.

As to civil liability, no corresponding general principle can be laid down. In some cases proof of actual damage is required, while in other cases there is no such necessity; and the matter pertains to the detailed exposition of the law, rather than to legal theory. It is to be noted, however, that whenever this requirement exists, it imports into the administration of civil justice an element of capriciousness from which the criminal law is commonly free. In point of criminal responsibility men are judged by their acts and by 329the mischievous tendencies of them, but in point of civil liability they are often judged by the actual event. If I attempt to execute a wrongful purpose, I am criminally responsible whether I succeed or not; but my civil liability will often depend upon the accident of the result. Failure in a guilty endeavour amounts to innocence. Instead of saying: “Do this, and you will be held accountable for it,” the civil law often says: “Do this if you wish, but remember that you do it at your peril, and if evil consequences chance to follow, you will be answerable for them.”

§ 130. Damnum sine Injuria.

Although all wrongs are, in fact or in legal theory, mischievous acts, the converse is not true. All damage done is not wrongful. There are cases in which the law will suffer a man knowingly and wilfully to inflict harm upon another, and will not hold him accountable for it. Harm of this description—mischief that is not wrongful because it does not fulfil even the material conditions of responsibility—is called damnum sine injuria, the term injuria being here used in its true sense of an act contrary to law (in jus), not in its modern and corrupt sense of harm.

Cases of damnum sine injuria fall under two heads. There are, in the first place, instances in which the harm done to the individual is nevertheless a gain to society at large. The wrongs of individuals are such only because, and only so far as, they are at the same time the wrongs of the whole community; and so far as this coincidence is imperfect, the harm done to an individual is damnum sine injuria. The special result of competition in trade may be ruin to many; but the general result is, or is deemed to be, a gain to society as a whole. Competitors, therefore, do each other harm but not injury. So a landowner may do many things on his own land, which are detrimental to the interests of adjoining proprietors. He may so excavate his land as to withdraw the support required by the buildings on the adjoining property; he may prevent the access of light to the windows 330of those buildings; he may drain away the water which supplies his neighbour’s well. These things are harmful to individuals; but it is held to serve the public interest to allow a man, within wide limits, to do as he pleases with his own.

The second head of damnum sine injuria includes all those cases in which, although real harm is done to the community, yet owing to its triviality, or to the difficulty of proof, or to any other reason, it is considered inexpedient to attempt its prevention by the law. The mischief is of such a nature that the legal remedy would be worse than the disease.

§ 131. The Place and Time of an Act.

Chiefly, though not exclusively, in consequence of the territorial limits of the jurisdiction of courts, it is often material to determine the place in which an act is done. In general this inquiry presents no difficulty, but there are two cases which require special consideration. The first is that in which the act is done partly in one place and partly in another. If a man standing on the English side of the Border fires at and kills a man on the Scottish side, has he committed murder in England or in Scotland? If a contract is made by correspondence between a merchant in London and another in Paris, is the contract made in England or in France? If by false representations made in Melbourne a man obtains goods in Sydney, is the offence of obtaining goods by false pretences committed in Victoria or in New South Wales? As a matter of fact and of strict logic the correct answer in all these cases is that the act is not done either in the one place or in the other. He who in England shoots a man in Scotland commits murder in Great Britain, regarded as a unity, but not in either of its parts taken in isolation. But no such answer is allowable in law; for, so long as distinct territorial areas of jurisdiction are recognised, the law must assume that it is possible to determine with respect to every act the particular area within which it is committed.

What locality, therefore, does the law attribute to acts which thus fall partly within one territorial division and partly within another? There are three possible answers. It may be said that the act is committed in both places, or solely in that in which it has its commencement, or solely in that in which it is completed. The law is free to choose such one of these three alternatives as it thinks fit in the particular case. The last of them seems to be that which is adopted for most purposes. It has been held that murder is committed in the place in which the death occurs,^[331] and not also in the place in which the act causing the death is done,^[332] but the law on these points is not free from doubt.^[333] A contract is made in the place 331where it is completed, that is to say, where the offer is accepted^[334] or the last necessary signature to the document is affixed.^[335] The offence of obtaining goods by false pretences is committed in the place in which the goods are obtained^[336] and not in the place where the false pretence is made.^[337]

A second case in which the determination of the locality of an act gives rise to difficulty is that of negative acts. In what place does a man omit to pay a debt or to perform a contract? The true answer is apparently that a negative act takes place where the corresponding positive act ought to have taken place. An omission to pay a debt occurs in the place where the debt is payable.^[338] If I make in England a contract to be performed in France, my failure to perform it takes place in France and not in England. The presence of a negative act is the absence of the corresponding positive act, and the positive act is absent from the place in which it ought to have been present.

The time of an act. The position of an act in time is determined by the same considerations as its position in space. An act which begins to-day and is completed to-morrow is in truth done neither to-day nor to-morrow, but in that space of time which includes both. But if necessary the law may date it from its commencement, or from its completion, or may regard it as continuing through both periods. For most purposes the date of an act is the date of its completion, just as its place is the place of its completion.^[339]

332A negative act is done at the time at which the corresponding positive act ought to have been done. The date of the non-payment of a debt is the day on which it becomes payable.

§ 132. Mens Rea.

We have seen that the conditions of penal liability are sufficiently indicated by the maxim, Actus non facit reum, nisi mens sit rea. A man is responsible not for his acts in themselves, but for his acts coupled with the mens rea or guilty mind with which he does them. Before imposing punishment, whether civilly or criminally, the law must be satisfied of two things: first, that an act has been done which by reason of its harmful tendencies or results is fit to be repressed by way of penal discipline; and secondly, that the mental attitude of the doer towards his deed was such as to render punishment effective as a deterrent for the future, and therefore just. The first is the material, the second is the formal condition of liability. The mens rea may assume one or other of two distinct forms, namely wrongful intention or culpable negligence. The offender may either have done the wrongful act on purpose, or he may have done it carelessly, and in each case the mental attitude of the doer is such as to make punishment effective. If he intentionally chose the wrong, penal discipline will furnish him with a sufficient motive to choose the right instead for the future. If, on the other hand, he committed the forbidden act without wrongful intent, but yet for want of sufficient care devoted to the avoidance of it, punishment will be an effective inducement to carefulness in the future. But if his act is neither intentional nor negligent, if he not only did not intend it, but did his best as a reasonable man to avoid it, there can be no good purpose fulfilled in ordinary cases by holding him liable for it.

Yet there are exceptional cases in which, for sufficient or insufficient reasons, the law sees fit to break through the rule as to mens rea. It disregards the formal condition of liability, and is satisfied with the material condition alone. It 333holds a man responsible for his acts, independently altogether of any wrongful intention or culpable negligence. Wrongs which are thus independent of mens rea may be distinguished as wrongs of absolute liability.

It follows that in respect of the requirement of mens rea wrongs are of three kinds:

(1) Intentional or Wilful Wrongs, in which the mens rea amounts to intention, purpose, or design.

(2) Wrongs of Negligence, in which the mens rea assumes the less serious form of mere carelessness, as opposed to wrongful intent.

(3) Wrongs of Absolute Liability, in which the mens rea is not required, neither wrongful intent not culpable negligence being recognised as a necessary condition of responsibility.

We shall deal with these three classes of wrongs, and these three forms of liability, in the order mentioned.

SUMMARY.

§ 133. The Nature of Intention.

Intention is the purpose or design with which an act is done. It is the foreknowledge of the act, coupled with the desire of it, such foreknowledge and desire being the cause of the act, inasmuch as they fulfil themselves through the operation of the will. An act is intentional if, and in so far as, it exists in idea before it exists in fact, the idea realising itself in the fact because of the desire by which it is accompanied.^[340]

An act may be wholly unintentional, or wholly intentional, or intentional in part only. It is wholly unintentional if no part of it is the outcome of any conscious purpose or design, no part of it having existed in idea before it became realised in fact. I may omit to pay a debt, because I have completely forgotten that it exists; or I may, through careless handling, accidentally press the trigger of a pistol in my hand and so wound a bystander. An act is wholly intentional, on the other hand, when every part of it corresponds to the precedent idea of it, which was present in the actor’s mind, and of which it is the outcome and realisation. The issue falls completely within the boundaries of the intent. Finally an act may be in part intentional and in part unintentional. The idea and the fact, the will and the deed, the design and the issue, may be only partially coincident. If I throw stones, I may intend to break a window but not to do personal harm to any one; yet in the result I may do both of these things.

An act, and therefore a wrong, which is intended only in part, must be classed as unintended, just as a thing which is 336completed only in part is incomplete. If any constituent element or essential factor of the complete wrong falls outside the limits of the doer’s intent he cannot be dealt with on the footing of wilful wrongdoing. If liability in such a case exists at all, it must be either absolute or based on negligence.^[341]

A wrong is intentional, only when the intention extends to all the elements of the wrong, and therefore to its circumstances no less than to its origin and its consequences. We cannot say, indeed, that the circumstances are intended or intentional; but the act is intentional with respect to the circumstances, inasmuch as they are included in that precedent idea which constitutes the intention of the act. So far, therefore, as the knowledge of the doer does not extend to any material circumstance, the wrong is, as to that circumstance, unintentional. To trespass on A.’s land believing it to be one’s own is not a wilful wrong. The trespasser intended, indeed, to enter upon the land, but he did not intend to enter upon land belonging to A. His act was unintentional as to the circumstance that the land belonged to A. So if a woman marries again during the lifetime of her former husband, but believing him to be dead, she does not wilfully commit the crime of bigamy, for one of the material circumstances lies outside her intention. With respect to that circumstance the will and the deed are not coincident.

Intention does not necessarily involve expectation. I may intend a result which I well know to be extremely improbable. So an act may be intentional with respect to a particular circumstance, although the chance of the existence of that circumstance is known to be exceedingly small. Intention is the foresight of a desired issue, however improbable—not the foresight of an undesired issue, however probable. If I fire a rifle in the direction of a man half a mile away, I may know perfectly well that the chance of hitting him is not one 337in a thousand; I may fully expect to miss him; nevertheless I intend to hit him if I desire to do so. He who steals a letter containing a cheque, intentionally steals the cheque also, if he hopes that the letter may contain one, even though he well knows that the odds against the existence of such a circumstance are very great.

Conversely, expectation does not in itself amount to intention. An operating surgeon may know very well that his patient will probably die of the operation; yet he does not intend the fatal consequence which he expects. He intends the recovery which he hopes for but does not expect.

Although nothing can be intended which is not desired, it must be carefully noticed that a thing may be desired, and therefore intended, not in itself or for its own sake, but for the sake of something else with which it is necessarily connected. If I desire and intend a certain end, I also desire and intend the means by which this end is to be obtained, even though in themselves those means may be indifferent, or even objects of aversion. If I kill a man in order to rob him, I desire and intend his death, even though I deeply regret, in his interests or in my own, the necessity of it. In the same way, the desire and intention of an end extend not merely to the means by which it is obtained, but to all necessary concomitants without which it cannot be obtained. If an anarchist, desiring to kill the emperor, throws a bomb into his carriage, knowing that if it explodes and kills him it will also kill others who are riding with him, the assassin both desires and intends to kill those others. This additional slaughter may in itself be in no way desired by him; he may be genuinely sorry for it; yet it falls within the boundaries of his desire and of his intent, since it is believed by him to be a necessary concomitant of the end which he primarily seeks. The deaths of the emperor and of the members of his suite are inseparably connected, and they constitute, therefore, a single issue which must be desired and intended as a unity or not at all. When I know or believe that A. cannot be had without B., I cannot say that I intend A. but not B. If I desire A. sufficiently to overcome my aversion to B., then I desire the total issue of 338which A. and B. are the two inseparable factors. With respect to all circumstances which I know or believe to exist, and with respect to all consequences which I know or believe to be inevitable, my act is intentional, however undesirable those circumstances or consequences may be in themselves. I choose them deliberately and consciously as necessary incidents of that which I desire and intend for its own sake.

Any genuine belief, however, that an event may not happen, coupled with a genuine desire that it shall not, is sufficient to prevent it from being intended. So any genuine doubt as to the existence of a circumstance, coupled with a genuine hope that it does not exist, is enough to prevent the act from being intentional as to that circumstance. The act may be grossly negligent, it may be absolutely reckless, but it is not intentional. If I fire a rifle at A., knowing that I may very probably hit B. who is standing close to him, I do not for that reason intend to hit B. I genuinely intend and desire not to hit him. An intention to hit B. would be inconsistent with my admitted intention to hit A.^[342]

§ 134. Intention and Motive.

A wrongful act is seldom intended and desired for its own sake. The wrongdoer has in view some ulterior object which he desires to obtain by means of it. The evil which he does to another, he does and desires only for the sake of some resulting good which he will obtain for himself. He intends the attainment of this ulterior object, no less than he intends the wrongful act itself. His intent, therefore, is twofold, and is divisible into two distinct portions, which we may distinguish as his immediate and his ulterior intent. The former is that which relates to the wrongful act itself; the latter is that which passes beyond the wrongful act, and relates to the object or series of objects for the sake of which the act is done. The immediate intent of the thief is to appropriate another person’s money, while his ulterior intent may be to 339buy food with it or to pay a debt. The ulterior intent is called the motive of the act.

The immediate intent is that part of the total intent which is coincident with the wrongful act itself; the ulterior intent or motive is that part of the total intent which lies outside the boundaries of the wrongful act. For just as the act is not necessarily confined within the limits of the intent, so the intent is not necessarily confined within the limits of the act. The wrongdoer’s immediate intent, if he has one, is his purpose to commit the wrong; his ulterior intent, or motive, is his purpose in committing it. Every wrongful act may raise two distinct questions with respect to the intent of the doer. The first of these is: How did he do the act—intentionally or accidentally? The second is: If he did it intentionally, why did he do it? The first is an inquiry into his immediate intent; the second is concerned with his ulterior intent, or motive.

The ulterior intention of one wrongful act may be the commission of another. I may make a die with intent to coin bad money; I may coin bad money with intent to utter it; I may utter it with intent to defraud. Each of these acts is or may be a distinct criminal offence, and the intention of any one of them is immediate with respect to that act itself, but ulterior with respect to all that go before it in the series.

A person’s ulterior intent may be complex instead of simple; he may act from two or more concurrent motives instead of from one only. He may institute a prosecution, partly from a desire to see justice done, but partly also from ill-will towards the defendant. He may pay one of his creditors preferentially on the eve of bankruptcy, partly from a desire to benefit him at the expense of the others, and partly from a desire to gain some advantage for himself. Now the law, as we shall see later, sometimes makes liability for an act depend upon the motive with which it is done. The Bankruptcy Act, for example, regards as fraudulent any payment made by a debtor immediately before his bankruptcy with intent to prefer one of his creditors to the others. In all such cases the presence of mixed or concurrent motives raises a difficulty of interpretation. The phrase “with intent to,” or its equivalents, may mean any one of at least four different things:—(1) That the intent referred to must be the sole or exclusive intent; (2) that it is sufficient if it is one of several concurrent intents; (3) that it must be the chief or dominant intent, any others being subordinate 340or incidental; (4) that it must be a determining intent, that is to say, an intent in the absence of which the act would not have been done, the remaining purposes being insufficient motives by themselves. It is a question of construction which of those meanings is the true one in the particular case.^[343]

§ 135. Malice.

Closely connected with the law and theory of intentional wrongdoing is the legal use of the word malice. In a narrow and popular sense this term means ill-will, spite, or malevolence; but its legal signification is much wider. Malice means in law wrongful intention. It includes any intent which the law deems wrongful, and which therefore serves as a ground of liability. Any act done with such an intent is, in the language of the law, malicious, and this legal usage has etymology in its favour. The Latin malitia^[344] means badness, physical or moral—wickedness in disposition or in conduct—not specifically or exclusively ill-will or malevolence; hence the malice of English law, including all forms of evil purpose, design, intent, or motive.

We have seen, however, that intent is of two kinds, being either immediate or ulterior, the ulterior intent being commonly distinguished as the motive. The term malice is applied in law to both these forms of intent, and the result is a somewhat puzzling ambiguity which requires careful notice. When we say that an act is done maliciously, we mean one of two distinct things. We mean either that it is done intentionally, or that it is done with some wrongful motive. In the phrases malicious homicide and malicious injury to property, malicious is merely equivalent to wilful or intentional. I burn down a house maliciously if I burn it on purpose, but not if I burn it negligently. There is here no reference to any ulterior purpose or motive. But on the other hand malicious prosecution does not mean intentional prosecution; it means a prosecution inspired by some motive of which the law disapproves. A prosecution is malicious, for example, if its ulterior intent is the extortion of money 341from the accused. So also with the malice which is needed to make a man liable for defamation on a privileged occasion; I do not utter defamatory statements maliciously, simply because I utter them intentionally.^[345]

Although the word malitia is not unknown to the Roman lawyers, the usual and technical name for wrongful intent is dolus, or more specifically dolus malus. Dolus and culpa are the two forms of mens rea. In a narrower sense, however, dolus includes merely that particular variety of wrongful intent which we term fraud—that is to say, the intent to deceive.^[346] From this limited sense it was extended to cover all forms of wilful wrongdoing. The English term fraud has never received an equally wide extension. It resembles dolus, however, in having a double use. In its narrow sense it means deceit, as we have just said, and is commonly opposed to force. In a wider sense it includes all forms of dishonesty, that is to say, all wrongful conduct inspired by a desire to derive profit from the injury of others. In this sense fraud is commonly opposed to malice in its popular sense. I act fraudulently when the motive of my wrongdoing is to derive some material gain for myself, whether by way of deception, force, or otherwise. But I act maliciously when my motive is the pleasure of doing harm to another, rather than the acquisition of any advantage for myself. To steal property is fraudulent; to damage or destroy it is malicious.

§ 136. Relevance and Irrelevance of Motives.

We have already seen in what way and to what extent a man’s immediate intent is material in a question of liability. As a general rule no act is a sufficient basis of responsibility unless it is done either wilfully or negligently. Intention and negligence are the two alternative formal conditions of penal liability.

We have now to consider the relevance or materiality, not of the immediate, but of the ulterior intent. To what extent does the law take into account the motives of a wrongdoer? To what extent will it inquire not merely what the defendant has done, but why he has done it? To what extent is malice, in the sense of improper motive, an element in legal wrongdoing?

342In answer to this question we may say generally (subject however, to very important qualifications) that in law a man’s motives are irrelevant. As a general rule no act otherwise lawful becomes unlawful because done with a bad motive; and conversely no act otherwise unlawful is excused or justified because of the motives of the doer, however good. The law will judge a man by what he does, not by the reasons for which he does it.

“It is certainly,” says Lord Herschell,^[347] “a general rule of our law that an act prima facie lawful is not unlawful and actionable on account of the motives which dictated it.” So it has been said:^[348] “No use of property which would be legal if due to a proper motive can become illegal because it is prompted by a motive which is improper or even malicious.” “Much more harm than good,” says Lord Macnaghten,^[349] “would be done by encouraging or permitting inquiries into motives when the immediate act alleged to have caused the loss for which redress is sought is in itself innocent or neutral in character and one which anybody may do or leave undone without fear of legal consequences. Such an inquisition would I think be intolerable.”

An illustration of this irrelevance of motives is the right of a landowner to do harm to adjoining proprietors in certain defined ways by acts done on his own land. He may intercept the access of light to his neighbour’s windows, or withdraw by means of excavation the support which his land affords to his neighbour’s house, or drain away the water which would otherwise supply his neighbour’s well. His right to do all these things depends in no way on the motive with which he does them. The law cares nothing whether his acts are inspired by an honest desire to improve his own property, or by a malevolent impulse to damage that of others. He may do as he pleases with his own.^[350]

To this rule as to the irrelevance of motives there are, however, very important exceptions, more especially in the criminal law. The chief of these are the following.

An attempt to commit an indictable offence is itself a crime. Every attempt is an act done with intent to commit the offence so attempted. The existence of this ulterior intent or motive is of the essence of the attempt. The act in itself may be perfectly innocent, but is deemed criminal by reason of the purpose with which it is done. To mix arsenic in food is in itself a perfectly lawful act, for it may be that the mixture is designed for the poisoning of rats. But if the purpose is to kill a human being, the act becomes by reason of this purpose the crime of attempted murder. In such cases a rational system of law cannot avoid considering the motive as material, for it is from the motive alone that the act derives all its mischievous tendency, and therefore its wrongful nature.

Although every attempt is an act done with intent to commit a crime, the converse is not true. Every act done with this intent is not an attempt, for it may be too remote from the completed offence to give rise to criminal liability, notwithstanding the criminal purpose of the doer. I may buy matches with intent to burn a haystack, and yet be clear of attempted arson; but if I go to the stack and there light one of the matches, my intent has developed into a criminal attempt. To intend to commit a crime is one thing; to get ready to commit it is another; to try to commit it is a third. We may say, indeed, that every intentional crime involves four distinct stages—Intention, Preparation, Attempt, and Completion. The two former are commonly innocent. An unacted intent is no more a ground of liability than is an unintended act. The will and the deed must go together. Even action in pursuance of the intent is not commonly criminal if it goes no further than the stage of preparation. I may buy a pistol with felonious purpose, and yet remain free from legal guilt. There is still a locus poenitentiae. But the two last stages in the offence, namely attempt and completion, are grounds of legal liability. How, then, are we to draw the line which thus separates innocence from guilt? What is the 344distinction between preparing to commit a crime and attempting to commit it? How far may a man go along the path of his criminal intent, and yet turn back in safety if his heart or the occasion fails him? This is a question to which English law gives no definite or sufficient answer. “An attempt to commit a crime,” says Sir James Stephen in his Digest of the Criminal Law,^[351] “is an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission, if it were not interrupted. The point at which such a series of acts begins cannot be defined, but depends upon the circumstances of each particular case.” This, however, affords no adequate guidance, and lays down no principle which would prevent a conviction for attempted forgery on proof of the purchase of ink and paper.

The German Criminal Code,^[352] on the other hand, defines an attempt as an act done with intent to commit a crime, and amounting to the commencement of the execution of it. That is to say, an act is not an attempt unless it forms a constituent part of the completed crime. Otherwise it is merely preparatory. It may be doubted, however, whether this is a sufficient solution of the problem. We know when a crime is completed, but at what stage in the long series of preliminary acts does it begin? Not later, it would seem, than the earliest act done with the requisite criminal intent; yet this act may be far too remote to constitute an attempt.

What, then, is the true principle? The question is a difficult one, but the following answer may be suggested. An attempt is an act of such a nature that it is itself evidence of the criminal intent with which it is done. A criminal attempt bears criminal intent upon its face. Res ipsa loquitur. An act, on the other hand, which is in itself and on the face of it innocent, is not a criminal attempt, and cannot be made punishable by evidence aliunde as to the purpose with which it was done. To buy matches with intent to commit arson is not attempted arson, because the act is innocent 345on its face, there being many lawful reasons for the purchase of matches. But to buy dies with intent to coin money is attempted forgery, for the act speaks for itself.^[353] For the same reason, to buy or load a gun with murderous intent is not in ordinary circumstances attempted murder; but to lie in wait with the loaded weapon, or to present it, or discharge it, is an act which itself proclaims the criminal purpose with which it is done, and it is punishable accordingly. If this is the correct explanation of the matter, the ground of the distinction between preparation and attempt is evidential merely. The reason for holding a man innocent, who does an act with intent to commit a crime, is the danger involved in the admission of evidence upon which persons may be punished for acts which in themselves and in appearance are perfectly innocent. Cogitationis poenam nemo patitur. No man can be safely punished for his guilty purposes, save so far as they have manifested themselves in overt acts which themselves proclaim his guilt.

There is yet another difficulty in the theory of attempts. What shall be said if the act done with intent to commit a crime is of such a nature that the completion of the crime by such means is impossible: as if I attempt to steal by putting my hand into an empty pocket, or to poison by administering sugar which I believe to be arsenic? It was long supposed to be the law of England that there could be no conviction for an attempt in such cases. It was considered that an attempt must be part of a series of acts and events which, in its completeness, would actually constitute the offence attempted.^[354] Recent decisions have determined the law otherwise.^[355] The possibility of a successful issue is not a necessary element in an attempt, and this conclusion seems sound in principle. The matter, however, is not free from difficulty, since it may be argued on the other side that acts which in their nature cannot result 346in any harm are not mischievous either in their tendency or in their results, and therefore should not be treated as crimes. Shall an attempt to procure the death of one’s enemy by means of witchcraft be punished as attempted murder?

§ 138. Other Exceptions to the Irrelevance of Motives.

Criminal attempts constitute, as we have seen, the first of the exceptions to the rule that a person’s ulterior intent or motive is irrelevant in law. A second exception comprises all those cases in which a particular intent forms part of the definition of a criminal offence. Burglary, for example, consists in breaking and entering a dwelling-house by night with intent to commit a felony therein. So forgery consists in making a false document with intent to defraud. In all such instances the ulterior intent is the source, in whole or in part, of the mischievous tendency of the act, and is therefore material in law.

In civil as opposed to criminal liability the ulterior intent is very seldom relevant. In almost all cases the law looks to the act alone, and makes no inquiries into the motives from which it proceeds. There are, however, certain exceptions even in the civil law, and the chief, if not all, of these fall within the principle that a harmful act may be damnum sine injuria if done from a proper motive and without malice, but loses this protection so soon as it proceeds from some motive of which the law does not approve. It may be expedient in the public interest to allow certain specified kinds of harm to be done to individuals, so long as they are done for some good and sufficient reason; but the ground of this privilege falls away so soon as it is abused for bad ends. In such cases, therefore, malice is an essential element in the cause of action. Examples of wrongs of this class are defamation (in cases of privilege) and malicious prosecution. In these instances the plaintiff must prove malice, because in all of them the defendant’s act is one which falls under the head of damnum sine injuria so long, but so long only, as it is done with good intent.

We shall conclude our examination of the theory of wilful wrongdoing by considering a special case in which, although intention is present, the mens rea is nevertheless absent. This is the case of the jus necessitatis. So far as the abstract theory of responsibility is concerned, an act which is necessary is not wrongful, even though done with full and deliberate intention. It is a familiar proverb that necessity knows no law: Necessitas non habet legem. By necessity is here meant the presence of some motive adverse to the law, and of such exceeding strength as to overcome any fear that can be inspired by the threat of legal penalties. The jus necessitatis is the right of a man to do that from which he cannot be dissuaded by any terror of legal punishment. Where threats are necessarily ineffective, they should not be made, and their fulfilment is the infliction of needless and uncompensated evil.

The common illustration of this right of necessity is the case of two drowning men clinging to a plank that will not support more than one of them. It may be the moral duty of him who has no one dependent on him to sacrifice himself for the other who is a husband or a father; it may be the moral duty of the old to give way to the young. But it is idle for the law to lay down any other rule save this, that it is the right of the stronger to use his strength for his own preservation. Another familiar case of necessity is that in which shipwrecked sailors are driven to choose between death by starvation on the one side and murder and cannibalism on the other. A third case is that of crime committed under the pressure of illegal threats of death or grievous bodily harm. “If,” says Hobbes,^[356] “a man by the terror of present death be compelled to do a fact against the law, he is totally excused; because no law can oblige a man to abandon his own preservation.”

It is to be noticed that the test of necessity is not the powerlessness 348of any possible, but that of any reasonable punishment. It is enough if the lawless motives to an act will necessarily countervail the fear of any penalty which it is just and expedient that the law should threaten. If burning alive were a fit and proper punishment for petty theft, the fear of it would probably prevent a starving wretch from stealing a crust of bread; and the jus necessitatis would have no place. But we cannot place the rights of property at so high a level. There are cases, therefore, in which the motives to crime cannot be controlled by any reasonable punishment. In such cases an essential element of the mens rea, namely freedom of choice, is absent; and so far as abstract theory is concerned, there is no sufficient basis of legal liability.

As a matter of practice, however, evidential difficulties prevent any but the most limited scope being permitted to the jus necessitatis. In how few cases can we say with any approach to certainty that the possibility of self-control is really absent, that there is no true choice between good and evil, and that the deed is one for which the doer is rightly irresponsible. In this conflict between the requirements of theory and the difficulties of practice the law has resorted to compromise. While in some few instances necessity is admitted as a ground of excuse, it is in most cases regarded as relevant to the measure rather than to the existence of liability. It is acknowledged as a reason for the reduction of the penalty, even to a nominal amount, but not for its total remission. Homicide in the blind fury of irresistible passion is not innocent, but neither is it murder; it is reduced to the lower level of manslaughter. Shipwrecked sailors who kill and eat their comrades to save their own lives are in law guilty of murder itself; but the clemency of the Crown will commute the capital sentence to a short term of imprisonment.^[357]

§ 140. Negligence.

We have considered the first of the three classes into which injuries are divisible, namely those which are intentional or 349wilful, and we have now to deal with the second, namely wrongs of negligence.

The term negligence has two uses, for it signifies sometimes a particular state of mind, and at other times conduct resulting therefrom. In the former or subjective sense, negligence is opposed to wrongful intention, these being the two forms assumed by that mens rea which is a condition of penal responsibility. In the latter or objective sense, it is opposed not to wrongful intention, but to intentional wrongdoing. A similar double signification is observable in other words. Cruelty, for example, means subjectively a certain disposition and objectively conduct resulting from it. The ambiguity can scarcely lead to any confusion, for the two forms of negligence are necessarily coincident. Objective negligence is merely subjective negligence realised in conduct; and subjective negligence is of no account in the law, until and unless it is manifested in act. We shall commonly use the term in the subjective sense, and shall speak objectively not of negligence, but of negligent conduct or negligent wrongdoing.^[358]

Negligence is culpable carelessness. “It is,” says Willes, J.,^[359] “the absence of such care as it was the duty of the defendant to use.” What then is meant by carelessness? It is clear, in the first place, that it excludes wrongful intention. These are two contrasted and mutually inconsistent mental attitudes of a person towards his acts and their consequences. No result which is due to carelessness can have been also intended. Nothing which was intended can have been due to carelessness.^[360]

It is to be observed, in the second place, that carelessness or negligence does not necessarily consist in thoughtlessness 350or inadvertence. This is doubtless the commonest form of it, but it is not the only form. If I do harm, not because I intended it, but because I was thoughtless and did not advert to the dangerous nature of my act, or foolishly believed that there was no danger, I am certainly guilty of negligence. But there is another form of negligence, in which there is no thoughtlessness or inadvertence whatever. If I drive furiously down a crowded street, I may be fully conscious of the serious risk to which I expose other persons. I may not intend to injure any of them, but I knowingly and intentionally expose them to the danger. Yet if a fatal accident happens, I am liable, at the most, not for wilful, but for negligent homicide. When I consciously expose another to the risk of wrongful harm, but without any wish to harm him, and harm actually ensues, it is inflicted not wilfully, since it was not desired, nor inadvertently, since it was foreseen as possible or even probable, but nevertheless negligently.

If, then, negligence or carelessness is not to be identified with thoughtlessness or inadvertence, what is its essential nature? The correct answer seems to be that a careless person is a person who does not care. The essence of negligence is not inadvertence but indifference. Indifference is exceedingly apt to produce thoughtlessness or inadvertence; but it is not the same thing, and may exist without it, as we have seen from the example already given. If I am careless, that is to say indifferent, as to the results of my conduct, I shall very probably fail to acquire adequate foresight and consciousness of them; but I may, on the contrary, make a very accurate estimate of them, and yet remain equally indifferent with respect to them, and therefore equally negligent.

Negligence, therefore, essentially consists in the mental attitude of undue indifference with respect to one’s conduct and its consequences.^[361]

351This being so, the distinction between intention and negligence becomes clear. The wilful wrongdoer desires the harmful consequences, and therefore does the act in order that they may ensue. The negligent wrongdoer is careless (if not wholly, yet unduly) whether they ensue or not, and therefore does the act not withstanding the risk that they may ensue. The wilful wrongdoer is liable because he desires to do the harm; the negligent wrongdoer is liable because he does not sufficiently desire to avoid it. He who will excuse himself on the ground that he meant no evil is still open to the reply: Perhaps you did not, but at all events you might have avoided it, if you had sufficiently desired so to do; and you are held liable not because you desired the mischief, but because you were careless and indifferent whether it ensued or not.

Negligence, as so defined, is rightly treated as a form of mens rea, standing side by side with wrongful intention as a formal ground of responsibility. For these are the two mental attitudes which alone justify the discipline of penal justice. The law may rightly punish wilful wrongdoing, because, since the wrongdoer desired the outcome of his act, punishment will supply him for the future with a good reason for desiring the opposite. So, also, the law may justly punish negligent wrongdoing, for since the wrongdoer is careless as to the interests of others, punishment will cure this defect by making those interests for the future coincident with his own. In no other case than these two can punishment be effective, and therefore in no other case is it justifiable. So far as abstract theory is concerned, every man is exempt from penal responsibility who can truly say: The harm which I have done is not the outcome of any desire of mine to do it; neither does it proceed from any carelessness or indifference as to my acts and the results of them; I did not mean it, neither could I have avoided it by care.

It follows from the foregoing analysis that negligence is of two kinds, according as it is or is not accompanied by 352inadvertence. Advertent negligence is commonly termed wilful negligence or recklessness. Inadvertent negligence may be distinguished as simple. In the former the harm done is foreseen as possible or probable, but it is not willed. In the latter it is neither foreseen nor willed. In each case carelessness, that is to say, indifference as to consequences, is present; but in the former case this indifference does not, while in the latter it does prevent these consequences from being foreseen. The physician who treats a patient improperly through ignorance or forgetfulness is guilty of simple or inadvertent negligence; but if he does the same in order to save himself trouble, or by way of a scientific experiment, with full recognition of the dangers so incurred, his negligence is wilful.^[362]

This distinction is of little practical importance, but demands recognition here, partly because of the false opinion that all negligence is inadvertent, and partly because of the puzzling nature of the expression wilful negligence. In view of the fundamental opposition between intention and negligence, this expression looks at first sight self-contradictory, but it is not so. He who does a dangerous act, well knowing that he is exposing others to a serious risk of injury, and thereby causes a fatal accident, is guilty of negligent, not of wilful homicide. But the negligence is wilful, though the homicide is not. He is not merely negligent, but consciously, wilfully, and intentionally negligent; for he knows at the time the true nature of the act which he is doing. It is intentional with respect to the fact that his mental attitude towards the consequences is one of culpable indifference.

§ 141. Objection Considered.

By way of objection to the foregoing analysis it may be said: “It is not true that in all cases negligence amounts to carelessness in the sense of indifference. A drunken man is liable for negligence if he stumbles as he walks along the street, and breaks a shop window, but he may have been 353exceedingly anxious to walk in a straight line and to avoid any such accident. He may have been conscientiously using his best endeavours, but they will not serve to justify him on a charge of negligence. So an unskilful physician may devote to the treatment and cure of his patient an amount of anxious attention and strenuous endeavour, far in excess of that which one more skilful would consider necessary; yet if his treatment is wrong, he is guilty of negligence.”

The answer to this objection is that in these and all similar cases carelessness in the sense of indifference is really present, though it is remote instead of immediate. The drunken man may be anxious and careful now not to break other persons’ windows, but if he had been sufficiently anxious and careful on the point some time ago, he would have remained sober, and the accident would not have happened. So with the unskilful physician. It is a settled principle of law that want of skill or of professional competence amounts to negligence. Imperitia culpae adnumeratur.^[363] He who will exercise any trade or profession must bring to the exercise of it such a measure of skill and knowledge as will suffice for reasonable efficiency, and he who has less than this practises at his own risk. The ignorant physician who kills his patient, or the unskilful blacksmith who lames the horse shod by him, is legally responsible, not because he is ignorant or unskilful—for skill and knowledge may be beyond his reach—but because, being unskilful or ignorant, he ventures to undertake a business which calls for qualities which he does not possess. No man is bound in law to be a good surgeon or a capable attorney, but all men are bound not to act as surgeons or attorneys until and unless they are good and capable as such.

The unskilful physician, therefore, is liable not because he is now careless of the health of his patient, but because he was formerly careless in undertaking work calling for greater skill than he possessed. If he then knew that he had not the requisite skill, his carelessness is obvious. Possibly, however, he believed himself to be sufficiently qualified. In this case we must go one step further back in the search for 354that mental attitude of indifference which is the essential element in all cases of negligence. He was careless in forming his beliefs; he formed them without that anxious consideration which the law requires from those who form beliefs on which they act to the injury of others. A man may be called upon by the law to answer to-day for the carelessness with which he formed an opinion years ago.

§ 142. The Standard of Care.

Carelessness is not culpable, or a ground of legal liability, save in those cases in which the law has imposed a duty of carefulness. In all other cases complete indifference as to the interests of others is allowable. No general principle can be laid down, however, with regard to the existence of this duty, for this is a matter pertaining to the details of the concrete legal system, and not to abstract theory. Carelessness is lawful or unlawful, as the law sees fit to provide. In the criminal law liability for negligence is quite exceptional. Speaking generally, crimes are wilful wrongs, the alternative form of mens rea being deemed an insufficient ground for the rigour of criminal justice. This, however, is not invariably the case, negligent homicide, for example, being a criminal offence. In the civil law, on the other hand, no such distinction is commonly drawn between the two forms of mens rea. In general we may say that whenever an act would be a civil wrong if done intentionally, it is also a civil wrong if done negligently. When there is a legal duty not to do a thing on purpose, there is commonly a legal duty to take care not to do it accidentally. To this rule, however, there are certain exceptions—instances in which wrongful intent is the necessary basis even of civil liability. In these cases a person is civilly responsible for doing harm wilfully, but is not bound to take any care not to do it. He must not, for example, deceive another by any wilful falsehood, but unless there is some special ground of obligation in the case, he is not answerable for false statements which he honestly believes to be true, however negligent he may be in making them.^[364] 355Other instances of the same sort are based upon the express or implied agreement or understanding of the persons concerned. Thus the gratuitous lender of a chattel is bound to disclose any dangerous defects which he actually knows of, but is not bound to take any care whatever to see that it is safe, or to discover and disclose defects of which he is ignorant. For he who borrows a thing gratuitously agrees impliedly to take it as it is, and to run all risks. But he who hires a thing for money is entitled to the exercise of due care for his safety on the part of the owner.^[365]

Carelessness may exist in any degree, and in this respect it differs from the other form of mens rea. Intention either exists or it does not; there can be no question of the degree in which it is present. The degree of carelessness varies directly with the risk to which other persons are exposed by the act in question. He is careless, who, without intending evil, nevertheless exposes others to the danger of it, and the greater the danger the greater the carelessness. The risk depends, in its turn, on two things: first, the magnitude of the threatened evil, and second, the probability of it. The greater the evil is, and the nearer it is, the greater is the indifference or carelessness of him who creates the danger.

Inasmuch, therefore, as carelessness varies in degree, it is necessary to know what degree of it is requisite to constitute culpable negligence. What measure of care does the law demand? What amount of anxious consideration for the interests of others is a legal duty, and within what limits is indifference lawful?

We have first to notice a possible standard of care which the law might have adopted but has not. It does not demand the highest degree of care of which human nature is capable. I am not liable for harm ignorantly done by me, merely because by some conceivable exercise of prudential foresight I might have anticipated the event and so avoided 356it. Nor am I liable because, knowing the possibility of harm, I fail to take every possible precaution against it. The law demands not that which is possible, but that which is reasonable in view of the magnitude of the risk. Were men to act on any other principle than this, excess of caution would paralyse the business of the world. The law, therefore, allows every man to expose his fellows to a certain measure of risk, and to do so even with full knowledge. If an explosion occurs in my powder mill, I am not liable for negligence, even though I established and carried on the industry with full knowledge of its dangerous character. This is a degree of indifference to the safety of other men’s lives and property which the law deems permissible because not excessive. Inasmuch as the carrying of firearms and the driving of horses are known to be the occasions of frequent harm, extreme care and the most scrupulous anxiety as to the interests of others would prompt a man to abstain from those dangerous forms of activity. Yet it is expedient in the public interest that those activities should go on, and therefore that men should be exposed to the incidental risks of them. Consequently the law does not insist on any standard of care which would include them within the limits of culpable negligence. It is for the law to draw the line as best it can, so that while prohibiting unreasonable carelessness, it does not at the same time demand unreasonable care.

What standard, then, does the law actually adopt? It demands the amount of care which would be shown in the circumstances of the particular case by an ordinarily careful man. It is content to adopt the standard which is customary for the time being in the community. It is satisfied with conduct which in point of carefulness conforms to the moral standard and the ordinary practice of mankind. Less than this is not sufficient, and more than this is not required. A jury in determining the question of negligence will decide whether in their opinion the defendant acted with reasonable care; and in so doing they represent and express the current opinion and practice of the community as to the risks to which one man is justified in exposing others, and as to the 357degree of consideration for the welfare of others which the community exacts and commonly receives from its members.

The standard thus adopted by the law is of necessity somewhat vague and indeterminate. It is not practicable to any great extent to lay down any more definite and detailed rules as to what classes of acts are negligent and what are not. Too much depends upon the circumstances of the individual case, and the standard of due care is too liable to alter with the advance of knowledge and the changes of social life and manners. Risks which were once deemed excessive may become permissible in view of the increasing stress and hurry of modern life, and conversely conduct which to-day is beyond reproach may in the future become grossly negligent by reason of the growth of skill or knowledge.

Nevertheless, here as elsewhere, the law seeks for definite and specific principles. It dislikes the licence of the arbitrium judicis. So far as practicable and justifiable it desires to make negligence a matter not of fact but of legal rule and definition. It seeks to supersede the vague principle that that is negligence which a jury considers such, by substituting for it a body of legal doctrine determining the boundaries of negligence in specific instances. This, however, is possible only to a very limited extent. It would seem, indeed, that all legal rules on this matter are merely negative, determining what does not amount to negligence, and never positive, determining that certain acts are negligent in law. It has been decided as a matter of law, for example, that it is not negligent to drive cattle through the streets of a town loose instead of leading them with halters.^[366] Nor is it negligent to allow a dog to run at large, if the owner has no actual knowledge of its vicious temper. Nor is it negligent to try a horse for the first time in a frequented thoroughfare.^[367] Nor is there any negligence in the usual practice of railway servants in violently shutting the doors of railway carriages without warning,^[368] notwithstanding the risk of injury to the hands of passengers.^[369]

358As has been already indicated, there seem to be no corresponding rules to the effect that certain kinds of conduct are negligent in law. The law never goes further in this direction than to say that certain facts are sufficient evidence of negligence, that is to say, are sufficient to entitle the jury to find negligence as a matter of fact if they think fit. The reason for this cautious attitude of the law is obvious. No facts can be such cogent proof of negligence that the law may safely and wisely take them as conclusive. For they may be capable of explanation by other facts, and that which is apparently due to the most culpable negligence may be due in reality to inevitable mistake or accident. Thus the law does not contain any rule to the effect that driving on the wrong side of the road amounts to negligence. The rule is merely that such conduct is evidence of negligence.^[370] Nor is the act of leaving a horse and cart unattended in the street an act of negligence in law; it is merely one from which a jury is at liberty to infer negligence in fact.^[371]

§ 143. Degrees of Negligence.

We have said that English law recognises only one standard of care and therefore only one degree of negligence. Whenever a person is under a duty to take any care at all, he is bound to take that amount of it which is deemed reasonable under the circumstances, having regard to the ordinary practice of mankind; and the absence of this care is culpable negligence. Although this is probably a correct statement of English law, attempts have been made to establish two or even three distinct standards of care and degrees of negligence. Some authorities, for example, distinguish between gross negligence (culpa lata) and slight negligence (culpa levis), holding that a person is sometimes liable for the former only, and at other times even for the latter. In some cases 359we find even a threefold distinction maintained, negligence being either gross, ordinary, or slight.^[372] These distinctions are based partly upon Roman law, and partly upon a misunderstanding of it, and notwithstanding some judicial dicta to the contrary we may say with some confidence that no such doctrine is known to the law of England.^[373] These distinctions so drawn are hopelessly indeterminate and impracticable. On what principle are we to draw the line between gross negligence and slight? How can we thus elevate a distinction of degree into one of kind? Even were it possible to establish two or more standards, there seems no reason of justice or expediency for doing so. The single standard of English law is sufficient for all cases. Why should any man be required to show more care than is reasonable under the circumstances, or excused if he shows less?

In connection with this alleged distinction between gross and slight negligence it is necessary to consider the celebrated doctrine of Roman law to the effect that the former (culpa lata) is equivalent to wrongful intention (dolus)—a principle which receives occasional expression and recognition in English law also. Magna culpa dolus est,^[374] said the Romans. In its literal interpretation, indeed, this is untrue, for we have already seen that the two forms of mens rea are wholly inconsistent with each other, and that no degree of carelessness 360can amount to design or purpose. Yet the proposition, though inaccurately expressed, has a true signification. Although real negligence, however gross, cannot amount to intention, alleged negligence may. Alleged negligence which, if real, would be exceedingly gross, is probably not negligence at all, but wrongful purpose. Its grossness raises a presumption against its reality. For we have seen that carelessness is measured by the magnitude and imminence of the threatened mischief. Now the greater and more imminent the mischief, the more probable is it that it is intended. Genuine indifference and carelessness is very unusual and unlikely in extreme cases. Men are often enough indifferent as to remote or unimportant dangers to which they expose others, but serious risks are commonly avoided by care unless the mischief is desired and intended. The probability of a result tends to prove intention and therefore to disprove negligence. If a new-born child is left to die from want of medical attention or nursing, it may be that its death is due to negligence only, but it is more probable that it is due to wrongful purpose and malice aforethought. He who strikes another on the head with an iron bar may have meant only to wound or stun, and not to kill him, but the probabilities are the other way. Every man is presumed to intend the natural and probable consequences of his acts,^[375] and the more natural and probable the consequences, the greater the strength of the presumption.^[376]

In certain cases this presumption of intent has hardened into a positive rule of law, and has become irrebuttable. In 361those cases that which is negligence in fact may be deemed wrongful intent in law. It is constructive, though not actual intent. The law of homicide supplies us with an illustration. Murder is wilful homicide, and manslaughter is negligent homicide, but the boundary line as drawn by the law is not fully coincident with that which exists in fact. Much that is merely negligent in fact is treated as wilful homicide in law. An intent to cause grievous bodily harm is imputed as an intent to kill, if death ensues, and an act done with knowledge that it will probably cause death is in law an act done with intent to cause it.^[377] The justification of such conclusive presumptions of intent is twofold. In the first place, as already indicated, very gross negligence is probably in truth not negligence at all, but wrongful purpose; and in the second place, even if it is truly negligence, yet by reason of its grossness it is as bad as intent, in point of moral deserts, and therefore may justly be treated and punished as if it were intent. The law, accordingly, will sometimes say to a defendant: “Perhaps, as you allege, you were merely negligent, and had no actual wrongful purpose; nevertheless you will be dealt with just as if you had, and it will be conclusively presumed against you that your act was wilful. For your deserts are no better than if you had in truth intended the mischief which you have so recklessly caused. Moreover it is exceedingly probable, notwithstanding your disclaimer, that you did indeed intend it; therefore no endeavour will be made on your behalf to discover whether you did or not.”

§ 144. Other Theories of Negligence.

The analysis of the conception of negligence is a matter of some considerable difficulty, and it is advisable to take account of certain theories which differ more or less seriously from that which has been here accepted by us.

It is held by some, that negligence consists essentially in inadvertence. It consists, that is to say, in a failure to be alert, circumspect, or vigilant, whereby the true nature, circumstances, and consequences of a man’s acts are prevented 362from being present in his consciousness. The wilful wrongdoer is lie who knows that his act is wrong; the negligent wrongdoer is he who does not know it, but would have known it, were it not for his mental indolence.^[378]

This explanation contains an important element of the truth, but it is inadequate. For in the first place, as has been already pointed out, all negligence is not inadvertent. There is such a thing as wilful or advertent negligence, in which the wrongdoer knows perfectly well the true nature, circumstances, and probable consequences of his act. He foresees those consequences, and yet does not intend them, and therefore cannot be charged with wilful wrongdoing in respect of them. His mental attitude with regard to them is not intention, but a genuine form of negligence, of which the theory of inadvertence can give no explanation.

In the second place, all inadvertence is not negligence. A failure to appreciate the nature of one’s act, and to foresee its consequences, is not in itself culpable. It is no ground of responsibility, unless it is due to carelessness in the sense of undue indifference. He who is ignorant or forgetful, notwithstanding a genuine desire to attain knowledge or remembrance, is not negligent. The signalman who sleeps at his post is negligent, not because he falls asleep, but because he is not sufficiently anxious to remain awake. If his sleep is the unavoidable result of illness or excessive labour, he is free from blame. The essence of negligence, therefore, is not inadvertence—which may or may not be due to carelessness—but carelessness—which may or may not result in inadvertence.

It may be suggested in defence of the theory of inadvertence that there are in reality three forms of the mens rea, and not two only: namely, (1) intention, when the consequences are foreseen and intended, (2) recklessness, when they are foreseen but not intended, and (3) negligence, when they are neither foreseen nor intended. The law, however, rightly classes the second and third of these together under 363the head of negligence, for they are identical in their essential nature, each of them being blameworthy only so far as it is the outcome of carelessness.

We have now to consider another explanation which may be termed the objective theory of negligence. It is held by some that negligence is not a subjective, but an objective fact. It is not a particular state of mind or form of the mens rea at all, but a particular kind of conduct. It is a breach of the duty of taking care, and to take care means to take precautions against the harmful results of one’s actions, and to refrain from unreasonably dangerous kinds of conduct.^[379] To drive at night without lights is negligence, because to carry lights is a precaution taken by all reasonable and prudent men for the avoidance of accidents. To take care, therefore, is no more a mental attitude or state of mind than to take cold is. This, however, is not a correct analysis. Carelessness may result in a failure to take necessary precautions, or to refrain from dangerous activities, but it is not the same thing, just as it may result in inadvertence but is not the same thing. The neglect of needful precautions or the doing of unreasonably dangerous acts is not necessarily wrongful at all, for it may be due to inevitable mistake or accident. And on the other hand, even when it is wrongful, it may be wilful instead of negligent. A trap door may be left unbolted, in order that one’s enemy may fall through it and so die. Poison may be left unlabelled, with intent that some one may drink it by mistake. A ship captain may wilfully cast away his ship by the neglect of the ordinary rules of good seamanship. A father who neglects to provide medicine for his sick child may be guilty of wilful murder, rather than of mere negligence. In none of these cases, nor indeed in any others, can we distinguish between intentional and negligent wrongdoing, save by looking into the mind of the offender, and observing his subjective attitude towards his act and its consequences. Externally and objectively, the 364two classes of offences are indistinguishable. Negligence is the opposite of wrongful intention, and since the latter is a subjective fact the former must be such also.

SUMMARY.

§ 145. Wrongs of Absolute Liability.

We now proceed to consider the third class of wrongs, namely those of absolute liability. These are the acts for which a man is responsible irrespective of the existence of either wrongful intent or negligence. They are the exceptions to the rule, Actus non facit reum nisi mens sit rea. It may be thought, indeed, that in the civil as opposed to the criminal law, absolute liability should be the rule rather than the exception. It may be said: “It is clear that in the criminal law liability should in all ordinary cases be based upon the existence of mens rea. No man should be punished criminally unless he knew that he was doing wrong, or might have known it by taking care. Inevitable mistake or accident should be a good defence for him. But why should the same principle apply to civil liability? If I do another man harm, why should I not be made to pay for it? What does it matter to him whether I did it wilfully, or negligently, or by inevitable accident? In either case I have actually done the harm, and therefore should be bound to undo it by paying compensation. For the essential aim of civil proceedings is redress for harm suffered by the plaintiff, not punishment for wrong done by the defendant; therefore the rule of mens rea should be deemed inapplicable.”

It is clear, however, that this is not the law of England, and it seems equally clear that there is no sufficient reason why it should be. In all those judicial proceedings which fall under the head of penal redress, the determining purpose of the law is not redress, but punishment. Redress is in those cases merely the instrument of punishment. In itself it is 367not a sufficient ground or justification for such proceedings at all. Unless damages are at the same time a deserved penalty inflicted upon the defendant, they are not to be justified as being a deserved recompense awarded to the plaintiff. For they in no way undo the wrong or restore the former state of things. The wrong is done and cannot be undone. If by accident I burn down another man’s house, the only result of enforcing compensation is that the loss has been transferred from him to me; but it remains as great as ever for all that. The mischief done has been in no degree abated. If I am not in fault, there is no more reason why I should insure other persons against the harmful issues of my own activity, than why I should insure them against lightning or earthquakes. Unless some definite gain is to be derived by transferring loss from one head to another, sound reason, as well as the law, requires that the loss should lie where it falls.^[380]

Although the requirement of mens rea is general throughout the civil and criminal law, there are numerous exceptions to it. The considerations on which these are based are various, but the most important is the difficulty of procuring adequate proof of intention or negligence. In the majority of instances, indeed, justice requires that this difficulty be honestly faced; but in certain special cases it is allowable to circumvent it by means of a conclusive presumption of the presence of this condition of liability. In this way we shall certainly punish some who are innocent, but in the case of civil liability this is not a very serious matter—since men know that in such cases they act at their peril, and are content to take the risk—while in respect of criminal liability such a presumption is seldom resorted to, and only in the case of comparatively trivial offences.^[381] Whenever, therefore, the strict doctrine of mens rea would too seriously interfere with the administration of justice by reason of the evidential difficulties involved in it, the law tends to establish a form of absolute liability.

368In proceeding to consider the chief instances of this kind of liability we find that the matter falls into three divisions, namely—(1) Mistake of Law, (2) Mistake of Fact, and (3) Accident.

§ 146. Mistake of Law.

It is a principle recognised not only by our own but by other legal systems that ignorance of the law is no excuse for breaking it. Ignorantia juris neminem excusat. The rule is also expressed in the form of a legal presumption that every one knows the law. The rule is absolute, and the presumption irrebuttable. No diligence of inquiry will avail against it; no inevitable ignorance or error will serve for justification. Whenever a man is thus held accountable for breaking a law which he did not know, and which he could not by due care have acquired a knowledge of, the case is one of absolute liability.

The reasons rendered for this somewhat rigorous principle are three in number. In the first place the law is in legal theory definite and knowable; it is the duty of every man to know that part of it which concerns him; therefore innocent and inevitable ignorance of the law is impossible. Men are conclusively presumed to know the law, and are dealt with as if they did know it, because they can and ought to know it.

In the second place, even if invincible ignorance of the law is in fact possible, the evidential difficulties in the way of the judicial recognition of such ignorance are insuperable, and for the sake of any benefit derivable therefrom it is not advisable to weaken the administration of justice by making liability dependent on well-nigh inscrutable conditions touching knowledge or means of knowledge of the law. Who can say of any man whether he knew the law, or whether during the course of his past life he had an opportunity of acquiring a knowledge of it by the exercise of due diligence?

Thirdly and lastly, the law is in most instances derived from and in harmony with the rules of natural justice. It is a public declaration by the state of its intention to maintain by force those principles of right and wrong which have 369already a secure place in the moral consciousness of men. The common law is in great part nothing more than common honesty and common sense. Therefore although a man may be ignorant that he is breaking the law, he knows very well in most cases that he is breaking the rule of right. If not to his knowledge lawless, he is at least dishonest and unjust. He has little ground of complaint, therefore, if the law refuses to recognise his ignorance as an excuse, and deals with him according to his moral deserts. He who goes about to harm others when he believes that he can do so within the limits of the law, may justly be required by the law to know those limits at his peril. This is not a form of activity that need be encouraged by any scrupulous insistence on the formal conditions of legal responsibility.

It must be admitted, however, that while each of these considerations is valid and weighty, they do not constitute an altogether sufficient basis for so stringent and severe a rule.^[382] None of them goes the full length of the rule. That the law is knowable throughout by all whom it concerns is an ideal rather than a fact in any system as indefinite and mutable as our own. That it is impossible to distinguish invincible from negligent ignorance of the law is by no means wholly true. It may be doubted whether this inquiry is materially more difficult than many which courts of justice undertake without hesitation. That he who breaks the law of the land disregards at the same time the principles of justice and honesty is in many instances far from the truth. In a complex legal system a man requires other guidance than that of common sense and a good conscience. The fact seems to be that the rule in question, while in general sound, does not in its full extent and uncompromising rigidity admit of any sufficient justification.

§ 147. Mistake of Fact.

In respect of the influence of ignorance or error upon legal liability we have inherited from Roman law a familiar 370distinction between law and fact. By reason of his ignorance of the law no man will be excused, but it is commonly said that inevitable ignorance of fact is a good defence.^[383] This, however, is far from an accurate statement of English law. It is much more nearly correct to say that mistake of fact is an excuse only within the sphere of the criminal law, while in the civil law responsibility is commonly absolute in this respect. So far as civil liability is concerned, it is a general principle of our law that he who intentionally interferes with the person, property, reputation, or other rightful interests of another does so at his peril, and will not be heard to allege that he believed in good faith and on reasonable grounds in the existence of some circumstance which justified his act. If I trespass upon another man’s land, it is no defence to me that I believed it on good grounds to be my own. If in absolute innocence and under an inevitable mistake of fact I meddle with another’s goods, I am liable for all loss incurred by the true owner.^[384] If, intending to arrest A., I arrest B. by mistake instead, I am absolutely liable to him notwithstanding the greatest care taken by me to ascertain his identity. If I falsely but innocently make a defamatory statement about another, I am liable to him however careful I may have been to ascertain the truth. There are, indeed, exceptions to this rule of absolute civil liability for mistake of fact, but they are not of such number or importance as to cast any doubt on the validity of the general principle.

In the criminal law, on the other hand, the matter is otherwise, and it is here that the contrast between mistake of law and mistake of fact finds its true application. Absolute criminal responsibility for a mistake of fact is quite exceptional. An instance of it is the liability of him who abducts a girl under the legal age of consent. Inevitable mistake as to her age is no defence; he must take the risk.^[385]

A word may be said as to the historical origin of this failure of English law to recognise inevitable mistake as a ground of exemption from civil 371liability. Ancient modes of procedure and proof were not adapted for inquiries into mental conditions. By the practical difficulties of proof early law was driven to attach exclusive importance to overt acts. The subjective elements of wrongdoing were largely beyond proof or knowledge, and were therefore disregarded as far as possible. It was a rule of our law that intent and knowledge were not matters that could be proved or put in issue. “It is common learning,” said one of the judges of King Edward IV., “that the intent of a man will not be tried, for the devil himself knoweth not the intent of a man.”^[386] The sole question which the courts would entertain was whether the defendant did the act complained of. Whether he did it ignorantly or with guilty knowledge was entirely immaterial. This rule, however, was restricted to civil liability. It was early recognised that criminal responsibility was too serious a thing to be imposed upon an innocent man simply for the sake of avoiding a difficult inquiry into his knowledge and intention. In the case of civil liability, on the other hand, the rule was general. The success with which it has maintained itself in modern law is due in part to its undeniable utility in obviating inconvenient or even impracticable inquiries, and in part to the influence of the conception of redress in minimising the importance of the formal condition of penal liability.

§ 148. Accident.

Unlike mistake, inevitable accident is commonly recognised by our law as a ground of exemption from liability. It is needful, therefore, to distinguish accurately between these two things, for they are near of kin. Every act which is not done intentionally is done either accidentally or by mistake. It is done accidentally, when it is unintentional in respect of its consequences. It is done by mistake, when it is intentional in respect of its consequences, but unintentional in respect of some material circumstance. If I drive over a man in the dark because I do not know that he is in the road, I injure him accidentally; but if I procure his arrest, because I mistake him for some one who is liable to arrest, I injure him not accidentally but by mistake. In the former case I did not intend the harm at all, while in the latter case I fully intended it, but falsely believed in the existence of a circumstance which would have served to justify it. So if by insufficient care I allow my cattle to escape into my neighbour’s field, their presence there is due to accident; but if I put them there because I wrongly believe that the field is mine, their 372presence is due to mistake. In neither case did I intend to wrong my neighbour, but in the one case my intention failed as to the consequence, and in the other as to the circumstance.

Accident, like mistake, is either culpable or inevitable. It is culpable when due to negligence, but inevitable when the avoidance of it would have required a degree of care exceeding the standard demanded by the law. Culpable accident is no defence, save in those exceptional cases in which wrongful intent is the exclusive and necessary ground of liability. Inevitable accident is commonly a good defence, both in the civil and in the criminal law.

To this rule, however, there are, at least in the civil law, important exceptions. These are cases in which the law insists that a man shall act at his peril, and shall take his chance of accidents happening. If he desires to keep wild beasts,^[387] or to light fires,^[388] or to construct a reservoir of water,^[389] or to accumulate upon his land any substance which will do damage to his neighbours if it escapes,^[390] or to erect dangerous structures by which passengers in the highway may come to harm,^[390] he will do all these things suo periculo (though none of them are per se wrongful) and will answer for all ensuing damage notwithstanding consummate care.

There is one case of absolute liability for accident which deserves special notice by reason of its historical origin. Every man is absolutely responsible for the trespasses of his cattle. If my horse or my ox escapes from my land to that of another man, I am answerable for it without any proof of negligence.^[391] Such a rule may probably be justified as based on a reasonable presumption of law that all such trespasses are the outcome of negligent keeping. Viewed historically, however, the rule is worth notice as one of the last relics of the ancient principle that a man is answerable for all damage done by his 373property. In the theory of ancient law I am liable for the trespasses of my cattle, not because of my negligent keeping of them, but because of my ownership of them. For the same reason in Roman law a master was liable for the offences of his slaves. The case is really, in its historical origin, one of vicarious liability. In early law and custom vengeance, and its products responsibility and punishment, were not conceived as necessarily limited to human beings, but were in certain cases extended to dumb animals and even inanimate objects. We have already cited in another connection the provision of the Mosaic law that “If an ox gore a man or a woman that they die, then the ox shall be surely stoned and his flesh shall not be eaten.”^[392] In the Laws of Plato it is said:^[393] “If a beast of burden or other animal cause the death of any one ... the kinsman of the deceased shall prosecute the slayer for murder, and the wardens of the country ... shall try the cause; and let the beast when condemned be slain by them, and cast beyond the borders.” So in the Laws of King Alfred:^[394] “If at their common work,” (of wood cutting) “one man slay another unwilfully, let the tree be given to the kindred.” And by English law until the year 1846 the weapon or other thing which “moved to the death of a man” was forfeited to the King as guilty and accursed.^[395] Here we have the ground of a rule of absolute liability. If a man’s cattle or his slaves do damage, they are thereby exposed to the vengeance of the injured person. But to take destructive vengeance upon them is to impose a penalty upon their owner. The liability thence resulting probably passed through three stages: first, that of unconditional forfeiture or surrender of the property to the vengeance of the injured person; secondly, that of an option given to the owner between forfeiture and redemption—the actiones noxales of Roman law;^[396] and thirdly, that of compulsory redemption, or in other words, unconditional compensation.

Hitherto we have dealt exclusively with the conditions of liability, and it is needful now to consider its incidence. Normally and naturally the person who is liable for a wrong is he who does it. Yet both ancient and modern law admit instances of vicarious liability in which one man is made answerable for the acts of another. Criminal responsibility, indeed, is never vicarious at the present day, except in very special circumstances and in certain of its less serious forms.^[397] In more primitive systems, however, the impulse to extend vicariously the incidence of liability receives free scope in a manner altogether alien to modern notions of justice. It is in barbarous times considered a very natural thing to make every man answerable for those who are of kin to him. In the Mosaic legislation it is deemed necessary to lay down the express rule that “The fathers shall not be put to death for the children; neither shall the children be put to death for the fathers; every man shall be put to death for his own sin.”^[398] Plato in his Laws does not deem it needless to emphasise the same principle.^[399] Furthermore, so long as punishment is conceived rather as expiative, retributive, and vindictive, than as deterrent and reformative, there seems no reason why the incidence of liability should not be determined by consent, and therefore why a guilty man should not provide a substitute to bear his penalty and to provide the needful satisfaction to the law. Guilt must be wiped out by punishment, but there is no reason why the victim should be one person rather than another. Such modes of thought have long since ceased to pervert the law; but that they were at one time natural is rendered sufficiently evident by their survival in popular theology.

Modern civil law recognises vicarious liability in two chief classes of cases. In the first place, masters are responsible for the acts of their servants done in the course of their 375employment. In the second place, representatives of dead men are liable for deeds done in the flesh by those whom they represent. We shall briefly consider each of these two forms.

It has been sometimes said that the responsibility of a master for his servant has its historical source in the responsibility of an owner for his slave. This, however, is certainly not the case. The English doctrine of employer’s liability is of comparatively recent growth. It has its origin in the legal presumption, gradually become conclusive, that all acts done by a servant in and about his master’s business are done by his master’s express or implied authority, and are therefore in truth the acts of the master for which he may be justly held responsible.^[400] No employer will be allowed to say that he did not authorise the act complained of, or even that it was done against his express injunctions, for he is liable none the less. This conclusive presumption of authority has now, after the manner of such presumptions, disappeared from the law, after having permanently modified it by establishing the principle of employer’s liability. Historically, as we have said, this is a fictitious extension of the principle, Qui facit per alium facit per se. Formally, it has been reduced to the laconic maxim, Respondeat superior.

The rational basis of this form of vicarious liability is in the first place evidential. There are such immense difficulties in the way of proving actual authority, that it is necessary to establish a conclusive presumption of it. A word, a gesture, or a tone may be a sufficient indication from a master to his servant that some lapse from the legal standard of care or honesty will be deemed acceptable service. Yet who could prove such a measure of complicity? Who could establish liability in such a case, were evidence of authority required, or evidence of the want of it admitted?

A further reason for the vicarious responsibility of employers is that employers usually are, while their servants usually are not, financially capable of the burden of civil 376liability. It is felt, probably with justice, that a man who is able to make compensation for the hurtful results of his activities should not be enabled to escape from the duty of doing so by delegating the exercise of these activities to servants or agents from whom no redress can be obtained. Such delegation confers upon impecunious persons means and opportunities of mischief which would otherwise be confined to those who are financially competent. It disturbs the correspondence which would otherwise exist between the capacity of doing harm and the capacity of paying for it. It is requisite for the efficacy of civil justice that this delegation of powers and functions should be permitted only on the condition that he who delegates them shall remain answerable for the acts of his servants, as he would be for his own.

A second form of vicarious responsibility is that of living representatives for the acts of dead men. There is no doubt that criminal responsibility must die with the wrongdoer himself, but with respect to penal redress the question is not free from difficulty. For in this form of liability there is a conflict between the requirements of the two competing principles of punishment and compensation. The former demands the termination of liability with the life of the wrongdoer, while the latter demands its survival. In this dispute the older common law approved the first of those alternatives. The received maxim was: Actio personalis moritur cum persona. A man cannot be punished in his grave; therefore it was held that all actions for penal redress, being in their true nature instruments of punishment, must be brought against the living offender and must die with him. Modern opinion rejects this conclusion, and by various statutory provisions the old rule has been in great part abrogated. It is considered that although liability to afford redress ought to depend in point of origin upon the requirements of punishment, it should depend in point of continuance upon those of compensation. For when this form of liability has once come into existence, it is a valuable right of the person wronged; and it is expedient that such rights 377should be held upon a secure tenure, and should not be subject to extinction by a mere irrelevant accident such as the death of the offender. There is no sufficient reason for drawing any distinction in point of survival between the right of a creditor to recover his debt and the right of a man who has been injured by assault or defamation to recover compensation for the loss so suffered by him.

As a further argument in the same sense, it is to be observed that it is not strictly true that a man cannot be punished after his death. Punishment is effective not at the time it is inflicted, but at the time it is threatened. A threat of evil to be inflicted upon a man’s descendants at the expense of his estate will undoubtedly exercise a certain deterrent influence upon him; and the apparent injustice of so punishing his descendants for the offences of their predecessor is in most cases no more than apparent. The right of succession is merely the right to acquire the dead man’s estate, subject to all charges which, on any grounds, and apart altogether from the interests of the successors themselves, may justly be imposed upon it.

There is a second application of the maxim, Actio personalis moritur cum persona, which seems equally destitute of justification. According to the common law an action for penal redress died not merely with the wrongdoer but also with the person wronged. This rule has been abrogated by statute in part only. There can, however, be little doubt that in all ordinary cases, if it is right to punish a person at all, his liability should not cease simply by reason of the death of him against whom his offence was committed. The right of the person injured to receive redress should descend to his representatives like any other proprietary interest.

§ 150. The Measure of Criminal Liability.

We have now considered the conditions and the incidence of penal liability. It remains to deal with the measure of it, and here we must distinguish between criminal and civil wrongs, for the principles involved are fundamentally different in the two cases.

In considering the measure of criminal liability it will be convenient to bestow exclusive attention upon the deterrent purpose of the criminal law, remembering, however, that the 378conclusions so obtained are subject to possible modification by reference to those subordinate and incidental purposes of punishment which we thus provisionally disregard.

Were men perfectly rational, so as to act invariably in accordance with an enlightened estimate of consequences, the question of the measure of punishment would present no difficulty. A draconian simplicity and severity would be perfectly just and perfectly effective. It would be possible to act on the Stoic paradox that all offences involve equal guilt, and to visit with the utmost rigour of the law every deviation, however slight, from the appointed way. In other words, if the deterrent effect of severity were certain and complete, the best law would be that which by the most extreme and undiscriminating severity effectually extinguished crime. Were human nature so constituted that a threat of burning all offenders alive would with certainty prevent all breaches of the law, then this would be the just and fitting penalty for all offences from high treason to petty larceny. So greatly, however, are men moved by the impulse of the moment, rather than by a rational estimate of future good and evil, and so ready are they to face any future evil which falls short of the inevitable, that the utmost rigour is sufficient only for the diminution of crime, not for the extinction of it. It is needful, therefore, in judging the merits of the law, to subtract from the sum of good which results from the partial prevention of offences, the sum of evil which results from the partial failure of prevention and the consequent necessity of fulfilling those threats of evil by which the law had hoped to effect its purpose. The perfect law is that in which the difference between the good and the evil is at a maximum in favour of the good, and the rules as to the measure of criminal liability are the rules for the attainment of this maximum. It is obvious that it is not attainable by an indefinite increase of severity. To substitute hanging for imprisonment as the punishment for petty theft would doubtless diminish the frequency of this offence, but it is certain that the evil so prevented would be far outweighed by that which the law would be called on to inflict in the cases in which its threats proved unavailing.

379In every crime there are three elements to be taken into account in determining the appropriate measure of punishment. These are (1) the motives to the commission of the offence, (2) the magnitude of the offence, and (3) the character of the offender.

1. The motive of the offence. Other things being equal, the greater the temptation to commit a crime the greater should be the punishment. This is an obvious deduction from the first principles of criminal liability. The object of punishment is to counteract by the establishment of contrary and artificial motives the natural motives which lead to crime. The stronger these natural motives the stronger must be the counteractives which the law supplies. If the profit to be derived from an act is great, or the passions which lead men to it are violent, a corresponding strength or violence is an essential condition of the efficacy of repressive discipline. We shall see later, however, that this principle is subject to a very important limitation, and that there are many cases in which extreme temptation is a ground of extenuation rather than of increased severity of punishment.

2. The magnitude of the offence. Other things being equal, the greater the offence, that is to say the greater the sum of its evil consequences or tendencies, the greater should be its punishment. At first sight, indeed, it would seem that this consideration is irrelevant. Punishment, it may be thought, should be measured solely by the profit derived by the offender, not by the evils caused to other persons; if two crimes are equal in point of motive, they should be equal in point of punishment, notwithstanding the fact that one of them maybe many times more mischievous than the other. This, however, is not so, and the reason is twofold.

(a) The greater the mischief of any offence the greater is the punishment which it is profitable to inflict with the hope of preventing it. For the greater this mischief the less is the proportion which the evil of punishment bears to the good of prevention, and therefore the greater is the punishment which can be inflicted before the balance of good over evil attains its maximum. Assuming the motives of larceny and of homicide to be equal, it may be profitable to inflict 380capital punishment for the latter offence, although it is certainly unprofitable to inflict it for the former. The increased measure of prevention that would be obtained by such severity would, in view of the comparatively trivial nature of the offence, be obtained at too great a cost.

(b) A second and subordinate reason for making punishment vary with the magnitude of the offence is that, in those cases in which different offences offer themselves as alternatives to the offender, an inducement is thereby given for the preference of the least serious. If the punishment of burglary is the same as that of murder, the burglar has obvious motives for not stopping at the lesser crime. If an attempt is punished as severely as a completed offence, why should any man repent of his half-executed purposes?

3. The character of the offender. The worse the character or disposition of the offender the more severe should be his punishment. Badness of disposition is constituted either by the strength of the impulses to crime, or by the weakness of the impulses towards law-abiding conduct. One man may be worse than another because of the greater strength and prevalence within him of such anti-social passions as anger, covetousness, or malice; or his badness may lie in a deficiency of those social impulses and instincts which are the springs of right conduct in normally constituted men. In respect of all the graver forms of law-breaking, for one man who abstains from them for fear of the law there are thousands who abstain by reason of quite other influences. Their sympathetic instincts, their natural affections, their religious beliefs, their love of the approbation of others, their pride and self-respect, render superfluous the threatenings of the law. In the degree in which these impulses are dominant and operative, the disposition of a man is good; in the degree in which they are wanting or inefficient, it is bad.

In both its kinds badness of disposition is a ground for severity of punishment. If a man’s emotional constitution is such that normal temptation acts upon him with abnormal force, it is for the law to supply in double measure the 381counteractive of penal discipline. If he is so made that the natural influences towards well-doing fall below the level of average humanity, the law must supplement them by artificial influences of a strength that is needless in ordinary cases.

Any fact, therefore, which indicates depravity of disposition is a circumstance of aggravation, and calls for a penalty in excess of that which would otherwise be appropriate to the offence. One of the most important of these facts is the repetition of crime by one who has been already punished. The law rightly imposes upon habitual offenders penalties which bear no relation either to the magnitude or to the profit of the offence. A punishment adapted for normal men is not appropriate for those who, by their repeated defiance of it, prove their possession of abnormal natures. A second case in which the same principle is applicable is that in which the mischief of an offence is altogether disproportionate to any profit to be derived from it by the offender. To kill a man from mere wantonness, or merely in order to facilitate the picking of his pocket, is a proof of extraordinary depravity beyond anything that is imputable to him who commits homicide only through the stress of passionate indignation or under the influence of great temptation. A third case is that of offences from which normal humanity is adequately dissuaded by such influences as those of natural affection. To kill one’s father is in point of magnitude no worse a crime than any other homicide, but it has at all times been viewed with greater abhorrence, and by some laws punished with greater severity, by reason of the depth of depravity which it indicates in the offender. Lastly it is on the same principle that wilful offences are punished with greater rigour than those which are due merely to negligence.

An additional and subordinate reason for making the measure of liability depend upon the character of the offender is that badness of disposition is commonly accompanied by deficiency of sensibility. Punishment must increase as sensibility diminishes. The more depraved the offender the less he feels the shame of punishment; therefore the more he 382must be made to feel the pain of it. A certain degree of even physical insensibility is said to characterise the more degraded orders of criminals; and the indifference with which death itself is faced by those who in the callousness of their hearts have not scrupled to inflict it upon others is a matter of amazement to normally constituted men.

We are now in a position to deal with a question which we have already touched upon but deferred for fuller consideration, namely the apparent paradox involved in the rule that punishment must increase with the temptation to the offence. As a general rule this proposition is true; but it is subject to a very important qualification. For in certain cases the temptation to which a man succumbs may be of such a nature as to rebut that presumption of a bad disposition which would in ordinary circumstances arise from the commission of the offence. He may, for example, be driven to the act not by the strength of any bad or self-regarding motives, but by that of his social or sympathetic impulses. In such a case the greatness of the temptation, considered in itself, demands severity of punishment, but when considered as a disproof of the degraded disposition which usually accompanies wrongdoing it demands leniency; and the latter of these two conflicting considerations may be of sufficient importance to outweigh the other. If a man remains honest until he is driven in despair to steal food for his starving children, it is perfectly consistent with the deterrent theory of punishment to deal with him less severely than with him who steals from no other motive than cupidity. He who commits homicide from motives of petty gain, or to attain some trivial purpose, deserves to be treated with the utmost severity, as a man thoroughly callous and depraved. But he who kills another in retaliation for some intolerable insult or injury need not be dealt with according to the measure of his temptations, but should rather be excused on account of them.

§ 151. The Measure of Civil Liability.

Penal redress is that form of penal liability in which the law uses the compulsory compensation of the person injured 383as an instrument for the punishment of the offender. It is characteristic of this form of punishment that it takes account of one only of the three considerations which, as we have seen, rightly determine the measure of penal responsibility. It is measured exclusively by the magnitude of the offence, that is to say, by the amount of loss inflicted by it. It takes no account of the character of the offender, and so visits him who does harm through some trivial want of care with as severe a penalty as if his act had been prompted by deliberate malice. Similarly it takes no account of the motives of the offence; he who has everything and he who has nothing to gain are equally punished, if the damage done by them is equal. Finally it takes no account of probable or intended consequences, but solely of those which actually ensue; wherefore the measure of a wrongdoer’s liability is not the evil which he meant to do, but that which he has succeeded in doing; and his punishment is determined not by his fault, but by the accident of the result. If one man is dealt with more severely than another, it is not because he is more guilty, but because he has had the misfortune to be more successful in his wrongful purposes, or less successful in the avoidance of unintended issues.

Serious as are these lapses from the due standard of penal discipline, it is not to be suggested that this form of civil liability is unjustifiable. The use of redress as an instrument of punishment possesses advantages more than sufficient to counterbalance any such objections to it. More especially it possesses this, that while other forms of punishment, such as imprisonment, are uncompensated evil, penal redress is the gain of him who is wronged as well as the loss of the wrongdoer. Further, this form of remedy gives to the persons injured a direct interest in the efficient administration of justice—an interest which is almost absent in the case of the criminal law. It is true, however, that the law of penal redress, taken by itself, falls so far short of the requirements of a rational scheme of punishment that it would by itself be totally insufficient. In all modern and developed bodies of law its operation is supplemented, and its deficiencies made 384good, by a co-ordinate system of criminal liability. These two together, combined in due proportions, constitute a very efficient instrument for the maintenance of justice.

SUMMARY.

§ 152. Meanings of the Term Property.

The substantive civil law^[401] is divisible into three great departments, namely the law of property, the law of obligations, and the law of status. The first deals with proprietary rights in rem, the second with proprietary rights in personam, and the third with personal or non-proprietary rights, whether in rem or in personam. In this chapter we shall consider in outline the first of these branches, and we shall then proceed to deal in the same manner with the law of obligations. The law of status on the other hand is not of such a nature as to require or repay any further consideration from the point of view of general theory.

The term property, which we here use as meaning proprietary rights in rem, possesses a singular variety of different applications having different degrees of generality. These are the following:—

1. All legal rights. In its widest sense, property includes all a person’s legal rights, of whatever description. A man’s property is all that is his in law. This usage, however, is obsolete at the present day, though it is common enough in the older books. Thus Blackstone speaks of the property (i.e. right) which a master has in the person of his servant, and a father in the person of his child. “The inferior,” he says,^[402] “hath no kind of property in the company, care, or assistance of the superior, as the superior is held to have in 386those of the inferior.” So Hobbes says:^[403] “Of things held in propriety, those that are dearest to a man are his own life and limbs; and in the next degree, in most men, those that concern conjugal affection; and after them riches and means of living.” In like manner Locke^[404] tells us that “every man has a property in his own person,” and he speaks elsewhere^[405] of a man’s right to preserve “his property, that is, his life, liberty, and estate.”

2. Proprietary rights (dominium and status). In a second and narrower sense, property includes not all a person’s rights but only his proprietary as opposed to his personal rights. The former constitute his estate or property, while the latter constitute his status or personal condition. In this sense a man’s land, chattels, shares, and the debts due to him are his property; but not his life or liberty or reputation. In this sense we may oppose to Locke’s statement, that a man has a property in his own person, the saying of Ulpian: Dominus membrorum suorum nemo videtur.^[406] This is probably the most frequent application of the term at the present day, but in the case of a word having so many recognised varieties of usage it is idle to attempt to single out any one of them as exclusively correct. They are all of equal authenticity.

3. Proprietary rights in rem (dominium and obligatio). In a third application, which is that adopted in this chapter, the term includes not even all proprietary rights, but only those which are both proprietary and real. The law of property is the law of proprietary rights in rem, the law of proprietary rights in personam being distinguished from it as the law of obligations. According to this usage a freehold or leasehold estate in land, or a patent or copyright, is property; but a debt or the benefit of a contract is not.

4. Corporeal property (dominium corporis and dominium juris). Finally, in the narrowest use of the term, it includes nothing more than corporeal property—that is to say, the right of ownership in a material object, or that object itself identified with the right by way of metonymy. Thus property 387is defined by Ahrens^[407] as “a material object subject to the immediate power of a person,” and Bentham^[408] considers as metaphorical and improper the extension of the term to include other rights than those which relate to material things.

§ 153. Kinds of Property.

All property is, as we have already seen,^[409] either corporeal or incorporeal. Corporeal property is the right of ownership in material things; incorporeal property is any other proprietary right in rem. Incorporeal property is itself of two kinds, namely (1) jura in re aliena or encumbrances, whether over material or immaterial things (for example, leases, mortgages, and servitudes), and (2) jura in re propria over immaterial things (for example, patents, copyrights, and trade-marks). The resulting threefold division of property appears in the following Table:—

§ 154. The Ownership of Material Things.

The owner of a material object is he who owns a right to the aggregate of its uses. He who has merely a special and 388definitely limited right to the use of it, such as a right of way or other servitude, is not an owner of the thing but merely an encumbrancer of it. The definition, however, must not be misunderstood. Ownership is the right of general use, not that of absolute or unlimited use. He is the owner of a thing who is entitled to all those uses of it which are not specially excepted and cut off by the law. No such right as that of absolute and unlimited use is known to the law. All lawful use is either general (that is to say, residuary) or specific, the former being ownership, and the latter encumbrance.

The limits thus imposed upon an owner’s right of use are of two kinds. The first constitute the natural limits of ownership. They are the various applications of the maxim: Sic utere tuo ut alienum non laedas—a legal principle whose function it is to restrain within due bounds the opposing maxim that a man may do as he pleases with his own. In the interests of the public or of a man’s neighbours many uses of the things which are his are wholly excluded from his right of ownership.

The second class of restrictions upon an owner’s right of use consists of those which flow from the existence of encumbrances vested in other persons. These are artificial limits which may or may not exist. My land may be mortgaged, leased, charged, bound by restrictive covenants, and so on, yet I remain the owner of it none the less. For I am still entitled to the residue of its uses, and whatever right over it is not specifically vested in some one else is vested in me. The residuary use so left to me may be of very small dimensions; some encumbrancer may own rights over it much more valuable than mine; but the ownership of it is in me and not in him. Were his right to determine to-morrow in any manner, my own, relieved from the encumbrance which now weighs it down, would forthwith spring up to its full stature and have again its full effect. No right loses its identity because of an encumbrance vested in some one else. That which is a right of ownership when there are no encumbrances, remains a right of ownership notwithstanding any number of them.

389Inasmuch as the right of ownership is a right to the aggregate of the uses of the thing, it follows that ownership is necessarily permanent. No person having merely a temporary right to the use of a thing can be the owner of the thing, however general that right may be while it lasts. He who comes after him is the owner; for it is to him that the residue of the uses of the thing pertains. It is to be understood, however, that by a permanent right is meant nothing more than a right which is capable of lasting as long as the thing itself which is its subject-matter, however long or short that duration may be.

Even as the generality of ownership involves its permanence, so its permanence involves the further essential feature of inheritance. The only permanent rights which can be owned by a mortal man are those which can be handed down by him to his successors or representatives on his death. All others are temporary, their duration being necessarily limited to the lifetime of him in whom they are vested. The right of ownership, therefore, is essentially an inheritable right. It is capable of surviving its owner for the time being. It belongs to the class of rights which are divested by death but are not extinguished by it.

Summing up the conclusions to which we have attained, we may define the right of ownership in a material thing as the general, permanent, and inheritable right to the uses of that thing.^[410]

According to the rigour of English legal doctrine there can be no owner of land except the Crown itself. The fee simple of land—the greatest right in it which a subject can possess—is not in truth ownership, but a mere encumbrance upon the ownership of the Crown. It is a tenancy or lease granted to a man and his heirs. It is a temporary not a permanent right of user. It will come to its natural termination on the death of the tenant without leaving an heir or devisee in whom the right may be continued. The land will thereupon revert or escheat to the Crown; that is to say, the 390Crown’s ownership, which has never been divested, but has merely been encumbered by the fee simple, will through the destruction of this encumbrance become once more free and absolute. In the case of chattels it is otherwise. They can be owned by the subject no less than by the Crown. It is true that if the owner of them dies intestate without kin, they will go to the Crown as bona vacantia, just as land will go to the Crown as an escheat. But between these two processes there is a profound difference in legal theory. In the case of chattels the Crown succeeds to the right which was vested in the dead man; his ownership is continued in the Crown, just as it would have been continued in his next of kin had there been any. But in the case of escheat, as already said, the right of the dead man has come to an end, and the Crown succeeds to no right of his, but simply comes into its own again.

This distinction, however, between the fee simple of land and the ownership of it is a matter of form rather than of substance. In fact, if not in legal theory, the right of a tenant in fee simple is permanent; for escheat takes place only on an intestacy, and therefore can be prevented by the act of the tenant. We are at liberty, therefore, to disregard this technicality of real property law, and to speak of the fee simple of land as the ownership of it, the right of the Crown being viewed, accordingly, not as vested and continuing ownership subject to an encumbrance, but as a contingent right of succession to an intestate owner.

§ 155. Movable and Immovable Property.

Among material things the most important distinction is that between movables and immovables, or, to use terms more familiar in English law, between chattels and land. In all legal systems these two classes of objects are to some extent governed by different rules, though in no system is the difference so great as in our own.

Considered in its legal aspect, an immovable, that is to say, a piece of land, includes the following elements:—

1. A determinate portion of the earth’s surface.

2. The ground beneath the surface down to the centre of the world. All the pieces of land in England meet together in one terminal point at the earth’s centre.

3. Possibly the column of space above the surface ad infinitum. “The earth,” says Coke,^[411] “hath in law a great extent upwards, not only of water as hath been said, but of 391ayre and all other things even up to heaven; for Cujus est solum, ejus est usque ad coelum.” The authenticity of this doctrine, however, is not wholly beyond dispute. It would prohibit as an actionable trespass all use of the air-space above the appropriated surface of the earth, at whatever height this use took place, and however little it could affect the interests of the landowner. If a man is carried in a balloon at a distance of half a mile above the ground, does he infringe the rights of those who own the surface? It may be that the law recognises no right of ownership in the air-space at all, or at least no right of exclusive use, but merely prohibits all acts which by their nature or their proximity interfere with the full enjoyment and use of the surface.^[412] By the German Civil Code,^[413] the owner of land owns the space above it, but has no right to prohibit acts so remote from the surface that they in no way affect his interests.

4. All objects which are on or under the surface in its natural state; for example, minerals and natural vegetation. All these are part of the land, even though they are in no way physically attached to it. Stones lying loose upon the surface are in the same category as the stone in a quarry.

5. Lastly all objects placed by human agency on or under the surface, with the intention of permanent annexation. These become part of the land, and lose their identity as separate movables or chattels; for example, buildings, walls, and fences. Omne quod inaedificatur solo cedit, said the Roman law.^[414] Provided that the requisite intent of permanent annexation is present, no physical attachment to the surface is required. A wall built of stones without mortar or foundations is part of the land on which it stands.^[415] Conversely physical attachment, without the intent of permanent annexation, is not in itself enough. Carpets, 392tapestries, or ornaments nailed to the floors or walls of a house are not thereby made part of the house. Money buried in the ground is as much a chattel^[416] as money in its owner’s pocket.^[417]

It is clear that the distinction between movables and immovables is in truth and in fact applicable to material objects only. Yet, the law has made an unfortunate attempt to apply it to rights also. Rights no less than things are conceived by the law as having a local situation, and as being either movable or permanently fixed in a definite locality. The origin of this illogical conception is to be found in the identification of rights of ownership with the material things which are the objects of them. I am said to own land and chattels, as well as easements, shares, debts, contracts, and patents. All these things are equally property, and since some of them have a local situation and can be truly classed as movable or immovable, the law has been led by inadvertence to attribute these qualities to all of them. It has recognised in things which are incorporeal certain attributes which in truth pertain to things corporeal only. It has divided the whole sphere of proprietary rights by reference to a distinction which is truly applicable not to rights at, all, but to physical objects. Nor is this merely a peculiarity of English law, for it is found in Continental systems also.^[418]

On what principle, then, does the law determine whether a right is to be classed as immovable or as movable? The general rule is that a right 393has in this respect the same quality as its subject-matter. Every right over an immovable thing, whether it is a right of ownership, or a lease, or a servitude, or a security, or any other jus in re aliena, is itself immovable, and every right over a movable thing is itself movable. So far there is no difficulty. What shall we say, however, of those rights which have no material objects at all, such as a copyright, a patent, the good-will of a business, a trade-mark, or the benefit of a contract? The answer is that all such rights are classed by the law as movable. For the class of movable property is residuary, and includes all rights which can make good no claim to be classed as immovable.

The law not merely classifies rights as movable and immovable, but goes further in the same direction, and attributes local situation to them. It undertakes to say not merely whether a right exists, but where it exists. Nor is this a difficult task in the case of those rights which have determinate material things as their objects. A servitude or other jus in re aliena over a piece of land is situated in law where the land is situated in fact. A right over a chattel is movable property, and where the chattel goes the right goes also. But where there is no material object at all, what are we to say as to the local situation of the right? Where is a debt situated, or a share, in a company, or the benefit of a contract, or a copyright? Such questions can be determined only by more or less arbitrary rules based upon analogy, and it is to be regretted that it has been thought needful to ask and answer them at all. As the law stands, however, it contains several rules based on the assumption that all property which exists must exist somewhere,^[419] and for the application of these rules the determination of the local situation of rights is necessary, even though it leads into the region of legal fictions. “The legal conception of property,” says Lord Lindley,^[420] “appears to me to involve the legal conception of existence somewhere.... To talk of property as existing nowhere is to use language which to me is unintelligible.”

The leading principle as to the local situation of rights is that they are situated where they are exercised and enjoyed. Rights over material things, therefore, have the same situation as those things themselves. The good-will of a business is situated in the place where the business is carried on.^[421] Debts are in general situated in the place where the debtor resides,^[422] since it is there that the creditor must go to get his money.^[423]

Derived from and closely connected with the distinction between immovable and movable property is that between real and personal property. These are two cross divisions of the whole sphere of proprietary rights. Real property and immovable property form intersecting circles which are very nearly though not quite coincident. The law of real property is almost equivalent to the law of land, while the law of personal property is all but identical with the law of movables. The partial failure of coincidence is due not to any logical distinction, but to the accidental course of legal development; and to this extent the distinction between real and personal property is purely arbitrary and possesses no scientific basis. Real property comprises all rights over land, with such additions and exceptions as the law has seen fit to establish. All other proprietary rights, whether in rem or in personam, pertain to the law of personal property.

The distinction between real and personal property has no logical connexion with that between real and personal rights. There is, however, an historical relation between them, inasmuch as they are both derived from the same source, namely the Roman distinction between actions in rem and actions in personam. Real property meant originally that which was recoverable in a real action, while personal property was that which was recoverable in a personal action, and this English distinction between real and personal actions was derived by Bracton and the other founders of our law from the actiones in rem and in personam of Justinian, though not without important modifications of the Roman doctrine.^[424]

395In connexion with the distinctions between movable and immovable, and between real and personal property, we must notice the legal significance of the term chattel. This word has apparently three different meanings in English law:—

1. A movable physical object; for example, a horse, a book, or a shilling, as contrasted with a piece of land.

2. Movable property, whether corporeal or incorporeal; that is to say, chattels in the first sense together with all proprietary rights except those which are classed as immovable. In this usage debts, shares, contracts, and other choses in action are chattels, no less than furniture or stock in trade. So also are patents, copyrights, and other rights in rem which are not rights over land. This double use of the word chattel to indicate both material things and rights is simply an application, within the sphere of movable property, of the metonymy which is the source of the distinction between corporeal and incorporeal property.

3. Personal property, whether movable or immovable, as opposed to real property. In this sense leaseholds are classed as chattels, because of the special rule by which they are excluded from the domain of real property.

§ 157. Rights in re propria in Immaterial Things.

The subject-matter of a right of property is either a material or an immaterial thing. A material thing is a physical object; an immaterial thing is anything else which may be the subject-matter of a right.^[425] It is to things of the former class that the law of property almost wholly relates. In the great majority of cases a right of property is a right to the uses of a material object. It is the chief purpose of this department of the law to allot to every man his portion in the material instruments of human well-being—to divide the earth and the fulness of it among the men who live in it. The only immaterial things which are recognised by law as the subject-matter 396of rights of this description are the various immaterial products of human skill and labour. Speaking generally we may say that in modern law every man owns that which he creates. That which he produces is his, and he has an exclusive right to the use and benefit of it. The immaterial product of a man’s brains may be as valuable as his land or his goods. The law, therefore, gives him a proprietary right in it, and the unauthorised use of it by other persons is a violation of his ownership, no less than theft or trespass is. These immaterial forms of property are of five chief kinds:—^[426]

1. Patents. The subject-matter of a patent-right is an invention. He whose skill or labour produces the idea of a new process, instrument, or manufacture, has that idea as his own in law. He alone is entitled to use it and to draw from it the profit inherent in it.

2. Literary copyright. The subject-matter of this right is the literary expression of facts or thoughts. He to whose skill or labour this expression is due has in it a proprietary right of exclusive use.

3. Artistic copyright. Artistic design in all its various forms, such as drawing, painting, sculpture, and photography, is the subject-matter of a right of exclusive use analogous to literary copyright. The creations of an artist’s skill or of a photographer’s labour are his exclusive property. The object of this right is not the material thing produced, but the form impressed upon it by the maker. The picture, in the concrete sense of the material paint and canvas, belongs to him who purchases it; but the picture, in the abstract sense of the artistic form made visible by that paint and canvas, belongs to him who made it. The former is material property, the latter is immaterial. The right in each 397case is one of exclusive use. The right to the material picture is infringed by destroying it or taking it away. The right to the immaterial picture is infringed by making material pictures which embody it.

4. Musical and dramatic copyright. A fourth class of immaterial things consists of musical and dramatic works. The immaterial product of the skill of the musician or the playwright is the subject-matter of a proprietary right of exclusive use which is infringed by any unauthorised performance or representation.

5. Commercial good-will; trade-marks and trade-names. The fifth and last species of immaterial things includes commercial good-will and the special forms of it known as trade-marks and trade-names. He who by his skill and labour establishes a business acquires thereby an interest in the good-will of it, that is to say, in the established disposition of customers to resort to him. To this good-will he has an exclusive right which is violated by any one who seeks to make use of it for his own advantage, as by falsely representing to the public that he is himself carrying on the business in question. Special forms of this right of commercial good-will are rights to trade-names and trade-marks. Every man has an exclusive right to the name under which he carries on business or sells his goods—to this extent at least that no one is at liberty to use that name for the purpose of deceiving the public and so injuring the owner of it. He has a similar right to the exclusive use of the marks which he impresses upon his goods, and by which they are known and identified in the market as his.

§ 158. Leases.

Having now considered the different kinds of rights in re propria which fall within the law of property, we proceed to deal with the various rights in re aliena to which they may be subject. As already stated,^[427] the chief of these are four in number, namely Leases, Servitudes, Securities, and Trusts. The nature of a trust has been sufficiently examined in 398another connexion,^[428] and it is necessary here to consider the other three only.^[429] And first of leases or tenancies.

Although a lease of land and a bailment of chattels are transactions of essentially the same nature, there is no term which, in its recognised use, is sufficiently wide to include both. The term bailment is never applied to the tenancy of land, and although the term lease is not wholly inapplicable in the case of chattels, its use in this connexion is subject to arbitrary limitations. It is necessary, therefore, in the interests of orderly classification, to do some violence to received usage, in adopting the term lease as a generic expression to include not merely the tenancy of land, but all kinds of bailments of chattels, and all encumbrances of incorporeal property which possess the same essential nature as a tenancy of land.

A lease, in this generic sense, is that form of encumbrance which consists in a right to the possession and use of property owned by some other person. It is the outcome of the rightful separation of ownership and possession. We have seen that possession is the continuing exercise of a right, and that although a right is normally exercised by the owner of it, it may in special cases be exercised by some one else. This separation of ownership and possession may be either rightful or wrongful, and if rightful it is an encumbrance of the owner’s title.^[430]

The right which is thus encumbered by a lease is usually the ownership of a material object, and more particularly the ownership of land. Here as elsewhere the material object is identified in speech with the right itself. We say that the land is leased, just as we say that the land is owned or possessed. The lessee of land is he who rightfully possesses it, 399but does not own it. The lessor of land is he who owns it, but who has transferred the possession of it to another. Encumbrance by way of lease is not confined, however, to the right of ownership of a material object. All rights may be leased which can be possessed, that is to say, which admit of continuing exercise; and no rights can be leased which cannot be possessed, that is to say, which are extinguished by their exercise. A servitude appurtenant to land, such as a right of way, is leased along with the land itself. The owner of a lease may encumber it with a sub-lease. The owner of a patent or copyright may grant a lease of it for a term of years, entitling the lessee to the exercise and use of the right but not to the ownership of it. Even obligations may be encumbered in the same fashion, provided that they admit of continuing or repeated exercise; for example, annuities, shares, money in the public funds, or interest-bearing debts. All these may be rightfully possessed without being owned, and owned without being possessed, as when they are settled in trust for a tenant for life with remainder to some one else.

Is it essential that a lease should be of less duration than the right which is subject to it? This is almost invariably the case; land is leased for a term of years or for life, but not in perpetuity; the owner of a thing owns it for ever, but the lessee of it possesses it for a time. We may be tempted, therefore, to regard this difference of duration as essential, and to define a lease as a right to the temporary exercise of a right vested in some one else. But this is not so. There is no objection in principle to a lease of land in perpetuity, or to a lease of a patent or copyright for the full term of its existence. It may be objected that a lease of this description would not be a true lease or encumbrance at all, but an assignment of the right itself; that the grantee would become the owner of the right, and not a mere encumbrancer; and in favour of this contention it may be pointed out that a sub-lease for the whole term is construed in English law as an assignment of the term, a sub-lease being necessarily shorter than the term, if only by a single day.^[431]

Whatever the actual rule of English law may be, however, there is nothing in legal theory to justify us in asserting that any such difference of duration is essential to the existence of a true lease. A lease exists whenever the rightful possession of a thing is separated from the ownership of it; and although this separation is usually temporary, there is no difficulty in supposing it permanent. I may own a permanent right 400to exercise another right, without owning the latter right itself. The ownership may remain dormant, deprived of any right of exercise and enjoyment, in the hands of the lessor. I am not necessarily the owner of a patent, because I have acquired by contract with the owner a right to the exclusive use of it during the whole term of its duration. So far as legal principle is concerned, I may still remain the owner of a lease, although I may have granted a sub-lease to another for the whole residue of the term. To assign a lease and to sublet it for the whole term are in the intention of the parties and in legal theory two entirely different transactions. The assignment is a substitution of one tenant for another, the assignor retaining no rights whatever. The sub-lease, on the contrary, is designed to leave the original relation of landlord and tenant untouched, the sub-lessee being the tenant of the lessee and not of the original lessor.^[432]

§ 159. Servitudes.

A servitude is that form of encumbrance which consists in a right to the limited use of a piece of land without the possession of it; for example, a right of way over it, a right to the passage of light across it to the windows of a house on the adjoining land, a right to depasture cattle upon it, or a right to derive support from it for the foundations of an adjoining building.^[433]

It is an essential characteristic of a servitude that it does not involve the possession of the land over which it exists. This is the difference between a servitude and a lease. A lease of land is the rightful possession and use without the ownership of it, while a servitude over land is the rightful use without either the ownership or the possession of it. There are two distinct methods in which I may acquire a road across another man’s property. I may agree with him for the exclusive possession of a defined strip of the land; or I may agree with him for the use of such a strip for the sole 401purpose of passage, without any exclusive possession or occupation of it. In the first case I acquire a lease; in the second a servitude.^[434]

Servitudes are of two kinds, which may be distinguished as private and public. A private servitude is one vested in a determinate individual; for example, a right of way, of light, or of support, vested in the owner of one piece of land over an adjoining piece, or a right granted to one person of fishing in the water of another, or of mining in another’s land. A public servitude is one vested in the public at large or in some class of indeterminate individuals; for example, the right of the public to a highway over land in private ownership, the right of the public to navigate a river of which the bed belongs to some private person, the right of the inhabitants of a parish to use a certain piece of private ground for the purposes of recreation.

Servitudes are further distinguishable in the language of English law as being either appurtenant or in gross. A servitude appurtenant is one which is not merely an encumbrance of one piece of land, but is also accessory to another piece. It is a right of using one piece for the benefit of another; as in the case of a right of way from A.’s house to the high road across B.’s field, or a right of support for a building, or a right to the access of light to a window. The land which is burdened with such a servitude is called the servient land or tenement; that which has the benefit of it is called the dominant land or tenement. The servitude runs with each of the tenements into the hands of successive owners and occupiers. Both the benefit and the burden of it are concurrent with the ownership of the lands concerned. A servitude is said to be in gross, on the other hand, when it is not so attached and accessory to any dominant tenement for whose benefit it exists. An example is a public right of way or of 402navigation or of recreation, or a private right of fishing, pasturage, or mining.^[435]

§ 160. Securities.

A security is an encumbrance, the purpose of which is to ensure or facilitate the fulfilment or enjoyment of some other right (usually though not necessarily a debt) vested in the same person.^[436] Such securities are of two kinds, which may be distinguished as mortgages and liens, if we use the latter term in its widest permissible sense.^[437] In considering the nature of this distinction we must first notice a plausible but erroneous explanation. A mortgage, it is sometimes said, is a security created by the transfer of the debtor’s property to the creditor, while a lien is merely an encumbrance of some sort created in favour of the creditor over property which remains vested in the debtor; a mortgagee is the owner of the property, while a pledgee or other lienee is merely an encumbrancer of it. This, however, is not a strictly accurate account of the matter, though it is true in the great majority of cases. A mortgage may be created by way of encumbrance, no less than by way of transfer;^[438] and a mortgagee does not necessarily become the owner of the property mortgaged. A lease, for example, is commonly 403mortgaged, not by the assignment of it, but by the grant of a sub-lease to the creditor, so that the mortgagee becomes not the owner of the lease but an encumbrancer of it. Similarly freehold land may be mortgaged by the grant to the mortgagee of a long term of years.

Inasmuch, therefore, as a mortgage is not necessarily the transfer of the property to the creditor, what is its essential characteristic? The question is one of considerable difficulty, but the true solution is apparently this. A lien is a right which is in its own nature a security for a debt and nothing more; for example, a right to retain possession of a chattel until payment, a right to distrain for rent, or a right to receive payment out of a certain fund. A mortgage, on the contrary, is a right which is in its own nature an independent or principal right, and not a mere security for another right, but which is artificially cut down and limited, so that it may serve in the particular case as a security and nothing more; for example the fee simple of land, a lease of land for a term of years, or the ownership of a chattel. The right of the lienee is vested in him absolutely, and not merely by way of security; for it is itself nothing more than a security. The right of a mortgagee, on the contrary, is vested in him conditionally and by way of security only, for it is in itself something more than a mere security. A lien cannot survive the debt secured; it ceases and determines ipso jure on the extinction of the debt. It is merely the shadow, so to speak, cast by the debt upon the property of the debtor. But the right vested in a mortgagee has an independent existence. It will, or may, remain outstanding in the mortgagee even after the extinction of the debt. When thus left outstanding, it must be re-transferred or surrendered to the mortgagor, and the right of the mortgagor to this re-assignment or surrender is called his right or equity of redemption. The existence of such an equity of redemption is therefore the test of a mortgage. In liens there is no such right, for there is nothing to redeem. The creditor owns no right which he can be bound to give back or surrender to his debtor. For 404his right of security has come to its natural and necessary termination with the termination of the right secured.^[439]

Mortgages are created either by the transfer of the debtor’s right to the creditor, or by the encumbrance of it in his favour. The first of these methods is by far the more usual and important. Moreover it is peculiar to mortgages, for liens can be created only by way of encumbrance. Whenever a debtor transfers his right to the creditor by way of security, the result is necessarily a mortgage; for there can be no connexion between the duration of the debt so secured and the natural duration of the right so transferred. The right transferred may survive the debt, and the debtor therefore retains the right of redemption which is the infallible test of a mortgage. When on the other hand a debtor encumbers his right in favour of the creditor, the security so created is either a mortgage or a lien according to circumstances. It is a mortgage, if the encumbrance so created is independent of the debt secured in respect of its natural duration; for example a term of years or a permanent servitude. It is a lien, if the encumbrance is in respect of its natural duration dependent on, and coincident with the debt secured; for example a pledge, a vendor’s lien, a landlord’s right of distress, or an equitable charge on a fund.

Speaking generally, any alienable and valuable right whatever may be the subject-matter of a mortgage. Whatever can be transferred can be transferred by way of mortgage; whatever can be encumbered can be encumbered by way of mortgage. Whether I own land, or chattels, or debts, or shares, or patents, or copyrights, or leases, or servitudes, or equitable interests in trust funds, or the benefit of a contract, I may so deal with them as to constitute a valid mortgage 405security. Even a mortgage itself may be transferred by the mortgagee to some creditor of his own by way of mortgage, such a mortgage of a mortgage being known as a sub-mortgage.

In a mortgage by way of transfer the debtor, though he assigns the property to his creditor, remains none the less the beneficial or equitable owner of it himself. A mortgagor, by virtue of his equity of redemption, has more than a mere personal right against the mortgagee to the reconveyance of the property; he is already the beneficial owner of it. This double ownership of mortgaged property is merely a special form of trust. The mortgagee holds in trust for the mortgagor, and has himself no beneficial interest, save so far as is required for the purposes of an effective security. On the payment or extinction of the debt the mortgagee becomes a mere trustee and nothing more; the ownership remains vested in him, but is now bare of any vestige of beneficial interest. A mortgage, therefore, has a double aspect and nature. Viewed in respect of the nudum dominium vested in the mortgagee, it is a transfer of the property; viewed in respect of the beneficial ownership which remains vested in the mortgagor, it is merely an encumbrance of it.

The prominence of mortgage as the most important form of security is a peculiarity of English law. In Roman law, and in the modern Continental systems based upon it, the place assumed by mortgages in our system is taken by the lien (hypotheca) in its various forms. The Roman mortgage (fiducia) fell wholly out of use before the time of Justinian, having been displaced by the superior simplicity and convenience of the hypotheca; and in this respect modern Continental law has followed the Roman. There can be no doubt that a similar substitution of the lien for the mortgage would immensely simplify and improve the law of England. The complexity and difficulty of the English law of security—due entirely to the adoption of the system of mortgages—must be a source of amazement to a French or German lawyer. Whatever can be done by way of mortgage in securing a debt can be done equally well by way of lien, 406and the lien avoids all that extraordinary disturbance and complication of legal relations which is essentially involved in the mortgage. The best type of security is that which combines the most efficient protection of the creditor with the least interference with the rights of the debtor, and in this latter respect the mortgage falls far short of the ideal. The true form of security is a lien, leaving the full legal and equitable ownership in the debtor, but vesting in the creditor such rights and powers (as of sale, possession, and so forth) as are required, according to the nature of the subject-matter, to give the creditor sufficient protection, and lapsing ipso jure with the discharge of the debt secured.^[440]

Liens are of various kinds, none of which present any difficulty or require any special consideration.

1. Possessory liens—consisting in the right to retain possession of chattels or other property of the debtor. A power of sale may or may not be combined with this right of possession. Examples are pledges of chattels, and the liens of innkeepers, solicitors, and vendors of goods.

2. Rights of distress or seizure—consisting in the right to take possession of the property of the debtor, with or without a power of sale. Examples are the right of distress for rent, and the right of the occupier of land to distrain cattle trespassing on it.

3. Powers of sale. This is a form of security seldom found in isolation, for it is usually incidental to the right of possession conferred by one or other of the two preceding forms of lien. There is no reason, however, why it should not in itself form an effective security.

4. Powers of forfeiture—consisting in a power vested in the creditor of destroying in his own interest some adverse right vested in the debtor. Examples are a landlord’s right of re-entry upon his tenant, and a vendor’s right of forfeiting the deposit paid by the purchaser.

5. Charges—consisting in the right of a creditor to receive payment out of some specific fund or out of the proceeds of the realisation of specific property. The fund or property is said to be charged with the debt which is thus payable out of it.

§ 161. Modes of Acquisition: Possession.

Having considered the various forms which proprietary rights in rem assume, we proceed to examine the modes of 407their acquisition. An attempt to give a complete list of these titles would here serve no useful purpose, and we shall confine our attention to four of them which are of primary importance. These are the following: Possession, Prescription, Agreement, and Inheritance.

The possession of a material object is a title to the ownership of it. The de facto relation between person and thing brings the de jure relation along with it. He who claims a chattel or a piece of land as his, and makes good his claim in fact by way of possession, makes it good in law also by way of ownership. There is, however, an important distinction to be drawn. For the thing so possessed may, or may not, already belong to some other person. If, when possession of it is taken by the claimant, it is as yet the property of no one—res nullius as the Romans said—the possessor acquires a title good against all the world. The fish of the sea and the fowls of the air belong by an absolute title to him who first succeeds in obtaining possession of them. This mode of acquisition is known in Roman law as occupatio.

On the other hand, the thing of which possession is taken may already be the property of some one else. In this case the title acquired by possession is good, indeed, against all third persons, but is of no validity at all against the true owner. Possession, even when consciously wrongful, is allowed as a title of right against all persons who cannot show a better, because a prior, title in themselves. Save with respect to the rights of the original proprietor, my rights to the watch in my pocket are much the same, whether I bought it honestly, or found it, or abstracted it from the pocket of some one else. If it is stolen from me, the law will help me to the recovery of it. I can effectually sell it, lend it, give it away, or bequeath it, and it will go on my death intestate to my next of kin. Whoever acquires it from me, however, acquires in general nothing save my limited and imperfect title to it, and holds it, as I do, subject to the superior claims of the original owner.

A thing owned by one man and thus adversely possessed by another has in truth two owners. The ownership of the 408one is absolute and perfect, while that of the other is relative and imperfect, and is often called, by reason of its origin in possession, possessory ownership.

If a possessory owner is wrongfully deprived of the thing by a person other than the true owner, he can recover it. For the defendant cannot set up as a defence his own possessory title, since it is later than, and consequently inferior to, the possessory title of the plaintiff. Nor can he set up as a defence the title of the true owner—the jus tertii, as it is called; the plaintiff has a better, because an earlier, title than the defendant, and it is irrelevant that the title of some other person, not a party to the suit, is better still. The expediency of this doctrine of possessory ownership is clear. Were it not for such a rule, force and fraud would be left to determine all disputes as to possession, between persons of whom neither could show an unimpeachable title to the thing as the true owner of it.^[441]

§ 162. Prescription.

Prescription^[442] may be defined as the effect of lapse of time in creating and destroying rights; it is the operation of time as a vestitive fact. It is of two kinds, namely (1) positive or acquisitive prescription and (2) negative or extinctive prescription. The former is the creation of a right, the latter is the destruction of one, by the lapse of time. An example of the former is the acquisition of a right of way by the de facto use of it for twenty years. An instance of the latter is the destruction of the right to sue for a debt after six years from the time at which it first became payable.

Lapse of time, therefore, has two opposite effects. In positive prescription it is a title of right, but in negative 409prescription it is a divestitive fact. Whether it shall operate in the one way or in the other depends on whether it is or is not accompanied by possession. Positive prescription is the investitive operation of lapse of time with possession, while negative prescription is the divestitive operation of lapse of time without possession. Long possession creates rights, and long want of possession destroys them. If I possess an easement for twenty years without owning it, I begin at the end of that period to own as well as to possess it. Conversely if I own land for twelve years without possessing it, I cease on the termination of that period either to own or to possess it. In both forms of prescription, fact and right, possession and ownership, tend to coincidence. Ex facto oritur jus. If the root of fact is destroyed, the right growing out of it withers and dies in course of time. If the fact is present, the right will in the fulness of time proceed from it.

In many cases the two forms of prescription coincide. The property which one person loses through long dispossession is often at the same time acquired by some one else through long possession. Yet this is not always so, and it is necessary in many instances to know whether legal effect is given to long possession, in which case the prescription is positive, or to long want of possession, in which case the prescription is negative. I may, for example, be continuously out of possession of my land for twelve years, without any other single person having continuously held possession of it for that length of time. It may have been in the hands of a series of trespassers against me and against each other. In this case, if the legally recognised form of prescription is positive, it is inoperative, and I retain my ownership. But if the law recognises negative prescription instead of positive (as in this case our own system does) my title will be extinguished. Who in such circumstances will acquire the right which I thus lose, depends not on the law of prescription, but on the rules as to the acquisition of things which have no owner. The doctrine that prior possession is a good title against all but the true owner, will confer on the first of a series of adverse possessors a good title against all the world so soon as the 410title of the true owner has been extinguished by negative prescription.

The rational basis of prescription is to be found in the presumption of the coincidence of possession and ownership, of fact and of right. Owners are usually possessors, and possessors are usually owners. Fact and right are normally coincident; therefore the former is evidence of the latter. That a thing is possessed de facto is evidence that it is owned de jure. That it is not possessed raises a presumption that it is not owned either. Want of possession is evidence of want of title. The longer the possession or want of possession has continued, the greater is its evidential value. That I have occupied land for a day raises a very slight presumption that I am the owner of it; but if I continue to occupy it for twenty years, the presumption becomes indefinitely stronger. If I have a claim of debt against a man, unfulfilled and unenforced, the lapse of six months may have but little weight as evidence that my claim is unfounded or that it has been already satisfied; but the lapse of ten years may amount to ample proof of this.

If, therefore, I am in possession of anything in which I claim a right, I have evidence of my right which differs from all other evidence, inasmuch as it grows stronger instead of weaker with the lapse of years. The tooth of time may eat away all other proofs of title. Documents are lost, memory fails, witnesses die. But as these become of no avail, an efficient substitute is in the same measure provided by the probative force of long possession. So also with long want of possession as evidence of want of title; as the years pass, the evidence in favour of the title fades, while the presumption against it grows ever stronger.

Here, then, we have the chief foundation of the law of prescription. For in this case, as in so many others, the law has deemed it expedient to confer upon a certain species of evidence conclusive force. It has established a conclusive presumption in favour of the rightfulness of long possession, and against the validity of claims which are vitiated by long want of possession. Lapse of time is recognised as creative 411and destructive of rights, instead of merely as evidence for and against their existence. In substance, though not always in form, prescription has been advanced from the law of evidence to a place in the substantive law.

The conclusive presumption on which prescription is thus founded falls, like all other conclusive presumptions, more or less wide of the truth. Yet in the long run, if used with due safeguards, it is the instrument of justice. It is not true as a matter of fact that a claim unenforced for six years is always unfounded, but it may be wise for the law to act as if it were true. For the effect of thus exaggerating the evidential value of lapse of time is to prevent the persons concerned from permitting such delays as would render their claims in reality doubtful. In order to avoid the difficulty and error that necessarily result from the lapse of time, the presumption of the coincidence of fact and right is rightly accepted as final after a certain number of years. Whoever wishes to dispute this presumption must do so within that period; otherwise his right, if he has one, will be forfeited as a penalty for his neglect. Vigilantibus non dormientibus jura subveniunt.

Prescription is not limited to rights in rem. It is found within the sphere of obligations as well as within that of property. Positive prescription, however, is possible only in the case of rights which admit of possession—that is to say, continuing exercise and enjoyment. Most rights of this nature are rights in rem. Rights in personam are commonly extinguished by their exercise, and therefore cannot be possessed or acquired by prescription. And even in that minority of cases in which such rights do admit of possession, and in which positive prescription is therefore theoretically possible, modern law, at least, has seen no occasion for allowing it. This form of prescription, therefore, is peculiar to the law of property. Negative prescription, on the other hand, is common to the law of property and to that of obligations. Most obligations are destroyed by the lapse of time, for since the ownership of them cannot be accompanied by the possession of them, there is nothing to preserve 412them from the destructive influence of delay in their enforcement.^[443]

Negative prescription is of two kinds, which may be distinguished as perfect and imperfect. The latter is commonly called the limitation of actions, the former being then distinguished as prescription in a narrow and specific sense. Perfect prescription is the destruction of the principal right itself, while imperfect prescription is merely the destruction of the accessory right of action, the principal right remaining in existence. In other words, in the one case the right is wholly destroyed, but in the other it is merely reduced from a perfect and enforceable right to one which is imperfect and unenforceable.

An example of perfect prescription is the destruction of the ownership of land through dispossession for twelve years. The owner of land who has been out of possession for that period does not merely lose his right of action for the recovery of it, but also loses the right of ownership itself. An example of imperfect prescription, on the other hand, is the case of the owner of a chattel who has been out of possession of it for six years. He loses his right of action for the recovery of it, but he remains the owner of it none the less. His ownership is reduced from a perfect to an imperfect right, but it still subsists. Similarly a creditor loses in six years his right of action for the debt; but the debt itself is not extinguished, and continues to be due and owing.

§ 163. Agreement.

We have already considered the general theory of agreement as a title of right. It will be remembered that we used the term to include not merely contracts but all other bilateral acts in the law, that is to say, all expressions of the consenting wills of two or more persons directed to an alteration of their legal relations. Agreement in this wide 413sense is no less important in the law of property than in that of obligations.

As a title of proprietary rights in rem, agreement is of two kinds, namely assignment and grant. By the former, existing rights are transferred from one owner to another; by the latter, new rights are created by way of encumbrance upon the existing rights of the grantor. The grant of a lease of land is the creation by agreement, between grantor and grantee, of a leasehold vested in the latter and encumbering the freehold vested in the former. The assignment of a lease, on the other hand, is the transfer by agreement of a subsisting leasehold from the assignor to the assignee.

Agreement is either formal or informal. We have already sufficiently considered the significance of this formal element in general. There is, however, one formality known to the law of property which requires special notice, namely, the delivery of possession. That traditio was an essential element in the voluntary transfer of dominium was a fundamental principle of Roman law. Traditionibus et usucapionibus dominia rerum, non nudis pactis transferuntur.^[444] So in English law, until the year 1845, land could in theory be conveyed in no other method than by the delivery of possession. No deed of conveyance was in itself of any effect. It is true that in practice this rule was for centuries evaded by taking advantage of that fictitious delivery of possession which was rendered possible by the Statute of Uses. But it is only by virtue of a modern statute,^[445] passed in the year mentioned, that the ownership of land can in legal theory be transferred without the possession of it. In the case of chattels the common law itself succeeded, centuries ago, in cutting down to a very large extent the older principle. Chattels can be assigned by deed without delivery, and also by sale without delivery. But a gift of chattels requires to this day to be completed by the transfer of possession.^[446]

414In this requirement of traditio we may see a curious remnant of an earlier phase of thought. It is a relic of the times when the law attributed to the fact of possession a degree of importance which at the present day seems altogether disproportionate. Ownership seems to have been deemed little more than an accessory of possession. An owner who had ceased to possess had almost ceased to own, for he was deprived of his most important rights. A person who had not yet succeeded in obtaining possession was not an owner at all, however valid his claim to the possession may have been. The transfer of a thing was conceived as consisting essentially in the transfer of the possession of it. The transfer of rights, apart from the visible transfer of things, had not yet been thought of.

So far as the requirement of traditio is still justifiably retained by the law, it is to be regarded as a formality accessory to the agreement, and serving the same purposes as other formalities. It supplies evidence of the agreement, and it preserves for the parties a locus poenitentiae, lest they be prematurely bound by unconsidered consent.

It is a leading principle of law that the title of a grantee or assignee cannot be better than that of his grantor or assignor. Nemo plus juris ad alium transferre potest, quam ipse haberet.^[447] No man can transfer or encumber a right which is not his. To this rule, however, there is a considerable number of important exceptions. The rule is ancient, and most of the exceptions are modern; and we may anticipate that the future course of legal development will show further derogations from the early principle. There are two conflicting interests in the matter. The older rule is devised for the security of established titles. Under its protection he who succeeds in obtaining a perfect title may sit down in peace and keep his property against all the world. The exceptions, on the contrary, are established in the interests of those who seek to acquire property, not of those who seek to keep it. The easier it is to acquire a title with safety, the more difficult it is to keep one in safety; and 415the law must make a compromise between these two adverse interests. The modern tendency is more and more to sacrifice the security of tenure given by the older rule, to the facilities for safe and speedy acquisition and disposition given by the exceptions to it.

These exceptions are of two kinds: (1) those due to the separation of legal from equitable ownership, and (2) those due to the separation of ownership from possession. We have seen already that when the legal ownership is in one man and the equitable in another, the legal owner is a trustee for the equitable. He holds the property on behalf of that other, and not for himself; and the obligation of this trusteeship is an encumbrance upon his title. Yet he may, none the less, give an unencumbered title to a third person, provided that that person gives value for what he gets, and has at the time no knowledge of the existence of the trust. This rule is known as the equitable doctrine of purchase for value without notice. No man who ignorantly and honestly purchases a defective legal title can be affected by any adverse equitable title vested in any one else. To this extent a legal owner can transfer to another more than he has himself, notwithstanding the maxim, Nemo dat quod non habet.

The second class of exceptions to the general principle includes the cases in which the possession of a thing is in one person and the ownership of it in another. Partly by the common law, and partly by various modern statutes, the possessor is in certain cases enabled to give a good title to one who deals with him in good faith believing him to be the owner. The law allows men in these cases to act on the presumption that the possessor of a thing is the owner of it; and he who honestly acts on this presumption will acquire a valid title in all events. The most notable example is the case of negotiable instruments. The possessor of a bank-note may have no title to it; he may have found it or stolen it; but he can give a good title to any one who takes it from him for value and in good faith. Similarly mercantile agents, in possession of goods belonging to their principals, can 416effectively transfer the ownership of them,^[448] whether they are authorised thereto or not.^[449]

§ 164. Inheritance.

The fourth and last mode of acquisition that we need consider is Inheritance. In respect of the death of their owners all rights are divisible into two classes, being either inheritable or uninheritable. A right is inheritable, if it survives its owner; uninheritable, if it dies with him. This division is to a large extent, though far from completely, coincident with that between proprietary and personal rights. The latter are in almost all cases so intimately connected with the personality of him in whom they are vested, that they are incapable of separate and continued existence. They are not merely divested by death (as are rights of every sort), but are wholly extinguished. In exceptional cases, however, this is not so. Some personal rights are inheritable, just as property is, an instance being the status of hereditary nobility and the political and other privileges accessory thereto.

Proprietary rights, on the other hand, are usually inheritable. In respect of them death is a divestitive, but not an extinctive fact. The exceptions, however, are numerous. A lease may be for the life of the lessee instead of for a fixed term of years. Joint ownership is such that the right of him who dies first is wholly destroyed, the survivor acquiring an exclusive title by the jus accrescendi or right of survivorship. Rights of action for a tort die with the person wronged, 417except so far as the rule of the common law has been altered by statute. In the great majority of cases, however, death destroys merely the ownership of a proprietary right, and not the right itself.

The rights which a dead man thus leaves behind him vest in his representative. They pass to some person whom the dead man, or the law on his behalf, has appointed to represent him in the world of the living. This representative bears the person of the deceased, and therefore has vested in him all the inheritable rights, and has imposed upon him all the inheritable liabilities of the deceased. Inheritance is in some sort a legal and fictitious continuation of the personality of the dead man, for the representative is in some sort identified by the law with him whom he represents. The rights which the dead man can no longer own or exercise in propria persona, and the obligations which he can no longer in propria persona fulfil, he owns, exercises, and fulfils in the person of a living substitute. To this extent, and in this fashion, it may be said that the legal personality of a man survives his natural personality, until, his obligations being duly performed, and his property duly disposed of, his representation among the living is no longer called for.^[450]

The representative of a dead man, though the property of the deceased is vested in him, is not necessarily the beneficial owner of it. He holds it on behalf of two classes of persons, among whom he himself may or may not be numbered. These are the creditors and the beneficiaries of the estate. Just as many of a man’s rights survive him, so also do many of his liabilities; and these inheritable obligations pass to his representative, and must be satisfied by him. Being, however, merely the representative of another, he is not liable in propria persona, and his responsibility is limited by the amount of the property which he has acquired from the deceased. He possesses a double personality or capacity, and that which is due from him in right of his executorship cannot be recovered from him in his own right.

418The beneficiaries, who are entitled to the residue after satisfaction of the creditors, are of two classes: (1) those nominated by the last will of the deceased, and (2) those appointed by the law in default of any such nomination. The succession of the former is testamentary (ex testamento); that of the latter is intestate (ab intestato). As to the latter there is nothing that need here be said, save that the law is chiefly guided by the presumed desires of the dead man, and confers the estate upon his relatives in order of proximity. In default of any known relatives the property of an intestate is claimed by the state itself, and goes as bona vacantia to the Crown.

Testamentary succession, on the other hand, demands further consideration. Although a dead man has no rights, a man while yet alive has the right to determine the disposition after he is dead of the property which he leaves behind him. His last will, duly declared in the document which we significantly call by that name, is held inviolable by the law. For half a century and more, the rights and responsibilities of living men may thus be determined by an instrument which was of no effect until the author of it was in his grave and had no longer any concern with the world or its affairs. This power of the dead hand (mortua manus) is so familiar a feature in the law, that we accept it as a matter of course, and have some difficulty in realising what a very singular phenomenon it in reality is.

It is clear that some limitation must be imposed by the law upon this power of the dead over the living, and these restrictions are of three chief kinds:

(1) Limitations of time. It is only during a limited period after his death, that the directions of a testator as to the disposition of his property are held valid. He must so order the destination of his estate that within this period the whole of it shall become vested absolutely in some one or more persons, free from all testamentary conditions and restrictions. Any attempt to retain the property in manu mortua beyond that limit makes the testamentary disposition of it void. In English law the period is determined by a set of elaborate rules which we need not here consider.

419(2) Limitations of amount. A second limitation of testamentary power, imposed by most legal systems, though not by our own, is that a testator can deal with a certain proportion of his estate only, the residue being allotted by the law to those to whom he owes a duty of support, namely his wife and children.

(3) Limitations of purpose. The power of testamentary disposition is given to a man that he may use it for the benefit of other men who survive him; and to this end only can it be validly exercised. The dead hand will not be suffered to withdraw property from the uses of the living. No man can validly direct that his lands shall lie waste, or that his money, shall be buried with him, or thrown into the sea.^[451]

SUMMARY.

§ 165. The Nature of Obligations.

Obligation in its popular sense is merely a synonym for duty. Its legal sense, derived from Roman law, differs from this in several respects. In the first place, obligations are merely one class of duties, namely those which are the correlatives of rights in personam. An obligation is the vinculum juris, or bond of legal necessity, which binds together two or more determinate individuals.^[452] It includes, for example, the duty to pay a debt, to perform a contract, or to pay damages for a tort, but not the duty to refrain from interference with the person, property, or reputation of others. Secondly, the term obligation is in law the name not merely of the duty, but also of the correlative right. It denotes the legal relation or vinculum juris in its entirety, including the right of the one party, no less than the liability of the other. Looked at from the point of view of the person entitled, an obligation is a right; looked at from the point of view of the person bound, it is a duty. We may say either that the creditor acquires, owns, or transfers an obligation, or that the debtor has incurred or been released from one. Thirdly and lastly, all obligations pertain to the sphere of proprietary rights. They form part of the estate of him who is entitled to them. Rights which relate to a person’s status, such as those created by marriage, are not obligations, even though they are rights in personam. An obligation, therefore, may be defined as a proprietary right in personam or a duty which corresponds to such a right.

The person entitled to the benefit of an obligatio was in 423Roman law termed creditor, while he who was bound by it was called debitor. We may venture to use the corresponding English terms creditor and debtor in an equally wide sense. We shall speak of every obligation, of whatever nature, as vested in or belonging to a creditor, and availing against a debtor. There is, of course, a narrower sense, in which these terms are applicable only to those obligations which constitute debts; that is to say, obligations to pay a definite or liquidated sum of money.

A technical synonym for obligation is chose in action or thing in action. A chose in action means, in our modern use of it, a proprietary right in personam; for example, a debt, a share in a joint-stock company, money in the public funds, or a claim for damages for a tort. A non-proprietary right in personam, such as that which arises from a contract to marry, or from the contract of marriage, is no more a chose in action in English law than it is an obligatio in Roman law.

Choses in action are opposed to choses in possession, though the latter term has all but fallen out of use. The true nature of the distinction thus expressed has been the subject of much discussion. At the present day, if any logical validity at all is to be ascribed to it, it must be identified with that between real and personal rights, that is to say, with the Roman distinction between dominium and obligatio. A chose in action is a proprietary right in personam. All other proprietary rights (including such objects of rights as are identified with the rights themselves) are choses in possession. If we regard the matter historically, however, it becomes clear that this is not the original meaning of the distinction. In its origin a chose in possession was any thing or right which was accompanied by possession; while a chose in action was any thing or right of which the claimant had no possession, but which he must obtain, if need be, by way of an action at law. Money in a man’s purse was a thing in possession; money due to him by a debtor was a thing in action. This distinction was largely, though not wholly, coincident with that between real and personal rights, for real rights are commonly possessed as well as owned, while personal rights are commonly owned but not possessed. This coincidence, however, was not complete. A chattel, for example, stolen from its owner was reduced, so far as he was concerned, to a thing in action; but his right of ownership was not thereby reduced to a mere obligatio.^[453]

The extraordinary importance attributed to the fact of possession was a characteristic feature of our early law. As this importance diminished, 424the original significance of the distinction between things in possession and things in action was lost sight of, and these terms gradually acquired a new meaning. Originally shares and annuities would probably have been classed as things in possession, but they are now things in action. Conversely lands and chattels are now things in possession, whether the owner retains possession of them or not. Obligations were always the most important species of things in action, and they are now the only species. Neither the old law nor the new gives any countenance to the suggestion made by some that immaterial property, such as patents, copyrights, and trade-marks, should be classed as choses in action.^[454]

§ 166. Solidary Obligations.

The normal type of obligation is that in which there is one creditor and one debtor. It often happens, however, that there are two or more creditors entitled to the same obligation, or two or more debtors under the same liability. The case of two or more creditors gives rise to little difficulty, and requires no special consideration. It is, in most respects, merely a particular instance of co-ownership, the co-owners holding either jointly or in common, according to circumstances. The case of two or more debtors, however, is of some theoretical interest, and calls for special notice.

Examples of it are debts owing by a firm of partners, debts owing by a principal debtor and guaranteed by one or more sureties, and the liability of two or more persons who together commit a tort. In all such cases each debtor is liable for the whole amount due. The creditor is not obliged to divide his claim into as many different parts as there are debtors. He may exact the whole sum from one, and leave that one to recover from his co-debtors, if possible and permissible, a just proportion of the amount so paid. A debt of £100 owing by two partners, A. and B., is not equivalent to one debt of £50 owing by A. and another of the same amount owing by B. It is a single debt of £100 owing by each of them, in such fashion that each of them may be compelled to pay the whole of it, 425but that when it is once paid by either of them, both are discharged from it.^[455]

Obligations of this description may be called solidary, since in the language of Roman law, each of the debtors is bound in solidum instead of pro parte; that is to say, for the whole, and not for a proportionate part. A solidary obligation, therefore, may be defined as one in which two or more debtors owe the same thing to the same creditor. In English law they are of three distinct kinds, being either (1) several, (2) joint, or (3) joint and several.

1. Solidary obligations are several, when, although the thing owed is the same in each case, there are as many distinct obligations and causes of action, as there are debtors. Each debtor is bound to the creditor by a distinct and independent vinculum juris, the only connexion between them being that in each case the subject-matter of the obligation is the same, so that performance by one of the debtors necessarily discharges all the others also.

2. Solidary obligations are joint, on the other hand, when, though there are two or more debtors, there is only one debt or other cause of action, as well as only one thing owed. The vinculum juris is single, though it binds several debtors to the same creditor. The chief effect of this unity of the obligation is that all the debtors are discharged by anything which discharges any one of them. When the vinculum juris has once been severed as to any of them, it is severed as to all. Where, on the contrary, solidary obligations are several and not joint, performance by one debtor will release the others, but in all other respects the different vincula juris are independent of each other.

3. The third species of solidary obligation consists of those which are both joint and several. As their name implies, they stand half-way between the two extreme types which we have already considered. They are the product of a compromise between two competing principles. For some purposes the law treats them as joint, and for other purposes as 426several. For some purposes there is in the eye of the law only one single obligation and cause of action, while for other purposes the law consents to recognise as many distinct obligations and causes of action as there are debtors.

On what principle, then, does the law determine the class of which any solidary obligation belongs? Speaking generally, we may say that such obligations are several, when, although they have the same subject-matter, they have different sources; they are several in their nature, if they are distinct in their origin. They are joint, on the other hand, when they have not merely the same subject-matter, but the same source. Joint and several obligations, in the third place, are those joint obligations which the law, for special reasons, chooses to treat in special respects as if they were several. Like those which are purely and simply joint, they have the same source as well as the same subject-matter; but the law does not regard them consistently as comprising a single vinculum juris.

The following are examples of solidary obligations which are several in their nature:

(1) The liability of a principal debtor and that of his surety, provided that the contract of suretyship is subsequent to, or otherwise independent of the creation of the debt so guaranteed. But if the two debts have the same origin, as where the principal debtor and the surety sign a joint bond, the case is one of joint obligation.

(2) The liability of two or more co-sureties who guarantee the same debt independently of each other.^[456] They may make themselves joint, or joint and several debtors, on the other hand, by joining in a single contract of guarantee.

(3) Separate judgments obtained in distinct actions against two or more persons liable for the same debt. Two persons, for example, jointly and severally liable on the same contract may be separately sued, and judgment may be obtained against each of them. In such a case they are no longer jointly liable at all; each is now severally liable for the amount of his own judgment; but these two obligations are solidary, inasmuch as the satisfaction of one will discharge the other.

(4) The liability of independent wrongdoers whose acts cause the same damage. This is a somewhat rare case, but is perfectly possible. Two persons are not joint wrongdoers, simply because they both act wrongfully and their acts unite to cause a single mischievous result. They must 427have committed a joint act; that is to say, they must have acted together with some common purpose. If not, they may be liable in solidum and severally for the common harm to which their separate acts contribute; but they are not liable as joint wrongdoers. In Thompson v. The London County Council^[457] the plaintiff’s house was injured by the subsidence of its foundations, this subsidence resulting from excavations negligently made by A., taken in conjunction with the negligence of B., a water company, in leaving a water-main insufficiently stopped. It was held that A. and B., inasmuch as their acts were quite independent of each other, were not joint wrongdoers, and could not be joined in the same action. It was said by Lord Justice Collins:^[458] “The damage is one, but the causes of action which have led to that damage are two, committed by two distinct personalities.” The liability of the parties was solidary, but not joint.^[459] So also successive acts of wrongful conversion may be committed by two or more persons in respect of the same chattel. Each is liable in the action of trover to the owner of the chattel for its full value. But they are liable severally, and not jointly. The owner may sue each of them in different actions; though payment of the value by any one of them will discharge the others.^[460]

Examples of joint obligations are the debts of partners, and all other solidary obligations ex contractu which have not been expressly made joint and several by the agreement of the parties.

Examples of joint and several obligations are the liabilities of those who jointly commit a tort or breach of trust, and also all contractual obligations which are expressly made joint and several by the agreement of the parties.

§ 167. The Sources of Obligations.

Classed in respect of their sources or modes of origin, the obligations recognised by English law are divisible into the following four classes:

(1)

Contractual—Obligationes ex contractu.

(2)

Delictal—Obligationes ex delicto.

(3)

Quasi-contractual—Obligationes quasi ex contractu.

(4)

Innominate.

§ 168. Obligations arising from Contracts.

The first and most important class of obligations consists of those which are created by contract. We have in a former chapter sufficiently considered the nature of a contract,^[461] and 428we there saw that it is that kind of agreement which creates rights in personam between the parties to it. Now of rights in personam obligations are the most numerous and important kind, and of those which are not obligations comparatively few have their source in the agreement of the parties. The law of contract, therefore, is almost wholly comprised within the law of obligations, and for the practical purposes of legal classification it may be placed there with sufficient accuracy. The coincidence, indeed, is not logically complete: a promise of marriage, for example, being a contract which falls within the law of status, and not within that of obligations. Neglecting, however, this small class of personal contracts, the general theory of contract is simply a combination of the general theory of agreement with that of obligation, and does not call for any further examination in this place.^[462]

§ 169. Obligations arising from Torts.

The second class of obligations consists of those which may be termed delictal, or in the language of Roman law obligationes ex delicto. By an obligation of this kind is meant the duty of making pecuniary satisfaction for that species of wrong which is known in English law as a tort. Etymologically this term is merely the French equivalent of the English wrong—tort (tortum), being that which is twisted, crooked, or wrong; just as right (rectum) is that which is straight. As a technical term of English law, however, tort has become specialised in meaning, and now includes merely one particular class of civil wrongs.

A tort may be defined as a civil wrong, for which the remedy is an action for damages, and which is not solely the breach of a contract or the breach of a trust or other merely equitable obligation. This definition contains four essential elements, there being four kinds of wrongs excluded by it from the sphere of tort.

1. A tort is a civil wrong; crimes are wrongs, but are not 429in themselves torts, though there is nothing to prevent the same act from belonging to both these classes at once.

2. Even a civil wrong is not a tort, unless the appropriate remedy for it is an action for damages. There are several other forms of civil remedy besides this; for example, injunctions, specific restitution of property, and the payment of liquidated sums of money by way of penalty or otherwise. Any civil injury which gives rise exclusively to one of these other forms of remedy stands outside the class of torts. The obstruction of a public highway, for example, is to be classed as a civil injury, inasmuch as it may give rise to civil proceedings instituted by the Attorney-General for an injunction; but although a civil injury, it is not a tort, save in those exceptional instances in which, by reason of special damage suffered by an individual, it gives rise to an action for damages at his suit.

3. No civil wrong is a tort, if it is exclusively the breach of a contract. The law of contracts stands by itself, as a separate department of our legal system, over against the law of torts; and to a large extent liability for breaches of contract and liability for torts are governed by different principles. It may well happen, however, that the same act is both a tort and a breach of contract, and this is so in at least two classes of cases.

(a) The first and simplest of these is that in which a man undertakes by contract the performance of a duty which lies on him already, independently of any contract. Thus he who refuses to return a borrowed chattel commits both a breach of contract and also the tort known as conversion: a breach of contract, because he promised expressly or impliedly to return the chattel; but not merely a breach of contract, and therefore also a tort, because he would have been equally liable for detaining another man’s property, even if he had made no such contract at all.

(b) The second class of cases is one which involves considerable difficulty, and the law on this point cannot yet be said to have been thoroughly developed. In certain instances the breach of a contract made with one person creates liability 430towards another person, who is no party to the contract. It is a fundamental principle, indeed, that no person can sue on an obligatio ex contractu, except a party to the contract; nevertheless it sometimes happens that one person can sue ex delicto for the breach of a contract which was not made with him, but from the breach of which he has suffered unlawful damage. That is to say, a man may take upon himself, by a contract with A., a duty which does not already or otherwise rest upon him, but which, when it has once been undertaken, he cannot break without doing such damage to B., a third person, as the law deems actionable. Thus, if X. lends his horse to Y., who delivers it to Z., a livery stablekeeper, to be looked after and fed, and the horse is injured or killed by insufficient feeding, presumably Z. is liable for this, not only in contract to Y., but also in tort to X., the owner of the horse. It is true that, apart from his contract with Y., Z. was under no obligation to feed the animal; apart from the contract, this was a mere omission to do an act which he was not bound to do. Yet having taken this duty upon himself, he has thereby put himself in such a situation that he cannot break the duty without inflicting on the owner of the horse damage of a kind which the law deems wrongful. The omission to feed the horse, therefore, although a breach of contract, is not exclusively such, and is therefore a tort, inasmuch as it can be sued on by a person who is no party to the contract. How far damage thus caused to one man by the breach of a duty undertaken by contract with another is actionable as a tort at the suit of the former, is a question to be determined by the detailed rules of the concrete legal system, and need not be here considered.^[463]

Before the abolition of forms of action the relation between contract and tort was complicated and obscured by the existence of a class of fictitious torts—wrongs which were in reality pure breaches of contract 431and nothing more, and which nevertheless were remediable by delictal forms of action. Forms of action were classed as either contractual or delictal, but contractual actions were illogically allowed in cases in which there was no true contract, but only a quasi-contract; and delictal actions in cases in which there was no true tort, but a mere breach of contract. There seems to be no longer any occasion for recognising the existence of such quasi-torts, for they were merely a product of historical accident, which may and should be now eliminated from the law. They are a relic of the days when contractual remedies were so imperfectly developed that they had to be supplemented by the use of delictal remedies in cases of breach of contract. The contractual action of assumpsit is, in its origin, merely a variant of the delictal action of case. It is not surprising, therefore, that until the abolition of all forms of action, our law failed to draw with accuracy the line between torts and breaches of contract.^[464]

4. The fourth and last class of wrongs which are not torts consists of breaches of trusts or other equitable obligations. The original reason for their exclusion and separate classification is the historical fact, that the law of trusts and equitable obligations originated and developed in the Court of Chancery, and was wholly unknown to those courts of common law in which the law of torts grew up. But even now, although the distinction between law and equity is abolished, it is still necessary to treat breaches of trust as a form of wrong distinct from torts, and to deal with them along with the law of trusts itself, just as breaches of contract are dealt with along with the law of contract. Torts, contracts, and trusts developed separately, the principles of liability in each case are largely different, and they must be retained as distinct departments of the law.

By some writers a tort has been defined as the violation of a right in rem, giving rise to an obligation to pay damages. There is a tempting simplicity and neatness in this application of the distinction between rights in rem and in personam, but it may be gravely doubted whether it does in truth conform to the actual contents of the English law of torts. Most torts undoubtedly are violations of rights in rem, because most rights in personam are created by contract. But there are rights in personam which are not contractual, and the violation of which, if it gives rise to an action for damages, must be classed as a tort. The refusal of an innkeeper to receive a guest is a tort, yet it is merely the breach of a non-contractual 432right in personam. So with any actionable refusal or neglect on the part of a public official to perform his statutory duties on behalf of the plaintiff.

§ 170. Obligations arising from Quasi-Contracts.

Both in Roman and in English law there are certain obligations which are not in truth contractual, but which the law treats as if they were. They are contractual in law, but not in fact, being the subject-matter of a fictitious extension of the sphere of contract to cover obligations which do not in reality fall within it. The Romans called them obligationes quasi ex contractu. English lawyers call them quasi-contracts or implied contracts, or often enough contracts simply and without qualification. We are told, for example, that a judgment is a contract, and that a judgment debt is a contractual obligation.^[465] “Implied [contracts],” says Blackstone,^[466] “are such as reason and justice dictate, and which, therefore, the law presumes that every man undertakes to perform.” “Thus it is that every person is bound, and hath virtually agreed, to pay such particular sums of money as are charged on him by the sentence, or assessed by the interpretation, of the law.”^[467] So the same author speaks, much too widely indeed, of the “general implication and intendment of the courts of judicature that every man hath engaged to perform what his duty or justice requires.”^[468]

From a quasi-contract, or contract implied in law, we must carefully distinguish a contract implied in fact. The latter is a true contract, though its existence is only inferred from the conduct of the parties, instead of being expressed. Thus when I enter an omnibus, I impliedly, yet actually agree to pay the usual fare. A contract implied in law, on the contrary, is merely fictitious, for the parties to it have not agreed at all, either expressly or tacitly.

In what cases, then, does the law recognise this fiction of quasi-contract? What classes of obligations are regarded as contractual in law, though they are not so in fact? To this 433question it is not possible to give any complete answer here. We can, however, single out two classes of cases, which include most, though not all, of the quasi-contractual obligations known to English law.

1. In the first place we may say in general, that in the theory of the common law all debts are deemed to be contractual in origin. A debt is an obligation to pay a liquidated sum of money, as opposed to an obligation to pay an unliquidated amount, and as opposed also to all non-pecuniary obligations. Most debts are obligationes ex contractu in truth and in fact, but there are many which have a different source. A judgment creates a debt which is non-contractual; so also does the receipt of money paid by mistake or obtained by fraud. Nevertheless, in the eye of the common law they all fall within the sphere of contract; for the law conclusively presumes that every person who owes a debt has promised to pay it. “Whatever, therefore,” says Blackstone,^[469] “the laws order any one to pay, that becomes instantly a debt which he hath beforehand contracted to discharge.”

Hence it is, that a judgment debtor is in legal theory liable ex contractu to satisfy the judgment. “The liability of the defendant,” says Lord Esher,^[470] “arises upon the implied contract to pay the amount of the judgment.” Similarly all pecuniary obligations of restitution are in theory contractual, as in the case of money paid by mistake, or obtained by fraud or duress. “If the defendant,” says Lord Mansfield,^[471] “be under an obligation, from the ties of natural justice, to refund, the law implies a debt, and gives this action founded on the equity of the plaintiff’s case, as it were upon a contract (quasi ex contractu, as the Roman law expresses it).” So also with pecuniary obligations of indemnity; when, for example, the goods of a stranger are distrained and sold by a landlord for rent due by his tenant, the law implies a promise by the tenant to repay their value to the owner thus deprived of them.^[472] A similar fictitious promise is the ground on which the law bases obligations of contribution. If, for example, two persons acting independently of each other guarantee the 434same debt, and one of them is subsequently compelled to pay the whole, he can recover half of the amount from the other, as due to him under a contract implied in law, although there is clearly none in fact.

2. The second class of quasi-contracts includes all those cases in which a person injured by a tort is allowed by the law to waive the tort and sue in contract instead. That is to say, there are certain obligations which are in truth delictal, and not contractual, but which may at the option of the plaintiff be treated as contractual, if he so pleases. Thus if one wrongfully takes away my goods and sells them, he is guilty of the tort known as trespass, and his obligation to pay damages for the loss suffered by me is in reality delictal. Nevertheless I may, if I think it to my interest, waive the tort, and sue him on a fictitious contract, demanding from him the payment of the money so received by him as having rightly sold the goods as my agent, and therefore as being indebted to me in respect of the price received by him; and he will not be permitted to plead his own wrongdoing in bar of any such claim.^[473] So if a man obtains money from me by fraudulent misrepresentation, I may sue him either in tort for damages for the deceit, or on a fictitious contract for the return of the money.

The reasons which have induced the law to recognise the fiction of quasi-contractual obligation are various. The chief of them, however, are the three following:—

(1) The traditional classification of the various forms of personal actions, as being based either on contract or on tort. This classification could be rendered exhaustive and sufficient only by forcing all liquidated pecuniary obligations into the contractual class, regardless of their true nature and origin. The theory that all common law actions are either contractual or delictal is received by the legislature even at the present day,^[474] and its necessary corollary is the doctrine of quasi-contract.

(2) The desire to supply a theoretical basis for new forms of obligation established by judicial decision. Here as elsewhere, legal fictions are of use in assisting the development of the law. It is easier for the courts to say that a man is bound to pay because he must be taken to have so promised, 435than to lay down for the first time the principle that he is bound to pay whether he has promised or not.

(3) The desire of plaintiffs to obtain the benefit of the superior efficiency of contractual remedies. In more than one respect, it was better in the old days of formalism to sue on contract than on any other ground. The contractual remedy of assumpsit was better than the action of debt, for it did not allow to the defendant the resource of wager of law. It was better than trespass and other delictal remedies, for it did not die with the person of the wrongdoer, but was available against his executors. Therefore plaintiffs were allowed to allege fictitious contracts, and to sue on them in assumpsit, whereas in truth their appropriate remedy was debt or some action ex delicto.

It seems clear that a rational system of law is free to get rid of the conception of quasi-contractual obligation altogether. No useful purpose is served by it at the present day. It still remains, however, part of the law of England, and requires recognition accordingly.

§ 171. Innominate Obligations.

The foregoing classification of obligations as either contractual, delictal, or quasi-contractual, is not exhaustive, for it is based on no logical scheme of division, but proceeds by simple enumeration only. Consequently, it is necessary to recognise a final and residuary class which we may term innominate, as having no comprehensive and distinctive title.^[475] Included in this class are the obligations of trustees towards their beneficiaries, a species, indeed, which would be sufficiently important and distinct to be classed separately as co-ordinate with the others which have been named, were it not for the fact that trusts are more appropriately treated in another branch of the law, namely in that of property.

SUMMARY.

§ 172. Substantive Law and the Law of Procedure.

It is no easy task to state with precision the exact nature of the distinction between substantive law and the law of procedure, and it will conduce to clearness if we first consider a plausible but erroneous explanation. In view of the fact that the administration of justice in its typical form consists in the application of remedies to the violations of rights, it may be suggested that substantive law is that which defines the rights, while procedural law determines the remedies. This application, however, of the distinction between jus and remedium is inadmissible. For in the first place there are many rights which belong to the sphere of procedure; for example, a right of appeal, a right to give evidence on one’s own behalf, a right to interrogate the other party, and so on. In the second place, rules defining the remedy may be as much a part of the substantive law as are those which define the right itself. No one would call the abolition of capital punishment, for instance, a change in the law of criminal procedure. The substantive part of the criminal law deals not with crimes alone, but with punishments also. So in the civil law, the rules as to the measure of damages pertain to the substantive law, no less than those declaring what damage is actionable; and rules determining the classes of agreements which will be specifically enforced are as clearly substantive as are those determining the agreements which will be enforced at all. To define procedure as concerned not with rights, but with remedies, is to confound the remedy with the process by which it is made available.

What, then, is the true nature of the distinction? The law of procedure may be defined as that branch of the law 438which governs the process of litigation. It is the law of actions—jus quod ad actiones pertinet—using the term action in a wide sense to include all legal proceedings, civil or criminal. All the residue is substantive law, and relates not to the process of litigation, but to its purposes and subject-matter. Substantive law is concerned with the ends which the administration of justice seeks; procedural law deals with the means and instruments by which those ends are to be attained. The latter regulates the conduct and relations of courts and litigants in respect of the litigation itself; the former determines their conduct and relations in respect of the matters litigated. Procedural law is concerned with affairs inside the courts of justice; substantive law deals with matters in the world outside.

A glance at the actual contents of the law of procedure will enable us to judge of the accuracy of this explanation. Whether I have a right to recover certain property is a question of substantive law, for the determination and the protection of such rights are among the ends of the administration of justice; but in what courts and within what time I must institute proceedings are questions of procedural law, for they relate merely to the modes in which the courts fulfil their functions. What facts constitute a wrong is determined by the substantive law; what facts constitute proof of a wrong is a question of procedure. For the first relates to the subject-matter of litigation, the second to the process merely. Whether an offence is punishable by fine or by imprisonment is a question of substantive law, for the existence and measure of criminal liability are matters pertaining to the end and purpose of the administration of justice. But whether an offence is punishable summarily or only on indictment is a question of procedure. Finally it may be observed that, whereas the abolition of capital punishment would be an alteration of the substantive law, the abolition of imprisonment for debt was merely an alteration in the law of procedure. For punishment is one of the ends of the administration of justice, while imprisonment for debt was merely an instrument for enforcing payment.

439So far as the administration of justice is concerned with the application of remedies to violated rights, we may say that the substantive law defines the remedy and the right, while the law of procedure defines the modes and conditions of the application of the one to the other.

Although the distinction between substantive law and procedure is sharply drawn in theory, there are many rules of procedure which in their practical operation are wholly or substantially equivalent to rules of substantive law. In such cases the difference between these two branches of the law is one of form rather than of substance. A rule belonging to one department may by a change of form pass over into the other without materially affecting the practical issue. In legal history such transitions are frequent, and in legal theory they are not without interest and importance.

Of these equivalent procedural and substantive principles there are at least three classes sufficiently important to call for notice here.

1. An exclusive evidential fact is practically equivalent to a constituent element in the title of the right to be proved. The rule of evidence that a contract can be proved only by a writing corresponds to a rule of substantive law that a contract is void unless reduced to writing. In the former case the writing is the exclusive evidence of title; in the latter case it is part of the title itself. In the former case the right exists but is imperfect, failing in its remedy through defect of proof. In the latter case it fails to come into existence at all. But for most purposes this distinction is one of form rather than of substance.

2. A conclusive evidential fact is equivalent to, and tends to take the place of, the fact proved by it. All conclusive presumptions pertain in form to procedure, but in effect to the substantive law. That a child under the age of seven years is incapable of criminal intention is a rule of evidence, but differs only in form from the substantive rule that no child under that age is punishable for a crime. That the acts of a servant done about his master’s business are done with his master’s authority is a conclusive presumption of 440law, and pertains to procedure; but it is the forerunner and equivalent of our modern substantive law of employer’s liability. A bond (that is to say, an admission of indebtedness under seal) was originally operative as being conclusive proof of the existence of the debt so acknowledged; but it is now itself creative of a debt; for it has passed from the domain of procedure into that of substantive law.

3. The limitation of actions is the procedural equivalent of the prescription of rights. The former is the operation of time in severing the bond between right and remedy; the latter is the operation of time in destroying the right. The former leaves an imperfect right subsisting; the latter leaves no right at all. But save in this respect their practical effect is the same, although their form is different.

The normal elements of judicial procedure are five in number, namely Summons, Pleading, Proof, Judgment, and Execution. The object of the first is to secure for all parties interested an opportunity of presenting themselves before the court and making their case heard. Pleading formulates for the use of the court and of the parties those questions of fact or law which are in issue. Proof is the process by which the parties supply the court with the data necessary for the decision of those questions. Judgment is this decision itself, while execution, the last step in the proceeding, is the use of physical force in the maintenance of the judgment, when voluntary submission is withheld. Of these five elements of judicial procedure one only, namely proof, is of sufficient theoretical interest to repay such abstract consideration as is here in place. The residue of this chapter, therefore, will be devoted to an analysis of the essential nature of the law of evidence.

§ 173. Evidence.

One fact is evidence of another when it tends in any degree to render the existence of that other probable. The quality by virtue of which it has such an effect may be called its probative force, and evidence may therefore be defined as any 441fact which possesses such force. Probative force may be of any degree of intensity. When it is great enough to form a rational basis for the inference that the fact so evidenced really exists, the evidence possessing it is said to constitute proof.

It is convenient to be able to distinguish shortly between the fact which is evidence, and the fact of which it is evidence. The former may be termed the evidential fact, the latter the principal fact. Where, as is often the case, there is a chain of evidence, A. being evidence of B., B. of C., C. of D. and so on, each intermediate fact is evidential in respect of all that follow it and principal in respect of all that precede it.

1. Evidence is of various kinds, being in the first place either judicial or extrajudicial. Judicial evidence is that which is produced to the court; it comprises all evidential facts that are actually brought to the personal knowledge and observation of the tribunals. Extrajudicial evidence is that which does not come directly under judicial cognizance, but nevertheless constitutes an intermediate link between judicial evidence and the fact requiring proof. Judicial evidence includes all testimony given by witnesses in court, all documents produced to and read by the court, and all things personally examined by the court for the purposes of proof. Extrajudicial evidence includes all evidential facts which are known to the court only by way of inference from some form of judicial evidence. Testimony is extrajudicial, when it is judicially known only through the relation of a witness who heard it. A confession of guilt, for example, is judicial evidence if made to the court itself, but extrajudicial if made elsewhere and proved to the court by some form of judicial evidence. Similarly a document is judicial evidence if produced, extrajudicial if known to the court only through a copy, or through the report of a witness who has read it. So the locus in quo or the material subject-matter of a suit becomes judicial evidence, when personally viewed by the court, but is extrajudicial when described by witnesses.

It is plain that in every process of proof some form of judicial evidence is an essential element. Extrajudicial evidence 442may or may not exist. When it is present, it forms an intermediate link or a series of intermediate links in a chain of proof, the terminal links of which are the principal fact at one end and the judicial evidence at the other. Judicial evidence requires production merely; extrajudicial evidence stands itself in need of proof.

2. In the second place evidence is either personal or real. Personal evidence is otherwise termed testimony. It includes all kinds of statements regarded as possessed of probative force in respect of the facts stated. This is by far the most important form of evidence. There are few processes of proof that do not contain it—few facts that are capable of being proved in courts of justice otherwise than by the testimony of those who know them. Testimony is either oral or written, and either judicial or extrajudicial. There is a tendency to restrict the term to the judicial variety, but there is no good reason for this limitation. It is better to include under the head of testimony or personal evidence all statements, verbal or written, judicial or extrajudicial, so far as they are possessed of probative force. Real evidence, on the other hand, includes all the residue of evidential facts. Anything which is believed for any other reason than that some one has said so, is believed on real evidence. This, too, is either judicial or extrajudicial, though here also there is a tendency to restrict the term to the former use.

3. Evidence is either primary or secondary. Other things being equal, the longer any chain of evidence the less its probative force, for with each successive inference the risk of error grows. In the interests of truth, therefore, it is expedient to shorten the process, to cut out as many as possible of the intermediate links of extrajudicial evidence, and to make evidence assume the judicial form at the earliest practicable point. Hence the importance of the distinction between primary and secondary evidence. Primary evidence is evidence viewed in comparison with any available and less immediate instrument of proof. Secondary evidence is that which is compared with any available and more immediate instrument of proof. Primary evidence of the contents of a 443written document is the production in court of the document itself; secondary evidence is the production of a copy or of oral testimony as to the contents of the original. Primary evidence that A. assaulted B. is the judicial testimony of C. that he saw the assault; secondary evidence is the judicial testimony of D. that C. told him that he saw the assault. That secondary evidence should not be used when primary evidence is available is, in its general form, a mere counsel of prudence; but in particular cases, the most important of which are those just used as illustrations, this counsel has hardened into an obligatory rule of law. Subject to certain exceptions, the courts will receive no evidence of a written document save the document itself, and will listen to no hearsay testimony.

4. Evidence is either direct or circumstantial. This is a distinction important in popular opinion rather than in legal theory. Direct evidence is testimony relating immediately to the principal fact. All other evidence is circumstantial. In the former case the only inference required is one from testimony to the truth of it. In the latter the inference is of a different nature, and is generally not single but composed of successive steps. The testimony of A. that he saw B. commit the offence charged, or the confession of B. that he is guilty, constitutes direct evidence. If we believe the truth of the testimony or confession, the matter is concluded, and no further process of proof or inference is required. On the other hand, the testimony of A. that B. was seen by him leaving the place where the offence was committed, and having the instrument of the offence in his possession, is merely circumstantial evidence; for even if we believe this testimony, it does not follow without a further inference, and therefore a further risk of error, that B. is guilty. Direct evidence is commonly considered to excel the other in probative force. This, however, is not necessarily the case, for witnesses lie, and facts do not. Circumstantial evidence of innocence may well prevail over direct evidence of guilt; and circumstantial evidence of guilt may be indefinitely stronger than direct evidence of innocence.

The law of evidence comprises two parts. The first of these consists of rules for the measurement or determination of the probative force of evidence. The second consists of rules determining the modes and conditions of the production of evidence. The first deals with the effect of evidence when produced, the second with the manner in which it is to be produced. The first is concerned with evidence in all its forms, whether judicial or extrajudicial; the second is concerned with judicial evidence alone. The two departments are intimately connected, for it is impossible to formulate rules for the production of evidence without reference and relation to the effect of it when produced. Nevertheless the two are distinct in theory, and for the most part distinguishable in practice. We shall deal with them in their order.