CHAPTER XXII.
THE LAW OF PROCEDURE.
§ 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 which 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.
So 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 law, 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 fact 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 may 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 written 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.
§ 174. =The Valuation of Evidence.=
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.
In judicial proceedings, as elsewhere, the accurate measurement of the evidential value of facts is a condition of the discovery of truth. Except in the administration of justice, however, this task is left to common sense and personal discretion. Rules and maxims, when recognised at all, are recognised as proper for the _guidance_ of individual judgment, not for the _exclusion_ of it. But in this, as in every other part of judicial procedure, law has been generated, and, in so far as it extends, has made the estimation of probative force or the weighing of evidence a matter of inflexible rules excluding judicial discretion. These rules constitute the first and most characteristic portion of the law of evidence. They may be conveniently divided into five classes, declaring respectively that certain facts amount to:—
1. Conclusive proof—in other words, raise a conclusive presumption;
2. Presumptive proof—in other words, raise a conditional or rebuttable presumption;
3. Insufficient evidence—that is to say, do not amount to proof, and raise no presumption, conclusive or conditional;
4. Exclusive evidence—that is to say, are the only facts which in respect of the matter in issue possess any probative force at all;
5. No evidence—that is to say, are destitute of evidential value.
I. _Conclusive presumptions._—By conclusive proof is meant a fact possessing probative force of such strength as not to admit of effective contradiction. In other words, this fact amounts to proof irrespective of the existence or non-existence of any other facts whatsoever which may possess probative force in the contrary direction. By a conclusive presumption is meant the acceptance or recognition of a fact by the law as conclusive proof.
Presumptive or conditional proof, on the other hand, is a fact which amounts to proof, only so long as there exists no other fact amounting to disproof. It is a provisional proof, valid until overthrown by contrary proof. A conditional or rebuttable presumption is the acceptance of a fact by the law as conditional proof.[476]
One of the most singular features in early systems of procedure is the extent to which the process of proof is dominated by conclusive presumptions. The chief part of the early law of evidence consists of rules determining the species of proof which is necessary and sufficient in different cases, and allotting the benefit or burden of such proof between the parties. He who would establish his case must maintain it, for example, by success in that judicial battle the issue of which was held to be the judgment of Heaven (_judicium Dei_); or he must go unscathed through the ordeal, and so make manifest his truth or innocence; or he must procure twelve men to swear in set form that they believe his testimony to be true; or it may be sufficient if he himself makes solemn oath that his cause is just. If he succeeds in performing the conditions so laid upon him, he will have judgment; if he fails even in the slightest point, he is defeated. His task is to satisfy the requirements of the law, not to convince the court of the truth of his case. What the court thinks of the matter is nothing to the point. The whole procedure seems designed to take away from the tribunals the responsibility of investigating the truth, and to cast this burden upon providence or fate. Only gradually and reluctantly did our law attain to the conclusion that there is no such royal road in the administration of justice, that the heavens are silent, that the battle goes to the strong, that oaths are naught, and that there is no just substitute for the laborious investigation of the truth of things at the mouths of parties and witnesses.
The days are long since past in which conclusive presumptions played any great part in the administration of justice. They have not, however, altogether lost their early importance. They are, indeed, almost necessarily more or less false, for it is seldom possible in the subject-matter of judicial procedure to lay down with truth a general principle that any one thing is conclusive proof of the existence of any other. Nevertheless such principles may be just and useful even though not wholly true. We have already seen how they are often merely the procedural equivalents of substantive rules which may have independent validity. They have also been of use in developing and modifying by way of legal fictions the narrow and perverted principles of the early law. As an illustration of their employment in modern law we may cite the maxim _Res judicata pro veritate accipitur_. A judgment is conclusive evidence as between the parties, and sometimes as against all the world, of the matters adjudicated upon. The courts of justice may make mistakes, but no one will be heard to say so. For their function is to terminate disputes, and their decisions must be accepted as final and beyond question.
II. _Conditional presumptions._—The second class of rules for the determination of probative force are those which establish rebuttable presumptions. For example, a person shown not to have been heard of for seven years by those who would naturally have heard of him if he had been alive, is presumed to be dead. So also a negotiable instrument is presumed to have been given for value. So also a person accused of any offence is presumed to be innocent.
Many of these presumptions are based on no real estimate of probabilities, but are established for the purpose of placing the burden of proof upon the party who is best able to bear it, or who may most justly be made to bear it. Persons accused of crime are probably guilty, but the presumption of their innocence is in most cases and with certain limitations clearly expedient.
III. _Insufficient evidence._—In the third place the law contains rules declaring that certain evidence is insufficient, that its probative force falls short of that required for proof, and that it is therefore not permissible for the courts to act upon it. An example is the rule that in certain kinds of treason the testimony of one witness is insufficient—almost the sole recognition by English law of the general principle, familiar in legal history, that two witnesses are necessary for proof.
IV. _Exclusive evidence._—In the fourth place there is an important class of rules declaring certain facts to be exclusive evidence, none other being admissible. The execution of a document which requires attestation can be proved in no other way than by the testimony of an attesting witness, unless owing to death or some other circumstance his testimony is unavailable. A written contract can be proved in no other way than by the production of the writing itself, whenever its production is possible. Certain kinds of contracts, such as one for the sale of land, cannot be proved except by writing, no verbal testimony being of virtue enough in the law to establish the existence of them.
It is only in respect of very special kinds of contracts that written evidence can wisely be demanded by the law. In the case of all ordinary mercantile agreements such a requirement does more harm than good; and the law would do well in accepting the principle that a man’s word is as good as his bond. The Statute of Frauds, by which most of these rules of exclusive evidence have been established, is an instrument for the encouragement of frauds rather than for the suppression of them. How much longer is it to remain in force as a potent instrument for the perversion of English law? Its repeal would sweep away at one stroke the immense accumulation of irrational technicality and complexity that has grown in the course of centuries from this evil root.
V. _Facts which are not evidence._—Fifthly and lastly there are rules declaring that certain facts are not evidence, that is to say, are destitute of any probative force at all. Such facts are not to be produced to the court, and if produced no weight is to be attributed to them, for no accumulation of them can amount to proof. For example, hearsay is no evidence, the bond of connexion between it and the principal fact so reported at second hand being in the eye of the law too slight for any reliance to be justly placed upon it. Similarly the general bad character of an accused person is no evidence that he is guilty of any particular offence charged against him; although his good character is evidence of his innocence.
These rules of exclusion or irrelevancy assume two distinct forms, characteristic respectively of the earlier and later periods in the development of the law. At the present day they are almost wholly rules for the exclusion of _evidence_; in earlier times they were rules for the exclusion of _witnesses_. The law imposed testimonial incapacity upon certain classes of persons on the ground of their antecedent incredibility. No party to a suit, no person possessing any pecuniary interest in the event of it, no person convicted of any infamous offence, was a competent witness. His testimony was deemed destitute of evidential value on account of the suspicious nature of its source. The law has now learned that it is not in this fashion that the truth is to be sought for and found. It has now more confidence in individual judgment and less in general rules. It no longer condemns witnesses unheard, but receives the testimony of all, placing the old grounds of exclusion at their proper level as reasons for suspicion but not for antecedent rejection. Whether rules for the exclusion of evidence are not in general exposed to the same objections that have already prevailed against the roles for the exclusion of witnesses is a question which we shall presently consider.
§ 175. =The Production of Evidence.=
The second part of the law of evidence consists of rules regulating its production. It deals with the process of adducing evidence, and not with the effect of it when adduced. It comprises every rule relating to evidence, except those which amount to legal determinations of probative force. It is concerned for example with the manner in which witnesses are to be examined and cross-examined, not with the weight to be attributed to their testimony. In particular it includes several important rules of exclusion based on grounds independent of any estimate of the probative force of the evidence so excluded. Considerations of expense, delay, vexation, and the public interest require much evidence to be excluded which is of undoubted evidential value. A witness may be able to testify to much that is relevant and important in respect of the matters in issue, and nevertheless may not be compelled or even permitted to give such testimony. A public official, for example, cannot be compelled to give evidence as to affairs of state, nor is a legal adviser permitted or compellable to disclose communications made to him by or on behalf of his client.
The most curious and interesting of all these rules of exclusion is the maxim, _Nemo tenetur se ipsum accusare_. No man, not even the accused himself, can be compelled to answer any question the answer to which may tend to prove him guilty of a crime. No one can be used as the unwilling instrument of his own conviction. He may confess, if he so pleases, and his confession will be received against him; but if tainted by any form of physical or moral compulsion, it will be rejected. The favour with which this rule has been received is probably due to the recoil of English law from the barbarities of the old Continental system of torture and inquisitorial process. Even as contrasted with the modern Continental procedure, in which the examination of the accused seems to English eyes too prominent and too hostile, the rule of English law is not without merits. It confers upon a criminal trial an aspect of dignity, humanity, and impartiality, which the contrasted inquisitorial process is too apt to lack. Nevertheless it seems impossible to resist Bentham’s conclusion that the rule is destitute of any rational foundation, and that the compulsory examination of the accused is an essential feature of sound criminal procedure. Even its defenders admit that the English rule is extremely favourable to the guilty, and in a proceeding the aim of which is to convict the guilty, this would seem to be a sufficient condemnation. The innocent have nothing to fear from compulsory examination, and everything to gain; the guilty have nothing to gain, and everything to fear. A criminal trial is not to be adequately conceived as a fight between the accused and his accuser; and there is no place in it for maxims whose sole foundation is a supposed duty of generous dealing with adversaries. Subject always to the important qualification that a good _prima facie_ case must first be established by the prosecutor, every man should be compellable to answer with his own lips the charges that are made against him.[477]
A matter deserving notice in connexion with this part of the law of evidence is the importance still attached to the ceremony of the oath. One of the great difficulties involved in the process of proof is that of distinguishing between true testimony and false. By what test is the lying witness to be detected, and by what means is corrupt testimony to be prevented? Three methods commended themselves to the wisdom of our ancestors. These were the judicial combat, the ordeal, and the oath. The first two of these have long since been abandoned as ineffective, but the third is still retained as a characteristic feature of judicial procedure, though we may assume with some confidence that its rejection will come in due time, and will in no way injure the cause of truth and justice.
Trial by battle, so soon as it acquired a theory at all, became in reality a form of ordeal. In common with the ordeal commonly so called, it is the _judicium Dei_; it is an appeal to the God of battles to make manifest the right by giving the victory to him whose testimony is true. Successful might is the divinely appointed test of right. So in the ordeal, the party or witness whose testimony is impeached calls upon Heaven to bear witness to his truth by saving him harmless from the fire. The theory of the oath is generically the same. “An oath,” says Hobbes,[478] “is a form of speech added to a promise; by which he that promiseth, signifieth that unless he perform, he renounceth the mercy of his God, or calleth to him for vengeance on himself. Such was the heathen form, Let Jupiter kill me else, as I kill this beast. So is our form, I shall do thus and thus, so help me God.” The definition is correct save that it is restricted to promissory, instead of including also declaratory oaths. A man may swear not only that he will speak the truth, but that certain statements are the truth.
The idea of the oath, therefore, is that his testimony is true who is prepared to imprecate divine vengeance on his own head in case of falsehood. Yet it needs but little experience of courts of justice to discover how ineffective is any such check on false witness and how little likely is the retention of it to increase respect either for religion or for the administration of justice. The true preventive of false testimony is an efficient law for its punishment as a crime. Punishment falling swiftly and certainly upon offending witnesses would purge the courts of an evil which the cumbrous inefficiency of the present law of perjury has done much to encourage, and which all the oaths in the world will do nothing to abate.[479]
§ 176. =Criticism of the Law of Evidence.=
We have in a former chapter considered the advantages and disadvantages of that substitution of predetermined principles for judicial discretion which constitutes the essential feature of the administration of justice according to law. In no portion of our legal system is this question of more immediate importance than in the law of evidence. Here, if anywhere, the demerits of law are at a maximum, and those of the opposing system at a minimum. General rules for the predetermination of probative force are of necessity more or less false. It is impossible to say with truth and _a priori_ what evidence is or is not sufficient for proof. It is not true that hearsay is absolutely destitute of evidential value; it is not true that a contract for the sale of land cannot be satisfactorily proved by oral testimony; it is not true that the contents of a document cannot be well proved by a copy of it. To elevate these maxims and such as these from their proper position as counsels for warning and guidance, to the level of rigid and peremptory rules, is to be inevitably led astray by them. Like all general principles they are obtained by way of abstraction and elimination of elements which may be, in particular instances, of the first importance. To apply such abstract principles to concrete cases without making the needful allowance for the special circumstances of these cases is as wise as to apply the laws of motion without allowing for the disturbing influence of friction.
No unprejudiced observer can be blind to the excessive credit and importance attached in judicial procedure to the _minutiae_ of the law of evidence. This is one of the last refuges of legal formalism. Nowhere is the contrast more striking between the law’s confidence in itself and its distrust of the judicial intelligence. The fault is to be remedied not by the abolition of all rules for the measurement of evidential value, but by their reduction from the position of rigid and peremptory to that of flexible and conditional rules.[480] Most of them have their source in good sense and practical experience, and they are profitable for the guidance of individual discretion, though mischievous as substitutes for it. The cases are few in which we can rightly place such rules upon the higher level. In general, courts of justice should be allowed full liberty to reject as irrelevant, superfluous, or vexatious, whatever evidence they will, and to accept at such valuation as they please whatever evidence seems good to them. We must learn to think less highly of the wisdom of the law, and less meanly of the understanding and honour of its administrators, and we may anticipate with confidence that in this department at least of judicial practice the change will be in the interests of truth and justice.
SUMMARY.
Law { Substantive—relating to the subject-matter of litigation. { Procedural—relating to the process of litigation. The occasional equivalence of substantive and procedural rules. Procedure. Its elements: Summons, Pleading, Proof, Judgment, and Execution. The Law of Evidence. Evidence and proof defined. Judicial and Extrajudicial. Kinds of Evidence Personal and Real. Primary and Secondary. Direct and Circumstantial. Divisions of the Law of Evidence. I. Rules determining probative force. 1. Conclusive proof. 2. Conditional proof. 3. Insufficient evidence. 4. Exclusive evidence. 5. No evidence. II. Rules determining the production of evidence. Nemo tenetur se ipsum accusare. Oaths. Criticism of the law of evidence.
APPENDICES
I. THE NAMES OF THE LAW.
II. THE THEORY OF SOVEREIGNTY.
III. THE MAXIMS OF THE LAW.
IV. THE DIVISIONS OF THE LAW.
V. THE LITERATURE OF JURISPRUDENCE.
APPENDIX I. THE NAMES OF THE LAW.
The purpose of the following pages is to consider, in respect of their origin and relations, the various names and titles which have been borne by the law in different languages. This seems an inquiry fit to be undertaken in the hope that judicial terms may be found to throw some light upon the juridical ideas of which they are the manifestation. A comparison of diverse usages of speech may serve to correct misleading associations, or to suggest relations that may be easily overlooked by any one confining his attention to a single language.
The first fact which an examination of juridical nomenclature reveals, is that all names for law are divisible into two classes, and that almost every language possesses one or more specimens of each. To the first class belong such terms as _jus_, _droit_, _recht_, _diritto_, _equity_. To the second belong _lex_, _loi_, _gesetz_, _legge_, _law_, and many others. It is a striking peculiarity of the English language that it does not possess any _generic_ term falling within the first of these groups; for equity, in the technical juridical sense, means only a special department of civil law, not the whole of it, and therefore is not co-extensive with _jus_, _droit_, and the other foreign terms with which it is classed. Since, therefore, we have in English no pair of contrasted terms adequate for the expression of the distinction between these two groups of names, we are constrained to have recourse to a foreign language, and we shall employ for this purpose the terms _jus_ and _lex_, using each as typical of and representing all other terms which belong to the same group as itself.
What, then, are the points of difference between _jus_ and _lex_; what is the importance and the significance of the distinction between the two classes of terms? In the first place _jus_ has an ethical as well as a juridical application, while _lex_ is purely juridical. _Jus_ means not only law but also right. _Lex_ means law and not also right. Thus our own _equity_ has clearly the double meaning; it means either the rules of natural justice, or that special department of the civil law which was developed and administered in the Court of Chancery. The English _law_, on the other hand, has a purely juridical application; justice in itself, and as such, has no claim to the name of _law_. So also with _droit_ as opposed to _loi_, with _recht_ as opposed to _gesetz_, with _diritto_ as opposed to _legge_.
If we inquire after the cause of this duplication of terms we find it in the double aspect of the complete juridical conception of law. Law arises from the union of justice and force, of right and might. It is justice recognised and established by authority. It is right realised through power. Since, therefore, it has two sides and aspects, it may be looked at from two different points of view, and we may expect to find, as we find in fact, that it acquires two different names. _Jus_ is law looked at from the point of view of right and justice; _lex_ is law looked at from the point of view of authority and force. _Jus_ is the rule of right which becomes law by its authoritative establishment; _lex_ is the authority by virtue of which the rule of right becomes law. Law is _jus_ in respect of its _contents_, namely the rule of right; it is _lex_ in respect of its _source_, namely, its recognition and enforcement by the state. We see, then, how it is that so many words for law mean justice also; since justice is the content or subject-matter of law, and from this subject-matter law derives its title. We understand also how it is that so many words for law do not also mean justice; law has another side and aspect from which it appears, not as justice realised and established, but as the instrument through which its realisation and establishment are effected.
_A priori_ we may presume that in the case of those terms which possess a double application, both ethical and legal, the ethical is historically prior, and the legal later and derivative. We may assume that justice comes to mean law, not that law comes to mean justice. This is the logical order, and is presumably the historical order also. As a matter of fact this presumption is, as we shall see, correct in the case of all modern terms possessing the double signification. In the case of _recht_, _droit_, _diritto_, _equity_, the ethical sense is undoubtedly primary, and the legal secondary. In respect of the corresponding Greek and Latin terms (_jus_, δίκαιον) the data would seem insufficient for any confident conclusion. The reverse order of development is perfectly possible; there is no reason why lawful should not come to mean in a secondary sense rightful, though a transition in the opposite direction is more common and more natural. The significant fact is the union of the two meanings in the same word, not the order of development.
A second distinction between _jus_ and _lex_ is that the former is usually _abstract_, the second _concrete_.[481] The English term law indeed combines both these uses in itself. In its abstract application we speak of the law of England, criminal law, courts of law. In its concrete sense, we say that Parliament has enacted or repealed a law. In foreign languages, on the other hand, this union of the two significations is unusual. _Jus_, _droit_, _recht_ mean law in the abstract, not in the concrete. _Lex_, _loi_, _gesetz_ signify, at least primarily and normally, a legal enactment, or a rule established by way of enactment, not law in the abstract. This, however, is not invariably the case. _Lex_, _loi_, and some other terms belonging to the same group have undoubtedly acquired a secondary and abstract signification in addition to their primary and concrete one. In medieval usage the law of the land is _lex terrae_, and the law of England is _lex et consuetudo Angliae_. So in modern French _loi_ is often merely an equivalent for _droit_. We cannot therefore regard the second distinction between _jus_ and _lex_ as essential. It is closely connected with the first, but, though natural and normal, it is not invariable. The characteristic difference between English and foreign usage is not that our _law_ combines the abstract and concrete significations (for so also do certain Continental terms), but that the English language contains no generic term which combines ethical and legal meanings as do _jus_, _droit_, and _recht_.
RECHT, DROIT, DIRITTO.—These three terms are all closely connected with each other and with the English _right_. The French and Italian words are derivatives of the Latin _directus_ and _rectus_, these being cognate with _recht_ and _right_. We may with some confidence assume the following order of development among the various ideas represented by this group of expressions:—
1. The original meaning was in all probability _physical straightness_. This use is still retained in our _right_ angle and _direct_. The root is RAG, to stretch or straighten. The group of connected terms ruler, _rex_, _rajah_, regulate, and others, would seem to be independently derived from the same root, but not to be in the same line of development as right and its synonyms. The ruler or regulator is he who keeps things straight or keeps order, not he who establishes the right. Nor is the right that which is established by a ruler.
2. In a second and derivative sense the terms are used metaphorically to indicate moral approval—ethical rightness, not physical. Moral disapproval is similarly expressed by the metaphorical expressions wrong and tort, that is to say, crooked or twisted. These are metaphors that still commend themselves; for the honest man is still the straight and upright man, and the ways of wickedness are still crooked. In this sense, therefore, _recht_, _droit_, and _diritto_ signify justice and right.
3. The first application being physical and the second ethical, the third is juridical. The transition from the second to the third is easy. Law is justice as recognised and protected by the state. The rules of law are the rules of right, as authoritatively established and enforced by tribunals appointed to that end. What more natural, therefore, than for the ethical terms to acquire derivatively a juridical application? At this point, however, our modern English _right_ has parted company with its Continental relatives. It has remained physical and ethical, being excluded from the juridical sphere by the superior convenience of the English _law_.
4. The fourth and last use of the terms we are considering may be regarded as derivative of both the second and third. It is that in which we speak of _rights_, namely, claims, powers, or other advantages conferred or recognised by the rule of right or the rule of law. That a debtor should pay his debt to his creditor is not merely right, it is _the_ right of the creditor. Right is _his_ right for whose benefit it exists. So, also, wrong is _the_ wrong of him who is injured by it. The Germans distinguish this use of the term by the expression _subjectives Recht_ (right as vested in a subject) as opposed to _objectives Recht_, namely, the rule of justice or of law as it exists objectively. The English _right_ has been extended to cover legal as well as ethical _claims_, though it has, as we have seen, been confined to ethical _rules_.
A.S. RIHT.—It is worthy of notice that the Anglo-Saxon _riht_, the progenitor of our modern _right_, possessed like its Continental relatives the legal in addition to the ethical meaning. The common law is _folc-riht_.[482] The divine law is _godes riht_.[483] A plaintiff claims property as “his by _folc-riht_,”[484] even as a Roman would have claimed it as being _dominus ex jure Quiritium_. The usage, however, did not prosper. It had to face the formidable and ultimately successful rivalry of the English (originally Danish) _law_, and even Norman-French, on its introduction into England, fell under the same influence. For a time, indeed, in the earlier books we find both _droit_ and _ley_ as competing synonyms,[485] but the issue was never doubtful. The archaism of “common right” as a synonym for “common law” is the sole relic left in England of a usage universal in Continental languages.
EQUITY.—The English term equity has pursued the same course of development as the German _recht_ and the French _droit_.
1. Its primitive meaning, if we trace the word back to its Latin source, _aequum_, is physical equality or evenness, just as physical straightness is the earliest meaning of right and its analogues.
2. Its secondary sense is ethical. Just as rightness is straightness, so equity is equality. In each case there is an easy and obvious metaphorical transition from the physical to the moral idea. Equity therefore is justice.
3. In a third and later stage of its development the word takes on a juridical significance. It comes to mean a particular portion of the civil law—that part, namely, which was developed by and administered in the Court of Chancery. Like _recht_ and _droit_ it passed from the sense of justice in itself to that of the rules in accordance with which justice is administered.
4. Fourthly and lastly we have to notice a legal and technical use of the term equity, as meaning any claim or advantage recognised or conferred by a rule of equity, just as a right signifies any claim or advantage derived from a rule of right. An equity is an equitable, as opposed to a legal right. “When the equities are equal,” so runs the maxim of Chancery, “the law prevails.” So a debt is assignable “subject to equities.”
JUS.—We have to distinguish in the case of _jus_ the same three uses that have already been noticed in the case of _recht_, _droit_, and equity.
1. Right or Justice. “_Id quod semper aequum ac bonum est jus dicitur_,” says Paulus.[486] From _jus_ in this sense are derived _justitia_ and _justum_.
2. Law. This is the most usual application of the term, the juridical sense having a much greater predominance over the ethical in the case of _jus_, than in that of its modern representatives _recht_ and _droit_. _Jus_, in its ethical signification, is distinguished as _jus naturale_, and in its legal sense as _jus civile_. It is often contrasted with _fas_, the one being human and the other divine law. _Jus_, however, is also used in a wider sense to include both of these—_jus divinum et humanum_.
3. A right, moral or legal: _jus suum cuique tribuere_.[487]
The origin and primary signification of _jus_ are uncertain. It is generally agreed, however, that the old derivation from _jussum_ and _jubere_ is not merely incorrect, but an actual reversal of the true order of terms and ideas. _Jussum_ is a derivative of _jus_. _Jubere_ is, in its proper and original sense, to declare, hold, or establish anything as _jus_. It was the recognised expression for the legislative action of the Roman people. _Legem jubere_ is to give to a statute (_lex_) the force of law (_jus_). Only in a secondary and derivative sense is _jubere_ equivalent to _imperare_.
The most probable opinion is that _jus_ is derived from the Aryan root YU, to join together (a root which appears also in _jugem_, _jungo_, and in the English _yoke_). It has been suggested accordingly that _jus_ in its original sense means that which is fitting, applicable, or suitable. If this is so, there is a striking correspondence between the history of the Latin term and that of the modern words already considered by us, the primary sense in all cases being physical, the ethical sense being a metaphorical derivative of this, and the legal application coming last. The transition from the physical to the ethical sense in the case of the English _fit_ and _fitting_ is instructive in this connexion. Another suggestion, however, is that _jus_ means primarily that which is _binding_—the bond of moral and subsequently of legal obligation. But no definite conclusion on this matter is possible.[488]
Δίκη. τό δίκαιον.—The Greek term which most nearly corresponds to the Latin _jus_ is δίκη. These words cannot, however, be regarded as synonymous. The juridical use of _jus_ is much more direct and predominant than the corresponding use of δίκη. Indeed, we may say of the Greek term that it possesses juridical implications, rather than applications. Its chief uses are the following, the connexion between them being obvious: (1) custom, usage, way; (2) right, justice; (3) law, or at least legal right; (4) judgment; (5) a lawsuit; (6) a penalty; (7) a court of law. The primary sense is said to be that first mentioned, viz. custom. The transition is easy from the idea of the customary to that of the right, and from the idea of the right to that of the lawful. In the case of the Latin _mos_ we may trace an imperfect and tentative development in the same direction.[489] Professor Clark, on the other hand, prefers to regard judgment as the earliest meaning of δίκη, the other ethical and legal applications being derivatives from this, and δίκη in the sense of custom being an independent formation from the original root.[490] Such an order of development seems difficult and unnatural. Analogy and the connexion of ideas seem to render more probable the order previously suggested, viz. custom, right, law, and finally the remaining legal uses.[491]
Θέμις Θέμιστες.—As δίκη corresponds to _jus_, so θέμις apparently corresponds to _fas_. While _fas_, however, preserved its original signification as that which is right by divine ordinance, and never acquired any secondary legal applications or implications, the Greek term proved more flexible, and consequently has to be reckoned with in the present connection. The matter is one of very considerable difficulty, and no certain conclusions seem possible, but the following order of development would seem to commend itself as the most probable:—
1. Θέμις, divine ordinance, the will of the gods. The term is derived from the Aryan root DHA, to set, place, appoint, or establish, which appears also in θεσμός, a statute or ordinance.[492] This latter term, however, included _human_ enactments, while θέμις was never so used. The Greek term is cognate with _thesis_ and _theme_, and with our English _doom_, a word whose early legal uses we shall consider later.
2. Θέμις, right. The transition is easy from that which is decreed and willed by the gods, to that which it is right for mortal men to do.
3. Θέμιστες, the rules of right, whether moral or legal, so far as any such distinction was recognised in that early stage of thought to which these linguistic usages belong.
4. Θέμιστες, judgments, judicial declarations of the rules of right and law.[493]
LEX.—So far we have dealt solely with those words which belong to the class of _jus_, namely, those which possess a double signification, ethical and legal. We proceed now to the consideration of the second class, represented by _lex_. And first of _lex_ itself. The following are its various uses given in what is probably the historical order of their establishment.
1. Proposals, terms, conditions, offers made by one party and accepted by another.[494] Thus, _ea lege ut_,[495] on condition that; _dicta tibi est lex_,[495] you know the conditions; _his legibus_,[495] on these conditions. So _legis pacis_[495] are the terms and conditions of peace: _pax data Philippo in has leges est_.[495] Similarly in law, _leges locationis_ are the terms and conditions agreed upon between lender and borrower. So we have the legal expressions _lex mancipii_, _lex commissoria_, and others.
2. A statute enacted by the _populus Romanus_ in the _comitia centuriata_ on the proposal of a magistrate. This would seem to be a specialised application of _lex_ in the first-mentioned sense. Such a statute is conceived rather as an agreement than as a command. It is a proposal made by the consuls and accepted by the Roman people. It is therefore _lex_, even as a proposal of peace made and accepted between the victor and the vanquished is _lex_. “_Lex_,” says Justinian, “_est quod populus Romanus senatorio magistratu interrogante, veluti consule, constituebat_.”[496]
3. Any statute howsoever made—whether by way of authoritative imposition, or by way of agreement with a self-governing people.
4. Any rule of action imposed or observed, e.g. _lex loquendi_, _lex sermonis_. This is simply an analogical extension similar to that which is familiar in respect of the corresponding terms in modern languages, _law_, _loi_, _gesetz_.
5. Law in the abstract sense. _Lex_, so used, cannot be regarded as classical Latin, although in certain instances, as in Cicero’s references to _lex naturae_, we find what seems a very close approximation to it. In medieval Latin, however, the abstract signification is quite common, as in the phrases _lex Romana_, _lex terrae_, _lex communis_, _lex et consuetudo_.[497] _Lex_ has become equivalent to jus in its legal applications. This use is still retained in certain technical expressions of private international law, such as _lex fori_, _lex domicilii_, and others.
It is possible that we have here an explanation of the very curious fact that so celebrated and important a word as _jus_ failed to maintain itself in the Romance languages. Of the two terms _jus_ and _lex_, bequeathed to later times by the Latin language, one was accepted (_loi_ = _lex_) and the other rejected and supplanted by a modern substitute (_droit_, _diritto_). Why was this? May it not have been owing to that post-classical use of _lex_ in the abstract sense, whereby it became synonymous and co-extensive with _jus_? If _lex Romana_ was _jus civile_, why should the growing languages of modern Europe cumber themselves with both terms? The survivor of the two rivals was _lex_. At a later stage the natural evolution of thought and speech conferred juridical uses on the ethical terms _droit_ and _diritto_ and the ancient duality of legal nomenclature was restored.
6. Judgment. This, like the last and like the three following uses, is a medieval addition to the meanings of _lex_. We have already seen the transition from law to judgment in the case of _jus_, δίκη, and θέμις. _Legem facere_ is to obey or fulfil the requirements of a judgment. _Legem vadiare_, the English wager of law, is to give security for such obedience and fulfilment.[498]
7. The penalty, proof, or other matter imposed or required by a judgment: _lex ignea_, the ordeal of fire; _lex duelli_, trial by battle.[499]
8. Legal rights, regarded collectively as constituting a man’s legal standing or status. _Legem amittere_ (in English, to lose one’s law) was in early English law an event analogous to the _capitis deminutio_ and _infamia_ of the Romans. It was a loss of legal status, a partial deprivation of legal rights and capacities.[500]
Νόμος.—As δίκη corresponds to _jus_ and θέμις to _fas_, so νόμος is the Greek equivalent of _lex_. We have to distinguish two uses of the term, one earlier and general, the other later and specialised.
1. Νόμος is used in a very wide sense to include any human institution, anything established or received among men, whether by way of custom, opinion, convention, law or otherwise. It was contrasted, at least in the language of the philosophers, with φύσις, or nature. That which is natural is το φυσικόν; that which is artificial, owing its origin to the art and invention of mankind, is τὸ νομικόν. It is often said that the earliest meaning of νόμος is custom. The original conception, however, seems to include not merely that which is established by long usage, but that which is established, received, ordained, or appointed in whatever fashion. Νόμος is _institutum_, rather than _consuetudo_.
Νόμος in a later, secondary, and specialised application, means a statute, ordinance, or law. So prominent among human institutions are the laws by which men are governed, so greatly with increasing political development do the spheres and influence of legislation extend themselves, that the νόμοι became in a special and pre-eminent sense the laws of the state. Νόμος was a word unknown to Homer, but it became in later times the leading juridical term of the Greek language. The Greeks spoke and wrote of the laws (νόμοι), while the Romans, perhaps with a truer legal insight, concerned themselves with the law (_jus_). When, like Cicero, they write _de legibus_, it is in imitation of Greek usage.
LAW.—Law is by no means the earliest legal term acquired by the English language. Curiously enough, indeed, it would seem not even to be indigenous, but to be one of those additions to Anglo-Saxon speech which are due to the Danish invasions and settlements. Of the earlier terms the commonest, and the most significant for our present purpose, is _dom_, the ancestor of our modern _doom_.[501] A _dom_ or _doom_ is either (1) a law, ordinance, or statute, or (2) a judgment. It does not seem possible to attribute with any confidence historical priority to either of these senses. In modern English the idea of judgment has completely prevailed over and excluded that of ordinance, but we find no such predominance of either meaning in Anglo-Saxon usage. The word has its source in the Aryan root DHA, to place, set, establish, appoint, and it is therefore equally applicable to the decree of the judge and to that of the lawgiver. In the laws of King Alfred we find the term in both its senses. “These are the dooms which Almighty God himself spake unto Moses and commanded him to keep.”[502] “Judge then not one doom to the rich and another to the poor.”[503] In the following passage of the laws of Edgar the laws of the Danes are plainly equivalent to the dooms of the English: “I will that secular right stand among the Danes with as good laws as they best may choose. But with the English let that stand which I and my Witan have added to the dooms of my forefathers.”[504]
Doom is plainly cognate to θέμις. The religious implication, however, which, in the Greek term, is general and essential, is, in the English term, special and accidental. In modern English doom is, like θέμις, the will, decree and judgment of Heaven—fate or destiny; but the Anglo-Saxon _dom_ included the ordinances and judgments of mortal men, no less than those of the gods. Θέμις, therefore, acquired the sense of human law only derivatively through the sense of right, and so belongs to the class of _jus_, not of _lex_; while doom, like θεσμός, acquired juridical applications directly, and so stands besides lex and νόμος.
_Dom_, together with all the other Anglo-Saxon legal terms, including, strangely enough, _right_ itself, was rapidly superseded by _lagu_, which is the modern _law_. The new term makes its appearance in the tenth century, and the passage cited above from the laws of King Edgar is one of the earliest instances of its use. _Lagu_ and law are derived from the root LAGH, to lay, settle, or place. Law is that which is laid down. There is a considerable conflict of opinion as to whether it is identical in origin with the Latin _lex_ (_leg-_). Schmidt and others decide in the affirmative,[505] and the probabilities of the case seem to favour this opinion. The resemblance between law and _lex_ seems too close to be accidental. If this is so, the origin of _lex_ is to be found in the Latin _lego_, not in its later sense of reading, but in its original sense of laying down or setting (as in the derivative _lectus_), which is also the primary signification of the Greek λέγῳ, the German _legen_, and the English _lay_.[506] If this is so, then law and _lex_ are alike that which is laid down, just as _Gesetz_ is that which is set (_setzen_). This interpretation is quite consistent with the original possession by _lex_ of a wider meaning than statute, as already explained. We still speak of laying down terms, conditions, and propositions, no less than of laying down commands, rules, and laws. _Lex_, however, is otherwise and variously derived from or connected with, _ligare_, to bind,[507] _legere_, to read,[508] and λέγειν, to say or speak.[509]
It is true indeed that by several good authorities it is held that the original meaning of _lagu_ and law is that which lies, not that which has been laid or settled—that which is customary, not that which is established by authority.[510] The root LAGH, however, must contain both the transitive and intransitive senses, and I do not know what evidence there is for the exclusion of the former from the signification of the derivative _law_. Moreover, there seems no ground for attributing to _lagu_ the meaning of custom. It seems from the first to have meant the product of authority, not that of use and wont. It is _statutum_, not _consuetudo_. As soon as we meet with it, it is equivalent to _dom_. The analogy also of _lex_, _gesetz_, _dom_, θεσμός, and other similar terms is in favour of the interpretation here preferred.[511]
APPENDIX II. THE THEORY OF SOVEREIGNTY.
In discussing the theory of the state, we noticed the distinction between sovereign and subordinate power.[512] The former is that which, within its own sphere, is absolute and uncontrolled, while the latter is that which is subject to the control of some power superior and external to itself. We have now to consider in relation to this distinction a celebrated doctrine which we may term Hobbes’s theory of sovereignty. It was not, indeed, originated by the English philosopher, but is due rather to the celebrated French publicist Bodin, from whom it first received definite recognition as a central element of political doctrine. In the writings of Hobbes, however, it assumes greater prominence and receives more vigorous and clear-cut expression, and it is to his advocacy and to that of his modern followers that its reception in England must be chiefly attributed.
The theory in question may be reduced to three fundamental propositions:—
1. That sovereign power is essential in every state;
2. That sovereign power is indivisible;
3. That sovereign power is unlimited and illimitable.
The first of these propositions must be accepted as correct, but the second and third would seem to have no solid foundation. The matter, however, is one of very considerable obscurity and complexity, and demands careful consideration.
1. _Sovereignty essential._ It seems clear that every political society involves the presence of supreme power. For otherwise all power would be subordinate, and this supposition involves the absurdity of a series of superiors and inferiors _ad infinitum_. Yet although this is so, there is nothing to prevent the sovereignty which is thus essential from being wholly or partly _external_ to the state. It is, indeed, only in the case of those states which are both independent and fully sovereign that the sovereignty is wholly internal, no part of it being held or exercised _ab extra_ by any other authority. When a state is dependent, that is to say, merely a separately organised portion of a larger body politic, the sovereign power is vested wholly or in part in the larger unity, and not in the dependency itself. Similarly when a state, though independent, is only semi-sovereign, its autonomy is impaired through the possession and exercise of a partial sovereignty by the superior state. In all cases, therefore, sovereign power is necessarily present somewhere, but it is not in all cases to be found in its entirety within the borders of the state itself.
2. _Indivisible sovereignty._—Every state, it is said, necessarily involves not merely sovereignty, but a _sovereign_, that is to say, one person or one body of persons in whom the totality of sovereign power is vested. Such power, it is said, cannot be shared between two or more persons. It is not denied that the single supreme body may be composite, as the English Parliament is. But it is alleged that whenever there are in this way two or more bodies of persons in whom sovereign power is vested, they necessarily possess it as joint tenants of the whole, and cannot possess it as tenants in severalty of different parts. The whole sovereignty may be in A., or the whole of it in B., or the whole of it in A. and B. jointly, but it is impossible that part of it should be in A. and the residue in B.
We may test this doctrine by applying it to the British constitution. We shall find that this constitution in no way conforms to the principles of Hobbes on this point, but is on the contrary a clear instance of divided sovereignty. The _legislative_ sovereignty resides in the Crown and the two Houses of Parliament, but the _executive_ sovereignty resides in the Crown by itself, the Houses of Parliament having no share in it. It will be understood that we are here dealing exclusively with the law or legal theory of the constitution. The practice is doubtless different; for in practice the House of Commons has obtained complete control over the executive government. In practice the ministers are the servants of the legislature and responsible to it. In law they are the servants of the Crown, through whom the Crown exercises that sovereign executive power which is vested in it by law, independently of the legislature altogether.
In law, then, the executive power of the Crown is sovereign, being absolute and uncontrolled within its own sphere. This sphere is not indeed unlimited. There are many things which the Crown cannot do; it cannot pass laws or impose taxes. But what it can do it does with sovereign power. By no other authority in the state can its powers be limited, or the exercise of them controlled, or the operation of them annulled. It may be objected by the advocates of the theory in question that the executive is under the control of the legislature, and that the sum total of sovereign power is therefore vested in the latter, and is not divided between it and the executive. The reply is that the Crown is not merely itself a part of the legislature, but a part without whose consent the legislature cannot exercise any fragment of its own power. No law passed by the two Houses of Parliament is operative unless the Crown consents to it. How, then, can the legislature control the executive? Can a man be subject to himself? A power over a person, which cannot be exercised without that person’s consent, is no power over him at all. A person is subordinate to a body of which he is himself a member, only if that body has power to act notwithstanding his dissent. A dissenting minority, for example, may be subordinate to the whole assembly. But this is not the position of the Crown.
The English constitution, therefore, recognises a sovereign executive, no less than a sovereign legislature. Each is supreme within its own sphere; and the two authorities are kept from conflict by the fact that the executive is one member of the composite legislature. The supreme legislative power is possessed jointly by the Crown and the two Houses of Parliament, but the supreme executive power is held in severalty by the Crown. When there is no Parliament, that is to say, in the interval between the dissolution of one Parliament and the election of another, the supreme legislative power is non-existent, but the supreme executive power is retained unimpaired by the Crown.[513]
This is not all, however, for, until the passing of the Parliament Act, 1911, the British constitution recognised a supreme judicature, as well as a supreme legislature and executive. The House of Lords in its judicial capacity as a court of final appeal was sovereign. Its judgments were subject to no further appeal, and its acts were subject to no control. What it declared for law no other authority known to the constitution could dispute. Without its own consent its judicial powers could not be impaired or controlled, nor could their operation be annulled. The consent of this sovereign judicature was no less essential to legislation, than was the consent of the sovereign executive. The House of Lords, therefore, held in severalty the supreme judicial power, while it shared the supreme legislative power with the Crown and the House of Commons.[514]
3. _Illimitable sovereignty._ Sovereign power is declared by the theory in question to be not merely essential and indivisible, but also illimitable. Not only is it uncontrolled within its own province, but that province is infinite in extent. “It appeareth plainly to my understanding,” says Hobbes,[515] “both from reason and Scripture, that the sovereign power, whether placed in one man, as in monarchy, or in one assembly of men, as in popular and aristocratical commonwealths, is as great as possibly men can be imagined to make it.... And whosoever, thinking sovereign power too great, will seek to make it less, must subject himself to the power that can limit it; that is to say, to a greater.” So Austin:[516] “It follows from the essential difference of a positive law and from the nature of sovereignty and independent political society, that the power of a monarch properly so called, or the power of a sovereign number in its collegiate and sovereign capacity, is incapable of legal limitation.... Supreme power limited by positive law is a flat contradiction in terms.”
This argument confounds the limitation of power with the subordination of it. That sovereignty cannot within its own sphere be subject to any control is self-evident, for it follows from the very definition of this species of power. But that this sphere is necessarily universal is a totally different proposition, and one which cannot be supported. It does not follow that if a man is free from the constraint of any one stronger than himself, his physical power is therefore infinite.
In considering this matter we must distinguish between power in fact and power in law. For here as elsewhere that which is true in law may not be true in fact, and _vice versa_. A _de facto_ limitation of sovereign power may not be also a _de jure_ limitation of it, and conversely the legal theory of the constitution may recognise limitations which are non-existent in fact.[517]
That sovereign power may be, and indeed necessarily is, limited _de facto_ is sufficiently clear. Great as is the power of the government of a modern and civilised state, there are many things which it not merely ought not to do, but cannot do. They are in the strictest sense of the term beyond its _de facto_ competence. For the power of a sovereign depends on and is measured by two things: first the physical force which he has at his command, and which is the essential instrument of his government; and second, the disposition of the members of the body politic to submit to the exercise of this force against themselves. Neither of these two things is unlimited in extent, therefore the _de facto_ sovereignty which is based upon them is not unlimited either. This is clearly recognised by Bentham.[518] “In this mode of limitation,” he says, “I see not what there is that need surprise us. By what is it that any degree of power (meaning political power) is established? It is neither more nor less ... than a habit of and a disposition to obedience.... This disposition it is as easy, or I am much mistaken, to conceive as being absent with regard to one sort of acts, as present with regard to another. For a body, then, which is in other respects supreme, to be conceived as being with respect to a certain sort of acts limited, all that is necessary is that this sort of acts be in its description distinguishable from every other.... These bounds the supreme body in question has marked out to its authority: of such a demarcation, then, what is the effect? Either none at all, or this: that the disposition to obedience confines itself within these bounds. Beyond them the disposition is stopped from extending; beyond them the subject is no more prepared to obey the governing body of his own state than that of any other. What difficulty, I say, there should be in conceiving a state of things to subsist, in which the supreme authority is thus limited—what greater difficulty in conceiving it with this limitation, than without any, I cannot see. The two states are, I must confess, to me alike conceivable: whether alike expedient, alike conducive to the happiness of the people, is another question.”
The follower of Hobbes may admit the _de facto_, but deny the _de jure_ limitation of sovereign power. He may contend that even if there are many things which the sovereign has no power to do in fact, there is and can be nothing whatever which he has no power to do in law. The law, he may say, can recognise no limitations in that sovereign power from which the law itself proceeds.
In reply to this it is to be observed that the law is merely the theory of things as received and operative within courts of justice. It is the reflection and image of the outer world seen and accepted as authentic by the tribunals of the state. This being so, whatever is possible in fact is possible in law, and more also. Whatsoever limitations of sovereign power may exist in fact may be reflected in and recognised by the law. To allow that _de facto_ limitations are possible is to allow the possibility of corresponding limitations _de jure_. If the courts of justice habitually act upon the principle that certain functions or forms of activity do not, according to the constitution, pertain to any organ in the body politic, and therefore lie outside the scope of sovereign power as recognised by the constitution, then that principle is by virtue of its judicial application a true principle of law, and sovereign power is limited in law no less than in fact.
The contrary view is based on that unduly narrow view of the nature of law which identifies it with the command of the sovereign issued to his subjects. In this view, law and legal obligation are co-extensive, and the legal limitation of supreme power appears to involve the subjection of the possessor of it to legal obligations in respect to the exercise of it. This, of course, conflicts with the very definition of sovereign power, and is clearly impossible.[519] That sovereign power may be legally controlled within its own province is a self-contradictory proposition; that its province may have legally appointed bounds is a distinct and valid principle.
There is one application of the doctrine of illimitable sovereignty which is of sufficient importance and interest to deserve special notice. Among the chief functions of sovereign power is legislation. It follows from the theory in question, that in every political society there necessarily exists some single authority possessed of unlimited legislative power. This power is, indeed, alleged to be the infallible test of sovereignty. In seeking for that sovereign who, according to the doctrine of Hobbes, is to be found somewhere in every body politic, all that is necessary is to discover the person who possesses the power of making and repealing all laws without exception. He and he alone is the sovereign of the state, for he necessarily has power over all, and in all, and is subject to none.
As to this it is to be observed, that the extent of legislative power depends on and is measured by the recognition accorded to it by the tribunals of the state. Any enactment which the law courts decline to recognise and apply is by that very fact _not law_, and lies beyond the legal competence of the body whose enactment it is. And this is so, whether the enactment proceeds from a borough council or from the supreme legislature. As the law of England actually stands, there are no legal limitations on the legislative power of the Imperial Parliament. No statute passed by it can be rejected as _ultra vires_ by any court of law. This legal rule of legislative omnipotence may be wise or it may not; but it is difficult to see by what process of reasoning the jurist can demonstrate that it is theoretically necessary.
At no very remote period it was considered to be the law of England, that a statute made by Parliament was void if contrary to reason and the law of God.[520] The rule has now been abandoned by the courts, but it seems sufficiently obvious that its recognition involves no theoretical absurdity or impossibility, however inexpedient it may be. Yet it clearly involves the limitation of the power of the legislature by a rule of law. To take another example, the most striking illustration of the legislative omnipotence of the English Parliament is its admitted power of extending the term for which an existing House of Commons has been elected. Delegates appointed by the people for a fixed time have the legal power of extending the period of their own delegated authority. It is difficult to see any theoretical objection to a rule of the opposite import. Why should not the courts of law recognise and apply the principle that an existing Parliament is sovereign only during the limited time for which it was originally appointed, and is destitute of any power of extending that time? And in such a case would not the authority of the supreme legislature be limited by a rule of law?
The exercise of legislative power is admittedly subject to legal _conditions_; why not, then, to legal _limitations_? If the law can regulate the _manner_ of the exercise of legislative power, why not also its _matter_? As the law stands, Parliament may repeal a statute in the same session and in the same manner in which it was passed. What, then, would be the effect of a statute providing that no statute should be repealed save by an absolute majority in both Houses? Would it not create good law, and so prevent either itself or any other statute from being repealed save in manner so provided? What if it is provided further, that no statute shall be repealed until after ten years from the date of its enactment? Is such a statutory provision void? And if valid, will it not be applied by the law courts, so that any attempt to repeal either it or any other statute less than ten years old will be disregarded, as beyond the competence of Parliament? And if a statute can be made unrepealable for ten years, how is it _legally impossible_ that it should be made unrepealable for ever? Such a rule may be very unwise, but by what argument are we to prove that it involves a logical absurdity?
In respect of its legislative omnipotence the English Parliament is almost unique in modern times. Most modern constitutions impose more or less stringent limitations upon the powers of the legislature In the United States of America neither Congress nor any State Legislature possesses unrestricted powers. They cannot alter the constitutions by which they have been established, and those constitutions expressly withdraw certain matters from their jurisdiction. Where, then, is the sovereignty vested? The reply made is that these constitutions contain provisions for their alteration by some other authority than the ordinary legislature, and that the missing legislative power is therefore to be found in that body to which the right of altering the constitution has been thus entrusted. In the United States the sovereignty, it is said, is vested not in Congress, but in a majority of three-fourths of the State Legislatures; this composite body has absolute power to alter the constitution, and is therefore unbound by any of the provisions of it, and is so possessed of unlimited legislative power.
Now, whenever the constitution has thus entrusted absolute powers of amendment to some authority other than the ordinary legislature, this is a perfectly valid reply. But what shall we say of a constitution which, while it prohibits alteration by the ordinary legislature, provides no other method of effecting constitutional amendments? There is no logical impossibility in such a constitution, yet it would be clearly unalterable in law. That it would be amended in defiance of the law cannot be doubted, for a constitution which will not bend will sooner or later break. But all questions as to civil and supreme power are questions as to what is possible within, not without, the limits of the constitution. If there is no constitution which meets with due observance, there is no body politic, and the theory of political government is deprived of any subject-matter to which it can apply. The necessary _datum_ of all problems relating to sovereignty is the existence and observance of a definite scheme of organised structure and operation, and it is with this _datum_ and presupposition that we must discuss the question of the extent of legislative power.
Even where a constitution is not wholly, it may be partly unchangeable in law. Certain portions of it may on their original establishment be declared permanent and fundamental, beyond the reach even of the authority to which in other respects the amendment of the constitution is entrusted. Article V. of the Constitution of the United States of America provides that no State shall be deprived of its equal suffrage in the Senate without its own consent. Having regard to this provision, what body is there in the United States which has vested in it unlimited legislative power? The same Article provides that certain portions of the Constitution shall be unalterable until the year 1808. What became of sovereign power in the meantime?[521]
APPENDIX III. THE MAXIMS OF THE LAW.
Legal maxims are the proverbs of the law. They have the same merits and defects as other proverbs, being brief and pithy statements of partial truths. They express general principles without the necessary qualifications and exceptions, and they are therefore much too absolute to be taken as trustworthy guides to the law. Yet they are not without their uses. False and misleading when literally read, these established formulae provide useful means for the expression of leading doctrines of the law in a form which is at the same time brief and intelligible. They constitute a species of legal shorthand, useful to the lawyer, but dangerous to any one else; for they can be read only in the light of expert knowledge of that law of which they are the elliptical expression.
The language of legal maxims is almost invariably Latin, for they are commonly derived from the civil law, either literally or by adaptation, and most of those which are not to be found in the Roman sources are the invention of medieval jurists. The following is a list of the more familiar and important of them, together with brief comments and references.
1. ACTUS NON FACIT REUM NISI MENS SIT REA.
Leges Henrici Primi, V. 28. (Thorpe’s Ancient Laws and Institutes of England, I. 511.) Coke’s Third Institute, f. 6.
The act alone does not make the doer of it guilty, unless it is done with a guilty mind. Material without formal wrongdoing is not a ground of liability. The presence either of wrongful intent or of culpable negligence is a necessary condition of responsibility. See §§ 127, 132, 145.
2. ADVERSUS EXTRANEOS VITIOSA POSSESSIO PRODESSE SOLET.
D. 41. 2. 53.
Prior possession is a good title of ownership against all who cannot show a better. In the civil law, however, from which this maxim is derived, it has a more special application, and relates to the conditions of possessory remedies. See § 161.
3. APICES JURIS NON SUNT JURA.
10 Co. Rep. 126. _Cf._ D. 17. 1. 29. 4: Non congruit de apicibus juris disputare.
Legal principles must not be carried to their most extreme consequences, regardless of equity and good sense. A principle valid within certain limits becomes false when applied beyond these limits. The law must avoid the falsehood of extremes. See § 10.
4. CESSANTE RATIONE LEGIS CESSAT LEX IPSA.
In the application of this maxim we must distinguish between common and statute law.
(1) _Common law._ A legal principle must be read in the light of the reason for which it was established. It must not be carried further than this reason warrants, and if the _ratio legis_ wholly fails, the law will fail also.
(2) _Statute law._ To statute law the maxim has only a limited application, for such law depends upon the authority of the _litera legis_. It is only when the letter of the law is imperfect, that recourse may be had to the reason of it as a guide to its due interpretation. The maxim in question, therefore, is valid only as a rule of restrictive interpretation. The complementary rule of extensive interpretation is, Ubi eadem ratio ibi idem jus. See Vangerow, I. sect. 25.
5. =Cogitationis poenam nemo patitur.=
D. 48. 19. 18.
The thoughts and intents of men are not punishable. The law takes notice only of the overt and external act. In exceptional cases, however, the opposite maxim is applicable: Voluntas reputatur pro facto—The law takes the will for the deed. See § 137.
6. COMMUNIS ERROR FACIT JUS.
Coke’s Fourth Inst. f. 240. _Cf._ D. 33. 10. 3. 5: Error jus facit.
A precedent, even though erroneous, will make valid law, if its authority has been so widely accepted and relied on that its reversal has become inexpedient in the interests of justice. See § 65.
7. CUIUS EST SOLUM EIUS EST USQUE AD COELUM.
Co. Litt. 4 a. 9 Co. Rep. 54. See § 155.
8. DE MINIMIS NON CURAT LEX.
Cro. Eliz. 353. _Cf._ the medieval maxim of the Civilians: Minima non curat praetor. Dernburg, Pandekten, I. § 140. n. 5.
The law takes no account of trifles. This is a maxim which relates to the ideal, rather than to the actual law. The tendency to attribute undue importance to mere matters of form—the failure to distinguish adequately between the material and the immaterial—is a characteristic defect of legal systems. See § 10.
9. EX NUDO PACTO NON ORITUR ACTIO.
_Cf._ D. 2. 14. 7. 4: Nuda pactio obligationem non parit. C. 4. 65. 27: Ex nudo pacto ... actionem jure nostro nasci non potuisse.
In English law this maxim expresses the necessity of a legal consideration for the validity of a contract. _Nudum pactum_ is _pactum sine causa promittendi_. In the civil law, however, the maxim means, on the contrary, that an agreement, to become binding, must fall within one of the recognised classes of legally valid contracts. There was no general principle that an agreement, as such, had the force of law. See § 124.
10. EX TURPI CAUSA NON ORITUR ACTIO.
_Cf._ D. 47. 2. 12. 1: Nemo de improbitate sua consequitur actionem.
An agreement contrary to law or morals can give rise to no right of action in any party to it, either for the enforcement of it, or for the recovery of property parted with in pursuance of it. _Cf._ the maxim: In pari delicto potior est conditio defendentis. See § 124.
11. IGNORANTIA FACTI EXCUSAT, IGNORANTIA JURIS NON EXCUSAT.
_Cf._ D. 22. 6. 9. pr. Regula est juris quidem ignorantiam cuique nocere, facti vero ignorantiam non nocere. See §§ 146. 147.
12. IMPOSSIBILIUM NULLA OBLIGATIO EST.
D. 50. 17. 185.
Otherwise: Lex non cogit ad impossibilia. Impossibility is an excuse for the non-performance of an obligation—a rule of limited application.
13. IN JURE NON REMOTA CAUSA SED PROXIMA SPECTATUR.
Bacon’s Maxims of the Law, 1.
A man is not liable for all the consequences of his acts, but only for those which are natural and probable—that is to say, those which he foresaw or ought to have foreseen.
14. IN PARI CAUSA POTIOR EST CONDITIO POSSIDENTIS.
_Cf._ D. 50. 17. 128. pr.: In pari causa possessor potior haberi debet. Also D. 20. 1. 10. D. 6. 2. 9. 4.
Possession and ownership—fact and right—enjoyment and title—are presumed by the law to be coincident. Every man may therefore keep what he has got, until and unless some one else can prove that he himself has a better title to it. See § 107.
15. IN PARI DELICTO POTIOR EST CONDITIO DEFENDENTIS.
_Cf._ D. 50. 17. 154: Cum par delictum est duorum, semper oneratur petitor.
Identical in effect with the maxim: Ex turpi causa non oritur actio.
16. INTER ARMA LEGES SILENT.
Cicero, Pro Milone, IV. 10.
This maxim has a double application: (1) As between the state and its external enemies, the laws are absolutely silent. No alien enemy has any claim to the protection of the laws or of the courts of justice. He is destitute of any legal standing before the law, and the government may do as it pleases with him and his. (2) Even as regards the rights of subjects and citizens, the law may be put to silence by _necessity_ in times of civil disturbance. Necessitas non habet legem. Extrajudicial force may lawfully supersede the ordinary process and course of law, whenever it is needed for the protection of the state and the public order against illegal violence. See § 36.
17. INVITO BENEFICIUM NON DATUR.
D. 50. 17. 69.
The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons, or disclaims a right will lose it. See § 122.
18. JURIS PRAECEPTA SUNT HAEC: HONESTE VIVERE, ALTERUM NON LAEDERE, SUUM CUIQUE TRIBUERE.
D. 1. 1. 10. 1. Just. Inst. 1. 1. 3.
“These are the precepts of the law: to live honestly, to hurt no one, and to give to every man his own.” Attempts have been sometimes made to exhibit these three _praecepta juris_ as based on a logical division of the sphere of legal obligation into three parts. This, however, is not the case. They are simply different modes of expressing the same thing, and each of them is wide enough to cover the whole field of legal duty. The third of them, indeed, is simply a variant of the received definition of justice itself: Justitia est constans et perpetua voluntas jus suum cuique tribuendi. D. 1. 1. 10 pr. Just. Inst. 1. 1. 1.
19. JUS PUBLICUM PRIVATORUM PACTIS MUTARI NON POTEST.
D. 2. 14. 38. _Cf._ D. 50. 17. 45. 1.
By _jus publicum_ is meant that portion of the law in which the public interests are concerned, and which, therefore, is of absolute authority and not liable to be superseded by conventional law made by the agreement of private persons. _Cf._ the maxim: Modus et conventio vincunt legem. See § 124.
20. MODUS ET CONVENTIO VINCUNT LEGEM.
2 Co. Rep. 73.
The common law may in great measure be excluded by conventional law. Agreement is a source of law between the parties to it. See §§ 11. 122.
21. NECESSITAS NON HABET LEGEM.
_Cf._ Bacon’s Maxims of the Law, 5: Necessitas inducit privilegium. A recognition of the _jus necessitatis_. See § 139.
22. NEMINEM OPORTET LEGIBUS ESSE SAPIENTIOREM.
Bacon, De Augmentis, Lib. 8. Aph. 58. _Cf._ Aristotle, Rhetoric, I. 15. 12.
It is not permitted to be wiser than the laws. In the words of Hobbes (Leviathan, ch. 29), “the law is the public conscience,” and every citizen owes to it an undivided allegiance, not to be limited by any private views of justice or expediency. See § 9.
23. NEMO PLUS JURIS AD ALIUM TRANSFERRE POTEST, QUAM IPSE HABERET.
D. 50. 17. 54.
The title of an assignee can be no better than that of his assignor. _Cf._ the maxim: Nemo dat qui non habet. See § 163.
24. NEMO TENETUR SE IPSUM ACCUSARE.
The law compels no man to be his own accuser or to give any testimony against himself—a principle now limited to the criminal law. See § 175.
25. NEMO DAT QUI NON HABET.
No man can give a better title than that which he himself has. See § 163.
26. NON OMNE QUOD LICET HONESTUM EST.
D. 50. 15. 144. pr.
All things that are lawful are not honourable. The law is constrained by the necessary imperfections of its methods to confer many rights and allow many liberties which a just and honourable man will not claim or exercise.
27. NULLUS VIDETUR DOLO FACERE, QUI SUO JURE UTITUR.
D. 50. 17. 55.
A malicious or improper motive cannot make wrongful in law an act which would be rightful apart from such motive. The rule, however, is subject to important limitations. See § 136.
28. QUI FACIT PER ALIUM, FACIT PER SE.
Co. Litt. 258a.
He who does a thing by the instrumentality of another is considered as if he had acted in his own person.
29. QUI PRIOR EST TEMPORE POTIOR EST JURE.
_Cf._ C. 8. 17. 3: Sicut prior est tempore, ita potior jure.
Where two rights or titles conflict, the earlier prevails, unless there is some special reason for preferring the later. See § 85.
30. QUOD FIERI NON DEBET, FACTUM VALET.
5 Co. Rep. 38.
A thing which ought not to have been done may nevertheless be perfectly valid when it _is_ done. The penalty of nullity is not invariably imposed upon illegal acts. For example, a marriage may be irregularly celebrated, and yet valid; and a precedent may be contrary to established law, and yet authoritative for the future. See § 66.
31. RES JUDICATA PRO VERITATE ACCIPITUR.
D. 1. 5. 25.
A judicial decision is conclusive evidence _inter partes_ of the matter decided. See § 67.
32. RESPONDEAT SUPERIOR.
Coke’s Fourth Inst. 114.
Every master must answer for the defaults of his servant as for his own. See § 149.
33. SIC UTERE TUO UT ALIENUM NON LAEDAS.
9 Co. Rep. 59.
Every man must so use his own property as not to harm that of another. This is the necessary qualification of the maxim that every man may do as he will with his own. See § 154.
34. SUMMUM JUS SUMMA INJURIA.
Cicero, De Off. I. 10. 33.
The rigour of the law, untempered by equity, is not justice but the denial of it. See §§ 10. 13.
35. SUPERFICIES SOLO CEDIT.
Gaius 2. 73.
Whatever is attached to the land forms part of it. _Cf._ Just. Inst. 2. 1. 29: Omne quod inaedificatur solo cedit. See § 155.
36. UBI EADEM RATIO, IBI IDEM JUS.
This is the complement of the maxim, Cessante ratione legis, cessat lex ipsa. A rule of the common law should be extended to all cases to which the same _ratio_ applies, and in the case of imperfect statute law extensive interpretation based on the _ratio legis_ is permissible. See Vangerow, I. sect. 25.
37. UBI JUS IBI REMEDIUM.
_Cf._ the maxim of the Civilians: Ubi jus non deest nee actio deese debet. Puchta II. sect. 208. n.b.
Whenever there is a right, there should also be an action for its enforcement. That is to say, the substantive law should determine the scope of the law of procedure, and not _vice versa_. Legal procedure should be sufficiently elastic and comprehensive to afford the requisite means for the protection of all rights which the substantive law sees fit to recognise. In early systems this is far from being the case. We there find remedies and forms of action determining rights, rather than rights determining remedies. The maxim of primitive law is rather, Ubi remedium ibi jus.
38. VIGILANTIBUS NON DORMIENTIBUS JURA SUBVENIUNT.
_Cf._ D. 42. 8. 24: Jus civile vigilantibus scriptum est.
The law is provided for those who wake, not for those who slumber and sleep. He who neglects his rights will lose them. It is on this principle that the law of prescription is founded. See § 162.
39. VOLENTI NON FIT INJURIA.
_Cf._ D. 47. 10. 1. 5: Nulla injuria est, quae in volentem fiat.
No man who consents to a thing will be suffered thereafter to complain of it as an injury. He cannot waive his right and then complain of its infringement.
APPENDIX IV. THE DIVISIONS OF THE LAW.
English law possesses no received and authentic scheme of orderly arrangement. Exponents of this system have commonly shown themselves too little careful of appropriate division and classification, and too tolerant of chaos. Yet we must guard ourselves against the opposite extreme, for theoretical jurists have sometimes fallen into the contrary error of attaching undue importance to the element of form. They have esteemed too highly both the possibility and the utility of ordering the world of law in accordance with the straitest principles of logical development. It has been said by a philosopher concerning human institutions in general, and therefore concerning the law and its arrangement, that they exist for the uses of mankind, and not in order that the angels in heaven may delight themselves with the view of their perfections. In the classification of legal principles the requirements of practical convenience must prevail over those of abstract theory. The claims of logic must give way in great measure to those of established nomenclature and familiar usage; and the accidents of historical development must often be suffered to withstand the rules of scientific order. Among the various points of view of which most branches of the law admit, there are few, if any, which may be wisely adopted throughout their whole extent, and among the various alternative principles of classification, expedience allows of no rigidly exclusive and consistent choice. There are few distinctions, however important in their leading applications, which may not rightly, as they fade towards the boundary line, be replaced by others which there possess a deeper significance. We may rest content, therefore, if, within the limits imposed by the needful conformity to received speech and usage, each portion of the law is dealt with in such of its aspects as best reveals its most important characters and relations, and in such order as is most consistent with lucid and concise exposition.
1. _The Introductory Portion of the Law._
The first portion of the _corpus juris_ is of an introductory nature, consisting of all those rules which by virtue of their preliminary character or of the generality of their application cannot be appropriately relegated to any special department. This introduction may be divided into four parts. The first of them is concerned with the sources of law. It comprises all those rules in accordance with which new law obtains recognition and the older law is modified or abrogated. It is here, for example, that we must look for the legal doctrine as to the operation of precedent, custom, and legislation. The second part of the Introduction deals with the interpretation of law. Here we shall find the rules in accordance with which the language of the law is to be construed, and also the definitions of those terms which are fitly dealt with here, because common to several departments of the law. In the third place the Introduction comprises the principles of private international law—the principles, that is to say, which determine the occasional exclusion of English law from English courts of justice, and the recognition and enforcement therein of some foreign system which possesses for some reason a better claim to govern the case in hand. Fourthly and lastly, it is necessary to treat as introductory a number of miscellaneous rules which are of so general an application as not to be appropriately dealt with in any special department of the legal system.
2. _Private and Public Law._
After the Introduction comes the body of Private Law as opposed to that of Public Law. By general consent this Roman distinction between _jus privatum_ and _jus publicum_ is accepted as the most fundamental division of the _corpus juris_. Public law comprises the rules which specially relate to the structure, powers, rights, and activities of the state. Private law includes all the residue of legal principles. It comprises all those rules which specially concern the subjects of the state in their relations to each other, together with those rules which are common to the state and its subjects. In many of its actions and relations the state stands on the same level as its subjects, and submits itself to the ordinary principles of private law. It owns land and chattels, makes contracts, employs agents and servants, and enters into various forms of commercial undertaking; and in respect of all these matters it differs little in its juridical position from its own subjects. Public law, therefore, is not the _whole_ of the law that is applicable to the state and to its relations with its subjects, but only those parts of it which are different from the private law concerning the subjects of the state and their relations to each other. For this reason private law precedes public in the order of exposition. The latter presupposes a knowledge of the former.
The two divisions of public law are constitutional and administrative law. It is impossible, however, to draw any rigid fine between these two, for they differ merely in the degree of importance pertaining to their subject-matters. Constitutional law deals with the structure, powers, and functions of the supreme power in the state, together with those of all the more important of the subordinate departments of government. Administrative law, on the other hand, is concerned with the multitudinous forms and instruments in and through which the lower ranges of governmental activity manifest themselves.
3. _Civil and Criminal Law._
Within the domain of private law the division which calls for primary recognition is that between civil and criminal law. Civil law is that which is concerned with the enforcement of rights, while criminal law is concerned with the punishment of wrongs. We have examined and rejected the opinion that crimes are essentially offences against the state or the community at large, while civil wrongs are committed against private persons. According to the acceptance or rejection of this opinion, criminal law pertains either to public or to private law. Our classification of it as private is unaffected by the fact that certain crimes, such as treason and sedition, are offences against the state. As already explained, logical consistency in the division of the law is attainable only if we are prepared to disregard the requirements of practical convenience. Greater weight is wisely attributed to the fact that treason and robbery are both crimes, than to the fact that the one is an offence against the state and the other an offence against an individual.
Just as the law which is common to both state and subject is considered under the head of private law alone, so the law which is common to crimes and to civil injuries is dealt with under the head of civil law alone. It is obvious that there is a great body of legal principles common to the two departments. The law as to theft involves the whole law as to the acquisition of property in chattels, and the law of bigamy involves a considerable portion of the law of marriage. The arrangement sanctioned by usage and convenience is, therefore, to expound first the civil law in its entirety, and thereafter, under the title of criminal law, such portions of the law of crime as are not already comprehended in the former department.
4. _Substantive Law and the Law of Procedure._
Civil and criminal law are each divisible into two branches, namely substantive law and the law of procedure, a distinction the nature of which has already been sufficiently considered.
5. _Divisions of the Substantive Civil Law._
The substantive civil law may be conveniently divided, by reference to the nature of the rights with which it is concerned, into three great branches, 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 as opposed to proprietary rights.
6. _The Law of Property._
Although the distinction between the law of property and that of obligations is a fundamental one, which must be recognised in any orderly scheme of classification, there is a great part of the substantive civil law which is common to both of these branches of it. Thus the law of inheritance or succession concerns all kinds of proprietary rights whether _in rem_ or _in personam_. So also with the law of trusts and that of securities. In general the most convenient method of dealing with these common elements is to consider them once for all in the law of property, thus confining the law of obligations to those rules which are peculiar to obligations: just as the elements common to civil and criminal law are dealt with in the civil law, and those common to private and public law in private law.
The law of property is divisible into the following chief branches: (1) the law of corporeal property, namely the ownership of land and chattels; (2) the law of immaterial objects of property, such as patents, trade-marks, and copyrights; (3) the law of encumbrances or _jura in re aliena_, such as tenancies, servitudes, trusts, and securities; (4) the law of testamentary and intestate succession.
7. _The Law of Obligations._
The law of obligations comprises the law of contracts, the law of torts, and the law of those miscellaneous obligations which are neither contractual nor delictal. It may be convenient to consider under the same head the law of insolvency, inasmuch as the essential significance of insolvency is to be found in its operation as a method of discharging debts and liabilities. Alternatively, however, this branch of law may be included in the law of property, inasmuch as it deals with one mode of divesting proprietary rights in general. In the law of obligations is also to be classed the law of companies, this being essentially a development of the law of the contract of partnership. Under the head of companies are to be comprised all forms of _contractual_ incorporation, all other bodies corporate pertaining either to public law or to special departments of private law with which they are exclusively concerned. The _general_ doctrine as to corporations is to be found in the introductory department of the law.
8. _The Law of Status._
The law of status is divisible into two branches dealing respectively with domestic and extra-domestic status. The first of these is the law of family relations, and deals with the nature, acquisition, and loss of all those personal rights, duties, liabilities, and disabilities which are involved in domestic relationship. It falls into three divisions, concerned respectively with marriage, parentage, and guardianship. The second branch of the law of status is concerned with all the personal rights, duties, liabilities, and disabilities, which are external to the law of the family. It deals, for example, with the personal status of minors (in relation to others than their parents), of married women (in relation to others than their husbands and children), of lunatics, aliens, convicts, and any other classes of persons whose personal condition is sufficiently characteristic to call for separate consideration.[522]
There is one class of personal rights which ought in logical strictness to be dealt with in the law of status, but is commonly and more conveniently considered elsewhere—those rights, namely, which are called _natural_, because they belong to all men from their birth, instead of being subsequently acquired: for example, the rights of life, liberty, reputation, and freedom from bodily harm. These are personal rights and not proprietary; they constitute part of a man’s status, not part of his estate; yet we seldom find them set forth in the law of status.[523] The reason is that such rights, being natural and not acquired, call for no consideration, except in respect of their _violation_. They are adequately dealt with, therefore, under the head of civil and criminal wrongs. The exposition of the law of libel, for example, which is contained in the law of torts, involves already the proposition that a man has a right to his reputation; and there is no occasion, therefore, for a bald statement to that effect in the later law of status.
SUMMARY. THE DIVISIONS OF THE LAW.
{ A. Sources of the Law. { B. Interpretation and Definitions. I. Introduction. { C. Private International Law. { D. Miscellaneous Introductory Principles.
{ 1. Corporeal { Land. { Property { Chattels. { 2. Immaterial { Patents { Property { Trade-marks, { { &c. { Property { { Leases. { { { Servitudes. { { 3. Encumbrances { Trusts. { { { Securities, { { { &c. { { { Testamentary. { { 4. Succession { Intestate. { { { 1. Contracts { General Part. { { { Special Part. { Substantive { Obligations { 2. Torts { General Part, { { { { Special Part. { { { 3. Miscellaneous Obligations. { { { 4. Insolvency. { { { 5. Companies. { { { { { Marriage. { { { Parentage. { Civil { { { Domestic { Guardianship. { Law { { { Status { { { { { Infants. { { { Status { { Married { { { Extra-domestic { women. { { { Status { Lunatics. II. Private { { { Aliens. Law { { { Convicts, &c. { { { Practice. { { Procedure { Evidence. { { { General Part. { { Substantive { { Criminal { { Special Part. { Law { Procedure.
{ Constitutional Law. III. Public Law { Administrative Law.
APPENDIX V. THE LITERATURE OF JURISPRUDENCE.
The following list is intended to serve partly by way of explanation of the references contained in the text and notes, and partly as a guide to the literature of the subject. Nothing, however, is here attempted save a selection of the more important works which bear with more or less directness upon the abstract theory of the law. Many of them are primarily ethical or political, rather than legal, and of those which are strictly legal, many are devoted to some special branch of law rather than to general theory. But all of them are relevant, in whole or in part, to the subject-matter of this work. The editions mentioned are those to which the references in the text and notes relate, and are not invariably the latest.
_Ahrens._—Cours de Droit Naturel, ou de Philosophie du Droit. 8th ed. 1892, Paris. (A good example of the modern Continental literature of Natural Law.)
_Amos._—The Science of Jurisprudence, 1872. The Science of Law, 6th ed. 1885.
_Anson, Sir W. R._—Principles of the English Law of Contract. 13th ed. 1912.
_Aquinas, St. Thomas._—Tractatus de Legibus and Tractatus de Justitia et Jure, included in his Summa Theologiae.
(The scholastic philosophy of the Middle Ages included within its scope the more abstract portions of juridical science, and the legal and ethical doctrines of the schoolmen found their most authoritative expression in the above-mentioned work of Aquinas in the thirteenth century.)
_Arndts._—Juristische Encyklopädie und Methodologie. 9th ed. Stuttgart, 1895. Lehrbuch der Pandekten. 14th ed. Stuttgart, 1889.
_Austin._—Lectures on Jurisprudence or the Philosophy of Positive Law. 5th ed. 1885.
Abridgement by Campbell for the use of Students. 9th ed. 1895.
The Austinian Theory of Law, by Professor W. J. Brown. An edition of the more essential portions of Austin’s work, with notes and excursus by the editor. 1906.
(Almost unknown, and entirely unhonoured on the Continent, Austin’s work has had immense influence in England, and he is the founder of a distinct school of juridical speculation.)
_Baudry-Lacantinerie._—Traité Théorique et Pratique de Droit Civil. Paris, 1895—.
(A series of commentaries on French law by various writers.)
_Beccaria._—Dei Delitti e delle Pene. (Crimes and Punishments.) 1764. Engl. transl. by Farrer, 1880.
_Bentham._—The Principles of Morals and Legislation. Clarendon Press ed. 1879.
Theory of Legislation. Translated from the French of Dumont, by Hildreth. 8th ed. 1894.
A Fragment on Government. Ed. by Montague, 1891. Oxford.
Collected Works. Edited by Bowring, 11 vols., 1843.
_Bierling._—Juristische Prinzipienlehre. 1894.
_Birkmeyer._—Encyklopädie der Rechtswissenschaft. 1901, Berlin.
_Blackstone, Sir William._—Commentaries on the Laws of England. 4 vols. 1765–1769.
_Bluntschli._—Allgemeine Staatslehre. (Engl. transl. The Theory of the State, 2nd ed. 1895, Oxford.)
_Bodin._—De la République, 1576. Latin version, De Republica, 1586.
(A work of great influence and celebrity in its day. Bodin may be regarded as one of the founders of the political science of modern times.)
_Bracton_.—De Legibus Angliae.
(One of the earliest of English legal treatises, dating from the reign of Henry III. Printed in 1569. Edited, with translation, by Twiss, in the Rolls Series, but in a manner very discreditable to English scholarship.)
_Brown._—The Austinian Theory of Law. 1906.
_Bruns._—Das Recht des Besitzes in Mittelalter und in der Gegenwart. Tübingen, 1848.
_Bryce._—Studies in History and Jurisprudence. 1901, Oxford, 2 vols.
_Burlamaqui._—Principes du Droit de la Nature et des Gens. 1766. Edited by Dupin, 1820, Paris, 5 vols.
_C._—The Code of the Emperor Justinian.
(A collection of the statute law of the Roman Empire, made by order of Justinian, A.D. 534, and forming one portion of the Corpus Juris Civilis.)
_Clark, E. C._—Practical Jurisprudence; a Comment on Austin. Cambridge, 1883.
Analysis of Criminal Liability. Cambridge, 1880.
_Co. Litt._—Coke’s Commentary upon Littleton.
_Cosack._—Lehrbuch des deutschen bürgerlichen Rechts. 2 vols. Jena, 1901.
_D._—The Digest or Pandects of the Emperor Justinian.
(A compilation of extracts from the writings of the chief Roman lawyers, made by order of Justinian, A.D. 533, as part of the Corpus Juris Civilis.)
_Dernburg._—Pandekten. 3 vols. 6th ed. 1900, Berlin.
(This is one of the best examples of the German works on Pandektenrecht, that is to say, the modern Roman law which was in force as the common law of Germany until superseded by the recent Codes.)
Das bürgerliche Recht des Deutschen Reichs. 3 vols. 1901.
_Franck._—Réformateurs et Publicistes de l’Europe. 3 vols. 1864, 1881, 1893, Paris.
Philosophie du Droit Civil. Paris, 1886.
Philosophie du Droit Pénal. Paris, 4th ed. 1893.
_French Codes._—Codes et Lois Usuelles; edited by Roger and Sorel. Paris.
_Fustel de Coulanges._—La Cité Antique. Paris, 15th ed. 1895.
_Gaius._—Institutiones.
(An institutional compendium of Roman law by a jurist of the second century of the Christian era. It is of great value as the chief source of our knowledge of the earlier law of Rome.)
_Gareis._—Rechts-Encyklopädie. 2nd ed. 1900, Giessen. English translation by Kocourek, Introduction to the Science of Law. Boston, 1911.
_German Civil Code._—Das bürgerliche Gesetzbuch.
(A codification of the civil law of the German Empire, which came into force in 1900. French trans. by Grasserie, Code Civil Allemand, Paris, 1901.)
_German Criminal Code._—Das Strafgesetzbuch für das Deutsche Reich, 1872. Annotated edition by Oppenhoff, 1896, Berlin.
_Gierke._—Deutsches Privatrecht. 2 vols. 1895–1905. Leipzig.
(The First Book or General Part of this work contains an admirable exposition of the first principles of legal theory.)
_Girard._—Manuel Elémentaire de Droit Romain. 2nd ed. 1898, Paris.
_Goadby._—Introduction to the Study of the Law. 1910.
_Graham._—English Political Philosophy. 1899.
_Gray, J. C._—The Nature and Sources of the Law. New York, 1909.
_Green, T. H._—Lectures on the Principles of Political Obligation. (Collected Works, vol. ii. 3rd ed. 1893.)
_Grotius._—De Jure Belli ac Pacis, 1625. Edited, with English translation, by Whewell. Cambridge, 3 vols.
(Grotius confines his attention for the most part to international law, of which he was one of the founders. This work, however, is not without importance with respect to the theory of civil law also.)
_Hearn._—The Theory of Legal Duties and Rights. 1883, Melbourne.
_Heron._—Introduction to the History of Jurisprudence, 1860.
_Hobbes._—Leviathan; or the Matter, Form, and Power of a Commonwealth, Ecclesiastical and Civil. 1651. (English Works, edited by Molesworth, vol. iii. Published separately, Cambridge University Press, 1904.)
De Cive. 1642. (Latin Works, edited by Molesworth. Vol. ii.)
_Holdsworth._—History of English Law. 3 vols. 1903–1909.
_Holland._—Elements of Jurisprudence. 11th ed. 1910, Oxford.
_Holmes, O. W._—The Common Law. 1887.
_Holtzendorff._—Encyklopädie der Rechtswissenschaft. 6th ed. 1904, Berlin.
_Hooker._—Ecclesiastical Polity. Book I. 1594. (Works in 3 vols. 1888, Oxford.)
(Remarkable as the first adequate presentation in the English language of the abstract theory of law. Hooker’s doctrine is essentially that of the scholastic philosophy.)
_Hunter._—A Systematic and Historical Exposition of Roman Law; with an historical Introduction by A. F. Murison. 4th ed. 1904.
_Ihering._—Geist des römischen Rechts. 3 vols. 5th ed. 1891, Leipzig.
French translation by Meulenaere, L’Esprit du Droit Romain, 4 vols. 1877.
Der Zweck im Recht. 2 vols. 3rd ed. 1893, Leipzig. French translation by Meulenaere, L’Evolution du Droit. 1901.
Grund des Besitzesschutzes. 2nd ed. 1869, Jena.
Der Besitzwille. 1889, Jena.
_Inst. Just._—The Institutes of the Emperor Justinian.
(A text-book of Roman law for the use of students, compiled by order of Justinian, A.D. 533, and forming part of the Corpus Juris Civilis.)
_Italian Civil Code._—French trans. by Prudhomme. Paris, 1896.
_Italian Penal Code._—French trans. by Turrel. Paris, 1890.
_Janet._—Histoire de la Science Politique. 2 vols. 3rd ed. 1887, Paris.
_Jellinek._—Allgemeine Staatslehre. 1900. Berlin. (The first volume of Das Recht des modernen Staates.)
_Kant._—Rechtslehre. 1796. English translation by Hastie, Kant’s Philosophy of Law, 1887.
(With Kant, jurisprudence fell for the first time into the hands of the metaphysicians, and this union of law and metaphysics has since characterised a considerable portion of German juridical literature.)
_Kenny._—Outlines of Criminal Law, 4th ed. 1909.
_Korkunov._—The General Theory of Law. Translated from the Russian by W. G. Hastings. Boston, 1909.
_L.Q.R._—Law Quarterly Review. London, 1885–.
_L.R._—The Law Reports, from 1865 onwards.
Q.B. or K.B.—Reports of cases decided in the Court of Queen’s Bench or the Queen’s (or King’s) Bench Division of the High Court of Justice. Thus L.R. 10 Q.B. 27, is the 10th volume of the Queen’s Bench Law Reports; and (1900) 1 Q.B. 27, is the first volume of the Queen’s Bench Reports for the year 1900.
Ch. D.—Reports of cases in the Chancery Division of the High Court of Justice.
A.C.—Appeal Cases, _i.e._, reports of cases in the House of Lords and Privy Council.
C.P. or C.P.D.—Reports of cases in the Court of Common Pleas, or the Common Pleas Division of the High Court.
Ex. or Ex.D.—Reports of cases in the Court of Exchequer, or the Exchequer Division of the High Court.
_Lea._—Superstition and Force. 4th ed. Philadelphia, 1892.
_Lee._—Historical Jurisprudence; an Introduction to the Systematic Study of the Development of Law. 1900.
_Lightwood._—A Treatise on Possession of Land. 1894.
The Nature of Positive Law. 1883.
_Lindley, Lord._—An Introduction to the Study of Jurisprudence. 1855.
(A translation, with copious notes, of the General Part of Thibaut’s Pandektenrecht.)
_Locke._—Two Treatises on Civil Government. 1690.
_Lorimer._—The Institutes of Law; a Treatise of the Principles of Jurisprudence as determined by Nature. 2nd ed. 1880.
_Maine, Sir Henry._—Ancient Law. 1861; edited with introduction and notes by Sir F. Pollock. 1906.
The Early History of Institutions. 1875. Early Law and Custom. 1883.
(Sir Henry Maine is a leading representative in England of the scientific treatment of legal conceptions in respect of their origin and historical development.)
_Markby, Sir W._—Elements of Law. 6th ed. 1905, Oxford.
_Merkel._—Lehrbuch des Deutschen Strafrechts. 1889, Stuttgart.
_Merriam._—History of the Theory of Sovereignty since Rousseau. New York, 1899.
_Miller._—The Data of Jurisprudence. Edinburgh. 1903.
_Montesquieu._—L’Esprit des Lois. 1748.
_Moyle, J. B._—Imperatoris Justiniani Institutionum Libri Quattuor; with Introductions, Commentary, and Excursus. Oxford, 5th ed. 1913.
_Muirhead._—Historical Introduction to the Private Law of Rome. 2nd ed. 1899.
_Pollock, Sir F._—First Book of Jurisprudence. 2nd ed. 1904.
Essays in Jurisprudence and Ethics. 1882. Introduction to the History of the Science of Politics. 1897.
_Pollock and Wright._—Possession in the Common Law. 1888.
_Pollock and Maitland._—The History of English Law before the Time of Edward I. 2 vols. Cambridge, 1895. 2nd ed. 1898.
_Pothier._—Works, 10 vols. ed. by Bugnet. 3rd ed. 1890, Paris.
(Pothier, _ob._ 1772, is one of the most celebrated of French lawyers. His admirably lucid and methodical expositions of Roman-French law are the source of great part of the Codes prepared in France at the beginning of the 19th century and still in force there.)
_Puchta._—Cursus der Institutionen. 10th ed. 1893, 2 vols. Leipzig.
(A treatise of Roman law. Puchta, _ob._ 1846, was one of the leading representatives of the Historical School of German Jurisprudence, and the introductory portion of this work is of importance as setting forth the abstract theory of law as understood by that school. This portion is translated by Hastie, Outlines of the Science of Jurisprudence, 1887, Edinburgh.)
_Pufendorf._—De Jure Naturae et Gentium. 1672. English trans. by Kennet, 1729:—The Law of Nature and Nations.
(This is one of the earliest and most celebrated examples of a form of literature which was once of considerable repute and importance, but has now all but disappeared, namely, Natural Jurisprudence, or the Theory of Natural Law and Justice.)
_Pulszky._—The Theory of Law and Civil Society. 1888, London.
_Rattigan, Sir W. H._—The Science of Jurisprudence. 3rd ed. 1909.
_Regelsberger._—Pandekten. Vol. i. 1903.
_Rehm._—Allgemeine Staatslehre. 1899, Freiburg.
_Ritchie._—Natural Rights; a Criticism of some Political and Ethical Conceptions. 1895.
_Rousseau._—Du Contrat Social; ou Principes du Droit Politique. 1762.
_Saleilles._—De la Déclaration de Volonté. 1901.
De la Possession des Meubles. 1907. De la Personnalité Juridique. 1910.
_Savigny._—System des heutigen römischen Rechts. 1840–1849. French translation by Guenoux, Traité de Droit Romain. 8 vols.
Das Obligationenrecht. 1851–1853. French translation by Gérardin and Jozon, Le Droit des Obligations. 2 vols. 2nd ed. 1873.
Das Recht des Besitzes. 1803. English translation by Perry, Von Savigny’s Treatise on Possession. 1848.
_Schmidt._—Allgemeine Staatslehre. 1901, Leipzig.
_Select Essays in Anglo-American Legal History._—By various authors. Edited by a Committee of the Association of American Law Schools. 3 vols. 1907–1909.
_Sidgwick, H._—Elements of Politics. 2nd ed. 1897.
_Spencer, Herbert._—Principles of Sociology. Vol. ii. Part V. Political Institutions. 3rd ed. 1893.
Principles of Ethics. Vol. ii. Part IV. Justice. 1893.
_Spinoza._—Tractatus Politicus. 1677, posthumous.
(Works edited by Van Vloten and Land. 3 vols. English translation by Elwes. 2nd ed. 1889.)
_Stephen, Sir J. F._—History of the Criminal Law of England. 3 vols. 1883.
General View of the Criminal Law. 2nd ed. 1890.
_Street._—Foundations of Legal Liability. 3 vols. 1906, New York.
_Suarez._—De Legibus et de Deo Legislatore. 1613.
(Suarez was a Spanish Jesuit of the sixteenth century. In this work he sums up, with the greatest completeness and elaboration, the scholastic doctrine of the law.)
_Tarde._—Les Transformations du Droit. 2nd ed. 1894. Paris.
La Philosophie Pénale. 5th ed. 1900. Paris.
_Terry._—Leading Principles of Anglo-American Law. 1884, Philadelphia.
(A treatise of Theoretical Jurisprudence.)
_Thomasius, C._—Institutionum Jurisprudentiae Divinae Libri Tres. 1687.
Fundamenta Juris Naturae et Gentium. 1705.
(Thomasius is chiefly noteworthy as the originator of that distinction between natural jurisprudence, or the science of justice strictly so called, and ethics or the science of virtue, which was subsequently adopted by Kant, and through his influence became a characteristic feature of Continental doctrine.)
_Vangerow._—Lehrbuch der Pandekten. 3 vols. 7th ed. 1876, Leipzig.
_Windscheid._—Lehrbuch des Pandektenrechts. 3 vols. 8th ed. 1900. Frankfurt.
(Windscheid was one of the most distinguished of the German exponents of modern Roman law, and this work is an admirable example of the scientific study of a legal system.)
_Woolsey._—Political Science or the State. 2 vols. 1877.
_Y.B._—The Year Books, viz., the early Law Reports from the reign of Edward I. to that of Henry VIII. The Year Books of Edward I. and some others are published with a translation in the Rolls Series; others by the Selden Society. The rest are to be found in a black letter folio edition of 1678.
INDEX
Abrath _v._ North Eastern Ry. Co., 289.
Accessory rights, distinguished from principal, 216; examples of, 216; rights both accessory and dominant, 217.
Accident, distinguished from mistake, 371; culpable and inevitable, 372; defence of, 372; absolute liability for, 372.
Actio furti, 86, _n._
Actio in rem and in personam, 207.
Actio personalis moritur cum persona, 376, 377.
Acts, their generic nature, 323; positive and negative, 323; internal and external, 323; intentional and unintentional, 324; their circumstances and consequences, 325; place of, 330; time of, 330
Acts in the law, 301–304; unilateral and bilateral, 302; two classes of unilateral, 303. _See_ Agreements.
Acts of the law, 302.
Acts of Parliament, public and private, 30; said formerly to be void if unreasonable, 146. _See_ Legislation, Statute law.
Actus non facit reum, &c., 322, 474. _See_ Mens rea.
Administration of justice, necessity of, 11, 65–67; logically prior to the law, 12; possible without law, 13; origin of, 67–70; civil and criminal, 70–75; specific and sanctional enforcement of rights, 85; penal and remedial proceedings, 88; secondary functions of courts of law, 89–91; an essential function of the state, 93; compared with war or the extrajudicial use of force, 94–98; element of force usually latent in, 97; not the substitution of arbitration for force, 97.
Aequitas sequitur legem, 34.
Agere non valenti non currit praescriptio, 412 _n._
Agreements, a source of law, 31, 54, 124; constitutive and abrogative power of, 124, 307; nature of, 303; different uses of the term, 303; unilateral and bilateral, 304 _n._; importance of, as a vestitive fact, 305; grounds of operation of, 305; compared with legislation, 306; classes of, 307–309; void and voidable, 309; unenforceable, 310 _n._; formal and informal, 310; illegal, 311; effect of error on, 312; effect of coercion on, 313; want of consideration for, 313–317; a title to property, 412–416.
Ahrens, his Cours de Droit Naturel, 2; on proprietary rights, 208 _n._; his definition of property, 387.
Alfred, laws of King, on private war, 69, _n._; on accidental homicide, 373.
Alienative facts, 300.
Aliens, members of the state if resident in its territory, 100; disabilities of, 101.
Allegiance, nature of, 105; permanent and temporary, 105. _See_ Citizenship.
Allen _v._ Flood, 192, 341, 342.
Analogy, a source of judicial principles, 175.
Ancona _v._ Rogers, 253.
Animals, possess no legal personality, 273; have no legal rights, 274; effect of trusts for, 274; punishment of, in early law, 273, 373; liability of owner of, 273, 372.
Animus possidendi, essential to possession, 242; its nature, 242; need not be rightful, 242; must be exclusive, 242; need not be a claim of ownership, 243; need not be on one’s own behalf, 243; need not be specific, 243.
Anson, Sir W., his definition of contract, 303 _n._
Apices juris, 474.
Appeals of felony, abolition of, 69, _n._
Aquinas, his distinction between jus naturale and jus positivum, 3 _n._; on equity, 36; on the lex aeterna, 42; on agreement as a title of right, 306; his Tractatus de Legibus, 487.
Arbitration, international, dependent on the development of international law, 22.
Aristotle, on being wiser than the laws, 22, 478; on the arbitrium judicis, 26; on law and equity, 36; on the law of nature, 45.
Armory _v._ Delamirie, 249, 270, 408.
Arndts, on Juridical Encyklopaedia, 7; on customary law, 155.
Asher _v._ Whitlock, 270, 408.
Ashford _v._ Thornton, 69.
Assignment. _See_ Transfer.
Assumpsit, 435.
Attempts, criminal, their nature, 343; distinguished from preparation, 343; by impossible means, 345.
Att.-Gen. _v._ Dean of Windsor, 165.
Att.-Gen. _v._ Dimond, 394.
Attornment, 258.
Austin, on general jurisprudence, 6; his definition of law, 47; his use of the term legislation, 127; his theory of customary law, 156; on illimitable sovereignty, 469; his influence on English thought, 488.
Autonomous law, the product of autonomous legislation, 130; its relation to conventional law, 131.
Azo, on equity, 37.
Backhouse _v._ Bonomi, 331.
Bacon, Sir F., on being wiser than the laws, 23, _n._; on the arbitrium judicis, 26.
Barnet _v._ Brandao, 29.
Battle, trial by, its origin, 69; its duration in English law, 69, _n._; a mode of authenticating testimony, 451.
Baudry-Lacantinerie, on proprietary rights, 208, _n._; on ownership, 224, _n._; on corporeal and incorporeal possession, 264, _n._; on movable and immovable property, 392, _n._
Beamish _v._ Beamish, 165.
Beardman _v._ Wilson, 399.
Beati possidentes, 265.
Bechuanaland Exploration Co. _v._ London Trading Bank, 150.
Beneficial ownership. _See_ Trust.
Bentham, his objections to case-law, 134, _n._; on natural rights, 182; his use of the term property, 387; on compulsory examination of accused persons, 450, _n._; on the limitations of sovereign power, 470.
Bill of Rights, 109.
Bills of Exchange, formerly governed by law merchant, 29.
Black _v._ Christchurch Finance Co., 372.
Blackstone, his definition of law, 40; on civil and criminal wrongs, 73; on written and unwritten law, 128; on the supremacy of the Imperial Parliament, 129; on customary law, 144; his use of the term property, 385; on implied contracts, 433.
Bodin, his theory of sovereignty, 467; his treatise De Republica, 488.
Bona vacantia, 418.
Bracton, on equity, 37.
Bridges _v._ Hawkesworth, 248, 249, 270.
Bromage _v._ Prosser, 341.
Brown _v._ Burdett, 419.
Brown, W. Jethro, on customary law, 156, _n._; on sovereignty, 473, _n._
Bruns, his theory of possession, 263, _n._, 264, _n._
Bryant _v._ Foot, 150.
Bryce, on the sources of law, 49, _n._; on sovereignty, 473.
Burlamaqui, on natural law, 8.
By-laws, a form of special law, 30; void if unreasonable, 146.
Cain _v._ Moon, 257.
Calvin’s case, 278, 295.
Canon law, a form of positive law, 3, _n._; on immemorial custom and prescription, 150–152; on the distinction between jus commune and consuetudines, 151.
Cartwright _v._ Green, 248.
Castro _v._ R., 163.
Cessante ratione legis, &c., 475.
Chancery, precedents in, 162. _See_ Equity.
Charge, a form of lien, contrasted with mortgage, 406.
Chattel, meanings of the term, 395.
Chisholm _v._ Doulton, 367, 374.
Chose in action, a kind of incorporeal thing, 226; nature of, 423; history of the term, 423.
Christian Thomasius, on law of nature, 46, 494.
Cicero, on subjection to the law as the means of freedom, 22; on jus and aequitas, 30, 39, _n._; on the law of nature, 45.
Citizens’ Life Assurance _v._ Brown, 289.
Citizenship, one form of state-membership, 99; distinction between citizens and subjects, 100, _n._; distinction between citizens and aliens, 100; privileges and liabilities of citizens, 101; diminishing importance of, 101; modes of acquiring, 101; relation between citizenship and nationality, 103.
Civil law, the subject-matter of civil jurisprudence, 1; the term partly superseded by positive law, 3; different meanings of the term, 3, _n._, 483. _See_ Law.
Civil wrongs. _See_ Wrongs, Liability.
Clark, _In re_, 394.
Cochrane _v._ Moore, 413.
Code of Justinian, 488.
Codification, 136.
Cogitationis poenam nemo patitur, 345, 475.
Coke, on customary law, 152, _n._; on the distinction between custom and prescription, 157; on the personality of unborn children, 277; on corporations aggregate and sole, 281; on the ownership of the space above the surface of land, 390.
Colonial Bank _v._ Whinney, 286, 424.
Commissioners of Stamps _v._ Hope, 394.
Common law, opposed to special law, 33; different uses of the term, 33, 57; opposed to equity, 34–38; history of the term, 33. _See_ jus commune.
Communis error facit jus, 166, 168, 475.
Compensation, one of the objects of civil justice, 85, 86. _See_ Penal redress.
Compossessio, 256.
Conditions precedent and subsequent, 234. _See_ Contingent ownership.
Conservatism of the law, 24.
Consideration, required in simple contracts, 313; its nature, 313; valuable, 314; not valuable, 315; rational grounds of the doctrine, 316; compared with the causa of Roman and French law, 316.
Consolidated Co. _v._ Curtis, 370.
Constitution of the state, 105–110; nature of, 105; rigid and flexible constitutions, 107; law and practice of, 107; extra-legal origin of, 108; possibility of legally unchangeable, 473.
Constitutional law, nature of, 106; its relation to constitutional fact, 107–110.
Constitutum possessorium, 257.
Constructive delivery, 257.
Constructive intention, 361.
Constructive possession, 237.
Contingent ownership, 232; distinguished from vested, 232; distinguished from contingent existence of the right owned, 233; distinguished from spes acquisitionis, 233; distinguished from determinable ownership, 234.
Contracts. _See_ Agreements.
Conventional law, created by agreement, 31, 54, 120, 124; reasons for allowance of, 121, 122.
Co-ownership, 226.
Coppin _v._ Coppin, 278.
Copyright, its subject-matter, 189; nature and kinds of, 396.
Cornford _v._ Carlton Bank, 288, 289.
Corporation of Bradford _v._ Pickles, 342.
Corporations, nature of, 281, _ff._; aggregate and sole, 287; fictitious nature of, 282; may survive their members, 283, 293; realistic theory of, 284; act through agents, 285; exist on behalf of beneficiaries, 285; membership of, 286; may be members of other corporations, 287; authority of agents of, 287; liability of, 287–289; purposes of incorporation, 289–293; creation and extinction of, 293; foreign, recognised by English law, 294, _n._; the state not a corporation aggregate, 294–298; the king a corporation sole, 295.
Corporeal possession, 239.
Corporeal property, 221, 225, 386, 396, _n._
Corporeal things, 225, 396, _n._
Corpus possessionis, essential to possession, 241; its nature, 244–251.
Correality, _See_ Solidary obligations.
Coughlin _v._ Gillison, 355.
Court of Appeal, absolutely bound by its own decisions, 165.
Cowan _v._ O’Connor, 331.
Crimes. _See_ Wrongs. Liability.
Crouch _v._ Crédit Foncier, 150.
Crown of England, claims against, heard in courts of law, 90; not a legal person, 296; the supreme executive, 468.
Cujus est solum, ejus est usque ad coelum, 390, 475.
Culpa, lata, and levis, 358.
Cundy _v._ Lindsay, 312.
Custody distinguished from possession, 237.
Custom, local, a source of special law, 29; mercantile, a source of special law, 29; grounds of the operation of, 120–122, 144–146; its relation to prescription, 124, 157; all unenacted law deemed customary in earlier English theory, 129, 144; importance of, gradually diminishing, 143; its continued recognition, 144; historical relation between law and custom, 144–145; general and particular customs, 148; invalid if unreasonable, 146; invalid if contrary to statute law, 147; unless general must be immemorial, 148 (_see_ Time immemorial); mercantile need not be immemorial, 148, 150 _n._; unless immemorial, must conform to the common law, 152; reasons for gradual disappearance of, as a source of law, 153; conventional customs, 153; theories of the operation of custom, 154–157; has no legal validity apart from the will of the state, 155; a material not a formal source of law, 156; Austin’s theory of, 156; the relation of custom to prescription, 157; local and personal customs, 157.
Customary law, 55. _See_ Custom.
Damages, measure of 383.
Damnum sine injuria, 329.
Danubian Sugar Factories _v._ Commissioners of Inland Revenue 394.
Darley Main Colliery Co. _v._ Mitchell. 331.
De Falbe, _In re_, 392.
De minimis non curat lex, 25, 475.
De mortuis nil nisi bonum, 276.
Dead bodies, not subjects of ownership, 275; indignities offered to, a criminal offence, 276.
Dean, _In re_, 274, 276.
Decisions, judicial. _See_ Precedents.
Delivery of possession, actual and constructive, 257; traditio brevi manu, 257; constitutum possessorium, 257; attornment, 258; a mode of transferring ownership, 406.
Deodans, 373.
Dependent states, 111–113.
Dernburg, on proprietary rights, 208, _n._; on possession, 245, _n._; his Pandekten, 489.
Derry _v._ Peek, 354.
Detention, distinguished from possession, 237.
Determinable ownership, distinguished from contingent, 234.
Dicta, judicial, their nature and authority, 163, 174.
Digest of Justinian, 489.
Dike, dikaion, meanings and derivation of the terms, 461.
Diligence, archaic use of the term to mean care, 349, _n._
Diogenes Laertius, anecdote of Solon, 81, _n._
Disability, defined, and distinguished from liability and duty, 194.
Divestitive facts, their nature and kinds, 300, 301.
Dolus, meaning of the term, 341; its relation to culpa lata, 359.
Dominant rights. _See_ Encumbrances.
Dominium, its significance in Roman law, 207.
Doom, early legal uses of the term, 464.
Doorman _v._ Jenkins, 359.
Droit, distinguished from loi, 10; ethical and juridical significations of, 52; different uses of term, 465; derivation of term, 459.
Droit de suite, 416, _n._
Duress, 313.
Dutch West India Co. _v._ Van Moses, 294.
Duties, defined, 180; moral and legal, 180; of imperfect obligation, 180, 197, 198; correlation of rights and duties, 184; alleged distinction between absolute and relative duties, 184; distinguished from liabilities and disabilities, 194; personal and proprietary, 209.
Easements. _See_ Servitudes.
Edelstein _v._ Schuler, 29, 150.
Edie _v._ East India Co., 29, 153.
Edmundson _v._ Render, 331.
Electricity, deemed a chattel in law, 395, _n._
Ellis _v._ Loftus Iron Co., 273, 372, 391.
Elmore _v._ Stone, 254, 255, 258.
Elwes _v._ Brigg Gas Co., 249, 250.
Emphyteusis, 400, _n._
Employer’s liability, 374–376.
Enacted law, distinguished from unenacted, 128. _See_ Statute law.
Encumbrances, 212–216; distinguished from ownership, 221; termed jura in re aliena by the civilians, 212; distinguished from the natural limits of rights, 213; are concurrent with the property encumbered, 214; not necessarily rights in rem, 215; classes of, 216; often accessory to other rights, 217; always incorporeal property, 223.
Encyclopædia, juridicial, a branch of German legal literature, 7.
Equitable rights, distinguished from legal, 217; distinction not abolished by the Judicature Act, 217; present importance of distinction, 218; destroyed by conflict with legal rights, 218, 415.
Equitable ownership, 231; distinguished from legal, 231; distinguished from equitable rights, 231; distinguished from beneficial ownership, 231.
Equity, different meanings of the term, 34–38, 460; origin of jurisdiction of Chancery, 34, 37; fusion of law and equity by Judicature Act, 35; equity in the courts of common law, 36; compared with jus praetorium, 38.
Equity of a statute, 39, _n._
Equity of redemption, 403.
Error, effect of, on agreements, 312; essential and unessential, 312.
Estate, distinguished from status or personal condition, 208, 209. _See_ Proprietary rights.
Evidence, nature of, 440; judicial and extrajudicial, 441; personal and real, 442; primary and secondary, 442; direct and circumstantial, 443; valuation of, 444–449; conclusive, 439, 445; presumptive, 446; insufficient, 447; exclusive, 439, 447; inadmissible, 448; of accused persons, 449; policy of law of evidence considered, 27, 452.
Ex facto oritur jus, 172, 409.
Ex nudo pacto non oritur actio, 314, 476.
Ex turpi causa non oritur actio, 476.
Exall _v._ Partridge, 433.
Executors, 417. _See_ Inheritance.
Expedit reipublicae ut sit finis litium, 170.
Expiation, as the end of punishment, 83.
Extinctive facts, 300.
Fact, distinguished from law, 15–18.
Fas, distinguished from jus, 461.
Fay _v._ Prentice, 391.
Federal states, their nature, 115; distinguished from unitary states, 115; distinguished from imperial states, 115.
Fiducia, 405.
Filburn _v._ Aquarium Co., 372.
Finding, as a title of right, 248–250.
Fixtures, 391.
Flexibility of the law, advantages of, 27.
Flitcroft’s case, 282.
Fookes _v._ Beer, 167.
Forbearance, distinguished from omission, 324.
Foreign law, recognition of, in English courts, 30; a form of special law, 30; no judicial notice of, 31.
Formalism of the law, 25.
Foster _v._ Dodd, 276.
Fraud, in law and in fact, 18; meanings of the term, 341; distinguished from force and malice, 341; its relation to gross negligence, 359–361.
Freeman _v._ Pope, 366.
French law, on time of memory, 152; precedents in, 159, _n._; on possession, 264, _n._; on requirement of cause in a contract, 316; possession vaut titre, 416; jurisprudence, 8.
Gaius, on natural law, 46; his Institutiones, 489.
Gautret _v._ Egerton, 355.
George and Richard, The, 277.
German law, as to immemorial prescription, 152; as to precedents, 159, _n._; as to mediate possession, 252, _n._; as to malicious exercise of rights, 342, _n._; as to criminal attempts, 344; as to the jus necessitatis, 349, _n._
Gierke, on the nature of corporations, 285, _n._
Glanville, on equity, 37, _n._
Good-will, a form of immaterial property, 397.
Goodwin _v._ Robarts, 150, 152.
Gorgier _v._ Mieville, 150.
Grant, distinguished from assignment, 308.
Grant _v._ Easton, 432, 433.
Great Eastern Ry. Co. _v._ Turner, 282.
Green _v._ London General Omnibus Co., 289.
Greenwell _v._ Low Beechburn Colliery, 332.
Grill _v._ General Iron Screw Collier Co., 349, 359.
Grotius, De Jure Belli, 490.
Haig _v._ West, 254.
Hale, on customary law, 143; on precedents, 161; on subjects and aliens, 100, _n._
Hall _v._ Duke of Norfolk, 331.
Hallett, _In re_, 162, 173.
Hammack _v._ White, 357.
Heineccius, on natural law, 8.
Hereditas jacens, 186, 275.
Hill, _Ex parte_, 340.
Hinton _v._ Dibbin, 359.
Hoare _v._ Osborne, 276.
Hobbes, his definition of law, 48; men and arms make the force of the laws, 49; on the law of nature and nations, 59; bellum omnium contra omnes, 65; on the swords of war and justice, 94; on the jus necessitatis, 347; his use of the term property, 386; his definition of an oath, 451; his theory of sovereignty, 467; as to limitations of sovereignty. 469.
Holmes, on the sources of judicial principles, 176; his definition of an act, 320; his definition of intention, 335, _n._
Hooker, on laws as the voices of right reason, 19; his definition of law, 40, 43; on the law of nature, 43, 46; on the impartiality of the law, 22; his Ecclesiastical Polity, 490.
House of Lords, absolutely bound by its own decisions, 164; formerly a supreme judicature, 469.
Hypotheca, 405.
Ignorantia juris neminem excusat, 368, 476.
Ihering, on the imperative theory of law, 54; his definition of a right, 182; on possession, 247, _n._, 264, 264, _n._, 266, _n._; on Savigny’s theory of possession, 259, _n._
Illegality, a ground of invalidity of agreements, 311.
Immaterial property, 189, 395–397.
Immovables, their nature, 390–392; rights classed as, 392, 393.
Immunities, distinguished from rights, liberties, and powers, 194, _n._
Imperative theory of law, 47–54; historical argument against, 49; answer to this argument, 49–51; defects of imperative theory, 51–54; no recognition of idea of justice, 51; no recognition of non-imperative rules, 52.
Imperfect rights, 184, 197–199; their nature, 197; imperfect nature of rights against the state, 199–201; may serve as a defence, 199; sufficient to support security, 199; may become perfect, 199.
Imperial states, 115.
Imperitia culpae adnumeratur, 353.
Impossibilium nulla obligatio est, 476.
Inadvertence, not identical with negligence, 349, 361–363.
Incorporeal ownership and property, 221–224, 387.
Incorporeal possession, 239, 261–264. _See_ Possession.
Incorporeal things, 225; classed as movable or immovable, 392; local situation of, 393.
Informality, a ground of invalidity in agreements, 310.
Inheritance, 416–419; heritable and uninheritable rights, 416; the representatives of a deceased person, 417; the beneficiaries of a deceased person, 417; testamentary and intestate succession, 418; limits of testamentary power, 418.
Injury. _See_ Wrongs, Liability.
Inland Revenue Commissioners _v._ Muller & Co.’s Margarine, 331, 393, 394.
Innominate obligations, 435.
Intention, nature of, 324, 335–338; distinguished from expectation, 336; extends to means and necessary concomitants of the end desired, 337; immediate and ulterior, 338; distinguished from motive, 338; actual and constructive, 360.
Inter arma leges silent, 96, 477.
International law, 56–64; its influence in maintaining peace, 22; has its source in international agreement, 57; definition of, 57; conventional and customary law of nations, 57; common and particular law of nations, 58; different views as to nature of, 58; viewed as a form of national law, 59, 60; viewed as a form of customary law, 60, 61; viewed as a form of imperative law, 61–64; distinguished from international morality, 63; private international law, 31, 482.
Interpretation of contracts, 141, _n._
Interpretation of enacted law, 137–142; grammatical and logical, 138; litera legis and sententia legis, 138; when logical interpretation allowable, 139; strict and equitable interpretation, 139; extensive and restrictive interpretation, 139.
Intestacy, ownership of property of intestate, 186, 275. _See_ Inheritance.
Investitive facts, 300.
Invito beneficium non datur, 305, 477.
Italian Civil Code definition of possession, 264, _n._
Jefferys _v._ Boosey, 100.
Jewish law, lex talionis, 83; as to the offences of beasts, 273, 373; as to vicarious liability, 374.
Joint obligations. _See_ Solidary obligations.
Judicial notice, nature of, 28; test of distinction between common and special law, 28, 32.
Judicium Dei, 69, 445, 451.
Juris praecepta, 477.
Jurisprudence, 1–8; the science of law in general, 1; civil, the science of civil law, 3; systematic, 3; historical, 3; critical, 3; theoretical, 4–7; foreign, compared with English, 7, 8.
Juristic law, produced by professional opinion, 120.
Jury, questions of fact to be answered by, 17, 176.
Jus, distinguished from lex, 10, 132, 457; ethical and legal meanings of, 52, 457; different senses of, 460; derivation of, 461; disappearance of term from modern languages, 463.
Jus ad rem, 206.
Jus accrescendi, 227, 416.
Jus civile, 3, _n._, 39.
Jus commune, history of the term, 33; different meanings of the term, 33, 34; in Roman law, 33, _n._; in the Canon law, 33; adopted by the English from Canon law, 33; in the sense of natural law, 44.
Jus edicendi, the legislative power of the Roman praetor, 134.
Jus gentium, 44, 46.
Jus in re aliena, 212–216. _See_ Encumbrances.
Jus in re propria, 212–216. _See_ Ownership.
Jus in rem and in personam, significance of the terms, 202–207; origin of the terms, 207. _See_ Real rights.
Jus naturale. _See_ Natural law.
Jus necessitatis. _See_ Necessity.
Jus positivum. _See_ Positive law.
Jus possessionis, 241, _n._
Jus possidendi, 241, _n._
Jus praetorium, 38, 134.
Jus publicum, 311, 482.
Jus scriptum and jus non scriptum, 44, 129.
Jus singulare. 33, _n._
Jus strictum, opposed to aequitas, 35.
Jus tertii, defence of, 269, 408.
Justice, natural and positive, 43, 44; an essential element in the idea of law, 51. _See_ Administration of justice and Natural law.
Justinian, on law of nature, 46.
Kant, on retributive punishment, 82; his Rechtslehre, 491.
Kettlewell _v._ Watson, 349, 360.
King, the source of justice, 37, 294; a corporation sole, 295.
King’s peace, 70, _n._
King _v._ Smith, 312.
Land, nature of, in law, 390–392; ownership of, 389.
Lavy _v._ L.C.C., 165.
Law, definition of, 9; abstract and concrete senses of the term, 9; relation of, to the administration of justice, 12–14; law and fact, 15–18; advantages of fixed rules of law, 19–22; defects of the law, 23–27; contrasted with equity, 34–39; imperative theory of, 48–54; includes rules governing the secondary functions of courts of justice, 91; sources of (_see_ Sources of the law); origin of the term, 464.
Law, merchant. _See_ Mercantile Custom.
Law of nations. _See_ International law.
Law of nature. _See_ Natural law.
Lawrence _v._ Hitch, 150.
Law reports, mode of citation of, 491.
Leases, nature of, 216, 397–400; subject-matter of, 398; may be perpetual, 399.
Leask _v._ Scott, 163.
Legal ownership, distinguished from equitable, 231.
Legal rights, distinguished from equitable, 217.
Legislation, its efficiency as an instrument of legal reform, 25; private legislation a source of special law, 30; nature of, 127; various senses of the term, 127, 128; direct and indirect, 128; supreme and subordinate, 129; colonial, 129; executive, 130; judicial, 130; municipal, 130; autonomous, 130; not necessarily the act of the state, 130; late development of the conception of, 132; merits and defects of statute law, 133–136; codification, 136; interpretation of statute law, 137–142; subordinate legislation sometimes invalid if unreasonable, 146; legal limitations of the power of the legislature, 471–473.
Le Lievre _v._ Gould, 354, 360.
Lex, distinguished from jus, 10, 132, 457; different meanings of term, 462; derivation of, 465.
Lex aeterna, 42.
Lex posterior derogat priori, 148.
Lex talionis, 82.
Liability, civil and criminal, 70, 319; penal and remedial, 88, 321; distinction between penal and criminal liability, 89; distinguished from duty and disability, 194; remedial, theory of, 320; penal, theory of, 321; absolute, 332, 366–368; vicarious, 374–377; employer’s, 375; survival of, 376; measure of criminal, 377 (_see_ Punishment); measure of civil, 382.
Libel, on dead person, 276.
Liberties, classed as rights in a wide sense, 190; distinguished from rights in strict sense, 190; distinguished from powers, 193.
Licence, revocation, of, 193, _n._
Lien, distinguished from mortgage, 402; classes of, 406.
Lightly _v._ Clouston, 434.
Lilley, on expiation as the purpose of punishment, 83.
Limitation of actions, at common law, 149, _n._; by the Statute of Westminster, 49, _n._ _See_ Prescription.
Limited liability, of shareholders, 292.
Littleton on customary law, 152, _n._
Locke, on the necessity of fixed principles of law, 21; his classification of laws, 48, _n._; on the state of nature, 68; his use of the term property, 386.
London and Midland Bank _v._ Mitchell, 199.
London Street Tramways Co. _v._ L.C.C., 165.
Lorimer, his Institutes of Law, 2.
Low _v._ Routledge, 100.
Macarthy _v._ Young, 355.
Magna Carta, the prohibition of extrajudicial force, 96, _n._
Maine, Sir H. S., his influence on English jurisprudence, 492.
Maitland, on corporations sole, 282, _n._; on the nature of corporations, 285, _n._
Malice, meanings of the term, 340; when a ground of liability, 342–346, 478.
Marais, Ex parte, 96.
Marvin _v._ Wallace, 254, 258.
Maxims, legal, their nature and uses, 474; list of, 474–480.
Mediate possession, 252–256.
Mens rea, a condition of penal liability, 322, 332; its two forms, intention and negligence, 322, 332; exceptions to requirement of, 332, 366.
Mercantile custom, a source of special law, 29; judicial notice of, when once proved, 29; possesses no abrogative power, 124; need not be immemorial, 150, _n._
Mercer, _Ex parte_, 360.
Merger, nature of, 279.
Merkel, on negligence, 250, _n._, 252, _n._
Merry _v._ Green, 244, 248.
Metropolitan Ry. Co. _v._ Jackson, 357.
Middleton _v._ Pollock, 304.
Midland Ry. Co. _v._ Wright, 392.
Mills _v._ Jennings, 165.
Mistake, effect of, on agreements, 312.
Mistake of fact, a defence in criminal law, 370; no defence in civil law, 370; origin of the rule, 370; distinguished from accident, 371.
Mistake of law, no defence, 368; reasons for the rule, 368.
Modus et conventio vincunt legem, 31, 124, 307, 311, 477.
Mogul, SS. _v._ McGregor, 341.
Monti _v._ Barnes, 391, 392.
Moral law, 43, 48, _n._ _See_ Natural law.
Morris _v._ Robinson, 427.
Mortgage, distinguished from liens, 402; not necessarily a transfer of the property, 402; involves equity of redemption, 403; what may be mortgaged, 404; complexity of, as compared with liens, 405.
Moses _v._ Macferlan, 433.
Motives, nature of, 338; distinguished from intention, 338; concurrent, 339; relevance of, in law, 341.
Moult _v._ Halliday, 29.
Muller and Co’s Margarine _v._ Inland Revenue Commissioners, 331, 393, 394.
Musgrove _v._ Toy, 192.
Nasciturus pro jam nato habetur, 277.
Nation, its relation to the state, 103.
Nationality, its relation to citizenship, 103.
Natural law, the subject-matter of natural jurisprudence, 1, 7; opposed to positive law, 3. _n._, 44; in the sense of physical law, 41; in the sense of moral law, 43–47; synonyms of, 44; various definitions of, 45, 46; relation of, to jus gentium, 46, 47; relation of, to international law, 59.
Natural rights, 182; denial of, by Bentham and others, 182.
Nature, state of, transition from, to civil state, 68.
Necessitas non habet legem, 347, 478.
Necessity, a ground of justification, 347; limited recognition of, by English law, 348.
Negligence, subjective and objective uses of the term, 349; opposed to intention, 349, 351; not necessarily inadvertent, 349, 362; consists essentially in indifference, 350; defined, 350; Merkel’s definition of, 350, _n._; a sufficient ground of liability, 351; simple and wilful, 351; want of skill is negligence, 353; culpable only when carefulness is a legal duty, 354; the standard of care, 355–358; in law and in fact, 357; no degrees of negligence in English law, 358; equivalence of gross negligence and intention, 359; negligence and constructive intent, 360; negligence distinguished from inadvertence, 362; objective theory of negligence, 363.
Negotiable instruments, 29, 415.
Nemo plus juris, &c., 414, 478.
Nemo tenetur se ipsum accusare, 449, 478.
Newby _v._ Van Oppen, 294.
Nomos, different uses of the term, 464.
Non dat qui non habet, 415, 478.
Northey Stone Co. _v._ Gidney, 331.
Noxal actions, 373.
Oath, form of judicial, 13; nature of 451; utility of, 451.
Object of a right, its nature, 185; different uses of the term, 185; an essential element in every right, 187; classes of objects, 187–190; sometimes identified with the right by metonymy, 222–224.
Obligatio, significance of the term in Roman law, 207, 422.
Obligations, law of, 422, 484; obligations defined, 422; solidary, 424 (_see_ Solidary obligations); contractual, 427 (_see_ Agreements); delictal, 428; quasi-contractual, 432 (_see_ Quasi-contract); innominate, 435.
Occupatio, 407.
Omission, meaning of the term, 323.
Opinio necessitatis, one of the requisites of a valid custom, 147.
Ordeal, theory of, 450.
Osborne _v._ Rowlett, 173.
Ownership, no rights without owners, 186; rights owned by incertae personae, 186; defined, 220; contrasted with possession, 220, 264–267; contrasted with encumbrances, 221; kinds of, 221; corporeal and incorporeal, 221; corporeal ownership a figure of speech, 222; the right of ownership and the ownership of rights, 224; defined by Sir F. Pollock, 224. _n._; co-ownership, 226; trust and beneficial ownership, 227; direct ownership, 228, _n._; legal and equitable, 231; vested and contingent, 232.
Ownership of material things, 221, 387–390.
Ownership of immaterial things, 395–397.
Pandektenrecht, nature of, 7.
Parker _v._ Alder, 374.
Parliament, Imperial, its supreme authority, 129, 472.
Parsons, _In re_, 163.
Patent rights, 189, 396.
Penal actions, nature of, 86; pertain to civil justice, 86.
Penal proceedings, distinguished from remedial, 88.
Penal redress, 87, 88; not justified except as punishment of defendant, 366; merits and defects of the system, 383. _See_ Liability.
Penalty. _See_ Punishment.
Perry _v._ Clissold, 408.
Personal property, distinguished from real, 394; origin of the distinction, 394.
Personal rights, ambiguity of the term, 208, _n._; as opposed to real rights—_See_ Real rights; as opposed to proprietary rights—_See_ Proprietary rights.
Persons, the subjects of rights and duties, 185; rights of unborn, 186, 277; the objects of rights, 189; not capable of being owned, 190; nature of, 272; natural and legal, 273; animals are not persons, 273; dead men are not persons, 275; double personality, 278, 417; legal persons the product of personification, 279; kinds of legal persons, 280. _See_ Corporations.
Persons, law of, 211.
Petitions of right, their nature, 90; a secondary function of courts of law, 90.
Petitorium opposed to possessorium, 267.
Phillips _v._ Homfray, 434.
Philo Judaeus, on law of nature, 46.
Physical law, 41.
Pickard _v._ Smith, 372.
Plato, on the offences of animals, 373; on vicarious liability, 374.
Pledge _v._ Carr, 165.
Pluckwell _v._ Wilson, 358.
Plures eandem rem possidere non possunt, 256.
Pollock, Sir F., on the sources of law, 49, _n._; his definition of ownership, 224, _n._; on acts in the law, 302, _n._; his use of the terms contract and agreement, 303, _n._
Pollock and Wright, on possession, 245, 246.
Positive law, origin of the term, 3, _n._; improperly used to signify civil law exclusively, 3, _n._
Possession, distinguished from ownership, 224, 264–267; difficulty of the conception, 236; consequences of, 236; possession in fact and law, 237; constructive, 237; possession and detention, 237; possession and seisin, 238; corporeal and incorporeal, 239; a matter of fact, not of right, 240; corporeal possession defined, 241; its two elements, animus and corpus, 241; animus possidendi (_q.v._), 242; corpus possessionis, 244–251; possession of land not necessarily that of chattels thereon, 247; mediate and immediate possession, 252–256; concurrent possession, 256; acquisition of possession, 256–258; Savigny’s theory of, 258–261; incorporeal, 261–264; generic nature of possession, 264; possession and ownership, 264–267; possessory remedies, 267–270; possessory titles, 407; possession a title of ownership, 407; delivery of, required for transfer of property, 413; modes of delivery, 257, 258; constructive delivery, 257.
Possessorium, opposed to petitorium, 267.
Possessory ownership, 407.
Possessory remedies, nature of, 267; origin of, 267; reasons for, 268; rejection of, by English law, 269.
Pothier, his definition of a contract, 303, _n._; his works, 492.
Power, political, 110; legislative, judicial, and executive, 110; sovereign and subordinate, 111. _See_ Sovereignty.
Powers, classed as rights in wide sense, 192; distinguished from rights in strict sense, 192; distinguished from liberties, 193.
Practical law, 56.
Precedents, reasons for their operation as a source of law, 121, 170; possess no abrogative power, 123, 168; their relation to codified law, 136; not originally regarded as a source of law, 143; their importance in English law, 159; declaratory and original, 160; declaratory theory of, 161; their operation in Chancery, 162; authoritative and persuasive, 163; classes of persuasive precedents, 163; absolute and conditional authority of precedents, 164; disregard of, when justified, 165; effect of lapse of time on, 167; distinction between overruling and refusing to follow, 168; retrospective operation of the overruling of, 166, 169; transform questions of fact into questions of law, 171; rationes decidendi, 173; the sources of judicial principles, 174; respective functions of judges and juries with reference to, 176.
Prescription, its relation to immemorial custom, 124, 157; periods of, in Roman law, 151; in Canon law, 151; in English law, 152; in Continental law, 152; operation of, in case of mediate possession, 254, 255; origin of term, 408, _n._; nature of, 408; positive and negative, 408; rational basis of, 410; what rights subject to, 411; perfect and imperfect, 412.
Presumptio juris, 445, _n._
Presumptions, conclusive, 445; rebuttable, 446.
Primary rights, opposed to sanctioning, 84.
Principal rights, distinguished from accessory, 216.
Principle, contrasted with authority, 173.
Private war, its gradual exclusion by public justice, 69, 70.
Privy Council decisions of, not authoritative in England, 163.
Probative force, 440. _See_ Evidence.
Procedure, distinguished from substantive law, 437; occasional equivalence of procedural and substantive rules, 439.
Proceedings, civil and criminal, 70–75; specific and sanctional enforcement of rights, 84; forms of sanctional enforcement, 85–87; a table of legal proceedings, 88; penal and remedial, 88; secondary functions of courts of law, 89–91; petitions of right, 90; declarations of right, 90; judicial administration of property, 91; secondary functions included in civil justice, 91.
Professional opinion, as a source of law, 120, 121.
Proof, nature of, 441; conclusive and presumptive, 445–447; modes of, in early law, 450.
Property, material, 387–390; immaterial, 395–397; corporeal and incorporeal, 221–224, 386; different meanings of the term, 385–387, 491; movable and immovable, 390–393; real and personal, 394.
Proprietary rights, distinguished from personal, 207–212; constitute a person’s property or estate, 208; may be either real or personal, 208; subject-matter of the law of things, 211; not necessarily transferable, 210.
Protectorates, 113.
Puchta, his theory of customary law, 154; his Institutionen, 492.
Pufendorf, his treatise on Natural Law, 2, 492; his relation to modern English jurisprudence, 8; his definition of law, 47.
Pugh _v._ Golden Valley Ry. Co., 167.
Punishment, purposes of, 75–84; deterrent, 75; preventive, 75; reformative, 76–80; retributive, 80–84; expiative, 83; measure of, 377–382.
Quasi-contracts, 432–435; their nature, 432; instances of, 433, 434; reasons for recognition of, 434.
Quasi possessio, 239.
Questions of fact, distinguished from questions of law, 15–18; examples of, 15; mixed questions of law and fact, 16; answered by jury, 17; but sometimes by the judge, 17, 177; transformation of, into questions of law by judicial decision, 18, _n._, 171–173; sometimes treated fictitiously as questions of law, 178.
Questions of law, distinguished from questions of fact, 15–18; examples of, 15; wrongly regarded as including all questions answered by judges instead of juries, 18, _n._
Qui prior est tempore potior est jure, 218, 269, 479.
Quod fieri non debet factum valet, 169, 479.
R. _v._ Armstrong, 330.
R. _v._ Birmingham and Gloucester Ry. Co., 288.
R. _v._ Brown, 345.
R. _v._ Collins, 345.
R. _v._ Coombes, 330.
R. _v._ Dudley, 348.
R. _v._ Edwards, 167.
R. _v._ Ellis, 331.
R. _v._ Great North of England Ry. Co., 288.
R. _v._ Harvey, 360.
R. _v._ Joliffe, 150.
R. _v._ Keyn, 57, 330.
R. _v._ Labouchere, 276.
R. _v._ Moore, 248.
R. _v._ Mucklow, 243, 249.
R. _v._ Price, 276.
R. _v._ Prince, 367, 370.
R. _v._ Raynes, 276.
R. _v._ Ring, 345.
R. _v._ Roberts, 345.
R. _v._ Senior, 277.
R. _v._ Stewart, 276.
R. _v._ Tolson, 367.
R. _v._ West, 277.
Raffles _v._ Wichelhaus, 312.
Rationes decidendi, their nature, 173; their sources, 174.
Real property, distinguished from personal, 394; personal, 394; origin of the distinction, 394.
Real rights, 202–207; distinguished from personal, 202–207; always negative, 203; distinction between real and personal rights not strictly exhaustive, 205; significance of the terms real and personal, 205; origin of terms in rem and in personam, 207; significance of term jus ad rem, 206.
Recht, different meanings of the term, 459; derivation of, 459; subjective and objective, 460.
Redress. _See_ Penal Redress.
Reformation, one of the ends of punishment, 76–80.
Release, 308, 309.
Remedial proceedings distinguished from penal, 88.
Remedies, legal. _See_ Proceedings.
Remoteness of damage, 476.
Reputation, the object of a right 188; of the dead, 276.
Res, meaning of the term in Roman law, 211; corporalis and incorporalis, 225, 226.
Res judicata pro veritate accipitur, 121, 171, 446, 479.
Respondeat superior, 375, 479.
Responsibility. _See_ Liability.
Retribution, one of the purposes of punishment, 80; Kant’s opinion as to, 82.
Revenge, its transformation into criminal justice, 81, 83.
Reynolds _v._ Ashby, 392.
Richer _v._ Voyer, 257.
Ridsdale _v._ Clifton, 167.
Rights, enforcement of, the object of civil justice, 70, 84; primary and sanctioning, 84; specific and sanctional enforcement of, 85–87; defined, 181–185; of animals, 181, _n._; natural and legal, 182; denial of natural rights by Bentham, 182; correlation of rights and duties, 184; alleged distinction between relative and absolute duties, 184; elements of legal rights, 185; the subjects of, 186; the contents of, 185; the objects of, 187; the titles of, 185, 299; rights over one’s own person, 187; right of reputation, 188; rights in respect of domestic relations, 188; rights in respect of other rights, 188; rights over immaterial property, 189; wide and narrow use of the term right, 190; rights in wide sense defined, 190; rights distinguished from liberties, powers, and immunities, 190–194; perfect and imperfect rights, 184, 197–199; rights against the state, 199; positive and negative rights, 201; real and personal, 202–207; in rem and in personam, 202–207; ad rem, 206; proprietary and personal, 207–212; rights of ownership and encumbrances, 212–216; dominant and servient, 212; principal and accessory, 216; legal and equitable, 217; local situation of, 393; in re propria and in re aliena, 212.
Rigidity of the law, 23.
Rigor juris, opposed to aequitas, 35.
Roman law, jus civile, 3, _n._; jus commune, 33, _n._; jus singulare, 33, _n._; aequitas and strictum jus, 36; jus praetorium, 38; actio furti, 86, _n._; professional opinion as a source of, 121; jus scriptum and non scriptum, 129; relation between custom and enacted law, 147; dominium, 207; obligatio, 207, 422; actio in rem, 207; res corporales and incorporates, 226, _n._; traditio brevi manu, 257; constitutum possessorium, 257; malicious exercise of rights, 342, _n._; noxal actions, 373; emphyteusis, 400, _n._; traditio as a title to property, 413; culpa and dolus, 359.
Rylands _v._ Fletcher, 372.
Sadler _v._ Great Western Ry. Co., 427.
Saga of Burnt Njal, 70.
Salomon _v._ Salomon & Co., 282.
Sanctional enforcement of rights, 84–87.
Sanctioning rights, 84, 85.
Sanctions, nature and kinds of, 11.
Savigny, his system of modern Roman law, 8; on the relation between enacted and customary law, 148; his theory of customary law, 154; his theory of possession, 258–261.
Scaramanga _v._ Stamp, 163.
Scientific law, 41.
Scottish law, on the relation between enacted and customary law, 148, _n._
Securities, 402–406; nature of, 216, 402; mortgages and liens, 403. _See_ Mortgage.
Seisin, its nature and importance in early law, 238.
Semi-sovereign states, 113.
Sententia legis, contrasted with litera legis, 138. _See_ Interpretation.
Servient rights, 212. _See_ Encumbrances.
Servitudes, nature of, 216, 400; distinguished from leases, 400; public and private, 401; appurtenant and in gross, 401; easements, 402, _n._
Shares in companies, nature of, 286, _n._
Sharp _v._ Jackson, 304.
Sheddon _v._ Goodrich, 167.
Sheil, _Ex parte_, 199.
Sic utere tuo ut alienum non laedas, 214, 479.
Simpson _v._ Wells, 150.
Sloman _v._ Government of New Zealand, 296.
Smelting Co. of Australia _v._ Commissioners of Inland Revenue, 394.
Smith _v._ Baker, 434.
Smith _v._ Hughes, 313.
Smith _v._ Keal, 167.
Solidary obligations, 424–427; their nature, 424; their kinds, 425–427.
Solon, on making men just, 81, _n._
Sources of the law, formal and material, 117; legal and historical, 117–120; list of legal sources, 120; grounds of the authority of these sources, 120–123; constitutive and abrogative operation of, 123, 124; sources of law and sources of rights, 124; ultimate legal principles without legal sources, 125; literary sources of the law, 120, _n._
South Staffordshire Water Co. _v._ Sharman, 249.
Sovereignty, nature of, 111, 467–473; essential in a state, 467; divisibility of, 468, 469; limitations of, 469–473.
Space, ownership of, 390, 395, _n._
Special law, contrasted with common law, 28; kinds of, 29–32; local customs, 29; mercantile customs, 29; private legislation, 30; foreign law, 30; conventional law, 31.
Specific enforcement of rights, 85; the general rule, 320; not always possible, 321; not always expedient, 321.
Spencer, H., on the essential functions of the state, 94, _n._; on the gradual differentiation of these functions, 98, _n._; on natural rights, 182.
Spinoza, on the rule of reason and of force, 11.
Starey _v._ Graham, 192.
State, its will the sole source of law, 49, 117, 155; its nature, 93–98; defined, 99; its essential functions, war and the administration of justice, 93–98; generic identity of these two functions, 94; their specific difference, 95; secondary differences, 96–98; secondary functions of the state, 98; its territory, 99; non-territorial states, 99; membership of the state, 99; citizens and aliens, 100; personal and territorial idea of the state, 102; its constitution, 105–110; its government, 110; independent and dependent states, 111–114; different meanings of the term state, 113, _n._; fully sovereign and semi-sovereign states, 113; unitary and composite states, 114; imperial and federal states, 115; rights against the state, 199; legal personality of the state, 294–298.
Status distinguished from estate, 208–212; different uses of the term, 210; subject-matter of the law of persons, 211; the law of, 484.
Statute law, the typical form of law in modern times, 132; compared with case-law, their relative merits and defects, 133–136; interpretation of, 137–142. _See_ Interpretation.
Statutes referred to: Interpretation Act, 30; Judicature Act, 34, 217, 231; Statute of Marlborough, 70; Westminster I., 149; Prescription Act, 158; Magna Carta, 96; Sale of Goods Act, 258; Lord Campbell’s Act, 277; Statute of Uses, 413; Factors Act, 416; Statute of Frauds, 447; Parliament Act, 469.
Stephen, Sir J. F., his definition of criminal attempts, 344.
Suarez, his distinction between lex positiva and lex naturalis, 3, _n._; on opinio necessitatis in customary law, 147, _n._; on time immemorial, 152; his treatise De Legibus, 493.
Subject of a right, different uses of the term, 185; no rights without subjects, 186.
Subjects. _See_ Citizenship.
Substantive law, distinguished from procedure, 437.
Subtilty of law and lawyers, 26.
Succession, 416. _See_ Inheritance.
Summum jus opposed to aequitas, 35.
Summum jus summa injuria, 24, 36, 479.
Suretyship, 402, _n._
Suzerainty, 113.
Sydney _v._ The Commonwealth, 298.
Taylor, Jeremy, on the uncertainty of natural justice, 21; on men and wolves, 65.
Taylor, _Ex parte_, 340.
Territory, of a state, 99.
Terry, analysis of rights, 194, _n._
Text-books, authority of, 164, _n._
Tharsis Sulphur Co. _v._ Loftus, 355.
Themis, meanings and derivation of the term, 462.
Things, different senses of the term, 225; material and immaterial, 225, 387; corporeal and incorporeal, 225, 387; law of, 211; in action and in possession, 423.
Things, law of, 211.
Thomasius, on the law of nature, 46; his distinction between jurisprudence and ethics, 494.
Thompson _v._ London County Council, 427.
Tillett _v._ Ward, 357.
Time immemorial, a requisite of particular customs, 148–152; rule derived from canon, through civil law, 149, 150; original meaning of rule, 149; how affected by Statute of Westminster, 149; reason for requirement of immemorial antiquity in custom, 150.
Titles, their nature, 185, 299; original and derivative, 299, 301; origin of term, 300, _n._
Torts, their nature, 428–432; waiver of, 434.
Trade-marks, a form of immaterial property, 397.
Traditio brevi manu, 257.
Transfer of rights, 299, 300, 301, 414.
Trial by battle. _See_ Battle.
Trusts, a kind of encumbrance, 216; their nature, 227–231; their purposes, 228, 291; distinguished from contracts, 229; distinguished from agency, 230; how created and destroyed, 230; distinguished from the relation between legal and equitable ownership, 232; not recognised at common law, 232; for animals, 274; for maintenance of tombs, 276.
Turquand, _Ex parte_, 29.
Ubi eadem ratio, ibi idem jus, 479.
Ubi jus ibi remedium, 198, 480.
Ultimate rules of law, without legal sources, 125.
Unitary states, 114.
United States _v._ Davis, 330.
Universitas, use of the term in Roman law, 283, _n._
Unus homo plures personas sustinet, 278.
Vaughan, _In re_, 276.
Vera, Cruz, The, 165.
Vested ownership, 232–235.
Vestitive facts, 299–301.
Vigilantibus non dormientibus, jura subveniunt, 411, 480.
Volenti non fit injuria, 480.
Waiver of torts, 434.
Walker _v._ Great Northern Ry. Co., 277.
Wallis, _In re_, 167.
Wandsworth Board of Works _v._ United Telegraph Co., 391.
War, an essential function of the state, 93–98; compared with the administration of justice, 93–98; not governed by law, 96; private, 70, _n._
Ward _v._ National Bank, 426.
West Rand Co. _v._ Rex, 57.
Williams _v._ Howarth, 296.
Williams _v._ Williams, 275, 276.
Wilson _v._ Brett, 359.
Windscheid, on the relation between enacted and customary law, 148; his theory of customary law, 155; on the nature of rights, 182; on proprietary rights, 208, _n._; on ownership, 224, _n._; on the possession of rights, 266, _n._; his Pandektenrecht, 494.
Winter _v._ Winter, 257.
Witnesses, exclusion of, in early law, 27, 448
Wood _v._ Leadbitter, 193.
Woolsey, on retribution as the essential end of punishment, 82, _n._
Written and unwritten law, 128.
Wrongs, civil and criminal, 71; private and public, 72; these distinctions not equivalent, 73; historical relation between public wrongs and crimes, 74; definition of, 179; moral and legal, 179. _See_ Liability.
Year books, 494.
Footnote 1:
See on this subject Reid’s Philosophical Works, Essay on the Active Powers, V. 3. (Of systems of natural jurisprudence.) Also Dugald Stewart’s Works, VII. 256 (Hamilton’s ed.).
Footnote 2:
The term civil law, though once in common use to indicate the law of the land, has been partly superseded in recent times by the improper substitute, _positive_ law. _Jus positivum_ was a title invented by medieval jurists to denote law made or established (_positum_) by human authority, as opposed to that _jus naturale_ which was uncreated and immutable. It is from this contrast that the term derives all its point and significance. It is not permissible, therefore, to confine positive law to the law of the land. All is positive which is not natural. International and canon law, for example, are kinds of _jus positivum_ no less than the civil law itself. See Aquinas, Summa, 2. 2. q. 57 (De Jure) art. 2. Utrum jus convenienter dividatur in jus naturale et jus positivum. See also Suarez, De Legibus, I. 3. 13: (Lex) positiva dicta est, quasi addita naturali legi.
The term civil law possesses several other meanings, which are not likely, however, to create any confusion. It often means the law of Rome (_corpus juris civilis_) as opposed more especially to the canon law (_corpus juris canonici_), these being the two great systems by which, in the Middle Ages, State and Church were respectively governed. At other times it is used to signify not the whole law of the land, but only the residue of it after deducting some particular portion having a special title of its own. Thus civil is opposed to criminal law, to ecclesiastical law, to military law, and so on.
The term civil law is derived from the _jus civile_ of the Romans. Quod quisque populus ipse sibi jus constituit, id ipsius proprium civitatis est vocaturque jus civile, quasi jus proprium ipsius civitatis. Just. Inst. I. 2. 1.
Footnote 3:
It will be understood that this list is not intended as an exhaustive statement of the proper contents of a work of abstract jurisprudence, but merely as illustrative of the kinds of matters with which this branch of legal learning justly concerns itself.
Footnote 4:
Austin, p. 1077.
Footnote 5:
Arndts, Juristische Encyklopädie und Methodologie, p. 5. 9th ed. 1895. See also Puchta’s Encyklopädie, being the introductory portion of his Cursus der Institutionen, translated by Hastie (Outlines of Jurisprudence, 1887). The term general jurisprudence (allgemeine Rechtslehre) is occasionally applied to this form of literature. See Holtzendorff’s Encyklopädie der Rechtswissenschaft, 5th ed. 1890. (Elemente der allgemeinen Rechtslehre, by Merkel.)
Footnote 6:
_Jurisprudentia universalis_ or _generalis_ was originally merely a synonym for _jurisprudentia naturalis_.
Footnote 7:
The term jurisprudence is used by French lawyers as the equivalent of that which English lawyers call case-law—the development of the law by judicial decisions. “Jurisprudence—la manière dont un tribunal juge habituellement telle ou telle question” (Littré). Jurisprudence in this sense is contrasted with doctrine, _i.e._, extrajudicial legal literature.
Footnote 8:
On the distinction between law in the concrete and law in the abstract senses, see Pollock’s Jurisprudence, pp. 15–19, and Bentham’s Principles, p. 324, n. (Works I. 148 n.)
Footnote 9:
Tractatus Politicus, I. 5.
Footnote 10:
The term sanction is derived from Roman law. The _sanctio_ was originally that part of a statute which established a penalty, or made other provision in respect of the disregard of its injunctions. D. 48. 19. 41. By an easy transition it has come to mean the penalty itself.
Footnote 11:
It is to be noted, therefore, that the distinction between law and fact depends not on the person by whom, but on the manner in which, the matter is determined. Yet, although this is so, an illogical and careless usage of speech sometimes classes as questions of law all those which are for the decision of judges, irrespective of the existence or non-existence of legal principles for their determination.
It is worth notice that questions of fact, left to the determination of judges, tend to be transformed into questions of law, by the operation of judicial precedent. In the hands of judges decisions of fact beget principles of law, while the decisions of juries have no such law-creating efficacy. This is a matter which we shall consider at length in connection with the theory of precedent.
The distinction between law and fact, with special reference to trial by jury, is very fully considered by Thayer in his Preliminary Treatise on the Law of Evidence, pp. 183–262. See also Terry’s Leading Principles of Anglo-American Law, pp. 53–62.
Footnote 12:
Ductor Dubitantium (Works XII. 209. Heber’s ed.).
Footnote 13:
Treatise of Government, II. 11. 136.
Footnote 14:
Pro Cluentio, 53. 146.
Footnote 15:
Ecclesiastical Polity, I. 10. 7.
Footnote 16:
Rhetoric, I. 15. See also Bacon, De Augmentis, Lib. 8, Aph. 58: Neminem oportere legibus esse sapientiorem.
Footnote 17:
Bacon, De Augmentis, Lib. 8, Aph. 46; Aristotle’s Rhetoric, I. 1.
Footnote 18:
_Edie_ v. _East India Co._, 2 Burr 1226; _Barnet_ v. _Brandao_, 6 M. & G. at p. 665; _Moult_ v. _Halliday_, (1898) 1 Q. B. 125; _Ex parte Turquand_, 14 Q. B. D. 636; _Edelstein_ v. _Schuler_, (1902) 2 K. B. 144.
Footnote 19:
By the Interpretation Act, 1889, s. 9, it is provided that “Every Act passed after the year 1850 ... shall be a public Act, and shall be judicially noticed as such, unless the contrary is expressly provided by the Act.”
Footnote 20:
As to equity, see the next section.
Footnote 21:
The term _jus commune_ is found in the civil law also, but in senses unconnected with that which here concerns us. It sometimes signifies _jus naturale_ as opposed to _jus civile_ (D. 1. 1. 6. pr.), while at other times it is contrasted with _jus singulare_, that is to say, anomalous rules of law inconsistent with general legal principles, but established _utilitatis causa_ to serve some special need or occasion. D. 28. 6. 15. D. 1. 3. 16.
Footnote 22:
Y. B. 20 & 21 Ed. I. 329. See Pollock and Maitland’s History of English Law, I. 155.
Footnote 23:
Y. B. 21 & 22 Ed. I. 213.
Footnote 24:
Y. B. 21 & 22 Ed. I. 458.
Footnote 25:
Y. B. 21 & 22 Ed. I. 55.
Footnote 26:
Bracton, 48 b.
Footnote 27:
Nic. Ethics V. 10. 3. The Greeks knew equity under the name epieikeia.
Footnote 28:
Rhet. I. 13. 19.
Footnote 29:
De Officiis I. 10. 33. See also Pro Caecina 23. 65: Ex aequo et bono, non ex callido versutoque jure rem judicari oportere. De Oratore I. 56. 240: Multa pro aequitate contra jus dicere. De Officiis III. 16. 67.
Footnote 30:
In omnibus quidem, maxime tamen in jure, aequitas spectanda est. D. 50. 17. 90. Placuit in omnibus rebus praecipuam esse justitiae aequitatisque, quam stricti juris rationem. C. 3. 1. 8. Haec aequitas suggerit, etsi jure deficiamur. D. 39. 3. 2. 5. A constitution of Constantine inserted in Justinian’s Code, however, prohibits all inferior courts from substituting equity for strict law, and claims for the emperor alone the right of thus departing from the rigour of the jus scriptum: Inter aequitatem jusque interpositam interpretationem nobis solis et oportet et licet inspicere. C. 1. 14. 1.
Footnote 31:
Summa Theologiae 2. 2. q. 120. art. 1. De epieikeia seu aequitate:—In his ergo et similibus casibus malum est sequi legem positam; bonum autem est praetermissis verbis legis, sequi id quod poscit justitiae ratio et communis utilitas. Et ad hoc ordinatur epieikeia, quae apud nos dicitur aequitas.
Footnote 32:
Pollock and Maitland, History of English Law, I. 168; Glanville VII. 1.: Aliquando tamen super hoc ultimo casu in curia domini Regis de consilio curiao ita ex aequitate consideratum est. Bracton in discussing the various meanings of jus says (f. 3. a.):—Quandoque pro rigore juris, ut cum dividitur inter jus et aequitatem. Following Azo, who follows Cicero (Topica IV. 23), he says:—Aequitas autem est rerum convenientia, quae in paribus causis paria desiderat jura (f. 3. a). See also f. 12. b. and f. 23. b. Aequitas tamen sibi locum vindicat in hac parte. See also Y. B. 30 and 31 Ed. I. 121:—Et hoc plus de rigore quam de aequitate.
Footnote 33:
Cited in Spence’s Equitable Jurisdiction of the Court of Chancery, I. 408, note (_a_).
Footnote 34:
D. 1. 1. 7. 1.
Footnote 35:
A special application by English lawyers of the term equity in its original sense, as opposed to _strictum jus_ is to be seen in the phrase, _the equity of a statute_. By this is meant the spirit of a law as opposed to its letter. A matter is said to fall within the equity of a statute, when it is covered by the reason of the statute, although through defective draftsmanship it is not within its actual terms. “Valeat aequitas,” says Cicero, “quae paribus in causis paria jura desiderat.” Topica IV. 23.
Footnote 36:
Ecc. Pol. I. 3. 1.
Footnote 37:
Comm. I. 38.
Footnote 38:
Proverbs, 8. 29.
Footnote 39:
Job, 28. 26.
Footnote 40:
Summa, 1. 2. q. 91. art. 1.
Footnote 41:
Summa, 1. 2. q. 93. art. 1.
Footnote 42:
Natural law, _lex naturae_, is either (1) the law of _human_ nature, _i.e._, the moral law, or (2) the law of nature in the sense of the universe, _i.e._, physical law.
Footnote 43:
Ecc. Pol. I. 3. 2.
Footnote 44:
Ecc. Pol. I. 16. 8.
Footnote 45:
Rhet. I. 10.
Footnote 46:
Rhet. I. 13.
Footnote 47:
De Rep. III. 22. 23.
Footnote 48:
Works, III. 516 (Bohn’s Ecc. Library). On the Virtuous being also Free.
Footnote 49:
Institutes, I. 1.
Footnote 50:
Institutes, I. 2. 11.
Footnote 51:
Ecc. Pol. I. 1. 10. 1.
Footnote 52:
Inst. Jurisp. Div. I. 2. 97.
Footnote 53:
See Nettleship, Contributions to Latin Lexicography, _sub. voc. jus gentium_; Burle, Essai historique sur le développement de la notion du droit naturel dans l’antiquité grecque; Phillipson, The International Law and Custom of Ancient Greece and Rome, vol. I. ch. 3; Bryce, Studies in History and Jurisprudence, I. pp. 112–171; Pollock, Journ. Compar. Legisl. 1900, p. 418; 1901, p. 204; Clark, Practical Jurisprudence, ch. 13.
Footnote 54:
De Officio Hominis et Civis, I. 2. 2.
Footnote 55:
I. 96.
Footnote 56:
“The moral law is the declaration of the will of God to mankind, directing and binding every one to ... obedience thereunto ... in performance of all those duties of holiness and righteousness which he oweth to God and man: promising life upon the fulfilling, and threatening death upon the breach of it.” Larger Catechism of the Westminster Assembly of Divines, Quest. 93.
Footnote 57:
“The laws that men generally refer their actions to, to judge of their rectitude or obliquity, seem to me to be these three: 1. The divine law; 2. The civil law; 3. The law of opinion or reputation, if I may so call it. By the relation they bear to the first of these, men judge whether their actions are sins or duties; by the second, whether they be criminal or innocent; and by the third, whether they be virtues or vices.” Locke on the Human Understanding, Bk. II. ch. 28, § 7.
Footnote 58:
Eng. Wks. II. 185.
Footnote 59:
Principles of Morals and Legislation, p. 330 (Cl. Press ed.), Works, I. 151.
Footnote 60:
I. 86.
Footnote 61:
Leviathan, ch. 46.
Footnote 62:
See, for example, Bryce’s Studies in History and Jurisprudence, vol. ii. pp. 44 and 249: “Broadly speaking, there are in every community two authorities which can make law: the State, _i.e._, the ruling and directing power, whatever it may be, in which the government of the community resides, and the People, that is, the whole body of the community, regarded not as incorporated in the state, but as being merely so many persons who have commercial and social relations with one another.... Law cannot be always and everywhere the creation of the state, because instances can be adduced where law existed in a community before there was any state.” See also Pollock’s First Book of Jurisprudence, p. 24: “That imperative character of law, which in our modern experience is its constant attribute, is found to be wanting in societies which it would be rash to call barbarous, and false to call lawless.... Not only law, but law with a good deal of formality, has existed before the State had any adequate means of compelling its observance, and indeed before there was any regular process of enforcement at all.” See also Maine’s Early History of Institutions, Lect. 12, p. 364, and Lect. 13, p. 380; Walker’s Science of International Law, pp. 11–21.
Footnote 63:
Commentaries, I. 44.
Footnote 64:
See, for example, Bentham’s Principles, p. 330 (Works I. 151); Ihering, Zweck im Recht, I. p. 334 (3rd ed.).
Footnote 65:
That part of the civil law which has its source in agreement is itself called conventional law. See _ante_, § 11, and _post_, § 46. This use of the term must be distinguished from that which is here adopted. Conventional law in the present sense is not a part of the civil law, but a different _kind_ of law.
Footnote 66:
Notice that the term customary law is ambiguous in the same manner as the term conventional law. It means either (1) the kind of law described in the text, or (2) that part of the civil law which has its source in custom. See § 56.
Footnote 67:
They are the expression of what Kant and other moralists have termed hypothetical imperatives, as opposed to the categorical imperative of the moral law.
Footnote 68:
L. Q. R. XII. p. 313. Adopted by Lord Alverstone, C. J., in _West Rand Gold Mining Co._ v. _Rex_, (1905) 2 K. B. at p. 407.
Footnote 69:
_Reg._ v. _Keyn_, 2 Ex. D. p. 63.
Footnote 70:
_Reg._ v. _Keyn_, 2 Ex. D. p. 131.
Footnote 71:
_Reg._ v. _Keyn_, 2 Ex. D. p. 202.
Footnote 72:
De Corpore Politico, Eng. Wks. IV. 228.
Footnote 73:
Fundamenta Juris Nat. et Gent. I. 5. 67.
Footnote 74:
De Jure Nat. et Gent. II. 3. 23.
Footnote 75:
Principes du droit de la nature et des gens, vol. iv. p. 16, ed. 1820.
Footnote 76:
It is maintained by such writers as Hall, Rivier, Bluntschli, Nys, Sidgwick, Westlake, Walker, Lawrence, and Oppenheim.
Footnote 77:
“The sole source of (international) law,” says Dr. Walker in his History of International Law, vol. i. p. 21, “is actual observance.” This law, he adds, p. 31, is “the embodiment of state practice.” It is not easy to make a list of the genuine adherents of this opinion, because so many writers introduce vagueness and uncertainty into their exposition by speaking of international _consent_ as well as of international practice as a source of law; and they fail to make it clear whether such practice is operative _per se_, or only as evidence of underlying consent. Moreover, the word consent is itself used ambiguously and vaguely, and it is often difficult to know whether it means international agreement, or international opinion, or the harmonious practice of states.
Footnote 78:
I. p. 187.
Footnote 79:
See Westlake, International Law, p. 7; Chapters on the Prls. of Int. Law, p. 2; Hall, Int. Law, p. 1; Sidgwick, Elements of Politics, Ch. 17. pp. 274 _sqq._ 1st ed.; Oppenheim, International Law, I. § 5.
Footnote 80:
Jeremy Taylor’s Works, XIII. 306, Heber’s ed.
Footnote 81:
Hobbes’ Leviathan, ch. 13: “Hereby it is manifest that during the time men live without a common power to keep them all in awe, they are in that condition which is called war; and such a war as is of every man against every man.... Whatsoever therefore is consequent to a time of war, where every man is enemy to every man, the same is consequent to the time wherein men live without other security than what their own strength and their own invention shall furnish them withal. In such condition there is no place for industry ... no arts, no letters, no society, and, which is worst of all, continual fear and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short.”
Footnote 82:
Treatise on Government, II. ch. 2.
Footnote 83:
In the year 1818 in a private prosecution for murder (an appeal of murder) the accused demanded to be tried by battle, and the claim was allowed by the Court of King’s Bench. The prosecutor was not prepared to face the risks of this mode of litigation, and the accused was discharged: _Ashford_ v. _Thornton_, 1 Barn. & Ald. 405. This case led to the abolition of appeals of felony and of trial by battle by the statute 59 Geo. III. c. 46.
Footnote 84:
Laws of King Alfred, 42. (Thorpe’s Ancient Laws and Institutes of England, I. 91): “We also command that he who knows his foe to be at home fight not before he demand justice of him. If he have such power that he can beset his foe and besiege him, let him keep him within for seven days, and attack him not, if he will remain within.... But if he have not sufficient power to besiege him, let him ride to the ealdorman, and beg aid of him. If he will not aid him, let him ride to the king before he fights.”
Footnote 85:
As late as the closing years of Henry III. it was found necessary to resort to special statutory enactments against a lawless recurrence to the older system. The statute of Marlborough (52 Hen. III. c. 1) recites that “At the time of a commotion late stirred up within this realm, and also since, many great men and divers other have disdained to accept justice from the King and his Court, like as they ought and were wont in time of the King’s noble progenitors, and also in his time, but took great revenges and distresses of their neighbours and of others, until they had amends and fines at their own pleasure.” The statute thereupon provides that “All persons, as well of high as of low estate, shall receive justice in the King’s Court, and none from henceforth shall take any such revenge or distress of his own authority without award of our Court.” Long after the strength of the law of England had succeeded in suppressing the practice, the right of private war continued to be recognised and regulated by law in the more feebly governed states of the Continent. An interesting account of the matter is given by M. Nys in his Origines du Droit International (1894), ch. 5. A reminiscence of the older doctrine and practice may be seen to this day in England in that “peace of our Lord the King” which every criminal is formally charged in his indictment with having broken. The King of England made good at an early date his monopoly of war, and all private war or violence was and is a violation of his peace. As to the King’s peace, see Sir F. Pollock’s Oxford Lectures, pp. 65–90; Select Essays in Anglo-American Legal History, II. pp. 403–417. An interesting picture of the relations between law and private force in the primitive community of Iceland is to be found in the Saga of Burnt Njal (Dasent’s translation).
Footnote 86:
Commentaries, III. 2.
Footnote 87:
Austin’s theory of the distinction is somewhat different from Blackstone’s, for he makes the distinction between public and private wrongs, and therefore between criminal and civil wrongs, turn not on the public or private nature of the right violated, but solely on the public or private nature of the proceeding taken in respect of its violation. “Where the wrong,” he says (p. 502), “is a civil injury, the sanction is enforced at the discretion of the party whose right has been violated. Where the wrong is a crime, the sanction is enforced at the discretion of the sovereign.” This theory, however, is exposed to the same objections as those which may be made to Blackstone’s, and it need not be separately considered.
Footnote 88:
Numbers, xxxv. 31.
Footnote 89:
Diogenes Laertius tells us that when Solon was asked how men might most effectually be restrained from committing injustice, he answered: “If those who are not injured feel as much indignation as those who are.”
Footnote 90:
Kant’s Rechtslehre (Hastie’s trans. p. 195). The like opinion is expressed in Woolsey’s Political Science, I. p. 334: “The theory that in punishing an evildoer the state renders to him his deserts, is the only one that seems to have a solid foundation.... It is fit and right that evil, physical or mental, suffering or shame, should be incurred by the wrongdoer.” See also Fry, Studies by the Way (The Theory of Punishment), pp. 43–71.
Footnote 91:
Deuteronomy, xix. 21.
Footnote 92:
Lilley, Right and Wrong, p. 128.
Footnote 93:
It is worth notice that an action may be purely penal even though the penalty is payable to the person injured. It is enough in such a case that the receipt of the penalty should not be reckoned as or towards the compensation of the recipient. A good example of this is the Roman _actio furti_ by which the owner of stolen goods could recover twice their value from the thief by way of penalty, without prejudice nevertheless to a further action for the recovery of the goods themselves or their value.
Footnote 94:
I. Samuel, viii. 20.
Footnote 95:
English Works, II. 76: “Both swords, therefore, as well this of war as that of justice, ... essentially do belong to the chief command.”
Footnote 96:
“The primary function of the state,” says Herbert Spencer (Principles of Ethics II. 204. 208. 214) “or of that agency in which the powers of the state are centralised, is the function of directing the combined actions of the incorporated individuals in war. The first duty of the ruling agency is national defence. What we may consider as measures to maintain inter-tribal justice, are more imperative, and come earlier, than measures to maintain justice among individuals.... Once established, this secondary function of the state goes on developing; and becomes a function next in importance to the function of protecting against external enemies.... With the progress of civilisation the administration of justice continues to extend and to become more efficient.... Between these essential functions and all other functions there is a division, which, though it cannot in all cases be drawn with precision, is yet broadly marked.”
Footnote 97:
It is to be noted that the term war is commonly applied only to the more extreme forms of extrajudicial force. Rioting would not be termed civil war, although the difference between them is merely one of degree. Nor would the punitive expedition of an armed cruiser against a village in the South Sea Islands be dignified with the name of war, though it differs only in degree from the blockade or bombardment of the ports of a civilised state. To be perfectly accurate, therefore, we should oppose the administration of justice not to war, but to the extrajudicial use of force, counting war as the most important species of the latter. War, however, so greatly overshadows in importance all other forms of such force, that it is more convenient to take it as representing the genus, and to disregard the others.
Footnote 98:
The prohibition of the use of extrajudicial force by the King against his subjects is one of the main provisions of Magna Carta (sec. 39): “No free man shall be taken or imprisoned or disseized or outlawed or exiled or anyways destroyed, nor will we go against him, nor will we send against him, save by the lawful judgment of his peers, or by the law of the land.” It is submitted that, subject only to the _jus necessitatis_, this is still the law of England, notwithstanding the doctrine of military absolutism laid down by Lord Halsbury, in the name of the Privy Council, in the case of _Ex parte Marais_, (1902) A. C, 109.
Footnote 99:
On the original identity and gradual differentiation of the two functions of the state, see Spencer’s Sociology, II. pp. 493 _sqq._ “The sword of justice,” he says at p. 494, “is a phrase sufficiently indicating the truth that action against the public enemy and action against the private enemy are in the last resort the same.”
Footnote 100:
Speaking generally, we may say that the terms subject and citizen are synonymous. Subjects and citizens are alike those whose relation to the state is personal and not merely territorial, permanent and not merely temporary. This equivalence, however, is not absolute. For in the first place, the term subject is commonly limited to monarchical forms of government, while the term citizen is more specially applicable in the case of republics. A British subject becomes by naturalisation a citizen of the United States of America or of France. In the second place, the term citizen brings into prominence the rights and privileges of the status, rather than its correlative obligations, while the reverse is the case with the term subject. Finally it is to be noticed that the term subject is capable of a different and wider application, in which it includes all members of the body politic, whether they are citizens (_i.e._ subjects _stricto sensu_) or resident aliens. All such persons are subjects, as being subject to the power of the state and to its jurisdiction, and as owing to it, at least temporarily, fidelity and obedience. Thus it has been said that: “Every alien coming into a British colony becomes temporarily a subject of the Crown—bound by, subject to, and entitled to the benefit of the laws which affect all British subjects.” _Low_ v. _Routledge_, 1 Ch. App. at p. 47. See also _Jeffreys_ v. _Boosey_, 4 H. L. C. 815. So in Hale’s Pleas of the Crown, I. 542, it is said: “Though the statute speaks of the king’s subjects, it extends to aliens, ... for though they are not the king’s natural born subjects, they are the king’s subjects when in England by a local allegiance.”
Footnote 101:
The possession of political rights is so characteristic and important a feature of citizenship, that some may be tempted to regard it as the essence of the matter. This, however, is not so. Women have no political rights, yet a wife is as much a British subject as her husband is. The distinction between subject and alien may exist under a despotic government, neither class possessing any political rights at all.
Footnote 102:
British nationality is acquired in the following ways:—
(a) By birth in British dominions.
(b) By descent from a father or a father’s father born in British dominions.
(c) By the marriage of an alien woman to a British subject.
(d) By naturalisation.
(e) By continued residence in a territory after it has been conquered or otherwise acquired by the British Crown.
Footnote 103:
On this transition from the national to the territorial idea of the state, see Maine, Early History of Institutions, pp. 72–76. As to the history of the conception and law of citizenship, see Salmond on Citizenship and Allegiance, L. Q. R. xvii. 270, and xviii. 49.
Footnote 104:
Although states are established for the protection of their members, it is not necessary that this protection should be absolutely limited to members. In exceptional cases and to a limited extent the state will use its powers for the defence and benefit of outsiders. War way be waged on behalf of an oppressed nation, and the state may intervene, in the interests of justice, in a quarrel not its own. Nor will it necessarily refuse to administer justice in its courts even to non-resident aliens. But such external protection is exceptional and accidental, and does not pertain to the essence of government. A state is established, not for the defence of all mankind, and not for the maintenance of right throughout all the earth, but solely for the security of its own members, and the administration of its own territory. A state which absolutely refused its protection to all outsiders would none the less adequately fulfil the essential purposes of a political society.
Footnote 105:
The conception of sovereignty is made by many writers the central point in their theory of the state. They lay down certain fundamental propositions with respect to the nature of this power: namely, (1) that its existence is essential in every state; (2) that it is indivisible, and incapable of being shared between two or more different authorities; and (3) that it is necessarily absolute and unlimited in law, that is to say, its sphere of action is legally indeterminate. A discussion of this difficult and important branch of political theory will be found in an Appendix.
Footnote 106:
In international law, therefore, the word state commonly means an independent state. This is a convenient place in which to call attention to the variety of allied meanings possessed by the term state. They are the following:
(a) A political society dependent or independent.
(b) An independent political society.
(c) The government of a political society.
(d) The territory of a political society.
Except where the context shows that it is not so, we shall use the term in the first of these senses.
Footnote 107:
A composite state may be of a mixed nature, being partly imperial and partly federal. A federal state may have dependencies, over which it exercises an imperial government—the foreign conquests, for example, of the United States of America. So an imperial state may have dependencies, which are themselves federal states. The Commonwealth of Australia is a federal union which is a dependency under imperial government.
Footnote 108:
D. 50. 17. 207.
Footnote 109:
In addition to the formal, historical, and legal sources of the law, it is necessary to note and distinguish what may be termed its literary sources, though this is a Continental, rather than an English use of the term source. The literary sources are the sources of our knowledge of the law, or rather the original and authoritative sources of such knowledge, as opposed to later commentary or literature. The sources of Roman law are in this sense the compilations of the Emperor Justinian, as contrasted with the works of commentators. So the sources of English law are the statute-book, the reports, and the older and authoritative text-books, such as Littleton. The literature, as opposed to the sources of our law, comprises all modern text-books and commentaries.
Footnote 110:
In the succeeding chapters we shall consider more particularly three of the legal sources which have been already mentioned, namely legislation, custom, and precedent. Professional opinion as a source of law pertains to the Roman, rather than to the English system, and does not call for special examination here. For an account of it see Bryce, Studies in History and Jurisprudence, II. pp. 255–269. Agreement will be considered later, in its aspect as a title of rights, instead of here as a source of law.
Footnote 111:
Austin, p. 538.
Footnote 112:
Austin, p. 531.
Footnote 113:
Constat autem jus nostrum aut ex scripto aut ex non scripto.... Ex non scripto jus venit, quod usus comprobavit. Just. Inst. 1. 2. 3.; 1. 2. 9.
“The municipal law of England may with sufficient propriety be divided into two kinds: the lex non scripta, the unwritten or common law; and the lex scripta, the written or statute law.” Blackstone, I. 63.
Footnote 114:
Blackstone, I. 161.
Footnote 115:
The mere fact that a person who becomes a shareholder must be taken to have impliedly agreed to be bound not only by the articles as they stand, but by any subsequent modification of them, does not render subsequent modifications conventional instead of legislative in their nature. The immediate source of the new rules is not agreement, but imposition by superior authority.
Footnote 116:
Plato’s Laws, 624. Spencer’s Sociology, II. pp. 515 _et seq._
Footnote 117:
On this and other grounds “judge-made law,” as he called it, was the object of constant denunciation by Bentham. “It is the judges,” he says in his vigorous way (Works, V. 235), “that make the common law. Do you know how they make it? Just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait till he does it and then beat him. This is the way you make laws for your dog, and this is the way the judges make laws for you and me.”
Footnote 118:
D. 1. 3. 17.
Footnote 119:
Strict interpretation is an equivocal expression, for it means either literal or narrow. When a provision is ambiguous, one of its meanings may be wider than the other, and the strict (_i.e._ narrow) sense is not necessarily the strict (_i.e._ literal) sense. When the equitable interpretation of a law is wider than the literal, it is called extensive; when narrower, it is called restrictive.
Footnote 120:
In the interpretation of contracts, no less than in that of statutes, there is to be noticed this distinction between the real and the latent intention of the parties. The difficulty of construing a contract arises more often from the fact that the parties had no clear intention at all as to the particular point, than from the fact that they failed to express an intention which they actually had.
Footnote 121:
Hale’s History of the Common Law, chap. ii.
Footnote 122:
Blackstone, I. 63.
Footnote 123:
Co. Litt. 141 a; The Case of Tanistry, Dav. Rep. 32; Blackstone, I. 77.
Footnote 124:
“If any general custom were directly against the law of God, or if any statute were made directly against it, ... the custom and statute were void.” Doctor and Student, Dial. I. ch. 6. See also Bonham’s Case, 8 Co. Rep. 118a; Coke’s 2nd Inst. 587; Hobart, 87; Blackstone, I. 91; Pollock and Maitland, History of English Law, I. 491; Pollock, Jurisprudence, pp. 262–267.
Footnote 125:
Dernburg, Pandekten, I. sect. 27. 3.
Footnote 126:
Blackstone, I. 78. Suarez, de Legibus, VII. 14. 7: Ad consuetudinem necessarium esse, ut eo animo et intentione servetur, ut jus in posterum fiat.
Footnote 127:
Blackstone, I. 76. Co. Litt. 113 a.
Footnote 128:
Quare rectissime etiam illud receptum est, ut leges non solum suffragio legislatoris. sed etiam tacito consensu omnium per desuetudinem abrogentur. D. 1. 3. 32. 1. Considerable doubt, however, exists as to the true relation between custom and statute in Roman law, owing to a passage in the Code (C. 8. 53. 2.) which, if read literally, conflicts with the doctrine expressed in the Digest, and declares custom to be destitute of legal effect if contrary to statute law. The ingenuity of German jurists has suggested numerous solutions of the apparent inconsistency, but with no convincing result. See Savigny’s System, vol. i. Appendix II. Vangerow, Pandekten, I. sect. 16. Dernburg, Pandekten, I. sect. 28.
Footnote 129:
System, sect. 18.
Footnote 130:
Vol. i. sect. 18.
Footnote 131:
For the similar doctrine of Scottish law, see Erskine’s Institutes, I. 19.
Footnote 132:
It is to be noticed that the term custom is often used to mean particular custom exclusively. Custom (meaning local usage having legal validity) is opposed to law (meaning the common law of the land). When we find in the books any proposition laid down as to the legal efficacy or requirements of custom, it must be carefully ascertained from the context whether the term does or does not extend to general customs.
Footnote 133:
Both in English and foreign law, however, the time of memory was extended by the allowance of tradition within defined limits. A witness might testify not only to that which he had himself seen, but to that which he had been told by others who spoke of their own knowledge. D. 22. 3. 28. Bracton f. 373 a. 318 b. By French law time of memory was held to extend for one hundred years. Pothier, De la Prescription, sects. 278–288.
Footnote 134:
The statute of Westminster I. c. 39, imposed a limitation upon actions for the recovery of land. It provided that no such action should lie, unless the claimant or his predecessor in title had had possession of the land claimed at some time subsequent to the accession of Richard I. The previous common law rule of limitation for such actions was no other than the rule as to time immemorial. At common law the claimant had to prove his title and his seisin by the testimony of living men; therefore he or his predecessors must have been in possession within time of human memory. The enactment in question was accordingly construed as laying down a statutory definition of the term time of memory, and this supposed statutory definition was accepted by the courts as valid in all departments of the law in which the idea of time immemorial was relevant. See Blackstone, II. 31; Littleton, sect. 170.
Footnote 135:
_R._ v. _Joliffe_, 2 B. & C. 54; _Bryant_ v. _Foot_, L. R. 3 Q. B. 497; _Lawrence_ v. _Hitch_, L. R. 3 Q. B. 521; _Simpson_ v. _Wells_, L. R. 7 Q. B. 214.
Footnote 136:
In limiting the requirement of immemorial antiquity to local customs, we have, for the sake of simplicity, spoken somewhat more absolutely than the present state of the authorities warrants. The more common, and, it is believed, the better opinion is that the law is as stated in the text. There is, however, some authority for saying that the same requirement exists in the case of certain general customs also. In _Crouch_ v. _Crédit Foncier_, L. R. 8 Q. B. 374, it was held that modern mercantile custom was powerless to render an English instrument negotiable, although it is well settled that foreign instruments, such as the bonds of foreign governments, may be made negotiable in this way. _Gorgier_ v. _Mieville_, 27 R. R. 290. The authority, however, of the case in question is exceedingly doubtful. See _Goodwin_ v. _Robarts_, L. R. 10 Ex. 337; _Bechuanaland Exploration Co._ v. _London Trading Bank_, (1898) 2 Q. B. 658; _Edelstein_ v. _Schuler_, (1902) 2 K. B. 144; L. Q. R. XV. 130 and 245. There is no doubt that a great part of our mercantile law has been derived from modern mercantile custom, and we may assume with some confidence that such custom still retains the law-creating efficacy which it formerly possessed.
Footnote 137:
Decretals, I. 4. 8. Gloss. (Ed. of 1671. Vol. ii. p. 92). Secundum jus canonicum non valet consuetudo, nisi praescripta sit et rationabilis. Decretum, Dist. I. 4. Gloss. (Vol. i. p. 3). Ad hoc ergo ut consuetudo juri communi praejudicet, requiritur primo quod rationabilis sit, et quod sit praescripta. Decretals, I. 4. 11. 8. Gloss. (Vol. ii. p. 96).
Footnote 138:
Suarez, De Legibus, VII. 15. 5.
Footnote 139:
Novel. 131. ch. 6.
Footnote 140:
Decretals, I. 4. 11. Gloss. (Vol. ii. p. 96). Illa consuetudo praejudicat juri, quae excedit hominum memoriam. Decretum, Dist. VIII. c. 7. Gloss. (Vol. i. p. 25).
Footnote 141:
D. 43. 20. 3. 4. Fossam jure factam aut cuius memoria non exstat. D. 39. 3. 2. 7.
Footnote 142:
Pothier, De la Prescription, sects. 278–288; Baudry-Lacantinerie, De la Prescription, sects. 12, 21; Windscheid, I. sect. 113.
Footnote 143:
Suarez, De Legibus, VII. 15. 2. Aliqui enim antiqui immemoriale tempus postulabant, tamen sine fundamento, et ita relicta et antiquata est illa sententia.
Footnote 144:
Y. B. 20 and 21 Ed. I. 136. As to the history of immemorial prescription see Die Lehre von der unvordenklichen Zeit, by Friedländer, 1843.
Footnote 145:
Littleton (sect. 169) tells us that: Consuetudo ex certa causa rationabili usitata privat communen legem. And to this Coke (113 a) adds by way of commentary the canonical maxim: Consuetudo praescripta et legitima vincit legem. In _Goodwin_ v. _Robarts_, L. R. 10 Ex. at p. 357, it is said: “We must by no means be understood as saying that mercantile usage, however extensive, should be allowed to prevail if contrary to positive law, including in the latter such usages as having been made the subject of legal decision, and having been sanctioned and adopted by the courts, have become, by such adoption, part of the common law. To give effect to a usage which involves a defiance or disregard of the law would be obviously contrary to a fundamental principle. And we quite agree that this would apply quite as strongly to an attempt to set up a new usage against one which has become settled and adopted by the common law as to one in conflict with the more ancient rules of the common law itself.” See also to the same effect _Edie_ v. _East India Company_, 2 Burr. 1216.
Footnote 146:
Pothier on Obligations, sect. 95.
Footnote 147:
Encyklopädie, sect. 20.
Footnote 148:
Pandektenrecht, I. sect. 15.
Footnote 149:
Austin, p. 538. An able and forcible defence of the Austinian position will be found in Professor W. J. Brown’s Austinian Theory of Law, Excursus D.—“Customary Law in Modern England.”
Footnote 150:
Co. Litt. 113 b.
Footnote 151:
The importance of reported decisions has, however, been increasing in both France and Germany for some time, and Continental law shows a distinct tendency to follow the example of English in this matter.
Footnote 152:
Hale’s History of the Common Law, p. 89 (ed. of 1820).
Footnote 153:
Hale’s History of the Common Law, p. 88.
Footnote 154:
_In re Hallett_, 13 Ch. D. at p. 710.
Footnote 155:
_Castro_ v. _R._, 6 A. C. p. 249; _Scaramanga_ v. _Stamp_, 5 C. P. D. p. 303.
Footnote 156:
_In re Parsons_, 45 Ch. D. 62: “Decisions of the Irish Courts, though entitled to the highest respect, are not binding on English judges.”
Footnote 157:
In _Leask_ v. _Scott_, 2 Q. B. D. 376, at p. 380, it is said by the Court of Appeal, speaking of such a decision: “We are not bound by its authority, but we need hardly say that we should treat any decision of that tribunal with the greatest respect, and rejoice if we could agree with it.”
Footnote 158:
Persuasive efficacy, similar in kind though much less in degree, is attributed by our courts to the civil law and to the opinions of the commentators upon it; also to English and American text-books of the better sort.
Footnote 159:
_London Street Tramways Company_ v. _London County Council_, (1898) A. C. 375, at p. 379. This is said to be so even when the House of Lords is equally divided in opinion, so that the judgment appealed from stands unreversed and so authoritative. _Beamish_ v. _Beamish_, 9 H. L. C. p. 338; _Att.-Gen._ v. _Dean of Windsor_, 8 H. L. C. p. 392. As to the equal division of other courts, see _The Vera Cruz_, 9 P. D. p. 98.
Footnote 160:
_Pledge_ v. _Carr_, (1895) 1 Ch. 51; _Lavy_ v. _London County Council_, (1895) 2 Q. B. at p. 581, per Lindley, L.J. See, however, _Mills_ v. _Jennings_, 13 C. D. p. 648.
Footnote 161:
It is to be remembered that the overruling of a precedent has a retrospective operation. In this respect it is very different from the repeal or alteration of a statute.
Footnote 162:
_Sheddon_ v. _Goodrich_, 8 Ves. 497.
Footnote 163:
_Pugh_ v. _Golden Valley Railway Company_, 15 Ch. D. at p. 334.
Footnote 164:
_Smith_ v. _Keal_, 9 Q. B. D. at p. 352. See also _In re Wallis_, 25 Q. B. D. 180; _Queen_ v. _Edwards_, 13 Q. B. D. 590; _Ridsdale_ v. _Clifton_, 2 P. D. 306; _Fookes_ v. _Beer_, 9 A. C. at p. 630: “We find the law to have been accepted as stated for a great length of time, and I apprehend that it is not now within our province to overturn it.”
Footnote 165:
_In re Hallett_, 13 Ch. D. at p. 712.
Footnote 166:
_Osborne_ v. _Rowlett_, 13 Ch. D. at p. 785.
Footnote 167:
It is clearly somewhat awkward to contrast in this way the terms authority and principle. It is odd to speak of deciding a case on principle because there is no legal principle on which it can be decided. To avoid misapprehension, it may be advisable to point out that decisions as to the meaning of statutes are always general, and therefore establish precedents and make law. For such interpretative decisions are necessarily as general as the statutory provisions interpreted. A question of statutory interpretation is one of fact to begin with, and is decided on principle; therefore it becomes one of law, and is for the future decided on authority.
Footnote 168:
Holmes, The Common Law, p. 35.
Footnote 169:
On the decision by judges of questions of fact under the guise of questions of law, see Thayer’s Preliminary Treatise on the Law of Evidence, pp. 202, 230, 249.
Footnote 170:
This statement, to be strictly correct, must be qualified by a reference to the interests of the lower animals. It is unnecessary, however, to complicate the discussion at this stage by any such consideration. The interests and rights of beasts are moral, not legal.
Footnote 171:
Pandekt. I. sect. 37.
Footnote 172:
Geist d. r. R. III. p. 339, 4th ed.
Footnote 173:
Theory of Legislation, pp. 82–84. See also Works, III. 217.
Footnote 174:
Principles of Ethics, II. p. 63.
Footnote 175:
The denial of natural rights is not rendered any more defensible by the recognition of other _positive_ rights in addition to the strictly legal rights which are created by the state; for example, rights created by international law, or by the so-called law of public opinion.
Footnote 176:
See Austin, Lect. 17.
Footnote 177:
The terms subject and object are used by different writers in a somewhat confusing variety of senses:—
(_a_) The subject of a right means the owner of it; the object of a right means the thing in respect of which it exists. This is the usage which has been here adopted: Windscheid, I. sect. 49.
(_b_) The subject of a right means its subject-matter (that is to say, its object in the previous sense). The object of a right means the act or omission to which the other party is bound (that is to say, its content): Austin, pp. 47, 712.
(_c_) Some writers distinguish between two kinds of subjects—active and passive. The active subject is the person entitled; the passive subject is the person bound: Baudry-Lacantinerie, Des Biens, sect. 4.
Footnote 178:
As to ownerless rights, see Windscheid, I. sect. 49, n. 3. Dernburg, Pandekten, I. sect. 49.
Footnote 179:
See as to rights to rights, Windscheid, I. sect. 48 a (Rechte an Rechten).
Footnote 180:
_Musgrove_ v. _Toy_, (1891) A. C. 272.
Footnote 181:
On the distinction between liberties and rights, see Bentham’s Works, III. p. 217; _Starey_ v. _Graham_, (1899) 1 Q. B. at p. 411, per Channell, J.; _Allen_ v. _Flood_, (1898) A. C. at p. 29, per Cave, J.; Terry, p. 90; Brown’s Austinian Theory of Law, p. 180.
Footnote 182:
A power is usually combined with a liberty to exercise it; that is to say, the exercise of it is not merely effectual but rightful. This, however, is not necessarily the case. It may be effectual and yet wrongful; as when, in breach of my agreement, I revoke a licence given by me to enter upon my land. Such revocation is perfectly effectual, but it is a wrongful act, for which I am liable to the licensee in damages. I had a right (in the sense of power) to revoke the licence, but I had no right (in the sense of liberty) to do so: _Wood_ v. _Leadbitter_, 13 M. & W. 838; _Kerrison_ v. _Smith_, (1897) 2 Q. B. 445.
Footnote 183:
On the distinction between powers and other kinds of rights, see Windscheid, I. sect. 37; Terry, p. 100.
Footnote 184:
This division of rights into rights (_stricto sensu_), liberties, and powers, is not intended to be exhaustive. These are the most important kinds of advantages conferred by the law, but they are not the only kinds. Thus, the term right is sometimes used to mean an _immunity_ from the legal power of some other person. The right of a peer to be tried by his peers, for example, is neither a right in the strict sense, nor a liberty, nor a power. It is an exemption from trial by jury—an immunity from the power of the ordinary criminal courts.
Footnote 185:
A very thorough examination of the conception of a legal right is to be found in Terry’s Principles of Anglo-American Law (Philadelphia, 1884), a work of theoretical jurisprudence too little known in England, and characterised by much subtle analysis of legal conceptions. Rights are there divided (ch. 6, pp. 84–138) into four kinds, which the author distinguishes as (1) permissive rights (which we have here termed liberties), (2) facultative rights (which we have here termed powers), (3) correspondent rights (which are so called because they correspond to duties, and which we have here termed rights in the strict sense), and (4) protected rights. These last we have not recognised as being in truth a class of rights at all. They are, if I understand Mr. Terry correctly, not rights but the _objects_ of rights _stricto sensu_; for example, life, reputation, liberty, property, domestic relations, &c. That is to say, they are the things in which a person has an interest, and to which, therefore, he has a right, so soon as, but not until, the law protects that interest by imposing duties in respect of it upon other persons. There is no right to reputation apart from and independent of the right that other persons shall not publish defamatory statements.
Footnote 186:
The distinction here drawn between duty and liability may seem to conflict with the common usage, by which certain kinds of duties are apparently spoken of as liabilities. Thus we say that a man is liable for his debts. This, however, may be construed as meaning that he is liable to be sued for them. We certainly cannot regard liability as a generic term including all kinds of duty. We do not say that a man is liable not to commit murder, or not to defraud other persons.
Footnote 187:
Of the three classes of rights or legal interests which we have considered, the first, consisting of those which are the correlative of duties, are by far the most important. So predominant are they, indeed, that we may regard them as constituting the principal subject-matter of the law, while the others are merely accessory. In future, therefore, we shall use the term right in this narrow and specific sense, except when the context indicates a different usage; and we shall commonly speak of the other forms of rights by their specific designations.
Footnote 188:
The term enforcement is here used in a wide sense to include the maintenance of a right or duty by any form of compulsory legal process, whether civil or criminal. There is a narrower use of the term, in which it includes only the case of civil proceedings. It is in this sense that we have already defined civil justice as being concerned with the enforcement of rights, and criminal justice as being concerned with the punishment of wrongs. As to the distinction between recognising and enforcing a right, see Dicey, Conflict of Laws, p. 31, 2nd ed.
Footnote 189:
There is another use of the term imperfect duty which pertains to ethics rather than to jurisprudence, and must be distinguished from that adopted in the text. According to many writers, an imperfect duty is one of such a nature that it is not fit for enforcement, but ought properly to be left to the free will of him whose duty it is. A perfect duty, on the other hand, is one which a man not merely _ought_ to perform, but may be _justly compelled_ to perform. The duty to give alms to the poor is imperfect; that of paying one’s debts is perfect. Perfect duties pertain to the sphere of justice; imperfect to that of benevolence. The distinction is not equivalent to that between legal duties and those which are merely moral. A duty may be a perfect duty of justice, although the actual legal system takes no notice of it; and conversely an imperfect duty of benevolence may be unjustly made by law the subject of compulsion. It does not seem possible, however, so to divide the sphere of duty by a hard and fast line. One of the most noteworthy attempts to do so is to be seen in Spencer’s Principles of Ethics.
Footnote 190:
_Ex parte Sheil_, 4 Ch. D. 789. _London & Midland Bank_ v. _Mitchell_, (1899) 2 Ch. 161.
Footnote 191:
As to rights against the state see Brown’s Austinian Theory of Law, p. 194.
Footnote 192:
Some writers treat _jus in personam_ and _jus ad rem_ as synonymous terms. It seems better, however, to use the latter in a narrower sense, as including merely one species, although the most important species, of _jura in personam_. Savigny, System, sect. 56, n. b.
Footnote 193:
Gaius, IV. 2.
Footnote 194:
A personal as opposed to a proprietary right is not to be confounded with a personal as opposed to a real right. It is a misfortune of our legal nomenclature that it is necessary to use the word personal in several different senses. The context, however, should in all cases be sufficient to indicate the particular signification intended. The more flexible language of the Germans enables them to distinguish between _personliche Rechte_ (as opposed to _dingliche Rechte_ or real rights) and _Personenrechte_ (as opposed to _Vermögensrechte_ or proprietary rights). See Dernburg, Pandekten, I. sect. 22, note 7.
Footnote 195:
Ahrens, sect. 55: Tous les biens, soit matériels en eux-mêmes, soit susceptibles d’être estimés en argent comme équivalent (par aestimatio et condemnatio pecuniaria) appartenant à une personne, forment son avoir ou son patrimoine.
Baudry-Lacantinerie, Des Biens, sect. 2. Le patrimoine est un ensemble de droits et de charges appréciables en argent.
Dernburg, Pandekten, I. sect. 22. Vermögen ist die Gesammtheit der geldwerthen Rechte einer Person.
Windscheid, I. sect. 42, note: Vermögensrechte sind die Rechte von wirthschaftlichem Werth.
See also to the same effect Savigny, System, sect. 56, and Puchta, Institutionen, II. sect. 193.
Footnote 196:
The words status and estate are in their origin the same. As to the process of their differentiation in legal meaning, see Pollock and Maitland, History of English Law, II. pp. 10 and 78 (1st ed.). The other uses of the term property will be considered by us later, in