Jurisprudence: Philosophy and theory of law

JURISPRUDENCE

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JURISPRUDENCE BY Sir JOHN SALMOND, 80LICITOE-OBNEEAL FOR NEW ZEALAND. ^iftt) CDitton. LONDON SWEET AND MAXWELL, LIMITED, 3, CHANOEEY LANE, W.C.

WILLIAM GUTHRIE SALMOND,

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OF MY SON, WILLIAM GUTHRIE SALMOND, A CAPTAIN IN THE NEW ZEALAND ARMY, WHO IN FRANCE ON THE gTH DAY OF JULY, 1918, GAVE UP HIS LIFE IN THE 26TH YEAR OF HIS AGE.

It may be that the details contained in the new

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/;^.v---TK ( V ) PREFACE TO THE SIXTH EDITION. In this Edition I have supplemented in an additional Appendix the brief e^tdinatiOn qf the conception of State-territory contained in Chapter V. The legal theory of this matter is rendered difficult by the complexity of modern constitutional and inter- national arrangements. It has been further con- sidered, therefore, with reference to the actual organization of the British Empire, and more par- ticularly with reference to the important distinction between British possessions and British protectorates. It may be that the details contained in the new Appendix are appropriate rather to a work of English constitutional law than to one of abstract jurisprudence ; nevertheless a knowledge of those details would seem to be essential to a due com- prehension of the general conception of State territory. I have now omitted the Appendix of biblio- graphy which appeared in the former Editions of this work.

was written, and neither my engagements nor my

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VI PREFACE TO THE SIXTH EDITION. was written, and neither my engagements nor my opportunities are now such as enable me to maintain it as an adequate guide to the literature of the subject. In other respects I have made no material changes in the present Edition. Chaster, LL.B., of the Middle Temple, Barrister -at-Law, for attending to its passage through the press and for the preparation of the Index.

TO THE FIRST EDITION.

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( vii ) PREFACE TO THE FIRST EDITION. I HAVE endeavoured to make this book ueeful to more than one class of readers. It is written primarily for the use of those students of the law who are desirous of laying a scientific foundation for their legal education; yet I hope that it will not be found destitute of interest by thoee law^yers whoee academic studies lie behind them, but who have not wholly ceased to concern themselves with the theoretical and scien- tific aspects of the law. Further, a great part of what I have written is suflB.caently free from the technicaiitieB and details of the concrete legal system to serve the purposes of those laymen who, with no desire to adventure themselves among the repellent mysteries of the law, are yet interested in those more general portions of legal theory which touch the problems of ethical and political science. It twill be noticed that occasional passages of the text axe printed in smaller type. These are of lesser importance, of greater idiffioulty, or of a controversial or historical charaoter, and are not essential to the continuity of the exposition.

CONTENTS.

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Jurisprudence as the Soieuee of Law 1 § 2. Jurisprudence as the Science of Civil Law 3 § 3. English and Foreign Jurisprudence 7 CHAPTER II. The Administration of Justice 11 § 7. Law logically subsequent to the Administration of Justice 12 § 8. The Justification of the Law 19 § 10.

OHAPTBE IV.

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Necessity of the Administration of Justice 65 § 26. Origin of the Administration, of Justice 67 § 27. The Purposes of Criminal Justice: Deterrent Punishment 75 § 29. Civil Justice: Primary and Sanctioning Rights 84 § 33. Penal and Remedial Proceedings 88' § 35. Secondary Functions of Courts of Law 89 CHAPTER V.

CHAPTER X.

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The Early importance of Customary Law 143 § 56. Reasons for the Reception of Customary Law 144 § 57. The Requisites of a Valid Custom 146 § 58. Theories of Customary Law 154 § 60. Custom and Prescription 157 CHAPTER IX. The Authority of Precedents 169 § 62.

CHAPTER XII.

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The Definition of Ownership 220 § 87. ODrporeal and Incorporeal Ownerahip 221 § 88. Corporeal and Incorporeal Things 225 § 89. Sole Ownership and Co-ownership 226 § 90. Trust and Beneficial Ownership 227 § 91. Legal and Equitable Ownership 231 § 92.

CHAPTER XVI.

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The Agents, Beneficiaries, and Members of a Corporation 285 § 116. The Acts and Liabilities of a Corporation 287 § 117. The Uses and Purposes of Incorporation 290 § 118. The Creation and Extinction of Corporations 293 § 119. The State as a Ckirporation 294 CHAPTER XVI. The Classes of Agreements 308 § 124.

CHAPTER XIX.

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Wrongs of Absolute Liability 366 § 146. Vicarious Eesponsibility 374 § § 150. The Measure of Criminal Liability 377 § 151. The Measure of Civil Liability : 382 CHAPTER XX. Meanings of the term Property 385 § 153. The Ownership of Material Things 38» § 155, Movable and Immovable Property 390 § 156.

APPENDICES.

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THE LAW OF EEOCEDUEE. \ PAGE § 172. Substantive Law and the Law of Procedure 437 § 173. The Valuation of Evidence 443 § 176. The Production of Evidence 448 § 176. Criticism of the Law of Evidence 451 APPENDICES. The Teeeitoby of the State 488 INDEX 497 Digitized by Microsoft®

JURISPRUDENCE.

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Section 1 — Civil Jurisprudence

Section 2 — International Jurisprudence

Jurisprudence as the Science of Law. In the widest of its applications the term jurisprudence means the scienco of law, using the word law in that vague and general sense in which it includes all species of obligatory rules of human action. Of jurisprudence in this sense, there are as imany divisions as there are kinds of law which have been deemed sufficiently important and well developed to serve as the subject-matter of distinct branches of learning. They are at least three in number: 1. Civil Jurisprudence. —This is the science of civil law, that is to say, the law of the land. International Jurisprudence. —This is the science of inter- national law or the law of nations.

3. Natural Jurisprudence. —This is the science of that which

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Section 3 — Natural Jurisprudence

2 THE SCIENCE OF JUKISPRUDENCE. [§ 1 3. Natural Jurisprudence. —This is the science of that which our forefathers termed natural law or the law of nature (jus Tmturale). By this thej meant the principles of natural justice —justice as it is in itself, in deed and in truth, as contrasted with those more or less imperfect and distorted images of it which may be seen in civil and international law. Whether these principles of natural justice are rightly entitled to the name of law—whether natural law, so called, can be rightly classed along with civil and international law as a species of the same genus—is a question which it is not needful for us here to discuss. It is sufficient for our present purpose to note the historical fact, that there is a very extensive literature in which the law of nature is given a place side by side with civil lav/ and the law of nations '(jus naturale, jus civile, and jus gen- tium), and in which the resulting threefold division of juris- prudence into natural, civil, and international, is recognised as valid. Books of natural jurisprudence are in their essence books of ethics or moral philosophy, limited, however, to that department which is concerned with justice, as opposed to the other forms of right, while the method and the point of view are those of the lawyer rather than of the moral philosopher.

the science of civil law. A similar specific application belongs

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Jurisprudence as the Science of Civil Law. In a second and narrower sense, jurisprudence, instead of including all three of the foregoing divisions, is limited to one only, namely, that which we have distinguished as civil. A similar specific application belongs to the term law also, for when we speak of law without a.ny qualifying epithet, we commonly mean that particular form, which is administered in the tribunals of the state. So when we speak of jurisprudence without more, we usually intend the science of this special kind of law and this alone. ^^ Civil jurisprudence is divisible into three branches, which may be distinguished as Systematic, Historical, and Critical. Systematic jurisprudence is legal exposition; historical jurisprudence is legal history; while critical jurisprudence is commonly known as the science of legislation. iThe 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 substi- tute, positive law. International and canon law, for example, are kinds of jus positivimi no less than the civil law itself.

particular part of it. In this limited eigtiificsLtion it m&j be

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THE SCIENCE OF JUEISPEUDENCE. [§ 3 § 3. There is yet a third and still narrower sense, in which juris- prudence includes not the whole science of civil law, but oidy a particular part of it. In this limited eigtiificsLtion it m&j be termed abstract, theoretical, or general, to distinguish it from the more concrete, practical, and special departments of legal study. It is with this form only that we are concerned in the present treatise. How, then, shall we define it, and how distin- guish it from the residue of the science of the civil law? Theoretical jurisprudence, on the contrary, attributes value to the abstract and the general, rather than to the con- crete and the particular.

as the following: —

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5 aim of the abstract study is to supply, that theoretical fouuda- tion which the science of law demands, but of which the art of! law is careless. Opinions may well differ to some extent as to the matters which are fit, by reason of their generality or theii' theoretic and scientific interest, to find a place among the contents of abstract jurisprudence. Speaking generally, however, it may; be said that this science appropriately deals with such matters as the following: — 1 An analysis of the conception of civil law itself, together with an examination of the relations between this and other forms of law. An analysis of the various subordinate and constituent ideas of which the complex idea of the law is made up; for example, those of the state, of sovereignty, and of the adminis- tration of justice. An account of the sources from which the law proceeds, with an investigation into the theory of legislation, precedent, and customary law. An examination of the general principles of legal develop- ment, as contrasted with the historic details of the growth of the individual legal system, this last pertaining to legal history,.

mature legal systems. AU these have the same essential nature

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THE SCIKNCE OF JURISPEUDKNCE. [§ S 6 It may avoid misconceptions, and assist us in understanding what theoretical jurisprudence is, if Ave state shortlj- what it is not. In the first place it is not an elementarj- outline of the concrete legal system. It deals not with the outlines of the law, but with its ultimate conceptions. In the second place it is not, as the name general juris- prudence suggests, and as some writers have held,i the science of those conceptions and principles which all or most systems of law have in common. It is true, indeed, that a great part of the matter with which it is concerned is to be found in all mature legal systems. AU these have the same essential nature and purposes, and therefore agree to a large extent in their fundamental principles.

form as follows: —

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7 Tho divisions of legal science, as they have been stated and explainetl in the foregoing pages, may be exhibited in tabular form as follows: — Theoretical. The Theory of Civil Law—The Science of the First Principles of Civil Law. ' Systematic — Legal Exposition. i ^ Practical < Historical —Legal History. JUEISPEUDEHCE, V Critical—The Science of Legislation. or the Science of Law in International. The Science of Natural Law and Justice. § 4. German jurists have devoted extraordinary energy and acumen to the analysis and exposition of the law of the Pandects, in that modern form 1 Arndts, Juriatisohe Enoyklopadie und Methodologie, p. The term general jurisprudence (allgemeine Rechtslehre') is occasionally appHed to this form of literature.

that which English lawyers call ease-law—^tlie development of the law by

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8 THE SCIENCE OF JURISPRUDENCE. [§ 4 in which it was received in Germany until superseded by recent legis- lation. Much of the work so done hears too special a reference to the details of the Eoman system to be in point with respect to the theory of English law. A third form of foreign literature which corresponds in part to our English books of jurisprudence, consists of those works of jtcris- prndentia naturalis which have been already referred to. These contain the theory of natural law and natui-al justice, while English jurispru- dence is concerned with civil law, and with the civil or legal justice which that law embodies. It is, indeed, from the earlier literature of natural law, as represented by Pufendorf, Burlamaqui, Heineccius, and others,! that the modern English literature rff jurisprudence is directly descended. 2 The term jurisprudence is used by French lawyers as the equivalent of that which English lawyers call ease-law—^tlie development of the law by judicial decisions. "Jurisprudence—la manifere dont uu tribunal juge habitueUoment telle ou telle question " (Littre) .

particular species of law—a statute. Act of Parliament, by-law,

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10 CIVIL LAW. [§ 5 This ambiguity is a pieculiarity of English speech. All the chief Continental languages possess distinct expressions for the two meanings. Law in the concrete is lex, loi, gesetz, legge. When they have occasion to express the concrete idea, they avoid the vague generic expression, and speak of some particular species of law—a statute. Act of Parliament, by-law, or rule of Court. In the second place, this consideration of laws instead of law tends almost necessarily to the conclusion that statute law is the type of all law and the form to which all of it is reducible in the last analysis.

We have defined law bv reference to the administration of

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We have defined law bv reference to the administration of justice. It is needful, therefore, to obtain here some under- standing of the essential nature of that function of the state, though a complete analysis of it must be deferred to a later period of our inquiry. That some form of compulsion and control is essential for the realization in human conduct of the idea of justice, experience has made sufficiently manifest. Unfortunately for the welfare of the world, men are not so constituted that to know tlie right is to do it. One of the most important of these systems is the administration of justice by the state. The administration of justice may therefore be defined as the maintenance of right within a political community by means of the physical force of the state.

A sanction is not necessarily a punishment or penalty. To

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Thus physical force, in tho various methods of its application, is the sanction applied by the state in the jadministration of justice. Threatening of evils to flow here or hereafter from divine anger are the sanctions of religion, so far as religion assumes the form of a regulative or coercdve systemi.i A sanction is not necessarily a punishment or penalty. The examination and classification of the different forms of sanction made use of by the state will claim our attention in a later chapter on the administration of justice. § 7. The laws are the commands h^id bv the 1 The term sanction is derived from Roman law. The mnotio was origi- nally that part of a statute which established a penalty, or made other provision in respect of the disregard of its injunctions. By an easy transition it has come to mean the penalty itself.

implies—to maintain right, to uphold justice, to protect rights,,

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It is not per- missible to say that the law is the body of rules observed in the administration of justice, since this function of the state must itself be defined as the application and enforcement of the law." This objection is based on an erroneous conoeption of the essential nature of the administration of justice. The primary purpose of this function of the state is that which its name implies—to maintain right, to uphold justice, to protect rights,, to redress wrongs. It consists of the pre-established and authoritative rules which judges apply in the administration of justice, to the exclusion of their own free will and discretion. For good and suificient reasons the courts which administer justice are constrained to walk in predetermined paths. This creed of the courts of justice constitutes the law, and 80 far as it extends, it excludes all right of private judg- ment. Judges in the words of the judicial oath, " right are appointed, to do to all manner of people, after the laws and usages of this realm." Justice is the end, law is merely the instrument and the means and the instrument must be defined by reference to its end.

is not according to law—some activities in respect of which the

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"^ 14 CIVIL LAW. r§ ing to those fixed and predetermined principles which are called the law. A tribunal in which right is done to all manner of people in such fashion as comtaendfe' itself to the unfettered discretion of the judge, in which equity and good conscience and natural justice are excluded by no rigid and artificial rules, in which the judge does that which he deems just in the par- ticular case, regardless of general principles, may not be an efficient or trustworthy tribunal, but is a perfectly possible one. It is a court of justice, which is not also a court of law. Moreover, even when a sj-stem of law exists, the extent of it may vary indefinitely The degree in which the freo dis- cretion of a judge in doing right is excluded by predetermined rules of law, is capable, of indefinite increase or diminution. However great is the encroachment of the law, there must remain some residuum of justice which is not according to law—some activities in respect of which the administration of justice cannot be defined or regarded as the enforcement of the law. That great aggregate of rules which constitutes a developed legal system is not a condition precedent of the administration of justice; but a product of it.

in accordance with established principles—one which has been

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The existence of law is, as has been said, marked and measured by the exclusion, in courts of justice, of individual judgment by authority, of free discretion by rule, of liberty of opinion by pre-established determinations. The remarkable extent to which this exclusion is permitted is a very charao^ teristic feature of the administration of justice; but it is not and cannot be complete. In other words, every question which requires an answer in a court of justice is either one of law or one of fact. The former is one to be answered in accordance with established principles—one which has been alreadj' authoritatively answered, explicitly or implicitly, by the. law. A question of fact, on the other hand, is one which has not been thus predetermined—one on which authority is silent —one which the court may and must answer and determine in accordance with its own individual judgment. Everything is fact for us which is not predetermined by legal principles.

16 CIVIL LAW. [§ S

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But whether the holder of a bill of exchange has been guilty of unreasonable delay in giving notice of dishonour, is a question of law to be determined in accordance with certain fixed principles laid down in the Bills of Exchange Act. Whether verbal or written evidence of a contract is the better, is a question of law, the superiority of the latter being the subject of a pre-existing and authoritative- generalisation. But whether the oral testimony of A. or that of B. is the better evidence, is a question of fact, left entirely to the untrammelled judgment of the court. What is the proper and reasonable punishment for murder is a question of law, individual judicial opinion being absolutely excluded by a fixed rule. What is the proper and reasonable punishment for theft is (save so far as judicial discretion is limited by the statutory appointment of a maximum limit) a question of fact, on which the law has nothing to say. The question whether a child accused of crime has sufficient mental capacity to be criminally responsible for his acts, is one of fact, if the accused is over the age of seven years, but one of law {to be answered in the negative) if he is under that age.

to the third class, if the law has fixed a minimum or maximum

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17 provision whatever on the matter, the court having in conse- quence a perfectly free hand. It belongs to the second class, if the matter is definitely predetermined by a fixed rule, appoint- ing the exact length of imprisonment to be awarded . It belongs to the third class, if the law has fixed a minimum or maximum term, but has left the court with full liberty within the appointed limits. Similarly, whether the defendant has been guilty of fraud is a mixed question of law and of fact, because it is resolvable into two elements, one of law and the other of fact; what acts the defendant has done, and with what intent he did them, are pure questions of fact; but whether such acts, done with such an intent, amount to fraud is a pure question of law. So the question whether a partnership exists between A. and B. is partly one of fact (viz ., what agreement has been made between these persons), and partly one of law (viz., whether such an agreement constitutes the relation of partnership). Similar composite questions are innumerable.

of things, are far from complete coincidence. We have ever to

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The law is the theory of things, as received and acted on within the courts of justice, and this theory may or may not conform to the reality of things outside. The eye of the law does not infallibly see things as they are. The law, if it is to be an efficient and workable system, must needs be blind to many things, and the legal theory of things must be simpler than the reality. Partly by deliberate design, therefore, and partly by the errors and accidents of historical development, law and fact, legal theory and the truth of things, are far from complete coincidence. We have ever to distinguish that which exists in deed and in truth, from that which exists in law. That is to say, when the law lays down a principle determining, in any class of cases, what shall be deemed fraud, and what shall not, this principle may or may not be true, and so far as it is untrue, the truth of things is excluded by the legal theory of things.

the arbitriitm judicis in the administration of justice—in order

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We have seen that the existence of law is not essential to the administration of justice. The primary purpose of the judicature is not to enforce law, but to maintain justice, and this latter purpose is in its nature separable from the former and independent of it. Even when justice is administered according to law, the propor- tion between the sphere of legal principle and that of judicial 'discretion is different in different systems, and varies from time to time. This being so, it is well to make inquiry into the •uses and justification of the law—to consider the advantages •and disadvantages of this substitution of fixed principles for the arbitriitm judicis in the administration of justice—in order that we may be enabled to judge whether this substitution be good or evil, and if good within what limits it should be •confined That it is on the whole expedient that courts of justice should hecome courts of law, no one can seriously doubt. Laws are in theory, as Hooker says, "the voices of right reason"; they are in theory the utterances of Justice speaking to men hy the mouth of the state; but too often in reality they fall far short of this ideal. Too often they " turn judgment to wormwood," and make the administration of justice a reproach.

but also that the subjects of the state should ba able to know

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It is vitally important not only that judicial decisions should be correct, distinguishing accurately between right and wrong, and appointing fitting remedies for injustice, but also that the subjects of the state should ba able to know beforehand the decision to which on any matter the courts of justice will come. It would be well, were it possible, for the tribunals of the state to recognise and enforce the rules of absolute justice; but it is better to have defective rules than to have none at all. For we expect from the coercive action of the- state not merely the maintenance of abstract justice, but the establishment within the body politic of some measure of system, order, and harmony, in the actions and relations of its members. It is often more important that a rule should be definite, certain, known, and permanent, than that it should be ideally just. The rule of the road is the best and most familiar example of this, but there are many other instances in which justice seems dumb, and yet it is needful that a definite rule of som:o sort should be adopted and m;aintain©d. In simple and primitive communities it is doubtless possible, and may even be expedient, that rulers and magistrates should execute judgment in such manner as best commends itself to them.

§ 9] CIVIL LAW. 21

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21 to chaos. "Reason," says Jeremy Taylor,^ "is such a box of quicksilver that it abides no where; it dwells in no settled taansion; it is like a dove's neck; . . . and if we inquire after the law of nature" (that is to say, the principles of justice) " by the rules of our reason, we shall the be as uncertain as discourses of the people or the dreams of disturbed fancies." It is to be observed in the second place that the necessity of conforming to publicly declared principles protects the ad- ministration of justice from the disturbing influence of improper motives on the part of those entrusted with judicial functions. It is made for no particular person, and for no individual case, and so admits of no respect of persons, and is deflected from the straight course by no irrele- vant considerations peculiar to the special instance. Given a definite rule of law, a departure from it by a hair's-breadth is visible to all naen; but within the sphere of individual judgment the differences of honest opinion are so manifold and serious that dishonest opinion can pass in great part unchallenged and undetected. Where the duty of the judicature is to execute justice in accordance with fixed and known principles, the whole force of the public conscience can be brought to the enforcement •of that duty and the maintenance of those principles. But when courts of justice are left to do that which is right in their own eyes, this control becomes to a great extent impossible, public opinion being left without that definite guidance which is essential to its force and influence. So much is this so, that the administration of justice according to law is rightly to be regarded one of the first principles of political liberty. " The as authority," says Locke, " cannot assume legislative or supreme ^ to itself a power to rule by extemporary, arbitrary decrees, but is bound to dispense justice, and to decide the rights of the subject by promulgated, standing laws, and known, authorized judges." So in the words of Cicero, ^ "We are the slaves of the law that we may be free." iDuotor Dubitantium (Works XII.

community at large for those of the individuals to whom judi-

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22 CIVIL LAW. [§ ^ It is to its impartiality far more than to its wisdom (for this latter virtue it too often lacks) that are due the influence and reputation which the law has possessed at all times. Wise or foolish, it is the same for all, and to it, therefore, men have ever been willing to submit their quarrels, knowing, as Hooker^ says^ that "the law doth speak with all indifferency; that the law hath no side-respect to their persons." Hence the authority of a judgment according to law. The reference of international 'disputes to arbitration, and the loyal submission of nations t» awards so made, are possible only in proportion to the develop- ment and recognition of a definite body of international law. So in the case of the civil law, only so far as justice is trans- formed into law, and the love of justice into the spirit of law- abidingness, will the influence of the judicature rise to an efficient level, and the purposes of civil governnient be adequately fulfilled. The establishment of the law is the substitution of the opinion and conscience of the community at large for those of the individuals to whom judi- cial functions are entrusted. The problems offered for judicial solution are often dark and difficult, and there is great need of guidiance from' that experience aind wisdom of the world at large, of which the law is the record.

The first defect of a legal system is its rigidity. A general

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The law is without doubt & remedy for greater evils, yet it brings with it evils of its own. Some of them are inherent in its very nature, others are the outcome of tendencies which, however natural, are not beyond the reach of effective control. The first defect of a legal system is its rigidity. A general principle of law is the product of a process of abstraction. It results from the elimination and [disregard of the less material circumstances in the particular cases falling within its scope, and the concentration of attention upon the more essential ele- ments which these cases have in common. The principles of political economy are obtained by the elimination of every motive save the desire for wealth; but we do not apply them blindfold to individual cases, without first taking account of the possibly disturbing influence of the eliminated elements.

found false. On the other hand, the more carefully the rule is

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24 CIVIL LAW. [§ 10 is an expression of the fact that few legal principles are so founded in truth that they can be pushed to their extremest logical conclusions without leading to injustice. The more general the principle, the greater is that elimination of im- Imaterial elements of which it is the result, and the greater: therefore is the chance that in its rigid application it may be found false. On the other hand, the more carefully the rule is qualified and limited, and the greater the number of exceptions and distinctions to which it is subject, the greater is the diffi- culty and uncertainty of its application. In attempting to escape from the evils which flow from the rigidity of the law, we incur those due to its complexity, and we do wisely if we discover the golden mean between the two extremes. That which is true to-day may become false to- morrow by change of circumstances, and that which is taken to-day for wisdom may to-morrow be recognised as folly by the advance of knowledge. Legislation —the substitution of new principles for old by the express declaration of the state—is the instrument approved by all civilised and progressive races, none other having been found Digitized by Microsoft®

Another vice of the law is formalism. By this is meant the

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25 comparable to this in point of efficiency. Even this, however, is incapable of completely counteracting the evil of legal con- servatism. Another vice of the law is formalism. By this is meant the tendency to attribute undue importance to form as opposed to substance, and to exalt the immaterial to the level of the mate- rial. It is incumbent on a perfect legal system to exercise a sound judgment as to the relative importance of the matters which come within its cognisance ; and a system is infected with formalism in so far as it fails to meet this requirement, and raises to the rank of the material and essential that which is in truth unessential and accidental. The formalism of ancient law is too notorious to require illustration, but we are scarcely yet in a position to boast ourselves as above reproach in this matter.

From the foregoing considerations as to the advantages and'

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26 CIVIL LAW. [§ 10 and the codes which have in modern times been enacted ja European countries prove the possibility of reducing the law to a system of moderate size and intelligible simplicity. From the foregoing considerations as to the advantages and' disadvantages which are inherent in the administration of justice according to law, it becomes clear that we must guard against the excessive development of the legal system. If the- benefits of law are great, the evils of too much law are not small. The growth of a legal system consists in the progressive- encroachment of the sphere of law upon that of fact, the gradual exclusion of judicial discretion by predetermined legal prin- ciples. All systems do to some extent, and those which recognise precedent as a chief source of law do more especially, show a tendency to carry this process of development too far. Under the influence of the spirit of authority the growth of" law goes on unchecked by any effective control, and in course- of time the domain of legal principle comes to include much that would be better left to the arhitrium of courts of justice.

are necessarily inflexible—that they are essentially peremptory

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27 W have hitherto taken it lor granted that legal principles are necessarily inflexible—that they are essentially peremptory rules excluding judicial discretion so far as they extend—that they must oi; necessity be followed blindly by courts of justice- even against their better judgment. There seems no reason, however, in the nature of things why the law should not, to a considerable extent, be flexible instead of rigid—should not aid,, guidcj and inform judicial discretion, instead of excluding it should not be subject to such exceptions and qualifications as in special circumstances the courts of justice shall deem reasonable or requisite. There is no apparent reason why the law should say to the judicature: "Do this in all cases, whether you con- sider it reasonable or not," instead of: "Do thisi except in those cases in which you consider that there are special reasons for doing otherwise." Such flexible principles are not unknown even at the present day, and it seems probable that in the more perfect system of the future much law that is now rigid and peremptory will lapse into the category of the conditional. It will always, indeed, be found needful to maintain great part of it on the higher level, but we have not realised to what an extent flexible principles are sufficient to attain all the good purposes of the law, while avoiding much of its attendant evil. In the former capacity, being in general founded on experience and good sense, they would be valuable aids to the discovery of truth; in the latter, they are too often the instruments of error. § 11. Special law, on the other hand, consists of those rules which, although they are true rules of la^V, Digitized by Microsoft®

produced by the parties. A judge may know much in fact of

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28 CIVIL LAW. § 11 [ recognise and apply as a matter of course, the courts will not specially proved and brought to the notice of but which must be parties interested in their recognition. Special law, on the contrary, is that which has only a special or particular application, excluding and superseding the general law in those exceptional oases in which the courts are informed of its existence by evidence produced for that purpose. By this is meant the knowledge which any court, ex officio, possesses and acts on, as contrasted with the knowledge which a court is bound to acquire through the appointed channel of evidence formally produced by the parties. A judge may know much in fact of which in law he is deemed ignorant, and of which, therefore, he must be informed by evidence legally produced. Conversely he may be ignorant in fact of much that by law he is entitled judicially to notice, and in such a case it is his right and duty to inform himself by such means as seem good to him. The general rule on the matter is that courts of justice know the law, but are ignorant of the facts.

2. Mercantile customs.—The second kind of special law con-

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Local customs. —Immemorial custom in a particular locality has there the force of law. Mercantile customs.—The second kind of special law con- sists of that body of mercantile usage which is known as the law merchant. The general custom of merchants in the realm of England has in mercantile affairs the force of law. This customary law merchant is, like local customary law, special and not general ; but, unlike local customary law, it has the capacity of being absorbed bj-, or taken up into the general law itself. When a mercantile usage has been sufficiently established by evidence and acknow- ledged as law by judicial decision, it is thereafter entitled to judicial notice. The process of proof need not be repeated from time to time.i The result of this doctrine is a progressive trans- formation of the rules of the special law merchant into rules of the general law.

4. Foreign law. —The fourtli kind of special law consists of

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Section 4 — Foreign law

A private Act, on the other hand, is one which, owing to its limited scope, docs not fall within the ordinary cognisance of the courts of ustice, and will not be applied by them unless j specially called to their notice by the parties interested. Examples of private legislation are .acts incorporating indivi- dual companies and laying down the principles on which they are to be administered, acts regulating the navigation of some river, or the construction and management of some harbour, or any other enactments concerned, not with the interests of the realm or the public at large, but with those of private individuals •or particular localities.^ Private legislation is not limited to Acts of Parliament. In most cases, though not in all, the delegated legislation of bodies subordinate to Parliament is private, and is therefore a source, not of general, but of special law. The by-laws of a railway company, for example, or of a borough council, are not entitled to judicial notice, and form no part of the general law of the land. Foreign law. —The fourtli kind of special law consists of those rules of foreign law, which upon occasion are applied even in English courts to the exclusion of English law. It is essential in many cases to take account of some system of foreign law, and to measure the rights and liabilities of litigants by it, rather than by the indigenous or territorial law of the tribunal itself.

5. Conventional law. —The fifth and last form of special law

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Section 5 — Conventional law

31 determine and regulate this exclusion of local by foreign law constitute the body of legal doctrine known as private international law. Foreign law, so far as it is thus recognised in English courts, Isecomes, by virtue of this recognition, in a certain sense English law. French law is French as being applied in France, but English as being applied in England. Yet though it is then part of English law, as being administered in English courts, it is not part of the general law, for English courts have no official knowledge of any law save their own. Conventional law. —The fifth and last form of special law is that which has its source in the agreement of those who are subject to it. Agreement is a juridical fact having two aspects, and capable of being looked at from two points of view.

We have made the distinction between general and special law turn

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32 CIVIL LAW. [§ II We have made the distinction between general and special law turn wholly upon the fact that judicial notice is taken of the former but not of the latter. Gteneral law, it may be argued, is so called because it is common to the whole realm and to all persons in it, while special law is that which has a special and limited application to particular places or classes of persons. In this contention there is an element of truth, but it falls short of a logical analysis of the distinction in question. It is true that the general law is generally wider in its application than special law. The law of the royal prerogative is not special law, by reason of the fact that it applies, only to a single indi- vidual ; it is a constituent part of the general law. The law of bills of exchange is no more general in its application now, than it ever was; yet it has now ceased to be special, apd has become incorporated into the general law.

2. Common law and equity. —In another sense common law

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Common law and equity. —In another sense common law means the whole of the law (enacted or unenacted) except that poi"tion which was developed and administered exclusively by the old Court of Chancery, and which is distinguished as equity. 1 It is in this sense, for example, that we speak of the Court of King's Bench or Exchequer as being a court of common law. G<mvmon J^v aiid speoicd Imo. —In j^et a third sense Common law is a synonym of what we have already called general law, the ordinary law of the land, as opposed to the various forms of special \&.\\, such as local customs, which will not be applied as a matter of course in the administration of justice, but only when specially pleaded and proved. The expression common law {jus commune) was adopted by EngHsh. lawyers from uhe canonists, who used it to denote the general law of the Church as opposed to those divergent usages (consuetudines) which prevailed in different local jurisdictions, and superseded or modified within their own territorial limits the common law of Christendom. We find the distinction between common law and special law {commune ley and especial ley) well established in the earliest Year Books. ^ The common law is the ordinary system adminis- tered by the ordinary royal courts, and is contrasted with two other forms of law. Thus we have the common law in the Court of King's Bench, but the canon law in the Ecclesiastical Courts, the civil law in the Court of Admiralty, and, at a later date, the law which was called equity in the Court of Chancery.

point of view, indeed, is not logically defensible. A public and general

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34 CIVIL LAW. [§ 12 In the second place the common law was contrasted with those various forms of special law which were recognised even in the King's ordinary courts in derogation of the general law of the land. Thus it is opposed to local custom {la commune ley and le usage del paj/s) ;^ to the law mer- chant {la commune ley and la ley merchaunde);^ to statute law;^ and to conventional law {specialis convenLio contra jus commune) A The opposition of common and statute law is noteworthy. Statute law is conceived originally as special law, derogating from the ordinary law of the King's courts. Such a point of view, indeed, is not logically defensible. A public and general statute does not bear the same relation to the rest of the law as a local or /mercantile custom bears to it. Logically or not, however, statutes were classed side by side with the various forms of special law which derogated from the jus commune.

synonym for natural justice. Aequitas is aequalitas—the fair,

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35 In no small measure, however, law and equity were discordant, applying different rules to the same subject-matter. In the first of these, it is nothing more than a synonym for natural justice. Aequitas is aequalitas—the fair, impartial, or equal allotment of good and evil—the virtue which gives to every man his own. In a second and legal sense equity means natural justice, not simply, but in a special aspect; that is to say, as opposed to the rigour of inflexible rules of law. Aequitas is contrasted with sumnrnm jus, or striotum jus, or the rigor juris. In all such cases in order to avoid injustice, it is needful to go beyond the law, or even contrary to the law, and to administer justice in accordance with the dictates of natural reason.

Stmnmujn j%is summa injuria,^ meaning by mmmum jus the

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Section 240 — Multa pro aequitate contra jus dicere

T 36 CIVIL LAW. [§ 13 The distinction tlius indicated was received in tlie juridical theory both of the Greeks and the Eomans. Aristotle defines equity as the correction of the law where it is defective on account of its generality, ^ and the definition is constantly says:^ " An arbitrator repeated by later writers. Elsewhere he decides in accordance with equity, a judge in accordance with law: and it was for this purpose that arbitration was intro- duced, namely, that equity might prevail." In the writings of Cicero we find frequent reference to the distinction between aequitas and jus. He quotes as already proverbial the saying, Stmnmujn j%is summa injuria,^ meaning by mmmum jus the rigour of the law untempered by equity. 240: Multa pro aequitate contra jus dicere. A constitution of Constantiue 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 thua departing from the rigour of the jus scriptum: Inter aequitatem jusqn& interpositam interpretationem nobis solis et oportet et Ucet inspicere C 1 14.

in their courts, but not so the King. A subject might have

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37 that, went beyond the law.^ It was not until later that the common law so hardened into an inflexible and inexpansive system of strictmn j'US, that aequitm fled from the older courts to the newly established tribunal of the Chancellor. The Court of Chancery, an offshoot from the King's Council, was established to administer the equity which the common law had rejected, and of which the common law courts had declared themselves incapable. It provided an appeal from the rigid, narrow, and technical rules of the King's courts of \slw, to the conscience and equity of the King himself, speaking by the mouth of his Chancellor. The King was the source and fountain of justice. These judges held themselves bound by the inflexible rules established in their courts, but not so the King. A subject might have recourse, therefore, to the natural justice of the King, if dis- trustful of the legal justice of the King's courts.

that already recognised in the Court of Common Pleas. His

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38 CIVIL LAW. [§ 1^ law- as opposed to the common law. The Chancellor, in the first days of his equitable jurisdiction, did not go about to set up and administer a new form of law, standing side by side with that already recognised in the Court of Common Pleas. His purpose was to administer justice without law, and this purpose he in fact fulfilled for many a day. In its origin the juriis- diction of the Chancellor was unfettered by any rules whatever. " justice, and reason, and good His duty was to do that which faith, and good conscience require in the case."^ And of such requirements he was in each particular case to judge at his own good pleasure. By degrees the Chancellor suffered himself to be restricted by rule and precedent in his interpretation and execution of the dictates of the royal conscience. Just as the exercise of this power gave rise in England to a body of Chancery law, standing by the side of the common law, so in Rome a jus praetor imn grew up distinct 1 Cited in Spence's Equitable Jurisdiction of the Court of Chancery, I.

The chief distinction between the Roman and the English cases

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39 from the older jus civile. "Jus praetorium," says Papinian,! • "est quod praetores introduxerunt, adjuvandi vel supplendi vel corrigendi juris civilis gratia, propter utUitatem publicam." The chief distinction between the Roman and the English cases is that at Rome the two systems of law co-existed in the same court, the jus praetorium practically superseding the jus civile so far as inconsistent with it; whereas in England, as we have seen, law and equity were administered by distinct tribunals. Moreover, although the jus praeioriuni had its source in the aequitas of the praetor, it does not seem that this body of law was ever itself called aequitas. This transference of meaning is peculiar to English usage. 1. -A special application by English lawyers of the term equity in its original sense, as opposed to x/rictiim jm is to be seen in the phrase, tha equity of o. statuir. By this is meant the spirit of a law as opposed to its letter. A matter is said to fall witliin tlie equity of a statute, when it is covered by the reason of the statute, although through defective draftsman- ship it is not within itfs actual terms. " Valeat aequitas," say.s Cicero, " quae paribus in causis parln jura desidorat." Topica IV.

14. General—A Rule of Action.

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General—A Rule of Action. § Law in Having considered in the foregoing chajDter the nature of civil law exclusively, we now jDroceed to examine certain other kinds of law which need to be distinguished from this and from each other. In its widest and vaguest sense the term law includes any rule of action: that is to say, any standard or pattern toi which actions (whether the acts of rational agents or the opera- tions of nature) are or ought to be conformed. In the words of " ^yg kind rule or canon whereby actions Hooker,! term any of are framed a law." So Blackstone says:^ "Law, in its most general and comprehensive sense, signifies a rule of action, and is applied indiscriminately to all kinds of action, whether ani- mate or inanimate, rational or irrational. Thus we say, the laws of motion, of gravitation, of optics or mechanics, as well as the laws of nature and of nations." Of law in this sense there are many kinds, and the follow- ing are sufficiently imjDortant and distinct to deserve separate mention and examination: (1) Physical or Scientific law, (2) Natural or Moral law, (3) Imperative law, (4) Conventional law, (5) Customary law, (6) Practical law, (7) International law, (8) Civil law. Before proceeding to analyse and distin- guish these, there are the following introductory observations made: — to be (1) This list is not based on any logical scheme of division and classification, but is a mere simplex enmner-atio of the chief forms of law.

properly so called from law improperly so called—would seem

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41 (2) Tliei-e is nothing to prevent the same rule from belonging to more than ono of these classes. ,3) Any discussion as to the rightful claims of any of tliese classes of rules to be called law—any attempt to distinguish law properly so called from law improperly so called—would seem to be nothing more than a purposeless dispute about words. Our business is to recognise the fact that they are called law, and to distinguish accurately between the different cla.«ses of rules that are thus known by the same name. § 15. Physical laws or the laws of science are expressions of the uniformities of nature general principles expressing the regu- — larity and liarmony observable in the activities and operations of the universe. It is in this sense that we speak of the law of gravitation, the laws of the tides, or the laws of chemical com- bination. Even the actions of human beings, so far as they are uniform, are the subject of law of this description: as, for example, when we speak of the lawB of political economy, or of Grimm's law of phonetios. Physical laws are also, and more commonly, called natural laws, or the lavs^s of nature; but these latter terms are ambiguous, for they signify also the moral law; that is to say, the principles of natural right and wrong.

Creator. " He

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42 OTHEE KINDS OF LAW. [§ l-S and iuanimate, just as a ruler governs a society of men; and the order of the world is conceived as due to the obedience of all Creator. " He created things to the wiU and commands of their gave to the sea his decree, that the waters should not pass his commandment. "1 " decree for the rain, and a way He made a for the lightning of the thunder."- The schoolmen made this same conception one of the first principles of their philosophio system. Thomas Aquinas, is the ordinance of the divine wisdom, by which all things in heaven " There is a certain eternal and earth are governed. law, to wit, reason, existing in the mind of God and governing the whole universe. . For law is nothing else than the dictate of the practical reason in the ruler who governs a perfect community. "3 " reason of the divine wisdom, inas- Just as the much as by it all things were created, has the nature of a type or idea; so ako, inasmuch as by this reason all things are directed to their proper ends, it may be said to have the nature of an eternal law. And accordingly the law eternal is nothing else than the reason of the divine wisdom regarded as regulative and directive of all actions and motions.'"* This lexaeternu was divided by the schoolmen into two parts. One of these is <khat which governs the actions of men : this is the moral law, the law of nature, or of reason. The other is that which governs the actions of all other created things: this is that which we now term physical law, or natural law in the modern and prevalent sense of that ambiguous term.^ This latter branch of the eternal law is perfectly and uniformly obeyed ; for the irrational agents on which it is imposed can do no otherwise than obey the dictates of the divine will.

that God did first proclaim the edicts of his la^\- upon it, hea^ on

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Physical la^v, therefore, is an expression of actions as they actually are; moral law, or the law of reason, is an expression of actions as they ought to be. This scholastic tlieory of la^\- finds eloquent expression in the writings of Hooker in the sixteenth " com- century. His manding those things to be which are, and to be in sucli sort a* they are, to keep that tenure and course which they do, im- porteth the establishment of nature's law. . Since the time that God did first proclaim the edicts of his la^\- upon it, hea^ on and earth have hearkened unto his voice, and their labour hath been to do his will. See we not plainly that the obedience of creatures unto the law of nature is the stay of the whole world. "1 " Of law there than can be no less acknowledged, that her seat is the bosom of God, her voice the harmony of the '"- world, all things in heaven and earth do her homage. The modei'n use of the term law, in the sense of physical or natural law, to indicate the uniformities of nature, is directly derived from this scholastic theory of the lex aeiernu ; but the theological conception of divine legislation on which it wa& originally based is now eliminated or disregarded.

—the command of God imposed upon men—this aspect of it

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44 OTHER KINDS OF LAW. [§ 1^ expression of positive justice, so philosophers have recognised a natural law, which is the expression of natural justice. This distinction between natural and positive justice, together with the corresponding and derivative distinction between natural and positive law, comes to us from Greek philosophy. Natural justice is ipuamh Si'xaiov ; positive justice is vopiixov SiVaiov ; and the natural law which expresses the prin- •ciples of natural justice is ipuiyMOi miJMf. This natural law was conceived by the Greeks as a body of imperative rules imposed upon mankind by Nature, the personified universe. It is Divine Law {fiis divinnan) —the command of God imposed upon men—this aspect of it being recognised in the pantheism of the Stoics, and coming into the forefront of the conception, so soon as natural law obtained a place in the philosophical system of Christian writers. It is also the Unwritten Law (jus non soriptum), as being written not on brazen tablets or on pillaris of stone, but solely by the finger of nature in thfe hearts of men.

law—the expression of the uniformities of nature. The second

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Lastly, in modem times we find it termed the Moral Law, as- being the expression of the principles of morality. We speak of the principles of natural justice, or of the rules of natural morality, but seldom of the law of nature, and for this depar- ture from the established usage of ancient and medieval speech there are at least two reasons. The first is that the term natural law has become equivocal ; for it is now used to signify physical law—the expression of the uniformities of nature. The second is that the term law, as applied to the principles of natural justice, brings with it certain misleading associations—sugges- tions of command, imposition, external authority, legislation which are not in harmony with the moral philosophy of the- present day. The following quotations illustrate sufficiently the ancient and medieval conceptions of the law of nature: — — is either universal (xoivor vo^os) or special (i'Siot Aristotle. "Law v0;O.(ii). The universal law is that which is conformable merely to Nature." — is indeed a. true law (lex), right reason, agreeing, Cicero. "There with nature, diffused among all men, unchanging, everlasting. .

— and customs observe

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4G OTHER KINDS OF LAW. [§ 16 law written on lifele:<s parchment, or engraved on lifeless columns; but one imperishable, and impressed by immortal JCature on the immortal mind." ^ — and customs observe Gains. " All peoples that are ruled by laws partly law peculiar to themselves and partly law common to all man- kind. That which any people has established for itself is called jus -civile, as being law peculiar to that state {jus proprium. civitaiis). But that law which natural reason establishes among all mankind is observed called jus gentium." - equally by all peoples, and is for that reason — naturalia), is observed equally JusUnian. " Natural law {jura which in all nations, being established by divine providence, remains for ever .settled and immutable; but that law which each state has established for itself has often changed, either by legislation or by the tacit consent of the people." ^ — Hooker. " The law of reason or human nature is that which men by discourse of natural reason have rightly found out themselves to be ;aU for ever bound unto in their actions."'* — Christian Thomasius. "Natural law is a divine law, written ip the hearts of all men, obliging them to do those things which are necessarily consonant to the rational nature of mankind, and to refrain from those ihings which are repugnant to it." ^ The Jus Gtentium of the Eoman Lawyers. It is a commonly received opinion, that jus gentium, although iden- tified as early as the time of Cicero with the jus naturale of tlie Greeks, was in its origin and primary signification something quite distinct— product not of Greek philosophy but of Roman law. It is alleged that jus gentium meant originally that system of civU and positive law iwhich was administered in Home to aliens {peregrini), as opposed to the system which was the exclusive birthright and privilege of Eoman citizens {jus civile or jus quiriUum) ; that this jus gentium, being later in date than the jus civile, was ,so much more reasonable and perfect that it came to be identified with' the law of reason itself, the jus naturale of the Greeks, and so acquired a double meaning, jus gentium, viz. (1) jus naturale, and (2) jus gentium, viz. that part of the positive law of Eome which was applicable to aliens, and not merely to citizens. That the term jus gentium did possess this double meaning cannot be doubted ; but it may be gravely doubted A\-hether the true "explanation 1 Works, III.

superior power. The instrument of such enforcement—the

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47 of the fact is that which has j'ust been set forth. It would seem more probable that jus gentiutn was in its very origin synonymous with jus nat urate—a philosophical or ethical, and not a technical legal tenn—the Roman equivalent of the "oivos yifios of Aristotle and the Greeks and that the technical significance of the tenn is secondary and deriva- tive. Jus gentium came to meaai not only the law of nature—the prin- ciples of natural justice—but also a particular part of the positive law of Rome, namely, that part which was derived from and in harmony -svith those principles of natural justice, and which therefore was applic- able in Roman law courts to all men equally, whether cives or peregrini. In other words, an imperative law is a command which prescribes some general course of action, and which is imposed and enforced by superior power. The instrument of such enforcement—the sanction of the law—is not necessarily j^hysical force, but may •consist in any other form of conjstraint or compulsion by which the actions of men may be determined. Lex, says Pufendorf,^ •est deoretum quo superior sibi subjectum obUgat, lit ad istiiis " A law," says praescripttmi actiones suns corruponat.

opinion or of reputation, as Locke^ calls it—consists of the rules

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1 Human laws consist of imperative rules imposed by men upon men, and they are of three chief kinds, namely, civil law, the law of positive morality, and the law of nations. Civil law consists (in part at least, and in one of its aspects) of commands issued b}' the state to its subjects, and enforced by its physical power. Positive morality—the law of opinion or of reputation, as Locke^ calls it—consists of the rules imposed by societj- upon its members and enforced by public censure or disapprobation. The law of nations or international law oansists (in part at least, and in one aspect) of rules imposed upon states by the society of states, and enforced partly by international opinion and partly by the threat of war. They consider that it is a sufficient analysis and definition of civil law, to say that it consists of the commands issued by the state to its subjejcts. and enforced, if necessary, by the physical power of the state. The law of opinion or reputation, if I may so call it.

force and power of the laws." Law has its

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49 beeu widely, though by no means universally, accepted by English writers. This imperative theory, though it falls short of an adequate analysis, does undoubtedly express a very impiortant aspect of the truth. It rightly emphasises the central fact that law is based on physical force. For law exists only as an incident of the administration of justice by the state, and this consists! essentially in the imperative and coercive action of the state in imposing its will, by force if need be, upon the members of the body politic. " It is men Hobbes,i and arms," says " that make the force and power of the laws." Law has its sole source, not in custom, not in consent, not in the spirit of the people, as some would have us believe, but in the will and the power of him who in a commonwealth beareth not the sword in vain. Early law, it is said, is not the command of the state; it has its source in custom, reKgion, opinion, not in any authority vested in a political superior; it is not tiU a comparatively late stage of social evolution that law assumes its modern form, and is recognised as a product of supreme power; law, therefore, is prior to, and independent of political authority and enforcement; it is en- forced by the state, because it is already law, not vice versd.^ 1 Leviathan, oh. 44 and 249: " Broadly speaking, there are in every community tv/o autho- rities which can make law: the State, i.e., the rulinof and directing' power, whatever it may be, in which the government of the community resides, and the People, that is, the whole bady of the community, regarded not as incorporated in the state, but as being merely so many persons who havel commercial and social relations vfith one another. . . .

independent of the state, they may greatly resemble law; they

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If there are any rules prior to, anid independent of the state, they may greatly resemble law; they may be the primeval substitutes for law; they may be the his- torical source from which law is developed and proceeds; but they are not themselves law. To trace two different things to a common origin in the beginnings of their historical evolu- tion is not to disprove the existence or the importance of an essential difference between them as they now stand. This is essentially and exclu- sively the power and will of the state. Custom and religion may be the material sources of a legal system no less than that express declaration of new legal principles by the state, which we term legislation. No rule of law may as yet have been formulated in any declaration of the state. Not only law, but law with a good deal of flormality, has existed before the State had any adequate means of compelling* its observance, and indeed before there was any regular process of enforce- ment at all." See also Maine's Early History of Institution' Lect 12, p.

inadequate—the product of an incomplete analysis of juridical

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51 a process as legislation is possible, and no ruler may ever yet have made a law. Custom and religion may be all-powerful and exclusive. Nevertheless if any rule of conduct has already put on the true nature, form, and essence of the civil law, it is because it has already at its back the power of the organised commonwealth for the maintenance and enforcement of it. Yet although the imperative theory contains this element of the truth, it is not the whole truth. It is one-sided and inadequate—the product of an incomplete analysis of juridical conceptions. In the first place it is defective inasmuch as it disregards that ethical element which is an essential constituent of the complete conception.

ples of justice recognised and enforced by the state—even if

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Eight, wrong, and duty are leading terms of law, as weU as of morals. If we turn from our own to foreign languagfes, we find that law and right are usually called by the very same name. A theory which regards the law as the command of the state and nothing more, and which entirely ignores the aspect of law as a public declaration of the principles of justice, would lose all its plausibility, if ex- pi'esscd in a language in which the term for law signifies justice Even if we incorporate the missing ethical element in the definition—even if we define the law as the sum of the princi- ples of justice recognised and enforced by the state—even if we say with Blackstone^ that law is " a rule of civil conduct, prescribed by the supreme power in a state, commanding what " is right and prohibiting what is «Tong —we shall not reach the whole truth. For although the idea of command or en- forcement is an essential implication of the law, in the sense that there can be no law where there is no coercive administra- tion of justioe by the state, it is not true that every legal principle assumes, or can be made to assume, the form of a command. Although the imperative rules of right and wrong, as recognised by the state, constitute a part, and indeed the most important part of the law, they do not constitute the whole of it. The law includes the whole of the principles accepted and applied in the administration of justice, whether they are imperative principles or not.

§ 17] OTHER KINDS OF LAW. 53

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53 create legal obligations, and no legal system consists exclu- sively of rules of this desoriptioii. All well-developed bodies «f law contain innumerable principles which have some other purpose and content than this, and so fall outside the scope of the imperative definition. These non-imperative legal princi- ples are of various kinds. There are, for example, permissive rules of law, namely those which declare certain acts not to be obligatory, or not to be wrongful; a rule, for instance, de- claring that witchcraft or heresy is no crime, or that damage done by competition in trade is no cause of action. It cannot be denied that these are rules of law, as that term is ordinarily used, and it is plain that they fall within the definition of the law as the principles acted on by courts. of justice. There are various other forms of non-imperative law, notably those which relate to the existence, application, and interpre- tation of other rules.

54 OTHER KINDS OF LAW. [§ 17

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54 OTHER KINDS OF LAW. [§ 17 mands of the state, and those which arc such commands, are at the same time and in their essential nature something more, of which the imperative theory takes no account. Some writers have endeavoured to evade the foregoing objection by regarding rules of procedure and all other non-imperative principles as being in reality commands addressed, not to the ordinary subjects of ithe state, but to the judges. The rule, they say, that murder is a crime, is a command addressed to all persons not to commit murder; and the rule that the punishment of murder is hanging, is a command to the judges tc inflict that punishment.^ With respec't to this contention, it is to be observed in the first place, that no delegation of its judicial functions by the supreme authority of the state is essential. There is no reason of necessity, why a despotic monarch or even a supreme legisla- ture should not personally exercise judicial functions. By oonventional law is meant any rule or system of rules agreed upon by persons for the regulation of their cojtiduct towards each other. Agreement is a law for the parties to it. 'Exam2>les are the rules and regulations of a club or other society, and the laws of whist, cricket, or any other game.

actually observed by men—any rule which is the expression of

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But whether or not these oonventional rules thus reoeive recognition and enforcement as part of the law of the land, they constitute law in the wide sense of a rule of human action.^ The most important branch of conventional law is the law of nations, which, as we shall see later, consists essentially of the rules which have been agreed upon by states, as governing their conduct and relations to each other. § 19. By customary law is here meant any rule of action which is actually observed by men—any rule which is the expression of some actual uniformity of voluntary action. Custom is a law for those who observe it—a law or rule which they have set for themselves, and to which they voluntarily conform their actions. It is true that custom is very often obligatory; that is to say, it is very often enforced by some form of imperative law, whether the civil law or the law of positive morality; but, irrespective of any such enforcement, and by reason solely of its de facto observance, it is itself a law in that wide sense in which law means a rule of action. They define it as Consisting of the rules actually observed by states in their conduct towards each other. Civil law, as we have defined it, is a form of customary law, inasmuch as it consists of the rules actually observed by the state in the administration of justice.

with regard it: —

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56 OTHER KINDS OF LAW. [§ 19 law is an important matter which Avill be considered in a later chapter. It is sufficient here to make the following remarks with regard it: — to (1) Popular custom has not in itself the nature of civil law; for the essence of civil law lies in its recognition bj" the state in the administration of justice. (2) Popular custom is one of the jirimitive substitutes for civil law, men being governed by custom before the state has been established or has undertaken the function of making and administ-ering law. (3) Popular custom is one of the sources of the civil law; for that law, when it comes into existence, is largely modelled on the pre-existing customs of the community. Civil law, which is the custom of the state, is based to a large extent on that precedent customary law which is merely the custom of the society. § 20. Yet another kind of law is that which consists of rules for the attainment of some practical end, and AAhich, for want of a better name, we may term practical law. These laws are the rules which guide us to the fulfilment of our ]Hirpo.ses which inform us as to what we ought to do, or must do, in order to attain a certain end.^ Examples of such are the laws of health, the laws of musical and poetical composition, the laws of style, the laws of architecture, the rules for the efficient conduct of any art or business. The laws of a game, such as whist, are of two kinds: some are conventional, being the rules agreed upon by the players; others are praotical, being the rules for the successful playing of the game. § 21.

essentially a species of conventional law—that it has its source

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57 exists, and that states do in fact act in obedience to it; but when we come to inquire what is the essential nature and source of' this law, we find in the writings of those who deal Math it a very curious absence of definiteness and unanimity. The opinion which we shall here adopt as correct is that the law of nations is essentially a species of conventional law—that it has its source in international agreement—that it consists of the rules which sovereign states have agreed to observe in their dealings -Hith each other. This law has been defined by Lord Russell of Killowen^ ag' " the aggi'egate of the rules which have agreed to nations to conform in their conduct towards one another." " The law of nations," saye Lord Chief Justice Coleridge,- " is that collection of usages which civilised states have agreed to observe in their dealings with each other." " The authorities seem to me," says Lord Esher,^ " to make it clear that the consent of nations is requisite to make any proposition part of the law of nations." " " To be binding," says Lord Cockburn,* the law must have received the assent of the nations who are to be bound by it,. This assent may be express, as by treaty or the acknowledged concurrence of governments, or may be implied from efetab- lished usage." The international agreement which thus makes international law is of two kinds, being either express or implied. Express agreement is contained in treaties and international conven- tions, such as the Declaration of Paris, the Conventions of the Hague, or the provisions as to the League of Nations contained in the Treaty of Peace made with Germany in 1919. Implied agreement is evidenced chiefly by the custom or jH'actice of states.

forms—to be codified and expressed in the form of an inter-

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58 OTHER KINDS OF LAW. [§ 21 narrow Sfnse the conventional law of nations, although in a wider sense the whole of that law is conventional; that part which is based on implied agreement is called the customary; law of nations. The tendency of historical development is for the whole body of the law to be reduced to the first of these twot forms—to be codified and expressed in the form of an inter- national couAention, to which all civilised states have given their express consent. Just as customary civil law tends to be absorbed in enacted law, so customary international law tends, to be merged in treaty law. International law is further di\'isible into two kinds, whioli may be distinguished as the common law of nations and the particular law of nations. The common law is that which pre- vails universally or at least generally among all civilised states, being based on their unanimous or general agreement, express, or implied. Writers are, however, as we liave ah-eady indicated, far from- being unanimous in their analysis of the essential nature of the- law of nations, and the various competing theories may be- olassified as follows : — (1) That the law of nations is, or at least includes, a branch of natural law, namely, the rules of natural justice as applic- able to the relations of states inter se. (2) That it is a kind of customari/ law, namely the rules actually observed by states in their relations to each other.

cluded Avithin the law of nature—that it consists merely of the

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Section 23 — ^Prinoipos du droit de la nature et des gens, vol

Having accepted the last of these theories as correot, let us shorth' consider the nature and claims of the three others. § 22. The first class consists of those who hold that the law of nations is wholly in- cluded Avithin the law of nature—that it consists merely of the princii>les of natural justice so far as applicable to sovereign states in their relations and conduct towards each other—that the study of inltemational law is simply a branch of moral philo- sophy—and that there is no such thing as a positive law of nations, consisting of a body of artificial rules established by states themselves. Thus Hobbes says:^ "As for the law of nations, it is the same with the law of nature . For that which is the law of nature between man and man, before the constitu- tion of commonwealth, is the law of nations between sovereign and sovereign after." The same opinion is expressed by Christian Thomasius,^ Pufendorf,^ Burlamaqui,* and others, but is now generally discredited, though it is not destitute of support even yet. A second opinion is that intemational law is both natural and positive—that it is divisible into two parts, distinguished as the natural law of nations, which consists of the rules of natural' justice as between states, and the positive law of nations, con-» sisting of rules established by states by agreement, custom, or in some other manner, for the government of their conduct towards each other. 23. ^Prinoipos du droit de la nature et des gens, vol. iv. p.

third opinion is that international law is wholly positive—that

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60 OTHER KINDS OF LAW. [§22 subsidiary to the positive law, being applicable only i^'ben no positive rule has been established on the point. Eeprasenta- tives of this opinion are Grotius, Wolf, Vattel, Blackstone, Halleck, Wheiaton, Phillimore, Fiorc, T^wiss, and othere. The third opinion is that international law is wholly positive—that it consists exclusively of a set of rules actually established in some way by the action of sovereign states themiselves—and that the rules of natural justice are not in themseh'cs rules of international law at all, but pertain to that law only if, and only so far as, they have been actually incorjDorated into the estab- lished system of positive law. This is now the prevalent opinion, and we have here accepted it as the correct one.^ By those who maintain it the rules of natural justice as between states are called international morality, and are distinguished by this name from international law. The conduct of a state may be a breach of international morality but not of international law, or a breach of law though in accoixlance A^-ith morality, or it may be both immoral and illegal. The question whether rules of natural justice are to be in- cluded as a part of international law is, indeed, in one aspect, a mere question of words.

national law has its source in international custom—that it con-

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The Law of Nations as Customary Law. lEven those writers who agree in the opinion that interna- tional law is or at least includes a system of positive law, differ among themselves as to the essential nature and source o£ these rules; and we proceed to consider the various answers that have been given to this question. Some writers consider that inter- national law has its source in international custom—that it con- sists essentially and exclusively of the rules which are actually observed by sovereig-n states in their dealings with one another. International custom is not in itself international law; it is nothing more than one kind of evidence of the international agreement in which aU such law has its source. Conversely there is much law which is not based on custom at all, but on express inter- national conventions. By some writers international law is i-egarded as a form of imperative law; it consists, they say, of rules enforced upon states by the general opinion of the society of states, and also 1 " The sole source of (international) law,'' says Dr. 31, list of the genuine adherents of this opinion, becauae so many writers intro- duce vagueness and uncertainty into their exposition by speaking of inter- national consent as well as of intenmfcional praotioe as a source of law; and fail to make it clear whether such practice is operativei per sa, or only they as evid-ence of underlying consent.

following submitted that it is not: —

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f)2 OTHER KINDS OF LAW. [§ 24 in extreme cases by war waged against the offender hj the state says:i " Laws or rules of injured or by its allies. Thus Austin this species, which are imposed upon nations or sovereigns by opinions current among nations, are usually styled the law of nations or international law." In considering this view it is to te admitted that in many oases the rules of the law of nations are thus sanctioned and enforced by international opinion and force. But the question to be answered is whether this sanction is of the essence of the matter; because, if it is so, all rules so sanctioned must be, and no others can be, rules of international law. It is clear, however, that the sanction of war cannot be the essential test; for in the first place this sanction is but seldom applied even to undoubted violations of international law, and in the second place it is at least as often resorted to when there is no violation of such law at all. What then shall te said of the alternative sanction of international opinion? For following submitted that it is not: — the reasons it is (1) Many forms of state action are censured by public opinion, which are admittedly no violation of the law of nations.

§ 24] OTHER KINDS OF LAW. 63

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International law is made, as has been said, by the acts and contracts of governments; internationaJ. opinion is made chiefly by journalists and the writers of books. Opinion, if sufficiently uniform and sufficiently permanent, will doubtless in time constrain the law into conformity with it; but it is not the same thing. (4) Public opinion cannot be made the basis of any rational or scientific body of rules or legal doctrines. For such opinion is simply the belief of the public that certain forms of con- duct are in conformity with natural justice. So far as this belief is well founded, the law based upon it is simply the law •of nature; so far as it is erroneous, the law based on it is simply a mistake which disappears ipso facto on being recog- nised as such. It is impossible to recognise as a subject of scientific interpretation and investigation any international law based on erroneous public opinion; and if based on true opinion, it is nothing save the principles of natural justice. International positive morality, on the other hand, con- sists of those rules of which opinion approves, but of the en- forcement of which by way of war it would not approve.

64 OTHEE KINDS OF LAW. [§ 24

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64 OTHEE KINDS OF LAW. [§ 24 to this further oriticism, that it is impossible thus to divide public apinion sharply into two parts by reference to the justification of war or any other kind of forcible compulsion. Whether such compulsion is right is a matter to be determined not by the application of any. fixed or predetermined rules, but by a consideration of all the circumstances of the individual instance; and even then opinion wiU in most cases be hope- lessly discordant. Moreover, there are forms of state action which are not the violation of any established rule of inter- national law, and which nevertheless are so contrary to thfe rightful interests of another state that they would be held to be rightly prevented or redressed by way of war. Conversely there are rules of undoubted law which are of such minor importance, that a war for the vindication of them would b& viewed by international opinion as a folly and a crime.

" A HEED of wolves," it has "

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THE ADjnNISTKATION OF JUSTICE. § 25. Necessity of the Administration of Justice. " A HEED of wolves," it has " been said,^ is quieter and more at one than so manj' men, unless they all had one reason in them, or have one power over them." Unfortunately they have not one reason in them, each being moved by his own interests and passions; therefore the other alternative is the sole resource. For the cynical emphasis with which he insists upon this truth, the name and reputation of the philosopher Hobbes have suffered much. Yet his doctrine, however hyperbolically ex- pressed, is true in substance. Man is by nature a fighting animal, and force is the ultima ratio, not of kings alone, but of all mankind. Without "a common power to keep them all in awe," it is impossible for men to cohere in any but the most primitive forms of society.

exists. A eociety in which the power of the state is never

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It has become partly or \\'1io11t latent, but it still exists. A eociety in which the power of the state is never called into actual exercise marks not the disappearance o£ governmental control, but the final triumph and supremacy of it. To a large extent already, in all orderly societies, this element in the administration of justice has be-come merely latent; it is now for the most part sufficient for the state to declare the rights and duties of its subjects, without going beyond declaration to enforcement. In like manner the future may see a similar destiny overtake that international litigation which now so often proceeds to the extremity of war. The overwhelming power of the state or of the international society of states may be such as to render its mere existence a sufficient substitute for its exercise. The ad- ministration of justice by the state must be regarded as a per- manent and essential element of civilisation, and as a device that admits of no substitute. jNIen being what they are, their conflicting interests, real or apparent, draw them in diverse ways; and their passions prompt them to the maintenance of these interests by all methods possible, notably by that method of private force to which the public force is the only adequate reply.

§ 25] THE ADMINISTRATION OF JUSTICE. 67

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§ 25] THE ADMINISTRATION OF JUSTICE. 67 system based on public opinion alone, no less than one based on force alone, contains within itself elements of weakness that would be speedily fatal to efficiency and permanence. The influence of the public censure is least felt by those who need it most. Men being what they are—each keen to see his own interest and passionate to follow it—society can exist only under the shelter of the state, and the law and justice of the state is a permanent and neces- sary condition of .peace, order, and civilisation. § 26. Origin of tlie Administration of Justice. The administration of justice is the modern and civilised substitute for the primitive practices of private ^engeance and violent self-help.

lishment of political government, we may make use of the

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68 THE ADMINISTRATION OF JUSTICE. [§ 26 the present daj he is defended by the sword of the state. For the expression of this and other elements involved in the estab- lishment of political government, we may make use of the contrast, familiar to the philosophy of the seventeenth and eighteenth centuries, between the civil state and the state of nature. This state of nature is now oommonlj^ rejected as one of the fictions which flourished in the era of the social contract, but such treatment is needlessly severe. The term certainly became associated ^^•ith much false or exaggerated doctrine touching the golden age on the one hand and the helium mnnium oanfra omnes of Hobbes on the other, but in itself it nevertheless afi'ords a convenient mode for the expression of an undoubted truth. Though human society- is coeval with mankind, the rise of political society, properly so called, is an. event in human history. Nevertheless the 1 Treatise on Government, II. cli.

with the ordeal .as judicium Dei—the judgment of Heaven as

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§ 26] THE ADMINISTRATION OF JUSTICE. 69 substitution was effected only with difficulty and by slow degrees. The turbulent spirits of early society did not readily abandon the liberty of fighting out their quarrels, or submit with good grace to the arbitrament of the tribunals of the state. There is muoh evidence that the administration of justice was in the earlier stages of its development merely a choice of peaceable arbitration, offered for the voluntary accept- ance of the parties, rather than a compulsory substitute for self-help and private war. Only later, with the gradual growth of the power of government, did the state venture to suppress with the strong hand the ancient and barbarous system, and to lay down the peremptory principle that all quarrels shall be brought for settlement to the Courts of law. In later theory, indeed, this mode of trial was classed with the ordeal .as judicium Dei—the judgment of Heaven as to the merits of the case, made manifest by the victory of the right.

state of the sanction of force to the rule of right. We have now

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70 THE ADMINISTRATION OF JUSTICE. [§ 26 right of every man to do for himself that which in modem times is done for him "by the state . As royal j ustioe grows in strength, however, the law begins to speak in another tone, and we see the establishment of the modern theory of the exclusive ad- ministration of justice by the tribunals of the state. § 27. The administration of justice has been already defined as the maintenance of right within a political community by means of the physical force of the state. It is the application by the state of the sanction of force to the rule of right. We have now to notice that it is divisible into two parts, which are distin- guished as the administration of civil and that of criminal justice. In applying the sanction of physical force to the rules of right, the tribunals of the state may act in one or other' of two different ways.

but accuses the defendant of a wrong. He is not a claimant,

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In a civil pro- ceeding the plaintiff claims a right, and the court secures it for him by putting pressure upon the defendant to that end; as when one claims a debt that is due to him, or the restoration of property wrongfully detained from him, or damages payable to him by way of compensation for wrongful harm, or the preven- tion of a threatened injury by way of injunction. In a criminal proceeding, on the other hand,' the prosecutor claims no right, but accuses the defendant of a wrong. He is not a claimant, but an accuser. The court makes no attempt to constrain the defendant to perform any duty, or to respect any right. In civil justice it amounts to a claim of right; in criminal justice it amounts merely to an accusation of wrong. Civil justice is concerned primarily with the plaintiff and his rights; criminal justice with the defendant and his offences.

We have defined a criminal proceeding as one designed for

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72 THE ADMINISTRATION OF JUSTICE. [§ 27 in general these two remedies shall be concurrent, and not merely alternative. Not to speak of the defendant's liability for the costs of the proceedings, the civil remedy of enforcement very commonly contains, as we shall see later, a penal element which is sufficient to render unnecessary or unjustifiable any cumu- lative criminal responsibility. We have defined a criminal proceeding as one designed for the punishment of a wrong done by the defendant, and a civil proceeding as one designed for the enforcement of a right vested in the plaintiff. By a public wrong is meant an offence committed against the state or the community at large, and dealt with in a proceeding to which the state is itself a party. A private wrong is one com- mitted against a private person, and dealt with at the suit of the individual so injured. Criminal libel, it is said, is a public wrong, and is dealt with as such at the suit of the Crown ; civil libel is a private wrong and is dealt \vith accordingly by way of an action for damages by the person libelled.

public wrongs are not crimes. A refusal to pay taxes is an

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73 jjrivate wrongs and public wrongs. The former are an infringe- ment or privation of the private or civil rights belonging to individuals, considered as individuals, and are thereupon fre- quently termed oivil injuries; the latter are a breach and violation of public rights and duties which affect the whole community considered as a community; and are distinguished by the harsher appellation of crimes and misdemeanours. "^ But this exf)laiiation is insufficient. In the first place all public wrongs are not crimes. A refusal to pay taxes is an offence against the state, and is dealt with at the suit of the state; but it is a civil wrong for all tliat, just as a refusal to repay money lent by a private person is a civil wrong. Conversely, and in the second place, all crimes are not public wrongs. We must conclude, therefore, that the divisions between public and private wrongs and between crimes and civil injuries are not coincident but cross divisions.

Men barter their barren rights of vengeance for the more

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74 THE ADMINISTRATION OF JUSTICE. [§ 27 The plausibility of the theory in question is chiefly attri- butable to a certain peculiarity in the historical development of the administration of justice. Where the criminal remedy of punishment is left in the hands of the individuals injured, to be claimed or not as they think fit, it invariably tends to- degenerate into the civil remedy of pecuniary compensation. Men barter their barren rights of vengeance for the more substantial solatium of coin of the realm. Offenders find no difficulty in buying off the vengeance of those they have offended, and a system of money payments by way of composi- tion takes the place of a system of true punishments. Thus at Eome the more important forms of criminal justice per- tained to the sovereign assemblies of the people, -while ci%nl justice was done in the courts of the praetor and other magis- trates. So in England indictable crimes are in legal theory offences against " the peace our of Lord the King, his crown and dignity," and it was only, under the rule of royal justice that true criminal law was superadded to the more primitive system of pecuniary compensation.

flict of interests to which they owe their origin—by making all

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§ 27] THE A0MINI?5'I'KAT10N OF JUSTICE. 75 for the protection of the law of crime, it is necessary to pro- hibit as itself a crime the compounding of a felony, and to prevent in courts of summary jurisdiction the settlement of criminal proceedings by the parties without the leave of the court itself. Such is the historical justification of the doctrine which identifies the distinction between civil injuries and crimes with tliat between public and private wrongs. Offenoes are committed by reason of a conflict between the interests, real or apparent, of the wrongdoer and those of sooiety at large. Punishment prevents offences bj' destroying this con- flict of interests to which they owe their origin—by making all deeds w^hioh are injurious to others injurious also to the doers of them— making every offence, in the words of Locke, " an by ill bargain to the offender." Men do injustice because they have no sufficient motive to seek justice, which is the good of others rather than that of the doer of it. The purpose of the criminal law is to supply by art the motives which are thus wanting in the nature of things. § 29.

than in it. A similar secondary purpose exists in such penal-

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76 THE ADMINISTKATION OF JUSTICE. [§ 29 pedient, to prevent a repetition of wrongdoing by the disable- ment of the offender. We hang murderers not merely that we may put into the hearts of others like them the fear of a like fate, but for the same reason for which we till snakes, namely, because it is better for us that they should be out of the world than in it. A similar secondary purpose exists in such penal- ties as imprisonment, exile, and forfeiture of office. § 30. Punishment is in the third place reformative. This curative or medicinal function is practically limited to a par- ticular species of penalty, namely, imprisonment, and e\en in this case pertains to the ideal rather than to the actual. Flogging and other corporal inflictions are condemned as relics of bar- barism by the advocates of the new doctrine; such penalties are said to be degrading and brutalizing both to those who Digitized by Microsoft®

are chiefly drawn. A further illustration of the divergence

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§ 30] THK ADMINISTRATION OB^ JUSTICE. IT suffer and to those who inflict them, and so fail in the central purpose of criminal justice*. ImjDrisonment, indeed, as already indicated, is the only important instrument available for the^ purpose of a purely reformative system. If criminals are sent to prison in order to be there transformed into good citi- zens by physical, intellectual, and moral training, prisons must be turned into dwelling-places far too comfortable to serve as any effectual deterrent to those classes from which criminals are chiefly drawn. A further illustration of the divergence between the deterrent and the reformative theories is supplied by the case of incorrigible offenders. That they may be precluded from further mischief, and at the same time serve as a warning to others, they are- justly deprived of their liberty, and in extreme cases of lif& itself.

a very large extent criminals are not normal and healthy human

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78 THE ADMINISTKATION OF JUSTICE. [§ 30 inost reactions it falls into the falsehood of extremes. It is an imjDortant truth, anduly neglected in times past, that to a very large extent criminals are not normal and healthy human beings, and that crime is in great measure the product of phj-sical and mental abnormality and degeneracy. The more efhoient the coercive action of the state becomes, the more successful it is in restraining all normal human beings from the dangerous paths of crime, and the higher becomes the proportion of degeneracy among those who break the law. Even with our present imperfect methods the proportion of insane persons among murderers is very high; but if the state could succeed in making it impossible to commit murder in a sound mind without being indubitably hanged for it afterwards, murder would soon become, with scarcely an exception, limited to the insane. Were the state to act on any- such principle, the proposition that all murderers are insajia Avould very rapidly cease to be true. The same fallacy, though in a less obvious form, is present in the more general argument that, since the proportion of disease and degeneracy among criminals is so great, the reformative function of pujiishmeat should prevail over, and in a gi'eat mea.sure exclude, its deterrent and coercive functions.

humanity? No such scheme, however, seems practicable. In

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§ 30] THE ADMINISTRATION OF JUSTICE. 79 lishing and maiiitainiiig those moral habits and sentiments which are possible only under the shelter of coercive law, that crime has- become limited, in such measure as it has, to the •degenerate, the abnormal, and the insane. Purely reformative treat- ment is now limited to the insane and the very young; should it not be extendjed to include all those who fall into oritoei through their failure to attain to the standard of normal humanity? No such scheme, however, seems practicable. The law is necessarily a rough and ready instrument, and men must be content in general to he judged and dealt with by it on the basis of their common humanity, and not on that of their special idiosyncrasies. If a man is destitute of the affections and social instincts of humanity, the judgment of common sense upon him is not that he should he treated more leniently than the normal e\ildoer—not that society should cherish him in the hope of making him a good citizen—but that by the rigour of penal discipline his fate Digitized by Microsoft®

We have considered criminal justice in three of its aspects

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80 THE ADMINISTKATION OF JUSTICE. [§ 30 should be made a terror and a warning to himself and others. Even in the case of the abnormal it is easier and more j^rofitable to prevent crime by the fear of punishment than to procure by reformative treatment the repentance and amendment of the criminal. It is needful, then, in vie'w of modern theories and tenden- cies, to insist on the j^rimary importance of the deterrent element in criminal justice. We have considered criminal justice in three of its aspects —namely as deterrent, disabling, and reformative—and we have now to deal with it under its fourth and last aspect as retri- butive. Retributive punishment, in the only sense in which it is admissible in any rational system of administering justice, is that which serves for the satisfaction of that emotion of retributive indignation ^^hich in aU healthy communities' is stirred up by injustice. Although the system of private revenge has been suppressed, the emotions and instincts that lay at the root of it are still extant^ in human nature, and it is a distinct though subordinate function of criminal justice to afford them their legitimate satisfaction.

§ 3l] THE ADMINISTRATION OF JUSTICK. 81

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§ 3l] THE ADMINISTRATION OF JUSTICK. 81 and unregulated exercise and expression they are full of cvili, there is in them none the less an element of good. The emotion of retributive indignation, both in its self -regarding and its sympathetic forms, is even yet the mainspring of the criminal law. It is to the fact that the punishment of the wrongdoer is at the same time the vengeance of the wrong'ed, that the. administration of justice owes a great part of its strength and efleotiveness. Did we punish criminals merely from an in- tellectual appreciation of the expediency of so doing, and not because their crimes arouse in us the emotion of anger anid the instinct of retribution, the criminal law would be but a feeble instrument. Indignation against injustice is, moreover, one of the chief constituents of the moral sense of the com- munity, and positive morality is no less dependent on it than is the law itself.

with. An eye for an eye and a tooth for a tooth is deemed a

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82 THE ADMINISTRATION OF JUSTICE. [§ 31 According to this view, it is right and proper, without regard to ulterior consequences, that evil should be returned for evil, and that as a man deals with others so should he himseli be dealt with. An eye for an eye and a tooth for a tooth is deemed a plain and self-sufficient rule of natural justice. Punishment as so regarded is no longer a mere instrument for the attainment of the public welfare, but has become an end in itself. The pur- pose of vindictive satisfaction has been eliminated without any substitute having been provided. Those who accept this view commonly advance retribution to the first place among the various aspects of punishment, the others being relegated to subordinate positions. Kant, for example, expresses the opinion that punishment cannot rightly be inflicted for the sake of any benefit to be derived from it either by the criminal himself or by society, and that the sole and sufficient reason and justifica- tion of it lies in the fact that evil has been done by him vvhcv suffers it.i Consistently with this view, he derives the measure of punishment, not from any elaborate considerations as to the amount needed for the repression of crime, but from the simple principle of the l&x talionis: "Thine eye shall not pity; but life shall go for life, eye for eye, tooth for tooth, hand for hand, foot for foot. "2 No such principle, indeed, is capable of literal interpretation; but subject to metaphorical and symbolical applications it is in Kant's view the guiding rule of the ideal scheme of criminal justice.

instinct of retribution—a failure to refer the emotion of retri-

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§ 3l] THE ADMINISTRATION OF JUSTICE. 83 butive punishment is totally inadmissible. Punishment is in itself an evil, and can be justified only as the means of attaining a greater good. Retribution is in itself not a remedy for the mischief of the offence, but an aggravation of it. The opposite opinion may be regarded as a product of the incomplete trans- mutation of the conception of revenge into that of punishment. It results from a failure to appreciate the rational basis of the; instinct of retribution—a failure to refer the emotion of retri- butive indignation to the true source of its rational justification —so that retaliation is deemed an end in itself, and is regarded as the essential element in the conception of penal justica.

right. A sanctioning right is one which arises out of the viola-

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The first distinction to be noticed is that the right so enforced is either a Primary or a Sanctioning right. A sanctioning right is one which arises out of the viola- tion of another right. Thus my right not to be libelled or assaulted is primary; but my right to obtain pecuniary compensation from one who has libelled or assaulted me is sanctioning. My right to the fulfilment of a contract made with me is primary ; but my right to damages for its breach is sanctioning. The administration of civil justice, therefore, falls into two parts, according as the right enforced belongs to the one or the other of these two classes. The law, therefore, gives him in sub- stitution for it a new and sanctioning right to receive from me the pecuniary value of the property that he has lost.

may venture to call it sanctional enforcement.

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§ 32] THE ADMINISTRATION OF JUSTICE. 85 The enforcement of a primary right may be conveniently termed specific enforcement. For the enforcement of a sanc- tioning right there is no very suitable generic term, but we may venture to call it sanctional enforcement. Examples of specific enforcement are proceedings whereby a defendant is compelled to pay a debt, to perform a contract, to restore land or chattels wrongfully taken or detained, toi refrain from committing or continuing a trespass or nuisance, or to repay money received by mistake or obtained by fraud!. In all these cases the right enforced is the primary right itself, not a substituted sanctioning right. What the law does is to insist on the specific establishment or re-esftablishment of the actual state of things required by the rule of right, not of another state of things which may be regarded: as its equiva- lent or substitute.

The second form of sanctioning right—the right to pecu-

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HQ THE ADMINISTRATION OF JUSTICE. [§ 32 immediately, it is an action for the enforcement of a right, not for the punishment of a wrong. The mere fact that the sanctioning right thus enforced is created by tlie law for the purpose of punishment does not bring the action within the sphere of criminal justice. In order that a proceeding should be criminal it is necessary that its direct and immediate purpose should be punishment; it is not enough that its purpose should be the enforcement of a right which has been created by way of punishment. A proceeding is civil if it is one for the en-, foroement of a right, and the source, nature, and purpose of the right so enforced are irrelevant.^ The second form of sanctioning right—the right to pecu- niary compensation or damages—is in modern law bj^ far the more important. It may be stated as a general rule, that the violation of a private right gives rise, in him whose right it is, to a sanctioning right to receive compensation for the injury so done to him. Penal redress, on the other hand, is a much more common and important form of legal remedy than more restitution. ^ It is worth notice that an action may be purely penal even though thei penalty is payable to ilie person injured.

as follows: —

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§32] THE A.DMINISTEATION OF JUSTICE. 87 The law is seldom oontent to deal with a wrongdoer by merely oomp«lliug him to restore all benefits which he has derived from his wrong; it commonly goes further, and compels him to pay the amount of the plaintiff's loss; and this maj' fai' exceed the profit, if any, which he has himself received. It is clear that compensation of this kind has a double aspect and nature; from the point of view of the plaintifl it is compen- sation and nothing more, but from that of the defendant it is a penalty imposed upon him for his wrongdoing. The com- pensation of the plaintiff is in such cases the instrument which the law uses for the punishment of the defendant, and because of this double aspect we call it penal redress. Thus if I burn down my neighbour's house by negligence, I must pay him the value of it. The result of the foregoing analysis of the various formis assumed by the administration of justice, civil and criminal, as follows: — may be exhibited in a tabular form 'Specific Enfoece- MENT —cnforcemen t of a primary right e.f^., paymetit of debt, or return of property detained.

ceedings, therefore, may be classed together as penal, and as

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It will be noticed that in the foregoing Table legal proceed- ings have been divided into five distinct classes, namely: actions for specific enforcement, (2) actions for restitu- (1) tion, actions for penal redress, penal actions, and (3) (4) criminal prosecutions. All these pro- ceedings, therefore, may be classed together as penal, and as the sources of peTial liability. The other forms, namely specific enforcement and restitution, contain no such penal element; the idea of punishment is entirely foreign to them; and they may be classed together as remedial, a'nd as the sources of reynedial liability. From the point of view of legal theory this distinction between penal ^nd remedial liability is, as we shall see, of even greater importance than that be- tween criminal and civil liability. It will be noted that all criminal proceedings are at the same time penal, but that the converse is not true, some civil proceedings being penal while others are merely remedial. Proceedings are classed as criminal or civil in respect of their immediate aim: they are distinguished as penal or remedial in respect of their entire purpose, remote as well as immediate.

proceedings, therefore, may be defined as those in whicli the

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•§ 34] THE ADMINISTRATION OF JUSTICE. 89 immediate design of the law is the enforoement of the right to the penalty or damages, but its ulterior design is the jDunish- ment of the Avrong out of which this right arose. In resi>ect of the former the pi-ooeedings lare civil, not criminal; while in respect of the latter ithey are penal, not remedial. Penal proceedings, therefore, may be defined as those in whicli the object of the law, immediate pr ulterior, is or includes the punishment of the defendant. The administration of justice properly so called, therefore, involves in every case two parties, the plaintiff and the defendant, a right claimed or a wrong complained of by the former as against the latter, a judgment in favour of the one or the other, and execution of this judgmlent by the power •of the state if need be. It is to administer justice in the strict sense that the tribunals of the state are established, and it is by reference to this essential purpose that they must he defined.

(1) Petitions of Right. —The courts of law exercise, in the-

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They fall chiefl}' into four- groups: (1) Petitions of Right. —The courts of law exercise, in the- first place, the function of ^adjudicating upon claims made bj^ subjects against the state itself. If a subject claims that a debt is due to him from the CroAvn, or that the Crown has broken a contract with him, or wrongfully detains his pro- perty, he is at liberty to take proceedings by way of petition of right in a court of law for the determination of his rights in the matter. The petition is addressed to the Crown itself., but is referred for consideration to the courts of justice, and these courts will investigate the claim in due form of law, and pronounce in favour of the petitioner or of the Crown, just as in an action between two private persons. The state is the judge- in its own cause, and pannot exercise constraint against itself. Nevertheless in the wider sense the administration of justica- includes the proceedings in a petition of right, no less than a criminal jDrosecution or an action for debt or damages against a private individual. (2) Declarations of Right. —The second form of judicial action which does not conform to the essential tj-pe is that which results, not in anj- kind of coercive judgment, but merely in a declaration of right. What he desires may be not any remedy against an adversary for the violation of a right, but an authoritative declaration that the right exists.

(3) A3)ninistratioiiti. —A third form of socoudary judicial

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§ 35] THK ADMINISTRATION OF JUSTICE. Ul (3) A3)ninistratioiiti. —A third form of socoudary judicial action iucludes all those easfs in which courts of justice under- take the management and distribution of property. Examples are the administration of a trust, the liquidation of a company by the court, and the realisation and distribution of an insolvent estate. v4 : Tiflr!< of Right. —The fourth and last form includes all those cases in which judicial decrees are employed as the means of creating, transferring, or extinguishing rights. Instances are a decree of divorce or judicial separation, an adjudication of bankruptcy, an order of discharge in bankruptcy, a decree of foreclosure against a mortgagor, an order appointing or removing trustees, a grant of letters of administration, and vesting or charging orders. In all these cases the judgment or decree operates not as the remedj' of a wrong, but as the title of a right. These secondary forms of judicial action are to be classed luider the head of the civil administration of justice.

' Penal—involving the idea of punishment—civil or criminal.

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S2 THE ADMINISTRATION OF JUSTICE. [§ 35 Crimes not necessarily pu,Wic wrongs. Retributive. / Enforcement of primary rights—Specific enforcement. Enforcement of sanctioning rights—Sanctional en- forcement. Tlestitution. „ , . , „ ( Compensation j Sanctional , enforcement > Penal redress. | p^j^^j. ^nisdiS'l—independent of the idea of pimishment—always civil. Justice f ' Penal—involving the idea of punishment—civil or criminal. Subsidiary functions of courts of justice: — 1.

A COMPLETE analysis of the nature of law involves an inquiry

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The Nature and Essential Functions of the State.. A COMPLETE analysis of the nature of law involves an inquiry into tho nature of the state, for it is in and through the statsi alone that law exists. .Jurisprudence is concerned, however, only with the elements and first principles of this matter. An exhaustive theory of political government pertains not ta jurisprudence, but to the allied science of politics. From the lawyer nothing more is required than such an understanding of the essential nature of the state, as is sufficient and neces- sary for the establishment of sound juridical theory. A state or political society is an association of human beings- established for the attainm,ent of certain ends by certain means. It is the most important of all the various kinds of society in which men unite, being indeed the neeessarj^ basis and condition of peace, order, and civilisation.

We are dealing with the definition, and therefore with the

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Section 76 — "Both, swords, therefore, as well this of war as that of justice,

94 THE STATE. [§ 36 IDurposii and end of political socit'ty is defunee against external enemies, and the maintenance of peaceable and orderly relations within the community itself. It would be easy to show by a long succession of authorities that these two have always been recognised as the essential duties of governments. The Israelites demanded a king, that he "may judge us, and go out before us, and fight our battles; "^ and this conception of the primary end and aim of sovereignty obtains recognition still as true and adequate. Leviathan, as Hobbes^ tells us, carries two swords, the sword of war and that of justice. We are dealing with the definition, and therefore with the essence, not with the accidents of political society.^ It is not difficult to show that war and the administration, of justice, however diverse in appearance, are merely two different species of a single genus. 76: "Both, swords, therefore, as well this of war as that of justice, . . . essentially do belong to the chief command." 3 " The primary function of the state," says Herbert Spencer (Principles of Ethics II.

ill waging war—that is tO' say, just war, which is the only kind

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95 ill waging war—that is tO' say, just war, which is the only kind which can be regarded as an essential form of state activitj- is the same. These two primary functions are simply the two •different waj's in which a political society uses its power in the •defence of itself and its members ia-gainst external and internal enemies. They are the two methods in which a state fulfils its appointed purpose of establishing right aoid justice by physical force. Only indirectly, and through such judgment, does it enforce rights and punish wrongs. To shoot a nian on the field of battle or at a barricade is war; to shoot him after capture and oondetamation by a court martial is the administra- 1 ' tion of justice. 1 It is to be noted that the term war is commonly applied only to the more ex^treme forms of extrajudicial force.

possible. This protection against leitraj udioial force—this free-

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Judicial force is regulateid by law, while the force of arms i? usualh' exempt from such control. Within the community the law insists that all force shall be judicial if possible. This protection against leitraj udioial force—this free- dom from all constraint save that which operates through the courts of \Ay\ and justice—is. one of the chief privileges of the members of the bodj' politic. In the second place judicial force is com'monl;^' exercised against private persons, extrajudicial force against states. 1 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 wili we go against him, nor will we send agaimstl him, save by the lawful judgment of his peers, or by the law of the land." Digitized by Microsoft®

munity—whether they are individuals or states—have no

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It is not impossible that one state should administer justioo between two others, or between another state and itself. And on the other hand, it may wage war with its own subject;-, or with pirates or other persons who do not constitute a political society. o. Thirdly, the administratioia of justice is generally the internal, Avhile war is g-enerally the external exercise of the power of the state. In other words, the state commonly pro- ceeds against internal enemies by way, of judicial, and against external enemies by way of extrajudicial force. Those who stand outside the com- munity—whether they are individuals or states—have no claim to the impartial arbitrament of judicial tribunals, and may be struck at directly by the armed and heavy hand of the state. Those persons against whom! the .state administers justice are cominonly so completely within its power, that they have no choice saVe voluntary submission and obedience.

substitution of one kind of force for another —of public force

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98 THK STATE. [§ 36 marks not the subhtitutiou of arbitration for force, but the substitution of one kind of force for another —of public force for private, of judicial force for extrajudicial, of latent and threatened force for that which is actually exercised. As' states increase in power, this difference between their two essential functions is intensified. In feeble, turbulent, and ill-governed states the clement of force in the administration of justice tends to come to the surface. It may be necessary to execute the judgments of the courts by military force, and there may be little difference of external aspect between the use of judicial force in the execution of a judgment, and the use of extrajudicial force in the suppression of riot, rebellion, or civil § 37. It is derived partly from the fact that the state represents the whole popu- lation of an extensive territory; joartly from the fact that it posse^sses, tlirough the organised physical force at its command, powers of coercion whidi are non-existent elsewliere; and ' Uu tho original identity and gradual ditfereiuiation of the two functions of the state, see Spencer's Sociology, II. pp. 494, " is a phra.9e sufficiently indicating the truth that action against the public enemy and action against the private enemy are in the la«t resort the same." Digitized by Microsoft®

territory—a nomadio tribe for example—is perfectly possible.

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99 partly from the fact that its financial resources (due to the exer- cise of its coercive powers by way of taxation) are immensely beyond those of all other persons and societies. The territory of a state is that portion of the earth's surface which is in its exclusive possession and control. 1 This exclusive possession of a defined territory is a charaxjteristic feature of all civilised and noi'mal states. A state without a fixed territory—a nomadio tribe for example—is perfectly possible. It is with the territorial state that we are alone concerned, and with reference to it we may accordingly define a state as a society of inen established fm- the maintenance of peace and' justice mthin a deterndned territory by imy of force. § 39. These two 1 The legal conception of state territory is more fully considerod in Appendix V.

for many men belong to the state by one title only. They

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The former is a title of permanent, the latter one of temporary membershij) of the political comtnunity. The state, therefore, consists, in the first place, of aE those who by virtue of this personal and permanent relationship are its citizens or subjects, and in the second place, of all those who for the time being reside within its territory, and so possess a temporarj' and territorial title to state-membership. Both classes are equally members of the body politic, so long as their title lasts; for both have claims to the protection of the laws and government of the state, and to such laws and government both alike owe obedienoe and fidelity. They are alike subject to the dominion of the state, and it is in the interests of both that the state exists and fulfils its functions. Yet the coincidence is far from complete, for many men belong to the state by one title only. They are not within the power and jurisdiction of the state: they owe no obedience to the laws, nor fidelity to the government: it is not for th(>m or in their interests that the state exists.

own state, while an alien may release himself at will from

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101 \ The practical importance of the distinction hctweeip ,the two forms of state-membership' lies chiefly in the superior privileges possessed by citizens or subjects. Citizens are members Optimo jw^e, while aliens stand on a lower level in the scale of legal right. Thus British subjects alone possess political as opposed to merely civil rights ;i until a few years ago the}- alone were capable of inheriting or holding land in England; to this day they alone can own a British ship or anj- share in one; they alone are entitled when abroad to the protection of their government against other states, or to the protection of English courts of law against illegal acts of the English executive; they alone can enter British territory as of right; they alone are entitled to the benefit of certain statutes from the operation of which aliens are expressly or by implication excluded. Wheresoever they are, they owe fidelitj' and obedience to the laws and government of their own state, while an alien may release himself at will from all such ties of subjection. Citizenship is the superior, residence the inferior title of state- memT>ership Viewing the matter historically, we may say that citizcn- jeets, 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.

sonal in favour of territorial membership. A oom^promise

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102 THE STATE. [§ 39 ship is a legal conception the importance of whicli is con- tinuously diminishing. The consistent tendency of legal development is to minimise the peculiar rights and liabilities of subjects, and to make residence rather than citizenship' the essential and sufficient title of state-membership. Residence, regarded as a title of membership and protection, is the product 'of the more modern conception of the state, as consisting merelj' of the inhabitants for the time being of a certain territory. The personal idea is gradually giving place to the territorial, and the present twofold title of membership is the outoomte of a oompromise between these two co-existent and competing principles. It is not su,ggested, indeed, that the final issue of legal development will' be the total disappearance of per- sonal in favour of territorial membership. A oom^promise between the two extreme principles, in some such form as that which has now been attained to, may well prove permanent.

develop into a state —to add to the subsisting community

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Fellow citizens are those who belong not merely to the same state but also to the same nation It is quite common to use the term citizeinship and nation-^ ality as synonymous, and this usage, though incorrect, is significant of a very real connexion between the two ideas. Nationality is membenship of a nation; citizenship is one kind of membership of a state. A toation is a society of men miited by common blood and descent, and by the various subsidiary bonds incidental -thereto, such as common sjaeeeh, religion and manners, A state, on the other hand, is a societj" of men united under one government. A single nation iivd.j be divided into several states, and conversely a single state may comprise several nations or parts of nations. The Hellenes were of one blood, but formed man}' states, while the Roman empire included many nations, but was one state. In every nation there is ^.n impulse, morie or less powerful, to develop into a state —to add to the subsisting community of descent a corresponding community of government and political existence.

become political. Men become united as felloAV-citizens,

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The citizens are the members of a nation which has thus developed into a state. Citizenship is nationality that has become political. Men become united as felloAV-citizens, because they are, or arc deemed to be, already united b}' the bond of common kinship. It is noit created on 'their behalf, and! they have no part or lot in it, for its law and government are the exclusive birthright of its citizens. Gradually the govern- ment and the laws cease to be exclusively national and per- sonal, and become in part territorial also. The citizens consent to share their rights with outsiders, but the two classes never reach equality, and the personal union stands permanently on a higher level than the territorial.

of allegiance, together with his title to protection. A British

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But "this defence is not a privilege to be had for nothing, and in return for its protection the state exacts from its zuembers swvices and sacrifices to which outsiders are not constrained. Its membei'S, therefore, are not merely in a special manner under the protection of the state, but are also in a special manner under its coercion. This special duty of assistance, fidelity, and obedience, is •called allegiance, and is of two kinds, corresponding to the two classes of members from whom it is required. Resident aliens owe temporary allegiance during the period of their residence, juist ris their title to state protection is similarly limited. An alien, when in England, must be faithful to the state, must submit to its ivill, and obey its laws, even as an Englishman; but when lie leaves English shores, he leaves behind him his obligation of allegiance, together with his title to protection. A British subject, on the other hand, takes both of these things with liim on his travels.

ments ; the second consists of its secondary elements—the details,

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In the definition of a state as a society with a special end' and function, there is implied a permanent and definite organisation—a determinate and systematic form, stracture,. and operation. A body politic is not constituted bj' a tem- porary and casual union of individuals, for the pui-pose of repelling an external enenn-, or of executing judgment on some domestic evildoer. The transition from natural to political society is effected only when the union of individuals lias assumed a certain measure of permanence and organisa- tion, and when their combined operations in pursuit of their common end have become in a certain degree systematic and definite. It is only when a society has acquired such an organisation, whether by way of agreement, custom, forcible- imposition, or otherwise, that it takes on the nature of a body politic or state. The first consists of its fundamental or essential ele- ments ; the second consists of its secondary elements—the details, of state structure and state action. Constitutional law is, as its name implies, the bod^' of those- legal rules which determine the constitution of the state.

§ 40] THE .STA'l'E. 107

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Conversely, the more special, detailed, and limited in its application, the less likely it is to find a place in any exposition of the law and practice of the constitution. The structure of the supreme legislature and the methods of its action pertain to constitutional law; the structure aud opera- tions of subordinate legislatures, such as those possessed by the colonies, are justly entitled to the same position; but those of such subordinate legislatures as a borough council would by general consent be treated as not sufficient^ important and fundamental to be deemed part of the constitution. So the organisation and powers of the Supreme Court of Judicature, treated in outline and not in detail, pertain to constitutional law; while it is otherwise with courts of inferior jurisdiction, and with the detailed structure and practice of the Supreme Court itself In some st-ates, though not in England, the distinction between con- stitutional law and the remaining portions of the legal system is accen- tuated and made definite by the embodiment of the former in a special and distinct enactment, the terms of which cannot be altered by the ordinary forms of legislation. Such constitutions are said to be riffid, as opposed to those which are flexible. That of the United State»s of America, for example, is set forth in a document agreed upon by the founders of the Commonwealth as containing all those principles of state structure and action sufficiently important to be deemed funda- mental and therefore constitu^tional. The provisions of this document cannot be altered without the consent of three-fourths of the legis*- latures of the different states.

to the law. How then does the law determine the constitu-

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108 THK STATE. [§ 40 The state and its oonstitutioii are therefore necessarily prior to the law. How then does the law determine the constitu- tion? Is constitutional law in reality law at all? Is not the constitution a pure matter of fact, with which the law hag no concern? In other words constitu- tional practice is logically prior to constitutional law. As an illustration of the proposition that a-xevj constitu- tion has an extra-legal origin, we may take the United States of America.

reality. Much constitutional doctrine may be true in law

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1 OO these colonies save that of England, and it was not by the authority of this law,, but in open and forcible defiance of it, that these colonial communities set up new states and new constitutions. Their origin was not merely extra-legal; it was illegal. Constitutional law followed hard upon the heels of constitutional fact. Constitutional law, therefore, is the judicial theory, reflec- tion, or image of the constitution de facto, that is to say, of constitutional practice. The constitution as seen by the eye of the law may not agree in all points with the objective reality. Much constitutional doctrine may be true in law but not in fact, or true in fact but not in law.

A ,-tatement of the strict legal theory of the British oonsti-

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40 [§ fact and in law more serious and obvious than in England. A ,-tatement of the strict legal theory of the British oonsti- tutioji would differ curiously from a statement of the actual facts. It involves an account of the organised state as it exists in practice and in fact, as well as of the reflected image of this organisation as it app-ears in legal theory. The objective facts of state organisation tend to mould legal theory into conformity with themselves. Conversely, the accepted legal theory endeavours to realise itself in the facts. The will of the body politic, as expressed through the legislature and the courts, -will commonly realise itself in constitutional fact no less than in constitutional theory. § 41.

Legislative, judicial, mid execuNve pomer. —In respect of its

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Ill They are the agents throug-h whom the state, as a corporate unity, acts and moves and fulfils its end. Legislative, judicial, mid execuNve pomer. —In respect of its subject-matter, civil power is of three kinds, distinguished as legislative, judicdal, and executive; and the government is similarly divisible into three great departments, namely, the legislature, the judicature, and the executive. Sovereign and subordinate poiver. —In respect of its extent civil power, whether legislative, judicial, or executive, is of two kinds, being either sovereign or subordinate. Sovereign or supreme power is that which is absolute and uncontrolled within its own sphere. Within its appointed limits, if any, its exercise and effective operation are not dependent on or subject to the power of any other person. They lay down c-ertain fundamental proposi- tions with respect to the nature of this power: namely, (1) that it.s 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 neces- sarily absolute and unlimited in law, that is to say, its sphere of action iri legally inderberminate.

not, properly speaking, a state at all—that the constituent

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112 THE STATK. [§ 42 A dependent or non-sovereign state, on the other hand, is one which is not thus compk'te and self-existent, but is merely a constituent jjortion of a greater state which includes both it and others, and to whose government it is subjeqt. The British Empire, the United States of America, and the King- dom of Italy are independent states. It is maintained by some WTiters that a dei^endent state is not, properly speaking, a state at all—that the constituent and dependent parts of an independent state may be termed colonies, provinces, territories, and so on, but have no valid claim to the name of state. Whether, therefore, any territorial division of a state is to be classed as itself a state dep»ends on whether, in itself and in isolation, it possesses and fulfils the essential functions of oire. Speaking generally, we may say that an^- such division which piossesses a separate legislature, judicature, and executive, and is thus separately organised for the maintenance of peace and justice, is entitled to be regarded as itself a state. The Commonwealth of Australia is a true state, though merely a part of the larger state of the British Empire, for it conforms to the definition of a state, as ..i society established and organised for the administration of justice and for external defence.

A unitary or simple State is one which is not made up of terri-

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113 t or taking upon itself any further function than those which it now possesses, stand alone as a distinct and self-sufficient politi- cal community. International law takes account only of independent or sovereign states, for it consists of the rules which regulate the relations of such states to one another. Internationally regarded, its existence is simply a detail of the internal constitution of tire larger and independent state of which it forms a part. States are of two kinds, heing either miitm-y or composite: A unitary or simple State is one which is not made up of terri- torial divisions which are states themselves. A composite state on the other hand is one which is itself an aggregate or g*r0iu,p of constituent states. This is a convenient place in which to call attention to the variety of allied meanings possessed by the term state.

the government at Sydney administers the affairs of New South

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The difference is to be found in the nature of that common government which is the essential bond of union between the constituent states. In an imperial state the government of one of the parts is at the same time the common government of the whole. In a federal state, on the contrary, the common government is not that of one of the parts, but a central government in which all the constituent states participate. The government of the United Kingdom possesses a double capacity, local and imperial. In its local capacity it admin- isters the affairs of England, Scotland, and Ireland, just as the government at Sydney administers the affairs of New South Wales. But in another capacity it is the government of the whole empire, and provides the bond of common authority which unites all the constituent states of the empire into a, single body politic.

§ 43] THE STATE. 115

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115 Eelations between the two essential functions. The judicial and extrajudicial use of force. The territory of the State. ™, , J! ii, oi i * Citizens or subjects. The members of the State i t> ., , ,. ( Jiesident aliens. Citizenship in its historical aspect. Citizenship and nationality. , „ . t Personal and permanent.

sources of the law. A formal source is that from which a rule

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We must distin- guish in the iirst place between the formal and the material sources of the law. A formal source is that from which a rule of law deri^'es its foroe and validity. The material source supplies the substance of the rule to which the formal source gives the foroe and nature of law. The formal source of the whole body of the civil law is one, and the same, namely, the will and power of the state as manifested in courts of justice. Cugtomary law, for example, has its material soui'Oe in the usages of those wiio are subject to it; but it has its formal source in the will of the state, no less than statutory law itself. § 45. Though the formal source of the \a,^\- is one, its material sources are many, and they are divisible into two classes whioh may be distinguished as legal and historical.

and the edictto?n perpefiium—are the successi\o material

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117 former are those sources which are recognised as such by the law itself. The latter are those sou,rces which are such in fact, but are nevertheless destitute of legal recognition. This is an important distinction which calls for careful con- sideration. In respect of its material origin a rule of law is often of long descent. The immediate source of it may be the decision of an English coui-t of justice. In such a case all these things the decision, the works of Pothier, the corpus /nrts r-iviJis, and the edictto?n perpefiium—are the successi\o material sources of the rule of English law.

We are here concerned solely with the legal sources of the

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118 THE S0URCE3 OF LAW. '^^ [§ Yet there is an essential difference between the two cases. .What the statute-book says becomes law forthwith and ipsa jure; but what Bentham says may or may not beoome law, and if it does, it is by no claim of right but solely through the unconstrained good pleasure of the legislature or the courts. The legal sources are the only gates through which new principles can find entrance into the law. Historical sources operate only mediately and indirectly. We are here concerned solely with the legal sources of the law. Itsi historical sources pertain to legal history, not to legal theory. Hereafter, when we speak of the sources of law, we shall mean by that term the legal sources exclusively.

these establish the sources of the law. A source of law, then,

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Thus it is itself a principle of English law that any principle involved in a judicial decision has the force of law. Similar legal recognition is extended to the law-producing effect of statutes and immemorial customs. Rules such as these establish the sources of the law. A source of law, then, is any fact which in accordance with the law determines the. judicial recognition and aooeiptance of any new rule as having the force of law. Such declaration, realisation, application, approval, and adoption determine in each case the judicial recognition as law of the principle so dealt with, and there- fore constitute the sources of the law. Law which has its source in legislation is called statute, enacted, or written law.

fessional opinion—the opinion of lawyers—is merely an

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120 THE SOURCES OF LAW. [§46 There are two chief reasons for allowing law-creative ojJeration to these various sources. In the first place there is a presumption that pTinoiples jDroceeding from them are principles of truth and justice, worthy of adoption by the judicature. A statute is an attempt made by the legislature to formulate the rules of right for the use and direction of the judicature. This attempt is not always successful, for law and justice are sometim.es far apart; yet no better device has been discovered, and the courts accept the rules so formulated as authoritative and final. Pro- fessional opinion—the opinion of lawyers—is merely an historical, not a legal source of English law. Almost all that is of special value in Roman law has this as its origin; the Digest of Justinian consists wholly of extracts from the writings of Roman lawyers.

and obligations may be confidently accepted by the law courts

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121 upon by two or more persons as defining their mutual rights and obligations may be confidently accepted by the law courts as a true and just rule between those who have so oonsanted to it. As to them, it is fit and proper to be applied' as law. There is, however, a second ground of not less imjDortance on which the efiicacy of these legal sources rests. They are not merely presumptive evidence of the justice and truth of the principles proceeding from them, but they are the basis of a rational expectation on the part of all persons concerned that these principles will be consistently acted on in the future. Justice demands that such expectations shaU. be fulfilled. That which is approved by the general opinion of the legal pTofession serves so largely as the basis of the actions and expectations of men, that the courts of law will not lightly depart from it.

in the first place the increase or growth of law—that is to

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122 THE SOURCES OF LAW. [§ 46 just and reasonable; but they must be held bound by it none tbe less, otherwise there will be no certainty of dealing amooig tmankind § 47. The Sources of Law as Constitutive and Abrogative. The process of legal e\"olution is threefold. It comprise* in the first place the increase or growth of law—that is to say, the substitution of legal principles for the discretion of oourts, and the transformation of fact into law. It invoives in the second place the opposite process of the decrease of law—the reconquest by the arbitrium jiidicis of domains formerly occupied by legal principle—the transformation of law into fact. Finally it includes the alteration of law that is to say, the destruction of one legal principle and the substitution of another in its stead.

law in pari matesrid—the proved custom of merchants will be

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123 In the strict theory of the law, precedent is whollj- consti- tutive, being quite destitute of abrogative power. When the law is already settled, tiie judges have no authority save to obey and administer it. Mercantile custom resembles precedent. So long as the ground is vacant—so long as there is no rule of the common law in pari matesrid—the proved custom of merchants will be allowed by the courts as a source of new law. Immemorial custom, on the other hand, has full power to derogate from the common law, though the statute law is beyond its operation. An examination of any legal system will show that to a large extent the same classes of facts which operate as sources of law operate as sources of rights also.

may not know what it is. But not aU of them have legal

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The proposition which really needs emphatic statement in this case is that agreement is not exclusively a title pf rights, but is also operative as a source of law. § 49. As a matter of fact and history they have their origin somewhere, tliougli we may not know what it is. But not aU of them have legal sources. In other words there must be found in every legal system certain ultimate principles, from which all others are derived, but which arc themselves self -existent. Before there can be any talk of legal sources, there must be already in existence some law which establishes them and gives them their autlrority. The liistorians of the constitution know its origin, but lawyers must accept it as self -existent.

Lpgal soui'oes 3. Precedent—case-law.

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It is certainly reoognised by many precedents, but no pre- cedent can confer authority upon precedent. It must first possess authority before it can confer it. If we inquire as to the number of these ultimate prin- ciples, the answer is that a legal system is free to recognisiei any number of them, but is not bound to rectognise more than one. From any one ultimate legal source it is possible, for the whole law to be derived, but one such there must be. A statute for example may at any time give statutory authority to the operation of precedent, ^ and 8.0 reduce -it from an ultimate to a derivative source of law.- 8UMMAET. The literature, ag opposed to the sources of our law, comprises all modern text- books and commentaries. - In the succeeding chapters we shall consider more particularly three of the legal sources which have been already mentioned, namely, legislation, custom, and precedent.

CHAPTER VII.

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Legislation is that source of law which consists in the declaration of legal rules by a competent authority. It is such an enunciation or promulgation of principles as confers upon them the foroe of law. It is such a declaration of principles as constitutes a legal ground for their recognition as law for the future by the tribunals of the state. Although this is the strict and most usual application of the term legislation, there are two other occasional uses of it which require to be distinguished. It is sometimes used in a wide sense to include all methods of law-making. To legis- late is to make new law in any fashion.

sense—the making of law by means of the declaration of it.

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But although, they have made law, they have made it by way of mutual agreement for themselves, not by way of authoritative declaration for other persons. The writers who make use of the term in this wide sense divide legislation into two kinds, which they distinguish as direct and indirect. The former is legislation in the narrow sense—the making of law by means of the declaration of it. Indirect legislation, on the other hand, includes all other modes in which the law is made.^ In a third sense legislation includes every expression of the will of the legislature, whether directed to the making of law or not. The judicature, as we have seen, does many things which do not fall within the administration of justice in its strict sense; yet in a wider use the term is ext&nded to include all the activities of the courts. AU this is legislation in a wide sense, but it is nolt that declaration of legal principles with which, as one of the sources of law, we are here alone concerned.

whether enacted or unenacted, being jus scriptum. We shall

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128 LEGISLATION. [§ 50 use the expressions written and unwritten law to indicate the distinction in question. Much law, howe^•er, is reduced to writing, even in its inception, besides that which originates in legislation. The terms are derived from the Romans, who meant by jus non scriptum customary law, all other, whether enacted or unenacted, being jus scriptum. All the residue was enacted, and therefore written law.i s 51. The chief forms of subordinate legislation are five in number. (1) Cokmial. —The powers of self-government entrusted to the colonies and other dependencies of the Crown are subject 1 Constat autem jus nostrum aut ex scripto aut ex non scripto. ... Ex non scripto jus venit, quod uaua comprobavit.

(2) Executive. —The essential function of the executive is

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129 to the control of the Imperial legislature. The Parliament at Westminster may repeal, alter, or supersede any colon;ial; enactment, and such enactments constitute, accordingly, the first and most important species o£ subordinate legislation. (2) Executive. —The essential function of the executive is to conduct the administrati\'e departments of the state, but it combines with this certain subordinate legislative powers which have been expressly delegated to it hy Parliament, or pertain to it by the common law. A statute, for example, occasionally entrusts to some department of the executive government the duty of supplementing the statutor}- provi- sions by the issue of more detailed regulations bearing on the same matter. So it is part of the prerogati^'e of the Crown at common law to make laws for the government of terri- tories acquired by conquest, and not }'et possessed of repre- sentative local legislatures. (3) Jmlioial. —In tlie same way, certain delegated legisla- tive powers are possessed by the judioatui'e. The superior courts have the power of making rules for the regulation of their own procedure. But this is not necessarily the case, for legisla- tion is not a function that is essentially limited to the state.

touching matters which concern themselves. A railway

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130 LEGISLATION. [§ 61 for-mal source of law; but it doas not follow from this that the ivord of the state is the sole form of that nutiterial source of the law which is called legislation. In the allowance of new law the state may hearken to other A'oices than its own. In general, indeed, the power of legislation is far too impor- tant to be committed to any person or body of persons save the incorporate community itself. The law gives to oertain groups of private individuals limited legislative authority touching matters which concern themselves. A railway company, for example, is able to make by-laws for the regula- tion of its undertaking. A registered company may alter those articles of association by which its constitution and management are determined.

Tbey are law for all shareholders hy virtue of their own

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131 Tbey are law for all shareholders hy virtue of their own agreement to become members of the company, and are not the outcome of any subsequent exercise of legislative authority vested in the majority. § 52. Relation of Legislation to other Sources. So great is the superiority of legislation over all other methods of legal evolution, that the tendency of advancing, civilisation is to acknowledge its exclusive claim, and to dis- cai-d the other instruments as relics of the infancy of law. The expressed will of the state tends to obtain reaognition not only as the sole formal source of law, but as its exclu&ivci material source also. Statute-law has already become the type or standai-d, from ^xiiich the other forms are more or less abnormal variations. It is well known that the earliest codes were the work, not of mortal men, but of the gods.^ That the material contents of the law depend upon the express or tacit will of the state, that principles sanctioned by religion or immemorial usage aje laws only so long as the prince chooses to retain them unaltered, that it is within the powers and functions of political rulers to change and subvert the laws at their own good pleasure, are beliefs whidi mark con- siderable progre-ss along the road of political and legal 1 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 modifi- cations conventional instead of legislative in their nature.

efficacy; it is capable of producing very good law—better in

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132 LEGISLATION. [§ 52 development. Until sacli progress has been made, and until the petrifying influence of the primitive alliance of law with religion and immutable custom hais been to some extemt dis- solved, the part played by human legislation in the develop- ment of the legal system is necessarily small, and may be even non-existent. As it is the most powerful, so it is the latest of the instruments of legal growth. In considering the advantages of legislation, it will be con- venient to contrast it specially with its most formidable rival, namely precedent. >So considered, the first virtue of legisla- tion lies in its abrogative power. It is not merely a source of new law, but is equally effective in abolishing that which already exists. But precedent possesses merely constitutive efficacy; it is capable of producing very good law—better in some respects than that which we obtain by way of legislation —but its defoot is that, excej^t in a very imperfect and in- direct manner, its operation is irre\'ersible.

courts of justice themselves. We have already noticed the

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§ 52J i.EGisLATioN. i;j;j possible for the law to develop by a process of true legisla- tion, in the absence of any legislative organ other than the courts of justice themselves. We have already noticed the existence of this judicial legislation, in considering the various forms of subordinate legislative power. The most celebrated instance of it is the case of the Roman praetor. In addition to his pui-ely judicial functions, he possessed the jiis edicendi, that is to say, legislative powers in respect of the matteirs pertaining to his office. Powers of judicial legislation, similar in kind, though less in extent, are at the present day ^ery generally conferred upon the higher courts of justice. A third advantage of statute-law is that the formal de- claration of it is a condition precedent to its application in courts of justice.

of the legislature. As a set-off against this demerit of pre-

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lai LEGISLATION. [§ 62 Fourthly, legislation can by way of anticipation make rules for cases that have not yet arisen, whereas precedent must needs wait until the actual concrete instance comes before the courts for decision. Precedent is dependent on, legislation independent of, the accidental course of litigation. So far as precedent is concerned, a point of law must remain unsettled, until by chance the very case arises. Legislation can fill up a vacancy, or settle a doubt in the" legal system, as soon ae the existence of this defect is called to the attention of this legislature. Case-law, therefore, is essentially incomplete, uncertain, and unsympathetic; while if statute-law shows the same defects, it is only through the lethargy or incapacity of the legislature. As a set-off against this demerit of pre- cedent, it is to be observed that a rule formulated by the judicature in view of the actual case to which it is to be applied is not unlikely to be of better workmanship, and more oarefuUy adapted to the ends to be served by it, than one laid down a priori by the legislature.

which are too much wanting in the litera scripta of »niaoted

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It has no authoritative verbal expression, and there is no barrier between the courts of justice and the verj- spirit and purpose of the law which they are called on to administer. In interpreting and applying statute-law, the courts are conoerned with -words and their true meaning; in interpreting and applying case-law, they are dealing with ideas and principles and their just and reasonable contents and operai- tion. Statute-law is rigid, straitly bound within the limits of authoritative formulae; case-law, with all its imperfections, has at least this merit, that it remains in living contact with the reason and justice of the matter, and draws from this source a flexibility and a power of growth and adaptation which are too much wanting in the litera scripta of »niaoted law. § 53. The advantages of enacted law so greatly outweigh its defects ,that there can be no doubt as to the ultimate issue of its rivahy with the other forms of legal development and expression. The whole tendency in modern times is towards the process which, since the days of Bentham, has been known as codification, that is to say, the reduction of the whole corpus juris, so far as practicable, to the form of enacted law. Even in England, and the other countries to which English law has spread, tentative steps are being taken on the same road.

themselves. No legislative skill can effectually anticipate the

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136 LEGISLATION. [§ 5-i mature codification is worse than none at all. But the final result is not doubtful. Codification must not be understood to involve the total abolition of precedent as a source of law. Case-law -will con- tinue to grow, even when the codes are complete. In the most carefully prepared of codes Kubtle ambiguities will come to light, real or apparent in- consistencies will become manifest, and omissions will reveal themselves. No legislative skill can effectually anticipate the complexity and variety of the facts.

instead, the divergent results that may be attainable by way of

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137 forms of law (with tlic exception of written conventional law, which in this respect stands by the side of statutory) have nc iixed and authoritative expression. There is in them no letter of the law, to stand between the spirit of the law and its judicial application. Hence it is that in the case of -enacted law a process of judicial interpretation or construction is jieecssiiry, which is not called for in respect of cusitomary or oasr-law. By interpretation or construction is meant the .process by ^\hich the courts seek to ascertain the meaning of the legislature through the medium of the authoritative forms in which it is expi-essed. Interpretatiofi is of two kinds, which Continental lawyers distinguish as grmnnnaticcd and logical. It is necessary to know in what circumstanoes grammatical interpretation is alone legitimate, and when on the contrary it is allowable to accept, instead, the divergent results that may be attainable by way of logical intei-pretation.

When a statutory provision is capable of two meanings,

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To this general principle there are two exceptions. There are two cases in which the litera legis need not be taken as conclusive, and in which the sententia legis may be sought from other indications. The first of these cases is that in. which the letter of the law is logically defective, that is to say,, when it fails to express some single, definite, coherent, and complete idea. The first is ambiguity; for a statute, instead of meaning one thing, may mean two or more dif- ferent things. When a statutory provision is capable of two meanings, it is commonly, though not invariably, the case that one of these is more natural, obvious, and consonant with the ordi- nary use of language than the other. The interpretation of' an ambiguous law is therefore of two kinds, according as it accepts the more natural and obvious meaning, or reijects it in favour of another which conforms better to the intention of the legislature, though worse to the familiar usages of' speech.

and complete idea—the courts have no lawful concern with

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139 who administer it; while undue strictness, on the other hand, sacrifioes the true intent of the legislature and the rational development of the law to the tyranny of words. Scire leges, said the Romans, ^ non hoc rsf verba earum fnifre, .serf vim ao potestatem.- A second logical defect of statutory expression is incon- sistency. A law, instead of having more meanings than one, may have none at all, the diff^erent parts of it being repug- nant, so as to destroy each other's significance. The text, though neither ambiguous nor inconsistent, may contain some lacima which prevents it from expressing any logically complete idea. Suoh omissions the courts may lawfully supply by way of logical interpretation. If what it has said is logically complete giving expression to a single, intelligible, — and complete idea—the courts have no lawful concern with anything else that the legislature may have meant but not said.

We have assumed that the whole duty of the courts is to

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140 LKCrSLATION. [§ 64 The first of these, namely that of some logical defect in the lit era legis, has been considered. The second is that in which the text leads to a result so unreasonable that it is sellf- evident that the legislature cxjuld not have meant what it lias said. For example, there may be some obvious clerical error in the text, such as a reference to a section by the wrong number, or the omission of a negative in some passage in which it is clearly required. We have assumed that the whole duty of the courts is to ascertain the true and perfect intention which has received imperfect expression. May the courts correct and supplement the defective sententi-a legis, as well as the defective litera legis? Where there is a genuine and perfect intention lying behind the defective text, the courts must ascertain and give effect to it; where thea-e is none, they must ascertain and give effect to the intention which the legislature presumably would have had, if the ambiguity, inconsistency, or omission had been called to mind.

SUMMAEY.

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141 This may be regarded as the dor-marvi or lat&nt intention of the legislature, and it is this which must be sought for as a substitute in the absence of an}^ real and conscious intention.^ In the case of the sententm, as fomieriy in that of the litera legis, it is to be noticed that the only defects which the courts may remedy are logioal defects. That the intention of the legislature is ethically defective, is not a fact with which the judicature has any concern. The sententia legis might have been wiser, juster, or more expedient, had it been wider, op narrower, or other than it actually is. But ,the courts have no authority to detract from it, add to it, or alter it, on that account. It may be that had a certain case been brouglit to the notice of the legislature, the statute would have , been extended to cover it; but so long as it is logically complete and workable without the inclusion of this case, it must stand as it is. If a statute makes a provision as to sheep, whicih in common sense ought to have been extended to goats also, this is the affair of the legislature, not of the courts.

r Supreme—by the Imperial Parliament.

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54 [§ r Supreme—by the Imperial Parliament. -r . , ,. Colonial, ivegislation < ° i n n x- 12. Historical relation of legislation to other sources of law. Superiority of legislation over other sources of law. Codification. / Grammatical—based on the litera legis exclusively. Interpretation Ambiguous. ^-^^^^ ^^^-^ logically ( | ' ' defective.

CHAPTER VIII.

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The Early Importance of Customary Law. The importance of custom as a source of law continuously; diminishes as the legal system grows. As an instrument of the development of English law iu particular, it has now almost ceased to operate, partly because it has to a large ex- tent been superseded by legislation and precedent, and -partly heoause of the very stringent limitations imposed upon ita law-creating efficacy, the legal requirements of a valid custom being such as few customs can at the present day conform to. In earlier times, however, it was othenvise. It was long the received and official theory of English la^v that whatever was not the product of legislation had its source in custom. Law was either the written statute-law, or the un-written, common, or customary law.

general. We have seen that, in the first place, custom is the

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144 CUSTOM. [§ 55 Blackstone in the eighteenth, laying down the older doctrine as still valid. The lex non scripta, or unwritten law, includes not only general customs, or the common law properly so called; but ajfio the particular customs of certain pai-ts of the kingdom; and likewise those particular laws that are by custom ob- served only in certain courts and jurisdictions." Such lan- guage is an echo of the past, not au accurate account of the facts of the present day. Nevertheless even now custom has- not wholly lost its efficacy. The reasons for attributing to custom the force of law have been already briefly indicated in relation to legal sources in general. We have seen that, in the first place, custom is the embodiment of those principles which have commended them- eelves to the national conscience as principles of truth, justice and public utility. The fact that any rule has alreadj- the sanction of custom raist>s a presumption that it deserves to obtain the sanction of law also.

of the society. When the state takes up its function of a;dj-

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The law embodies those principles as they commend themselves to the incorporate oommunity in the exercise of its sovereign power. Custom embodies them as acknowledged and approved not by the power of the state, but by the public opinion of the society at large. Xothing, therefore, is more natural than that, when the state begins to e\olve out of the society, the law of the state should in respect of its material contents be in great part modelled upon and coincident with the customs of the society. When the state takes up its function of a;dj- ministering justice, it accepts as true and valid the rules of right already accepted by the society of which it is itself a product, and it finds those principles already realised in tlie customs of the realm. As those customs develop and alter with chang-e of circumstance and the growth of public en- lightenment, the state is wisely content to allow such develop- ment and modification to reflect themselves in the law which it adminisbers. When the state has grown to its full strength and stature, it aOC{uires more self-confidence, and seeks to conform national usage to the law, rather than the law to national usage.

1. Reasonablmiess —A custom must be reasonable. Mains

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In order that a custom may be valid and operative as a source of law, it must conform to certain requirements laid down by law. Reasonablmiess —A custom must be reasonable. Mains Hsus ah-olendus est.'^ The authority of usage is not absolute, but conditional on a certain measure of conformity with justice and public utility. It is not meant by this that the courts are at liberty to disregard a custom whenever they are not satisfied as to its absolute rectitude and wisdom, or whenever they think that a better rule could be formulated in the exercise of their own judgment. This would be to de- prive custom of aU authority, either absolute or conditional. The true rule is that a custom, in order to be depri\ed of legal efficacy, must be so obviously and seriously repugnant to right and reason, that to enforce it as law would do more mischief than that which would result from the overturning of the expectations and arrangements based on its presumed continuance and legal validity.

ethical conviction or opinio necessitatis—when those who use

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147 ordinate legislation, however, are still subject to the rule in question; an unreasonable by-law, for example, is as void and unauthoritative as an unreasonable custom or precedent. Opinio neoessitati». —The second requisite of a valid custom is that which commentators on the civil law term opinio necessitatis.'^ By this is meant the conviction on the part of those who uso a custom that it is obligatory, and not merely optional.- Custom, merely as such, has no legal authority at all; it is legally eifectivc only because and in soi far as it is the expression of an underlying principle of right approved hy those who use it. When it is based on no such ethical conviction or opinio necessitatis—when those who use it hold themselxes free to depart from it if they will—it is of no legal significance. The only customs which are a source of law are those which are observed by the community as determining the rights and duties of its members. Conformity with statute-lair. —The third condition of legal validity is that a custom must not be contrary to an act of Parliament. We shall see that certain forms of custom possess not merely constitutive, but also limited abrogative power, being capable of derogating from the old law, as well as of creating new.

the whole territory governed by the legal system—and those

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Thjere the recognised maxim is Lex posterior derogat priwi. The later rule prevails over the earlier, regardless of their respective origins. Legislation has no inherent superiority in this respect over custom. If the enacted law comes first, it can be repealed or modified by later custom; if the cus- tomary law is the earlier, it can be similarly dealt with by later enacted law. " If," " we consider cus^ says Savigny,^ toms and statutes with respect to their legal efficacy, we must' put them on the same level. Customary law may complete, modify, or rei>eal a statute; it may create a new rule, and' substitute it for the statutory rule which it has abolished." So Windscheid : - "The power of customary law is equal to that of statutory law. Here it is necessary to disi- tinguish between two kinds of customs, namely, those which are germ'al—the customs of the realm, prevailing throughout the whole territory governed by the legal system—and those which are local, being limited to some special part of the realm.* The rule of English law with respect to the neces- sary duration of a custom is that one which is merely local must have existed from time immemwial.

and its duration is immaterial. A local custom must make up

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149 § there sufficient that the usage should be definitely established, and its duration is immaterial. A local custom must make up for the limited exteait of its application by the long duratiqu of its existence, but other customs derive from their generality such a measure of authority as does not require to be supple- mented by length of days. We shall see later, how the idea of immemorial custom was •derived by the law of England from the canon law, and by the canon from the civil law. Time immemorial, or time whereof the memory of man runs not, means in the oivil an'd canon law, and in the systems derived therefrom, and origin- ally meant in England also, time so remote that no living man can remember it, or give evidence respecting it. Custom was immemorial, when its origin was so ancient that the beginning of it was beyond human memory, eo that no testimony -^vas •available as to a time when it did not as yet exist. ^ In the thirteenth century, however, a very singular change took place in the meaning of the term. The limit of human memory ceased to be a question of fact, and was determimed by a very unreasonable rule of law whioh still remains in force.

form system of common law for the whole realm. Had all'

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It is not necessary for the upholder of it to pro\'e affirmati\el\- its existence during the whole of that period. It was designed in the interests of a uni- form system of common law for the whole realm. Had all' manner of usages been recognised without any such limita- tion, as ha\ ing the force of special law, the establishment and maiutenauoe of a sygtem of common law would have been rendered all but impossible. Customary laws and customary rights, infinitely various and divergent, would have grown up 80 luxuriantly, as to have choked that uniform system of law and rights which it was the purpose of the royal courts of realm. '- justice to establish throughout the laTv 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 tlie testimony of liring: men; therefore he or his predecessors must hare beca in possession within time of human memoi-y. The more common, and, it is believed, the better opinion is that the law is as stated in the text.

Origin of the rule as to time of memory. —The requirement of imme-

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151 Origin of the rule as to time of memory. —The requirement of imme- morial antiquity was introduced into the English law courts of tho twelfth or thirteenth century from the canon, law. In two respecta the Canonists developed and rendered more definite the somewhat vague and indeterminate theory of customary law which we find in the writings of the Eoman lawyers. In the first place, clear recognition was accorded to the distinction between jus commime and con-iuelii- dines, the former being the common, general, or written law of the whole Church, while the latter consisted of the divergent local and personal customs which were added, to, or substituted for the jus commune in particular places or in respect of particular persons. In the second place the Canonists attempted to supply a defect of the civil law by laying down a fixed rule as to the necessary duration of customs. Many favoured the adoption of the ordinary decennial prescription of Eoman land law, and held that a custom must have endured for ten years at least, but need have lasted no longer.^ Others demanded forty years, since this is the prescrip- tion required as against the Church by the legislation of Justinian.' At one time, however, there was a widely held opinion that the true time of prescription required to enable a custom to derogate from the common law of the Church was time immemorial. Ilia consuetudo praejudicat juri, cuius non exstat memoria hominum.^ This conception of time of memory as a period of prescription was derived from the civil law.

5. Cmiformity irifh the common laic. —The fifth and last

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57 [§ excessit, jure constituti loco habetur.^ The Canon la-fr aiiopt«d this rule, and made a more extensive use ol it. Immemorial prescription became a supplementary mode of acquisition, available in all cases in which there was no shorter period of prescription to which a claimant might have recourse. This, indeed, was the only form of prescription which obtained recog- nition from the common law. Cmiformity irifh the common laic. —The fifth and last requirement of a \-alid. custom is that, unless immemorial, it must be consistent with the common law. That it must be consisti^nt with the common law is a rule applicable onlv to recent customs, and not to tlio~e wliioh have the prostig-e and authority of immemorial antiquity. ^Modern custom possesses constitutive, but no abrogative power; it must operate in the spaces left vacant by the law already established; it may supplement the law, but cannot derogate from it. Immemorial custom, on the other hand, can destroy as well as create, so far as the common law is coneenied; though as against the statute-law it is as powerless as the most ephemeral usage.

a.s an instrument of fresh legal growth. Such customs may

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153 § 57] The combined effect of the various rules which %ve have con- sidered is to render custom less and less important as a source of new law. As the legal system develops, the sphere within which custom is operative grows gradually smaller. In the second place, the requiremeait of immemorial antiquity precludes local custom from operating a.s an instrument of fresh legal growth. Such customs may now be proved and applied for the first time, but they cannot no's^ for the first time come into existence. It is for this reason that the growth of general customary law has already all but ceased. 357, it is said: " We must by no means be understood as saying that mercantile usage, ho'wever extensive, should be allowed to prevail if contrai-y to positive law, including iix 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.

own inherent authority. Yet it may nevertheless become

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58 [§ It cannot, indeed, operate as a source of law by virtue of its own inherent authority. Yet it may nevertheless become legally operative by being incorporated into agreements, through the taoit consent of those who make them. Customs so operative may be distinguished as conventiomil. It is a rule of English law, as well as of other systems, that where) a oontraet is made in any matter in respect of which an estab- lished custom exists, it must be intei-preted by reference to; tliat custom, and the jDarties must he deemed to have intended (in the absence of any expression of contrarj' intent) to adopt it as one of the terms of their agreement. In GontractibuK faeit-f veniant ea quae sunt moil's et cmsuel.uclmis.'^ For example, if a lease of agricultural land is made in any district in which there are established usages as to the modeL of agriculture and as to the relative rights and liabilities of lajidlor«:I and tenant, the parties raust bie taken to have agreed to those usages as terms of the bargain, unless they have exi- l>THjssl3" or implicitly shown an intention to the contrary. In this manner customs which are not in themselA-es authoritative as sources of law or rights may become indirectly operative through the added authority of agreement.

feature of foreign and more especially of German jurispru-

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The first of these is a cliaraotcri^tic feature of foreign and more especially of German jurispru- dence, its reception being chiefl}' due to the influence of Puchta and Savigny. It essentially consists in this, that custom is rightlj" to be oonsidored as a formal, and not merely as a; material source of l&v,'. According to this doctrine, custom does itself confer the force and validity of law upon the principles embodied in it. It does not merely provide the material contents which derive their validity as law from the will of the state. It operates directly through its own in.- herent force and authority; not indirectly by reason of its reooguition and allowance by the supreme authority and force of the state. Thus it is said by Arndts/ a German jurist of repute; " Customary law contains the ground of its validity in itself.

A second theory of customary law is that wliich we maj^

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A second theory of customary law is that wliich we maj^ term the Austinian, as having been advanced by Austin, and generally received by his followers. Austin rightly repudi- ates the German theory on the ground, already indicated, that custom is not a formal but merely a material source of law. Nevertheless his own theory can- not be regarded as wholly satisfactory. He "considers tiiat the true legal source of customary law is to be found in the precedents in which customs receive for the first time judicial recognition and enforcement. Customary law is for him simply a variet\' of case-law. It is case-law in which pre-existing customs have served as the historical sources from wliich the courts have drawn the matter of their decisions.

dent, any more than precedent through custom. A custom

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It is nothing but judiciary lawv founded on an anterior custom." This opinion, however, seems inconsistent with the estab- lished doctrines of English law as to this m^atter. A custom does not wait to put on the nature of law until dt has been actually enforced by the courts, any more than an act lof Parliamfent or an agreement is destitute of legal efficacy until it lias. required and received judicial recognition. This recognition may make a custom part of the common law, as being thene- after entitled to judicial notice, but it was part 'of the Zfljw ali-eady. The Austinian theory forgets that the operation of custom is determined by fixed legal principles, just as much a~. the operation of precedent itself. Custom does not enter the law through p^eoe- dent, any more than precedent through custom. A custom is taken as the ground of a judicial decision, just as an act of Parliaanent is so taken.

unfortunate specimen of legislative skill, the Prescription Act. A

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60 [§ a local custom, which was limited to an individual place, not to an individual person. Local and personal customs were classed as the two species of particular customs, and as together opposed to the general customs of the realm. Coke distinguishes as follows between custom (i.e., local custom) and prescription.^ " In the common law, a pre- scription which is personal is for the most part applied to persons, being made in the name of a certain person and of his ancestors, or those whose estate he hath; or in bodies politique or corporate and their predecessors. And a custome, which is local, is alleged in no person, but layd within some manner or other place." Since prescription and custom were thus regarded as two ,-pecies of the same thing, we find, as might be expected, that they are originally governed by essentiallj' similar rules of law. The requisites of a valid prescription were in essence the same as those of a valid custom. In the case of custom, for example, the old rule as to time immemorial still subsists, but in the case of prescription it has been superseded by the statutory rules contained in that most unfortunate specimen of legislative skill, the Prescription Act.

CHAPTER IX.

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The importance of judicial precedents has ahvays been a distinguishing characteristic of English law. The great bwly of the common or unAvritten law is almost entirely the pro- duct of decided eases, accumulated in an immense sericw of reports extending backwards with scarcely a break to the reign of Edward the First at the close of the thirteenth century. Orthodox legal theory, indeed, long professed to regard the common law as customary law, and judicial deci- sions as merely evidence of custom and of the law dorivvJ therefrom. This, however, was never much better than an admitted fiction. In jDractice, if not in theory, the common law in England has been created by the decisions of English judges. Neither Roman law, however, nor any of those modern systems which are founded upon it, allows any such place or authority to precedent.

the law and those which are merely declaratory of it. A

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61 [§ which has been at all times oocupied by English judges. The centralization and concentration of the administration of justice in the royal courts gave to the royal judges a jjower and prestige which would have been unattainable on any other system. Declaratory and Original Precedents. In proceeding to consider the various kinds of precedents and the methods of their operation, we have in the first place to distinguish between those decisions which are creative of the law and those which are merely declaratory of it. A declaratori/ precedent is one which is merely the application of an already existing rule of law; an original precedent is one which creates and applies a new rule. In any well-developed system such as that of modern England, declaratory precedents are far In'ore numerous than those of the other class; for on inbst points the law is already settled, and judicial decisions are therefore commonly mere declara- tions of pre-existing principles.

past, and not at all on their relation to that of the future. A

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Unless required for this purpose, a merely declara- tory decision is not perpetuated as an authority in the law reports. When the law is already sufficiently well evidenced, as when it is embodied in a statute or set forth with fulness and clearness in some comparatively modern case, the report- ing of declarator^' decisions is merely a needless addition to the great bulk of our case-law. It must be understood, however, that a declaratory prece- dent is just as truly a source of law as is one belonging to the other class. Whether it is or is not, it ma^- establish as law for the future that which it now declares and applies as law. The distinction between the two kinds turns solely on their relations to the law of the past, and not at all on their relation to that of the future. This doctrine may be expressed by saying that according to it all precedents are declaratory merely, and that their original operation is not recognised by the law of England.

known that they have been established from time to time—altered,

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62 [§ Hale, however, is evidently troubled in mind a^s to the true 230sition of precedent, and as to the sufficiency of the de- claratory theory thus set 'forth by him, for elsewhere he tells us inconsistently that there are three sources of English law, namely, (1) custom, (2) the authority of Parliament, and " the judicial decisions of courts of justice consonant to (3) ^ one another in the series and succession of time." In the Court of Chancery this declaratory theory never pi-evailed, nor indeed could it, having regard to the known history of the sytem of equity administered by that court. There could be no pretence that the principles of equity were founded either in custom or legislation, for it was a perfectly obvious fact that they had their origin in judicial decisions. The judgments of each Chancellor made law for himself and his successors. " It must not be forgotten," says Sir George Jessel, " that the rules of courts of equity are not, like the rules of the common law, supposed to have been established from time immemorial. It is perfectly well known that they have been established from time to time—altered, improved, and refined from time to time. No doubt they were invented for the purpose of securing the better administration of justice, but still they were invented." ^ Both at law and in equity, however, the declaratory theory must be totally rejected if we are to attain to any sound analysis and explanation of the true operation of judicial decisions. Original j)recedents are the outcome of the intentional exercise hy the courts of their privilege of developing the law at the same time that they administer it.

and excludes their judicial discretion for the future. A

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Authoritative and Persuasive Pfecedents. Decisions are further divisible into two classes, which may be distinguished as authoritative and persuasive. These two differ in respect of the kind of influence which they exercise upon the future course of the administration of justice. An authoritative precedent is one which judges must foUojW whether they approve of it or not. It is binding upon then; and excludes their judicial discretion for the future. Judicial ctbcta, that is to say, statements of law which (4) go beyond the occasion, and lay down a rule that is irrelevant 1 Castro V.

or unnecessary for the purpose in hand. We shall see later

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164 PRECEDENT. [§ 63 or unnecessary for the purpose in hand. We shall see later that the authoritative influence of precedents does not extend to such obiter dicta, but they are not equally destitute of persuasive efficacy. § 64. The Absolute and Conditional Authority of Precedents. Authoritative precedents are of two kinds, for their autho- rity is either absolute or conditional. In the former case the decision is absolutely binding and must be followed without question, however unreasonable or erroneous it may be considered to be. Where, oh the other hand, a pre- cedent possesses merely conditional authority, the courts possess a certain limited power of disregarding it.

one court, and merely conditional in another. A decision of

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165 § 64J impossible to raise that question again as if it was res Integra and could be re-argued, and so the House be asked to reverse its own decision." ^ (3) The Court of Appeal is, it would seem, absolutely bound by its own decisions and by those of older courts of co-ordinate authority, for example, the Court of Exchequer Chamber. In all other cases save these three, it would seem that the authority of precedents is merely conditional. It is to be noticed, however, that the force of a decision depends not merely on the court by which it is given but also on the court in which it is cited. Its authority may be absolute in one court, and merely conditional in another. A decision of the Court of Appeal is absolutely binding on a court of first instance, but is only conditionally binding upon the House of Lords. § 65. In the first place, the decision must, in the opini.on of the court in which it is cited, be a wrong decision; and it is wrong in two distinct cases: first, when it is contrary to. law, and secondly, when it is contrary to reason.

and follow, the courts may make law for the oeoasion. In

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65 [§ and follow, the courts may make law for the oeoasion. In so doing, it is their duty to follow reason, and so far as thev fail to do so, their decisions are wrong, and the principles involved in them are of defective authority. Unreasonable- ness is one of the vices of a precedent, no less than of a custom and of certain forms of subordinate legislation. It is not enough, however, that a decision should be con- trary to law or reason, for there is a second condition to be fulfilled before the courts are entitled to reject it. If the first condition were the only one, a conditionally authoritative precedent would differ in nothing from one which is merely persuasive. It does not follow that a principle once estab- lished should be reversed simply because it is not .as perfect and rational as it ought to be.

reasonable expectations will result from its re\-ersal. A

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16T § 65 " It is better," said Lord .Eldon, " the law should be certain that than that everv judge should speculate upon improvements in it." 1 It follows from this that, other things being equal, a pre- oedent acquires added authority from the lapse of time. The longer it has stood unquestioned and unreversed, the more harm in the waj" of uncertainty and the disappointment of reasonable expectations will result from its re\-ersal. A decision which might be lawfully overruled without hesita- tion while" yet new, may after the lapse of a number of years acquire such increased strength as to be practically of absolute and no longer of merely conditional authority. This effect of lapse of time has repeatedly received judicial recognition. " Vie^-ed simply as the decision of a court of first instance, the autho- rity of this case, notwithstanding the respect due to the judges who decided it, is not binding upon us; but viewed in its character and practical results, it is one of a class of decisions which acquire a weight and effect beyond that which attaches to the relative position of the court from which they proceed. It constitutes axi authority which, after it has stood for so long a period unchallenged, should not, in the interests of public convenience, and having regard to the protection of private rights, be overruled by this court except upon very special, considerations. A moderate lapse of time will give added vigour to a precedent, but after a still 1 SheddoH v.

substituted for the old. A refusal to follow a precedent, on

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In this way the tooth of time will eat away an ancient precedent, and gradually deprive it of all its authority. To sum the matter up, we may say that to justify the dis- regard of a conditionally authoritative precedent, it must be erroneous, either in law or in reason, and the circumstances of the case must not be such as to make applicable the maxim. The disregard of a precedent assumes two distinct forms, for the court to which it is cited may either overrule it, or merely refuse to follow it. It becomes null and void, like a repealed statute, and a new principle is authoritatively substituted for the old. A refusal to follow a precedent, on the other hand, is an act of co-ordinate, not of superior juris- diction. Where a precedent is merely not followed, the result is not that the later authority is substituted for the earlier, but that the two stand side by side conflicting with each other.

We have already seen the falsity of the theory that all

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Precedents Constitutive, not Abrogative. We have already seen the falsity of the theory that all precedents are declaratory. We have seen that they possess a. distinct and legally recognised law-creating power. This power, however, is purely constitutive and in no degree abro- gative. In the first place, it must be read subject to the undoubted power of the courts to overrule or disregard precedents in the manner already described. In its practical effect this is equivalent to the exercise of abrogative power, but in legal theory it is not so.

cation of the maxim. Res judicata pro veritate accipitvr. A

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66 [§ through, and a precedent is established which conflicts with pre-existing law, it does not follow from this alone that this decision is destitute of legal efficacy. For it is a well-known maxim of the law that a thing which ought not to have been done may nevertheless he valid when it is done. If, there- fore, a precedent belongs to the class which is absolutely authoritative, it does not lose this authority simply because- it is contrary to law and ought not to have been made. iSTo. court, for example, will be allowed to disregard a decision of the House of Lords on such a ground; it must be followed without question, whether it is in harmony with prior law or not. So also with those which are merely conditionally authoritative. It is an appli- cation of the maxim. Res judicata pro veritate accipitvr.

of questions of law, this maxim means that the court is pre-

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1"I § eluding the arhiirimn jiidicis for the future, in providing pre- detei-mined answers for the questions calling for consideration in future cases, and therefore in establishing new principles of law. The questions to which judicial answers are required are either questions of law or of fact. To both kinds the maxim', Res judicata pro v&ritate acci/pitiir, is applicable. In the case of questions of law, this maxim means that the court is pre- sumed to have correctly ascertained and applied the appro- priate legal principle. But if the law is already clear and certain, the pre- cedent will be useless; to preserve it would needlessly cumber the books of reports, and it will be allowed to lapse into oblivion In the case of questions of fact, on the other hand, the presunaption of the correctness of judicial decisions results in the creation of new law, not in the declaration and proof of old. When for the first time the question arises whether the word " cattle " as used by the statute includes horses, the court is bound by no authority to determine the matter in one way or the other.

of law. Ex facto oritur jus. The growth of case-law in-

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1'- PRECEDENT. [§ 67 The operation of original precedents is, therefore, the progressive transformation of questions of fact into questions of law. The growth of case-law in- volves the gradual elimination of that judicial liberty to which it owes its origin. The former are answered by way of abstraction, that is to say, by the elimination of the immaterial elements in the particular case, the result being a general rule applicable not merely to that single case, but to all others which resemble it in its essential features. The answer to them is based on the circumstances of the concrete and individual case, and therefore produces no rule of general application. Judicial decisions are a source of law only in the case of those questions of fact which admit of being- answered on principle. Thes<3 only are transformed by de- cision into questions of law, for in this case only does the judicial decision give rise to a rule which can be adopted for the future as a rule of law.

A precedent, therefore, is a judicial decision which con-

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17S § 67] For example, the question whether the defendaat did or did not make a certain statement is a qa^estion of fact, which does not admit of any answer save one which is concrete and individual. It neces- sarily remains, therefore, a pure question of fact; the decision of it is no precedent, and establishes no rule of law. For it is a matter which may be dealt with in ahstracto, not necessarily in concreto. If, therefore, the decision is arrived at on principle, it will amount to an original prece- dent, and the question, together with every other essentially resembling it, will became for the future a question of law, jsredetermined by the rule thus established. A precedent, therefore, is a judicial decision which con- tains in itself a principle. The concrete decision is binding between the parties to it, but it is the abstract ratf,o decidendi which alone the wojrld at large. " The has the force of law jas regands only use of authorities or decided cases," saysi Sir George " the establishment of some principle, which the Jessel, is judge can follow out in deciding the case before him."^ " thing," says the same distinguished judge in The only " in a judge's decision binding as an authority another case, upon a subsequent judge is the principle upon which the case ^ was decided." This is the true significance pf the familiar contrast between authority and principle.

must not lay down principles which are not required for the

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It m.ay be, however, that the question is one which does not admit of being answered either on authority or on principle, and in such a case a specific or individual answer is alone possible, no rule of law being either applied or created. Although it is the duty of courts of justice to decide questions of fact on principle if they can, they must take care in this formulation of principles to limit themselves to the requirements of the case in hand. That is to say, they must not lay down principles which are not required for the due decision of the particular ease, or which are wider than is necessary for this purpose. ,The only judicial principles nvhich are authoritative are those which are thus relevant in their subject-matter and limited in their scope. The Sources of Judicial Principles. Whence, then, do the courts derive those new principles, -or rationrs decidendi, by which they sujoplement the existing I It is clearly somewhat awlcward 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.

special notice. This is the analogy of pre-existing law. New

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In establishing new principles, they willingly submit themselves to various persuasive influences which, though destitute of legal authority, have a good claim to respect and consideration. There is, however, one source of judi- cial principles which is of special importance, and calls for special notice. This is the analogy of pre-existing law. New rules are very often merely analogical extensions of the old. The courts seek as far as possible to make the new law the embodiment and expression of the spirit of the old—of the ratio juris, as the Eoimans called jt. At the same time jt must be remembered that analogy is lawfully followed only as a guide to the rules of natural justice.

and requirements of natural justice and public policj^ The

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68 [§ and requirements of natural justice and public policj^ The measurf of the prevalence of such ethical over purely techni- cal considerations is the measure in which case-lawl develops into a rational and tolerable system as opposed, to an un- reasoned product of authority and routine. Yet the ofRcial utterances of the law contain no adequate acknowledgment of this dependence on ethical influences. " The very con- siderations," it has been well said, "which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life."i The chief reason of this peculiarity is douhtless to be found in the fictitious declaratory theory of precedent, ,aiid in the forms of judicial expression and i^easoning which this theory has made traditional. So long as judges affect to be looking for and declaring old law, they cannot adequately express the principles on which they are in reality making new. § 69. Respective Functions of Judges and Juries. The division of judicial functions between judge and jury creates a difficult}' in the theory of precedent which requires some consideration. It is commonly said that all questions of fact are for the jury, and all questions of law for the judge.

of statute-law. The general rule—consistently acted on,

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177 § any opportunity of establishing precedents and creating new law? No jury, for example, is jcver asked to interpret a statute or, speaking generally, any other written document. Hence that great department of case-law which has its origin in the judicial interpretation of statute-law. The general rule—consistently acted on, though seldom expressly acknowledged—is that a judge will not suhmit to a jury any question which he is himself capable of answering on prmcvple. Such a question he answers for himself; for since it can be answered on principle, it pro- vides a fit occasion for the establishment of a precedent and. a new rule of law. The only ques- tions which go to a jury are those questions of fact which admit of no principle, and are therefore the appropriate subject^nattcr of those concrete and unreasoned decisions which juries give.^ We have said that this rule, though acted on, is not ex- pressly acknowledged.

-r, J i ( Declaratory—evidence oi old law.

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69 [§ and privileges of juries are not concerned, the courts are ready enough at the present day to acknowledge the essential truth of the matter. As between judge and jury, questions of fact are withdrawn from the exclusive cognizance of the latter by means of the legal fiction that they are already questions of law. They are treated proleptically as being already that which they are about to become. In a completely developed legal system they would be already true questions of law; the principle for their decision would have been already authori- tatively determined. SUMMAEY. -r, J i ( Declaratory—evidence oi old law. The declaratory theory of precedent. / Authoritative.

A wrong is simply a wrong act—an act contrary to the

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Before attempting to define a right, however, it is necessary to define two other terms which are closely con- nected with it, namely, wrong and duty. A wrong is simply a wrong act—an act contrary to the rule of right and justice. A synonym' of it is injury, in its true and primary sense of injuria (that which is contrary to jus), though by a modem perversion of meaning this term has acquired the secondary sense of harm or damage {dam- num) whether rightful or wrongful, and whether inflicted by human agency or not. A moral or natural wrong is an act which is morally or naturally wrong, being contrary to the rule of natural justice. A legal wrong is an act which is legally wrong, being contrary to the rule of legal justice and a violation of the law. It is an act which is authoritatively determined to be wrong by a rule of law, and is therefore treated as a wrong in and for the purposes of the administration of justice by the state.

not in the resulting suppression or punishment of it. A legal

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70 [§ wrongs, like natural and legal justice, form intersecting circles, this discordance between law and fact being partly intentional and partly the result of imperfect historical development. In all ordinary cases the legal recognition of an act as a wrong involves the suppression or punishment of it by the physical force of the state, this being the essential pur]'>ose for which the judicial action of the state is ordained. Wt shall see later, however, that such forcible constraint is not an invariable or essential incident, and that there are other possible forms of effective legal recognition. The essence of a legal wrong consists in its recognition as wrong by the law, not in the resulting suppression or punishment of it. A legal wrong is a violation of justice acc.ordvng to J-aiv. § 71. A duty is an obligatory act, that is to say, it is an act the opposite of which would be a wrong.

A right is an interest recognised and protected by a rule'

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A right is an interest recognised and protected by a rule' of right. It is any interest, respect for which is a duty, and the disregard of which is a wrong. If any act is right or just, it is so because and in so far as it promotes some form of human interest. Many interests exist de facto and not also de jure; they receive no recognition or protec- tion from any rule of right. Every man who has a right to any thing has an interest in it also, but lie may have an interest without having a right. Whether his interest amounts to a right depends on whether there exists with respect to it a duty imposed upon any other ^ This statement, to be strictly correct, must be qualified by a, reference to the interests of the lower animals.

tected by a rule of natural justice—an interest the violation-

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In other words, a right is an interest the violation of which is a wrong. Every right corresponds to a rule of right, from which it proceeds, and it is from this source that it derives its namie.. In the words of Windscheid,^ "Das Recht ist sein Recht geworden." Rights, like wrongs and duties, are either moral ,or legaL A moral or natural right is an interest recognised and pro- tected by a rule of natural justice—an interest the violation- of which would be a moral wrong, and respect for which is a moral duty. A legal right, on the other hand, is an interest recognised and protected by a rule of legal justice—an in- terest the violation of which Avould be a, legal wrong done to. him whose interest it is, and respect for which is a legal dutj'. " Rights," says Ihering,- " are legally protected in- terests." Bentham set the fashion, still followed by many, of denying that there are any such things as natural rights at all. AH rights are legal rights and the creation of the " Natural law. law, natural rights," he says,^ "are two kinds of fictions or' metaf)hors, which play so great a part in books of legisla- tion, that they deserve to be examined by themselves. Natural rights are the creatures of natural law; they are a metaphor w-hich derives its origin from another metaphor." " In many of the cultivated," says Spencer,* criticising this opinion, "there has been produced a confirmed ^nd indeed contemptuous denial of rights.

A complete examination of tliis opinion would lead us far

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1^3 § A complete examination of tliis opinion would lead us far into the regions of ethical rather than juridical conceptions, and would here be out of place. It is sufficient to make two obseiTations with respect to the matter. In the first place, he who denies the existence of natural rights must be prepared at the same time to reject natural or moral duties also. Eights and duties are essentially correlati^T, and if a creditor ha^ no natural right to receive his debt, the debtoir is under no moral duty to pay it to him. In the second place, he who rejects natural rights must at the same time be prepared to reject natural right. The duty to 1 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 inter- national la^y, or by the so-called law of public opinion.

therefore, a correlative right is vested. And conversely every,

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Although a legal right is commonly accompanied by the power of instituting legal proceedings for the euforcement of it, this is not invariably the case, and does not pertain to the essence of the conception. Rights and duties are necessarily correlative. For every duty must be a duty towards some person or persons, in whom, therefore, a correlative right is vested. And conversely every, right must be a right (igainst some person or persons, upon whom, therefore, a correlative duty is imposed. Every right or duty involves a vlnrnhnn jiiria or bond of legal obligation, by which two or moro persons are bound together. We must therefore reject the opinion of those writers who distinguish between relative and; absolute duties, the former being those which have rights corresponding to them, and the latter being those which have none.^ This opinion is held by those who conceive it to be of the essence of a right, that it should be vested in some determinate person, and be enforceable by some form of legal jDrocess instituted by him.

volved : —

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185 § 72] seems no sufficient reason, however, for defining a right in so exclusive a manner. All duties towards the public coiTespond to rights vested in the public, and a public Wrong is necessarily, the violation of a public right. AU duties correspond to rights, though they do not all correspond to private rights vested in determinate individuals. § 73. In every legal right the five following elements are in- volved : — (1) A per&on in whom it is vested, and who may be dis- tinguished as the oiuner of the right, the subjext of it, or the person entitled. (2) A person against whom the right avails, and upon whom the correlative duty lies. He may be distinguished as the person hound, or as the subject of the duty. (3) An act or omission which is obligatory on the person bound in favour of the person entitled. This may l>e termed the content of the right. (4) Some thing to which the act or omission relates, andi -which may be termed the object or subject-matter of the right. (5) A title : that is to say, certain facts or events by reason of which the right has become vested in its owner.

the owner of it —

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73 [§ Ever-}- right, therefore, involves a threefold relation in which the owner of it — stands: (1) It is a right against some person or persons. (2) It is a right- to some act or omission of such person or JDersons. (3) It is a right over or to some thing to which that act or omission relates. An ownerless right is an impossibilitj- . There cannot be a right without a subject in whom it inheres, any more than there can be weight without a heavy body; for rights are merely attributes of persons, and can have no independent existence. The owner of it may be a person indeterminate. Although everj^ right has an owner, it need not have a vested and certain owner. Who is the owner of a debt in the interval between the death of the creditor intestate, and the vesting of his estate in an administrator?

essential element in the idea of a right. A right without

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Certain writers define the object of a right with such narrowness that they are forced to the conclusion that .there are some rights which have no objects. They consider that the object of a right means some material thing to which it relates; and it is certainly true that in this 'sense an object is not an essential element in the conception. Others admit that a person, as well as a material thing, may be the object of a right; as in the case of a husband's right in respect of his wife, or a father's in respect of his children. But they go no further, and consequentlj^ deny that the right of reputa- tion, for example, or that of pei'sonal liberty, or the right of a patentee, or a copyright, has any object at all. The truth seems to be, however, that an ohject is an essential element in the idea of a right. A right without an object in respect of which it exists is as impossible as a right without a subject to whom it belongs.

(2) Rights in respect of one's own person. —I have a right

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73 [§ (2) Rights in respect of one's own person. —I have a right not to be killed, and the object of this right is my life. I have a right not to be coerced or deceived into acting contrary to my desires or in- terests; the object of this right is my ability to fulfil mj- desires and protect and promote my interests by m}- own activities. (3) The right of neputatioJt. —In a man's reputation, that is to say, in the good opinion that other persons have of him, he has an interest, just as he has an interest in the money in his pockets. In each case the interest hajs obtained legal recog- nition and jDrotection as a right, and in each case the right involves an object in respect of which it exists. (4) Rights in respect of domestic relations. —Every man has an interest and a right in the society, affections, and security of his wife and children. Any person who without just cause interferes with this interest, as by the seduction of his wife or daughter, or by taking away his child, is guilty of a viola- tion of his rights. The wrongdoer has deprived him of some- thing which was his, no less than if he had robbed him of his purse. (5) Rights in respect of other rights. —In many instances a right has another right as its subject-matter. If I contract with him for the sale of a piece of land to mc, I acquire thereby a right against him, that he shall so aut as to make me the owner of certain rights now belonging to himself.

(6) Rigliis over immaterial properly. —Examples of these-

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ISG" § 73] It is oommonly a question of importance, whether the right acquired by an agreement or other transaction is merely a right to a right, or is one having something else than another right as its immediate object. If I buy a ton of coal or a flock of sheep, the right which I thereby acquire may be of either of these kinds according to circumstances. I may become forth- with the owner of the coal or the sheep; that is to say, my right. may have these material things as its immediate and direct object. On the other hand, I may acquire merely a right against the seller, that he by delivery or otherwise shall make- me the owner of the things so purchased. In this case I acquire a right which has, as its immediate and direct object, nothing more than another right ; though its mediate and indirect object may be said, truly enough, to be the material things purchased by me. (6) Rigliis over immaterial properly. —Examples of these- are patent-rights, copyrights, trade-marks, and commercial good-will. The object of a patent-right is an invention, that is to say, the idea of a new process, irijstrument, or manufacture.

We have now to notice that the term is also used in a wider

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His mind and body constitute an instrument which is capable of certain uses, just as a horse or a steam- engine is. In a law which recognises slavery, the man may be bought and sold, just as the horse or steam-engine may. Legal Rights in a wider sense of the term. We have now to notice that the term is also used in a wider and laxer sense, to include any legally recognised interest, whether it corresponds to a legal duty or not. Having already sufficiently considered the first of these, we shall now deal briefly with the others. § 75. It is clear that the term right is often used Digitized by Microsoft®

what is another's. I have a right to express my opinions on

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I have a right (that is to say, I am ,at libeirty) to do as I please with my awn,;, but I have no right and am not at liberty to interfere with what is another's. I have a right to express my opinions on public affairs, but I have no right to publish a defamatory or seditious libel. I have a right to defend myself against violence, but I have no right to take revenge upon him who has injured me. It is said that a legal liberty is in reality a legal right not to be interfered with by other persons in the exercise of one's activities. It is alleged that the real meaning of the proposition that I have a legal right to express what opinions I please, is that other persons are under a legal duty not to prevent me from expressing them. So that even in this case the right is the correlative of a duty.

deal with that which is my own. That I have no right to commit

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7& [§ make that lawful which would otherwise be unlawful. So a trustee has a right to receive from! the bene- ficiaries remuneration for his trouble in administering the estate, in the sense that in doing so he does no wrong. But he has no right to receive remuneration, in the sense that the beneficiaries are under any duty to give it to him. So an alien has a right, in the sense of liberty, to enter British dominions, but the executive government has an equal right, in the same sense, to keep him out.^ That I have a right to destroy my property does not mean that it is wrong for other persons to prevent me; it moans that it is not wrong for me so to deal with that which is my own. That I have no right to commit theft does not mean that other persons may lawfully prevent me from committing such a crime, but that I myself act illegally in taking property which is not mine.^ § 76. Examples of such are the following : the right to make a will, or to alienate property; the power pf sale vested in a mortgagee; a landlord's right of re-entrj-; the right to marr)' one's deceased wife's sister; that power of obtaining in one's favour the judgment of a court of law, which is called a right of action; the right to rescind a con- tract for fraud; a power of appointment; the right of issuing execution on a judgment; the various powers vested in judges and other officials for the due fulfilment of their functions.

right to marry my cousin does not mean that such a mar-

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193 §76] right of action for its recovery. Tiie former is a right in the strict and proper sense, corresponding to the dut}- of the debtor to pay; the latter is a legal 2>ower, corresponding to the liability of the debtor to be sued. That I have a right to make a will docs not mean that in doing so I do nol wrong. It does not mean that I may make a will innocentij;' it means that I can make a will effectively. That I have a right to marry my cousin does not mean that such a mar- riage is legally innocent, but that it is legally valid. That a landlord has a right of re-entry on his tenant does not mean that in re- entering he does the tenant no wrong, but that by so doing he effectively terminates the lease. 'A power may be defined as ability conferred upon a person by the law to determine, by his own will directed to that end, the rights, duties, liabilities, or other legal relations, either of himself or of other jDcrsons.

power over oneself—is usually termed capacitif.^

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The first of these ^power over — other persons—is commonly called authority; the second power over oneself—is usually termed capacitif.^ These, then, are the three chief classes of benefits, privi- leges, or rights conferred by the law: liberty, when the law allows to mr will a sphere of unrestrained activity; power, when the law actively assists me in making my, will effeotive;, right in the strict sense, when the law limits the liberty of others in my behalf. A liberty is that which I may do inno- cently; a power is that which I can do effectively; a right in the narrow sense is that which other persons ought to do on my behalf. 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 libeirty, nor a power. It is an exemption from trial by jury—an immunity from the power of the ordinary criminal courts. s 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 l^al conceptions. 84—13'8i) into four kinds, which the author distinguishes as (1) permissive rights (which we have here termed Jiber- ties), (2) facultative rights (which we have here termed powers), cor- (3) respondent rights (which are so called because they correspond to duties, and which wo have hero termed rights in the strict sense), and pro- (4) tected rights.

legal remedy. A synonym for it is responsibility. It is either

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195 § law, as a right includes 3,11 the benefits conferred by it. These legal burdens are of three kinds, being either Duties, Disa- bilities, or Liabilities . A duty is the absence of liberty; a dis- ability is the absence of power; a liability is the presence either of liberty or of power vested in some one else as against the person liable. Liability in this sense is the correlative of a legal remedy. A synonym for it is responsibility. It is either civil or criminal according as it corresponds to a right of action prosecution.^ ^ or to a right of 1 The distinction here drawn between duty and liability may seem to conflict with the common usage, by which certain kinds of duties lare apparently spoken of as liabilities.

SUMMAEY.

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Their protection by the rule of right. The correlation of rights and duties. Eight* in the generic sense—Any benefit conferred by the law. ( 1. Eights {stricto seiiKv) —correlative to Duties. Liberties—correlative to Liabilities. ( 3. Powers—correlative to Liabilities. / 1.

CHAPTER XI.

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Recognition by the law in the administration of justice is common to all legal rights ^nd duties, but the purposes and effects of this recognition are different in different cases. All are not recognised to the same end. Hence a division of rights and duties into two kinds, distinguishable as perfect and im- perfect. A perfect right is one which corresponds to a perfect duty; and a perfect duty is one which is not merely recog- nised by the law, hut enfofced. A duty is enforceable when an action or other legal proceeding, civil or criminal, will lie for the breach of it, and when judgment will be executed against the defendant, if need be, through the physical force of the state. ^ Enforceability is the general rule. In all ordinar}' cases, if the law will recognise a right at all, it will not stop short of the last remedy of physical comipulsion against him on whom the correlative duty lies.

from whom a chattel is taken wrongfully, and detained for six

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78 [§ Examples of sucli imperfect legal rights are claims barred by lapse of time; claims unenforceable by action owing to tbe absence of some special form of legally requisite proof (such as a written document); claims against foreign states or sovereigns, as for interest due on foreign bonds; claims unen- forceable by action as exceeding the local limits of a court's jurisdiction, such as claims in respect of foreign land; debts due to an executor from the estate which he administers. In all those cases the duties and correlative rights are imperfect. No action will lie for their maintenance; yet they are, for all that, legal rights and legal duties, for they receive recognition from the law. The statute of limitations, for example, does not provide that after a certain time a debt shall become ex- tinct, but merely that no action shall thereafter be brought for its recovery. Lapse of time, therefore, does not destroy the right, but merely reduces it from the rank of one which is perfect to that of one which is imperfect. In like manner he from whom a chattel is taken wrongfully, and detained for six years, loses all right to sue the taker for its recovery; but he does not cease to be the owner of it.

A subject may claim rights against the state, no less than

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I cannot sue on an informal contract, but if monov is paid or property delivered to mo in pursuance of it, I can successfully defend any claim for 'its recovery. The Legal Nature of Rights against the State. A subject may claim rights against the state, no less than against another subject. He can institute proceedings against the state for the det<'rmination and recognition of those rights in due course of law, and he can obtain judgment in his favour, recognising their existence or awarding to him compensation for their infringement. The strength of the law is none other than the strength of the state, and cannot be turned or usedi against the state whose strength it is. The rights of the sub- ject against the state arc therefore imperfect.

in the case of rights against the state, has induced many

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79 [§ The fact that the element of enforcement is thus absent in the case of rights against the state, has induced many writers to deny that these are legal rights at all. All rights against the state are not legal, any more than all i-ights against jiri-^^ate persons are legal. In the language of lawyers, as in that of laymen, a contract with the state is as much a source of legal rights and obligations,, as is a contract between two private persons; and the right of the, holder of consols is as much a legal rig-ht, as is that of a debenture holder in a public company. It is not to the point to say that rights against the state are held at the state's good pleasure, and are therefore not legal rights at all: for all other legal rights are in the same position. They are legal rights not because the state is bound to recognise them, but because it does so. Whether rights against the state can properly be termed legal depends simply on whether judicial proceedings in -which the state is the defendant are properly included within the administration of justice.

A negative right corresponds to a negative duty, and is a right

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A positive right corresponds to a positive duty, and is a right that he on whom the duty lies shall do some positive act on behalf of the 'person entitled. A negative right corresponds to a negative duty, and is a right that the person bound shall refrain from some act which would operate to the prejudice of the person entitled. A positive wrong or wrong of commission is the breach of a negative dutj' and the violation of a negative right. A negative wrong or wrong of omission is the breach of a positive duty, and the infringe- .ment of a positive right. A negative right entitles the owner of it to the maintenance of the present position of things; a positive right entitles him to an alteration of this position for -his advantage. In the case of a negative right the interest which is its de facto basis is of such a nature that it requires for its adequate :maintenance or protection nothing more than the passive acquiescence of other persons.

class ; my right to the money in the pocket of m.y debtor is an

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80 [§ class ; my right to the money in the pocket of m.y debtor is an instanoe of the second. Every man has a right against every man that the present position of things shall not be interfered with to his detriment; whilst it is only in jDarticular cases and for special reasons that any man has a., right against any man that the present position shall be altered for his advantage. I have a right against every one not to be pushed into the water; if I have a right at all to be pulled out, it is only on special grounds against determinate individuals. § 81. A real right corresponds to a duty im- posed upon persons in general; a personal right corresponds to a duty imposed upon determinate individuals. A real right is available against the world at large; a personal right is available only against particular persons. Aly right to the peaceable occupation of my farm is a real right, for all the world is under a duty towards mc not to interfere with it.

A real right, then, is an interest protected against the -world

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I liave a real right against every one not to be deprived of my liberty or my reputation; I have a personal right to receive com- pensation from any individual person who has imprisoned ©r defamed me. I have a real right to the use and occu^jation of my own house; I have a personal right to receive accommoda- tion at an inn. A real right, then, is an interest protected against the -world at large; a personal right is an interest protected solely against determinate individuals. The right of a patentee, who has a monopoly as against all the world, is much more valuable than the right of him who purchases the good-will of a business and is protected only against the com- petition of his vendor. If I buy a chattel, it is an impoilant question, whether my interest in it is forthwith protected against every one, or only against him who sells it to me. A real right, available against all other persons, can be nothing more than a right to be left alone by those persons—a right to their passive non-interfereneo.

amount on the like account. My debt is not theirs, nor ^xe

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81 THE KINDS OF LEGAL [§ general incidence are negative. It may be objected to this, tliat though a private person cannot have a positive right against all other persons, yet the state nray have such a right against all its subjects. All persons, for example, may be bound to pay a tax or to send in , census retui'ns. Are not these duties of general incidence, and yet positive? I£ I owe ten pounds to the state as income tax, the right of the state against me is just as personal as is that of any other creditor, and it does not change its nature because other persons or even all my fellow-citizens owe a similar amount on the like account. My debt is not theirs, nor ^xe their debts mine.

rights—between duties of general and of determinate incidence—is

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It is a monopoly, protected not against thc world at large, but against a determinate individual. Such rights belong to an intermediate class of small extent, stand- ing between rights which are both real and negative ion the one side and those whicli are both personal and jjositive on the other. In defining a real right as one availing against the world at large, it is not meant that the incidence of the correlative duty is absolutely universal, but merely that the duty binds persons in genei-al, and that if any one is not bound his case is exceptional. Similarly a personal right is not one available against a single person only, but one available against one or more determinate individuals. Even as so explained, however, it can scarcely be denied, that if intended as an exhaustive classifica- tion of all possible cases, the distinction between real and personal rights—between duties of general and of determinate incidence—is logically defective. As a classifica- tion, therefore, of the rights which actually obtain legal recdgnition, the distinction between real and personal rights may be accepted as valid.

owner and a vague multitude of persons, no one of whom is

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81 [§ two relations are necessarily co-osistent, their relative pro- miiumcf and importance are not always the same. In real rights it is the real relation that stands in the forefront of the juridical conception; such rights are emphatically and conspicuously in rem. In personal rights, on the other hand, it is the personal relation that forms the predominant factor in the conception; such rights are before all things in pei'- soiinm. For this difference there is more than one reason. .In the first place, the real right is a I'olation between the owner and a vague multitude of persons, no one of whom is distinguished from any other; while a personal right is a definite relation between determinate individuals, and the definiteness of this personal relation raises it into prominence. Secondly, the source or title of a real right is commonly to be found in the character of the real relation, while a personjal right generally derives its origin from the personal relation. If I have a real right in a material object, it is because I made it, or found it, or first acquired possession of it, or because by transfer or otherwise I have taken the place of some one who did originally stand in somie such relation to it.

be transferred, however—the subject-matter of the jus act, rem

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207 §81] already seen, in the previous chapter, that it is possible for one right to be in this way the subject-matter of another. The right which is to be transferred, however—the subject-matter of the jus act, rem —may be cither real or personal, though it is more commonly real . An agreennent to assign a chattel creates a jus ad jus in rem ; an agreement to assign a debt or a contract creates a jus ad jus in personam A The terms jus in rem and jus in personam were invented by the commentators on the civil law, and are not found in the original Bouxoes. 'The distinction thereby expressed, however, received adequate recogni- tion from the Roman lawyers. It is to be noticed, however, that both dominium and ohligatio are limited by the Bomans to the sphere of what, in the succeeding part of this chapter, we term proprietary rights. The terms jus in rem and jus in personam are derived from' the Soman terms actio in rem and actio in personam. An actio in personam was one for the enforcement of an ohligatio; one in which the plaintiff claimed the payment of money, the performance of a contract, or the protection of some other 1 Some wi-iters treat jus In 'personam and jus ad rem as synonymous terms.

208 THE KINDS OF LEGAL EIGHTS. 81

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81 [§ personal right vested in him as against the defendant. ^ Naturally enough, the right protected by aji actio in rem came to be called jus in rem, and a right protected by an actio in personam, jus in personam^ § 82. Another important distinction is that between proprietary and persona] rights. The aggregate of a man's proprietary rights constitutes his estate, his assets:, or his propertij in one of the many senses of that most equivocal of legal terms. German jurisprudence is sujDcrior to our own in jDOSsessing a distinct technical term for this aggregate of proprietary rights^ namely, Termogen, the rights themselves being Vermogens- rechte. The French speak in the same fashion of auair or patrimmrte . The sum total of a man's personal rights, on the other hand, constitutes his status or personal condition, ai> opposed to his estate.

rights—estate and status—there are the following supplementary ob-

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Rights of either sort are pro- prietary, and make up the estate of the possessor, if they are of eoonomic value. Stock in the funds is part of a man's estate, just as much as land and houses; and a valuable contract, just as much as a valuable chattel. On the other hand, a man's rights of personal liberty, and of reputa- tion, and of freedom from bodily harm are personal, not pro- prietary. So also with the rights of a husband and father with respect to his wife and children. Rights such as these constitute his legal status, not his legal estate. Citizenship, honours, dignities, and official position in all its innumerable forms pertain to the law of status, not to that of property.^ With respect to the distinction between proprietary and personal rights—estate and status—there are the following supplementary ob- servations to be made: 1.

sonal. A liability to be sued for a debt is proprietary, but a Habiiity

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The distinction between personal and proprietary rights has its counterpart in that between personal and proprietary duties and lia- bilities. They represent a loss of money, just as a proprietary right represents the acquisition of it. A liability to be sued for a debt is proprietary, but a Habiiity to be prosecuted for a crime is personal. The duty of fulfilling a, contract for the purchase of goods is proprietary, but the duty of fulfilling a contract to marry is personal. Although the term estate includes only rights (in the generic sense), the term status includes not only rights, but also duties, lia- bilities, and disabilities. But it is not equally • true that all proprietary rights are transferable.

of legal condition—some particular kind of status in this wide

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211 sum total of his legal rights, duties, liabilities, or other legal relations, whether proprietary or personal, or any particular group of them separately considered. Thus we may speak of the status of a landowner, of a trustoi>, of an executor, of a solicitor, and so on. It is much more common, however, to confine the term in question to some particular description of legal condition—some particular kind of status in this wide sense. Hence the other and specific meanings of the term. (b) Personal legal condition; that is to say, a man's legal condi- tion, only so far as his personal rights and burdens are con- cerned, to the exclusion of his proprietary relations. Thus we speak of the status of an infant, of a married woman, of a father, of a public oflScial, or of a citizen," but not of a landowner or of a trustee. (e) Personal capacities and incapacities, as opposed to the other elements of personal status. By certain writers the term status is app'lied not to the whole sphere of personal condition, but only to one part of it, namely that which relates to personal capacity and incapacity. ^ The law of status in this sense would include the rules as to the contractual capacities and incapacities of married women, but not the personal rights and duties existing between her and her husband.

by the agreement of the parties. A business partnership, on,

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212 THE KINDS OF LEGAL BIGHTS. [§ 82 lawj there seems little justification for confining the term status to this particular branch of personal condition. (d) CoTnpulsory as opposed to conventional personal condition. Status is used by some writers to signify a man's personal legal condition, so far only as it is imposed upon him' by the. law without his own consent, as opposed to the condition which he has acquired for himself by agreement. The posi- tion of a slave is a matter of status, the position of a free servant is a matter of contract. Marriage creates a status in this sense, for although it is entered into by way of consent, it cannot be dissolved in that way, and the legal condition created by it is determined by the law, and cannot be modified by the agreement of the parties. A business partnership, on, the other hand, pertains to the law of contract, and not to that of status. '- 7. The law of persons and the law of things.

A right subject to an encumbrance mar be conveniently

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213 re alima or encumbrance is one which limits or derogates from some more general right belonging to some other person in respect of the same subject-matter. It frequently happens that a right vested in one person becomes subject or subordinate to an adverse right vested in another. It no longer possesses its full scope or normal compass, part of it being cut oif to make room for the limiting and superior right which thus derogates from it. Thus the right of a landowner may be subject to and limited by that of a tenant to the temporary use of the property; or to the right of a mortgagee to sell or take possession; or to the right of a neighbouring landowner to the use of a way or other easement; or to the right of the vendor of land in ri't^pect of restrictive covenants entered into by the purchas(>r as to the use of it; for example, a covenant not to build upon it. A right subject to an encumbrance mar be conveniently designated as scr-vicni, while the encumbrance which dero- gates from it may be contrasted as dominant. The general and subordinate right was spoken of figuratively by the Roman lawyers as being in bondage to the spi'oiul rii>lit which prevailed over and dero- gated from it.

A right is not to bo classed as encumbered or servient,

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Thus a tenant may 'iubM; that is to say, he may grant a iea,sc of his lease, and so confer upon the sub-lessee a jus in re aliena of which the immediate subject- miatter is itseK taerelj- another right of the same quality. The right of the tenant in such a case is dominant with regard to that of the lando-wncr, but servient with regard to that of the sub-k«sw. The mortgage will then be a dominant right in respect of the ownership of the land, but a servient right with respect to the sub-mortgage. So the easements appur- tenant to land are leased or mortgaged along with it; and therefore, though themselves encumbrances, they are them- selves encumbered. A right is not to bo classed as encumbered or servient, merely- on account of its natiiral limits and restrictions. A servient right is not merely a limited right, for all are limited; it is a right so limited that its ordinary boundaxiea are infringed.

from the burden imposed upon it. If this is not so—if the

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215 natural contents and limits of a riglit, there can be no talk of other rights which qualify and derogate from it. It is essential to an encumbrance, that it should, in the technical language of our law, run with the right encumbered by it. In other words the dominant and the servient rights are necessarily concurrent. By this it is meant tliat an encum- brance must follow the encumbered right into the hands of new owners, so that a change of ownership will not free the right from the burden imposed upon it. If this is not so—if the right is transferable free from the burden—there is no true encumbrance. For the burden is then merely personal to him who is subject to it, and does not in truth limit or derogate from the right itself.

his stock in trade. A life tenancy of money in the p&blic

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216 THE KINDS OF LEGAL RIGHTS. [§ 83 It must be carefully noted that the distinction between jura in re propria and jura in re aliena is not confined to the sphere of real rights or jura in rem. Personal, no less than real rights may be encumbrances of other rights. Personal, no less than real rights may be themselves encumbered. A debtor, for ex- ample, may grant a security over the book debts owing to him in his business or over his shares in a company, as well as over his stock in trade. A life tenancy of money in the p&blic funds is just as possible as a life tenancy of land. A security is an encumbrance vested in a creditor over the pro- pert}' of his debtor, for tlie purpose of securing the recovery of the debt; a right, for example, to retain possession of a chattel until the debt is paid.

one right, and at the same time aug-ments another. A typical

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It is adverse, -when one right is limited or qualiiied hy another vested in a different owner. It is beneficial, on the other hand, when one right has added to it a supplementary right vested in the same owner. In this case the right so augmented may be termed the prineipal, while the one so appurtenant to it is the accessory right. A right which is dominant with respect to one right, is often at the same time accessory with respect to another. It limits one right, and at the same time aug-ments another. So a lease is a dominant right which is not at the same time accessory to any principal.

ferent. A legal mortgage of land must be created by deed, but

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218 THE KINDS OF LEGAL RIGHTS. [§ So- § 85. Notwithstanding tie fusion of law and equity by the Judicature Act, 1873, this distinction still exists, and must be reckoned with as an in- herent part of our legal system. The methods of their creation and disposition are dif- ferent. A legal mortgage of land must be created by deed, but an equitable mortgage may be created by a writleu agreement or by a mere deposit of title-deeds. A similar distinction exists between a legal and an equitable lease, a legal and an equitable sei-vitude, a legal and an equitable charge on land, and so on. But when a legal and an equitable right conflict, the legal will prevail over and destroy the equitable, even though subsequent to it in origin, provided that the- owner of tlie legal right acquired it for value and without notice of the prior equity.

\ In re aliena—servitus—encumbrance.

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219' gage, for example, and a sufesequeut legal mortgage, prefer- ence will be given to the latter. The maxim is: Where there are equal equities, the law will prevail. This liability to de- struction by conflict with a subsequent legal right is an essen- tial feature and a characteristic defect of all rights which are merely equitable. T Tf' li+ i \ Imperfect—recognised by law, but not enforceable. V T?' lit i \ In re aliena—servitus—encumbrance. The concurrence of the encumbrance and the right encum- bered.

CHAPTER XII.

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Ownership, in its most comprehensive signification, denotes the relation between a person and any right that is vested in him. That which a man owns is in all cases a right. When, as is often the case, we speak of the ownership of a material object, this is merely a convenient figure of speech. To own a piece of land means in truth to own a particular kind of right in the land, nam'ely, the fee simple of it Ownership, in this generic sense, extends to all classes of rights, whether proprietary or personal, in rem or in personam, in re propria or in re aliena. I may own a debt, or a mort-f gage, or a share in a company, or money in the public fund's, or a copyright, or a lease, or a right of way, or the fee simple of land. Every right is owned; and nothing can be owned except a right.

That is to say, he in whom an encumbrance is vested stands in

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221 six>n may be united, as indeed thej usually are, the de jure and the de facto relations being co-existent and coincident. The ownership of a right is, in the second place, opposed to the encumbrance of it. The owner of the right is he in whom: the right itself is vested; while the encumbrancer of it is he in whom is vested, not the right itself, but some adverse, domi- nant, and limiting right in respect of it. Although encumbrance is thus opposed to ownership, every encumbrancer is nevertheless himself the owner of the encum- brance. That is to say, he in whom an encumbrance is vested stands in a definite relation not merely to it, but also to the right encum- bered by it. Vested and Contingent Ownership. § 87.

action. So I own my land, but merely a right of way over

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222 OWNERSHIP. [§ 87 acquiring, or transfemng, not rights in land or chattels, but the land or chattels themselves. That is to say, we identify bv •way of metonymy the right with the material thing which is its object. I may be said to own the money in my hand; but as to that which is due to me, I ovwi not the money, but a right to it. In the one case I own thie material coins; in the other the immaterial debt or chose in action. So I own my land, but merely a right of way over the land of my neighbour. Ownership may conceivably be in all cases a relation to a material object; or it may in all cases be a relation to a right; but it cannot be sometimes the one and sometimes the other.

absolute and comprehensive right—this universum jus —that is

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223 or a ichattel, if his right over it is merely an encumbrance of some more general right vested in some one else. The owner- ship of a jus in re aliena is always incorporeal, even though the object of that right is a corporeal thing. I am' not said to own a chattel, merely because I own a right to have it trans- ferred to me, or because I own a lien over it or a right to the temporary use of it. When, on the other hand, a right is not a mere encumbrance of another right^—when it is self -existent re propria— a jus in it is identified with the material thing which is its subjeat-. matter. In its full and normal compass a jus in re propria over a material object is a right to the entirety of the lawful uses of that object. It is only this absolute and comprehensive right—this universum jus —that is identified with its object.

to rights of all descriptions. We cannot class together the

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224 OWNERSHIP. [§ 87 or residuary uses of it,^ after the deduction of all special and limited rights of use vested by waj- of encumbrance in other persons.' What, then, is the name of the right which we thus identify, for convenience of speech, with its material object? What shall we call the right which enables the owner of it to say that he owns a piece of land or a chattel? Unfortunately for the lucidity of legal nomenclature, there is, unless we are prepared to use the somewhat awkward Latin term }ii>: hi re propria, no other name for it than oir)icr-<h'qj itself. This is a use of the . term which is quite different from that hitherto considered by us. Ownership, as a particular kind of right, must be clearly distinguished from ownership, as a particular kind of relation to rights of all descriptions. We cannot class together the right of ownership and the ownership of a right.

distinct senses by legal writers: —

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Closely connected with the distinction between corporeal and incorporeal ownership is that between corporeal and incorporeal things. The term thing {res, chose, saehe) is used in three distinct senses by legal writers: — 1. In its first and simplest application it means merely a material object, regarded as the subject-matter o£ a right. i- According to this use, some rights are rights to or over things, and some are not. The owner of a house owns a thing; the owner of a patent does not. In a second and wider sense the term thing includes every subject-matter of a right, whether a material object or not. In this signification every right is a right in or to some thing.

illogical and absurd. We cannot treat in this way rights and

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226 OWNERSHIP. [§ 88 If I own a pound in my pocket and a right to receive another from my debtor, the first pound is a thing coi-poreal, and thei right to receive the second is a thing incorporeal; it is that variety of the latter, which is called, in the technical language of English law, a chose in action or thing in action; while the pound in my pocket is a chose or thing in possession. It is clear that if literally interpreted, this distinction is illogical and absurd. We cannot treat in this way rights and the objects of rights as two species of one genus. If we us6 the term thing in each case to mean a right, then the right of aji owner of land is just as incorporeal as is that of his tenant. On the other hand, if the term is to be taken in each case to me-an the object of a right, then the object of the tenant's right is just as corporeal as is that of his landlord. A person's property consists sometimes of mate- rial objects and sometimes of rights.

Co-ownership may assume different forms by virtue of the

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The several ownership of a part is a different thing from the oo-owiiership of the whole. So soon as each of two co-owners begins to own a part of the right instead of the whole of it, the co-owner- ship has been dissolved into sole ownership by the process known as partition. Co-ownership involves the undivided integrity of the right owned. Co-ownership, like all other forms of duplicate ownership, is possible only so far as the law makes provision for har- monising in some way the conflicting claims of the different owners inter se. Co-ownership may assume different forms by virtue of the different incidents attached to it by law. But on the death of one of two joint owners his ownership dies with him, and the survivor becomes the sole owner by virtue of this right of survivorship or pis acorescendi. § 90.

agent, upon whom the law has conferred the power and imposed

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90' [§ use his ownership for the benefit of the otlier. The former is called the trustee, and his ownership is trust-ownership; the latter is called the beneficiary, and his is beneficial ownership. The trustee is destitute of any right of beneficial enjoyment of the trust property. If we have regard to the essence of the matter rather than to the form of it, a trustee is not an owner at all, but a meiie agent, upon whom the law has conferred the power and imposed the duty of administering the property of another person. la legal theory, however, he is not a mere agent but an owner. He is a person to whom the proporty of some one else is fic- titiously attributed by the law, to the extent that the rights and powers thus vested in a nominal owner shall bo used b^^ him on. behalf of the real owner. The law vests those rights and interests for safe custody, as it were, in some other person who is capable of guarding them and dealing with them, and who is placed under a legal obligation to use them for the benefit of him to whom the^- in truth belong.

A trust is to be distinguished from two other relations which

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Thirdly, it is expedient that property in which large numbers of persons are interested in common should be vested in trustees. The complexities and difficulties "which arise from co-ownership become so great, so soon as the number of co-owiaers ceases to be small, that it is essential to avoid them; and one of the most effective devices for this pur- pose is that scheme of duplicate ownership which we term a trust. A trust is to be distinguished from two other relations which resemble it. It is to be distinguished, in the first place, from a mere contractual obligation to deal with one's property on behalf of some one else. A trust is more than an obligation to use one's property for the benefit of another; it is an obligation to use it for the benefit of another in whom it is already con- currently vested. The beneficiary has more than a mere per- sonal right against his trustee to the performance of the obliga- tions of the trust.

trustee himself, no less than in the beneficiary . A trustee is an

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In agency the property is vested solely in the persom on A^llose behalf the agent acts, but in trusteeship it is vested in the trustee himself, no less than in the beneficiary . Thus the direct owner of property may declare himself a trustee for some one else, who thereupon becomes the beneficial owner; or the direct owner may transfer the propearf^y to some one else, to hold it in trust for a "third. The trustee, for example, may transfer the property to the benefirt^iary, who then becomes the direct owner; or the beneficiary may transfer it to his trustee, with the like result. The trustee may assign to another, who thereupon becomes a trustee in his stead, while the beneficiary remains the same; or the beneficiary may assign to another, while the trust-ownership remains where it was. The trustee may, in pursuance of the powers of the trust, lease or mortgage the property without the concurrence of the beneficiary; and the beneficiary may deal in the same way Vith his beneficial owner- ship independently of the trustee. Whenever the beneficial ownership has been encumbered, either by the creator of the trust or by the beneficial owner himself, the trustee holds the property not only on behalf of the beneficial owner but also on behalf of the beneficial encumbrancers.

and equitable ownership. One person may be the legal and

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Closely connected but not identical with the distination between trust and beneficial ownership, is that between legal and equitable ownership. One person may be the legal and another the equitable owner of the same thing at the same time. Legal ownership is that which has its origin in the rules of the common law, while equitable ownership is that which proceeds from rules of equity divergent from the common law The courts of cOjmmon law refused to recognise equitable owner- ship, and denied that the equitable owner was an owner at all. The fusion of law and equity effected by the Judicature Act, 1873, has not abolished this distinction; it has simply extended the doctrines of the Chancery to the courts of common laAV, and as equitable ownership did not extinguish or exclude legal ownership in Chancery, it does not do so now. The distinction between legal and equitable ownership is not identical with that mentioned in a previous chapter as existing between legal and equitable rights. The equitable ownership of a legal right is a different thing from the ownership of an equitable right.

and the equitable estate in another, there is a trust. A legal

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So if A., the legal owner of a share in a com- pany, makes a declaration of trust in favour of B . , B . becomes forthwith the equitable owner of the share; but it is the same share as before, and not another. Nor is the distinction between legal and equitable ownership merely equivalent to that between trust and beneficial owner- ship. It is true that, whenever the legal estate is in one man and the equitable estate in another, there is a trust. But an equitable owner m.ay himself be merely a trustee for another person. A man may settle upon trust his equitable interest in a trust fund, or his equitable estate in his mortgaged land. There is no more theoretical difficultj' in allowing that a trustee and his beneficiary may both be legal owners, than in allowing that they may both be equitable owners.

is fulfilled. A testator, for example, may leave property to

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Ownorsliip is cithor vested or eoutingent . In the meantime, therefore, his ownership is contin- gent, ajid it will not bec-ome vested until the necessary condition is fulfilled. A testator, for example, may leave property to his wife for her life, and on her death to A., if he is then alive, but if A . is then dead, to B . A . and B . are both owners of the property in question, but their ownership is merely contingent. That of A. is conditional on his surviving the testator's widow; while that of B. is conditional on the death of A. in the widow's lifetime. I have no contingent ownership of a piece of land merely because I may buy it, if I so wish; or because perad- •venture its owner may leave it to me by his will.

tionally. A condition precedent involves an inchoate or incom-

Source page 250

234 OWNERSHIP. [§ 92 ownership is based not upon the mere possibility of future acquisition, but upon the present existence of an inchoate or incomplete title. The conditions on which contingent ownership depends are termed conditions precedent to distinguish them from another kind known as conditions subsequent. A condition precedent is one by the fulfilment of which an inchoate title is completed; a-condition subsequent is one on the fulfilment of which a title already completed is extinguished. In the latter case I lose absolutely what I have already lost condi- tionally. A condition precedent involves an inchoate or incom- plete investitive fact; a condition subsequent involves an in- complete or inchoate divestitive fact.^ He who owns property subject to a power of sale or power of appointment vested in some one else, owns it subject to a condition subsequent. His title is comp'lete, but there is already in existence an incom- plete divestitive fact, which may one day complete itself and' cut short his ownership.

Ownership—the relation between a person and a right vested in him.

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235 in the. f uturt' will vest tlie right in the one, will at the same time divest it from the other. His widow will have the vested ownership of the property, and his children the contin- gent ownership at the same time . Her marriage is a condition subsequent in respect of her own vested ownership, and a con- dition precedent in respect of the contingent ownership of ihe children.! Ownership—the relation between a person and a right vested in him. -r, . / The three beneficial relations between persons and I'ossession i ut s • Encumbrance ) The kinds of Ownership. The ownership of rights and the right of ownership. 1 On vested and contingent ownership, see Windsoheid, I. sects.

CHAPTER XIII.

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In the whole range of legal theory there is no conoeption more difficult than that of possession. The Roman lawyers brought their usual acumen to the analysis of it, and since their day the problem has formed the subject of a voluminous litera- ture, while it still continues to tax the ingenuity of jurists. Nor is the question one of mere curiosity or scientific interest, for its practical importance is not less than its difficulty. The legal consequences which flow from the acquisition and loss of possession are many and serious. Possession, for etram-ple, is evidence of ownership ; tiie possessor of a thing is presumed to be the owner of it, and may put all other claimants to proof of their title. Long possession is a sufficient title even to property which originally belonged to another.

between possession in fact and possession in law. We have to

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It is necessain^ to bear in mind from the out&et the distinotion between possession in fact and possession in law. Not every- thing which is recognised as possession by the law need be such in truth and in fact. First, possession may and usually does exist both in fact and in law. The law recognises las possession all that is such in fact, and nothing that is not such in fact, unless thr-re is some special reason to the contrary. Secondly, possession may exist in fact but not in law. The Roman lawyers distinguished possession in fact as possessio naturalis, and possession in law as pos&essio civilis^ In consequence of this divergence, partly intentional and avowed, partly accidental and unavowed, between the law and the fact of possession, it is impossible that any abstract theory should completely harmonise with the detailed rules to be found in any concrete body of law.

—a legal and a natural. Were this so, we could dispense alto-

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238 POSSESSION. [§ 94 of the law prevent the inflexible and consistent recognition of general principles. It follows from this discordance between law and fact, that a complete theory of possession falls into two f)arts: first an analysis of the conception itself, and secondly an exposition of the manner in "which it is recognised and applied in the actual legal system. It is with the first of those matters that we are liere alone concerned It is to be noticed that there are not two idea>i of possession —a legal and a natural. Were this so, we could dispense alto- g-ether with the discussion of possession in fact. There is only one idea, to which the actual rules of law do moire or less im- perfectl}' conform. A dispossessed owner was deprived of his most efEective remedies ; he could neither alienate his estate, nor leave It by his wiU; neither did his heirs inherit it after him.

possession is the possrssion of a material object—a house, a

Source page 255

23!) of modern law is to eliminate the whole doctrine of seisin, as an archaic survival of an earlier process of thought, and to recognise a single form of legal possession. § 95. Corporeal and Incorporeal Possession. A similar dis- tinction is to be drawn in the case of possession. Corporeal possession is the possrssion of a material object—a house, a farm, a piece of money. Incorporeal possession is the posses- sion of anything other than a material object—^for example, •a way over another man's land, the access of light to the windows of a house, a title of rank, an olHce of profit, and such like. The pK>ssessor may or may not be the owner of them, and the owner of them may or may not be in possession of them.