The Theory of Legal Duties and Rights An Introduction To Analytical 1000193699

THE
THEORY
or
LEGAL
AND
DUTIES
ID
EIGHTS.
Works
the
by
Author.
mnw
I.
PLUTOLOGY:
Or,
The
Theory
the
Efforts
Price
Sixteen
of
THE
Its
IntroducdoJi
Development.
its
Compnrat'tre Jiirixprudenrr.
Shillings.
Sixteen
GEORGE
Mklbouune,
HOUSEHOLD.
and
to
Price
Shillings.
Sixteen
Structure
ENGLAND,
Development.
its
AEYAN
THE
An
OF
and
Price
Its
Shillings.
GOVERNMENT
Structure
ROBERTSON
Sydney,
Adelaide.
and
MICROFILMED
UNIVERSITY
BY
OF
LIBRARY
MASTER
Human
Satisfy
to
NEG./rr
^."jopS^
TORONTO
Wants.
THEORY
THE
LEGAL
AN
INTRODUCTION
TO
JURISPRUDENCE.
ANALYTICAL
HONOURABLE
THE
WILLIAM
EIGHTS:
ANB
DUTIES
EDWARD
HEARN,
LL.D.,
MELBOURSE:
BY
AUTHORITY:
FERBES,
JOHN
GOVERNMENT
PRINTER.
LOXDOK:
TrI'bNER
and
CO.,
57
AND
59
MDCCCLXXSIU.
All
Iiiijh("reaerctil.
LUDGATE
HILL.
M.L.C.
df
"7.-f,l"UBL(V;
TABLE
CONTENTS.
OF
CHAPTER
I.
THEORY
THE
COMMAND.
OF
PAOB
"1. Command
2. The
as
Social Force
Legal Command
4. Difference of
Law
5.
to
Objections
the
from other Commands
Legal Commands
from other
Theory that
is a
Law
"1.
The
THEORY
2. The
Jurisdiction of the State
3. The
Services of the State
4. The
Omnipotenceof
5. The
Practical Limits of
6. The
OF
its Members
State and
the State
1. The
Source
2. The
Sources of the
3. Statute
4.
5.
8.
...
...
...
...
...
...
...
...
...
...
...
...
...
...
...
...
26
...
...
...
27
...
31
...
...
...
34
...
...
...
...
...
...
...
...
...
...
...
...
...
...
...
...
...
THEORY
1. The
Correlates of Command
DiWsion
of
...
Duties
5. Particular Duties
...
...
...
...
of Legal Duties
Principles
...
39
...
...
...
...
...
40
42
45
49
IV.
LEGAL
OF
...
Legal Duties
Duties...
36
...
2. The
6. First
...
...
Expositionof Law
THE
4. General
...
...
...
24
...
...
Agreements
DelegatedLegislation
17
2I
LAW.
OF
...
...
16
...
Knowledge of Law
...
Customary
ForeignLaw
3. Absolute
10
III.
...
Law...
...
CHAPTER
"
...
Law
6. Authorized
7.
...
...
EVIDENCES
of Law
...
i
4
SOVEREIGNTY.
CHAPTER
"
...
Speciesof Command
Legislation
of Political Liberty
Principle
THE
...
II.
CHAPTER
THE
...
...
...
3. Difference of
...
...
...
Analysisof Command
DLTY.
...
...
...
...
...
...
...
...
...
...
...
...
...
...
...
...
...
...
...
...
...
53
55
57
61
65
69
VI
Table
Contents.
of
CHAPTER
THE
" 1. The
THEORY
Analysis of
2.
The
Position
Choice
OF
SANCTIONS.
LEGAL
Sanction
of Sanction
of
V.
3.
The
4.
Sanctions
to
Absolute
5.
Sanctions
to
General
6.
Sanctions
to
Particular
in relation to Command
Sanctions...
Duties
Duties
Duties
...
7. The
of
Sanction
Nullity
...
VI.
CHAPTER
THE
THEORY
THE
OF
LEGAL
OBJECT.
" 1. Primary Objects of Command

2.
Secondary Objects
3.
Objects
of
Command
4.
Objects
of
5.
Objects
Objects
6.
90
of Command
93
...
may
be
Absolute
Command
may
be
Limited
of
Command
of
Command
by
by
Jomt
the
96
" 1. Attempts
and
State
Commandee's
States
of
Conditions
of
97
Mind
103
Mind
111
VII.
CHAPTER
THE
External
by
THEORY
IMPUTATION.
OF
Evasions
117
...
2. Accessories
3.
121
of
Community
Liability
124
...
4.
Vicarious
5.
Justification
133
6.
Excuse...
137
Liability
125
VIII.
CHAPTER
THE
I
1. The
2.
The
3.
The
4.
The
Meaning
of
Analysis
of
Analysis
of
DiflFerence
THEORY
Right
a
...
Right
The
Incidents
6.
The
Collision of
of
Wrong
between
5.
..
...
...
...
...
...
...
...
...
...
...
...
1. The
2.
3.
4.
Division
Rights j"
Rights in
Rights in
REM
of
and
Crimes
...
...
...
...
...
...
...
...
...
IX.
THAN
OF
THOSE
OWNERSHIP.
160
...
AVw
where
the
Revi
where
the
...
...
...
...
Secondary Object is a Person

Secondary Object is a Right """ i"Vm
the
Secondary Object is a Right in
168
...
litm
whoro
...
Rights
...
1 62
..
OTHER
Rights
l.'iG
Wrongs
158
..
PerMtutm
6.
145
loi
Rights
Rights
IN
141
...
CHAPTER
RIGHTS
RIGHTS.
LEGAL
OF
in Hem
where
...
...
tlicrc is
no
..
Secomlary Object
...
...
17 1
176
1711
...
Table
X.
CHAPTER
RIGHTS
OWNERSHIP.
TO
RELATING
REM
7.V
Til
Contents.
of
PAGE
" 1. The
of
Analysis
186
Ownership
2.
Possession
196
3.
Property
200
4.
Modes
of
Rights
in Rem
5.
Another's
209
Property
212
Interests
6. Beneficial
7. Future
206
Ownership
215
Estates
...
CHAPTER
i 1.
OF
Prescription
3.
Accession
...
...
...
...
...
...
...
...
...
...
...
...
...
...
...
...
...
...
...
...
...
...
...
...
...
222
224
229
Acquisitionand
6. The
Acquisition
those
of
Extinction
and
of
Rights tn
of Rights
Extinction
...
...
2.
The
Permanent
3.
The
Variable
4.
Void
Elements
AV
Discharge
and
...
239
of
240
Contract
Voidable
244
Contracts
Consensual
followed
4.
Obligationswith
248
Obligations
Other
Accessorial
255
258
...
XIII.
COMBINATIONS
by
Contracts
Alternative
OF
RIGHTS.
Rights
Rights
(rt
...
.ffewi as
Accessoi-ial
263
...
...
to Persons
266
...
{") Marriage; {h) Service; (c) Agency;

3.
...
...
...
THE
Obligationswith
than
1'ER.HOyAM.
CHAPTER
" 1. Rights in Rem
other
Contract
of
Conditional, Collateral,and
of
in Rem
Contract
Elements
Agreements
2.32
XII.
RIGHTS
" 1. Rights arisingfrom
.ffc
235
Ownership
CHAPTER
2.
REM.
Grants
Crown
6. The
IN
...
5. The
5.
RIGHTS
218
Occupancy
2.
4.
EXTINCTION
AND
ACQUISITION
THE
XI.
{d) Partnership.
in Rem
to Things
as
Rights
(a) Bailments; (h) Hire; (c) Security;((/)Sale.
Obligationswith Accessorial
Obligations
...
...
...
276
288
...
(a) Indenmity; (6) Suretyship; (c) Collateral Securities.

5.
Negotiable Instruments
...
...
...
...
...
290
Vlll
Table
of Oontents.
CHAPTER
XIV.
RIGHTS.
OF
TRANSFER
THE
PAGE
1.
The
Analysis
of
2.
The
Transfer
of
Rights
3.
The
Transfer
of
Other
4.
The
Transfer
of
5.
The
Avoidance
6.
The
Strengthening
7. The
Transfer
295
Rights
in Rem
309
Transfers
of
312
by
Titles
Transfer
317
CHAPTER
and
XV.
SUCCESSION
THE
Duties
313
Transfers
Registration of
299
307
in Personam
Rights
of
concerning Things
hi Bern
TO
RIGHTS.
Descendible
1.
What
2.
The
3.
Intestacy
325
4.
Wills
328
5.
Bequests
6.
The
Descent
of
Rights
Realty
are
and
320
of Personalty
323
332
of
Administration
Deceased
Person's
CHAPTER
THE
the
FOREIGN
of
RIGHTS
1.
The
Limits
2.
The
Recognition
of
Foreign Rights
in Rem
344
3.
The
Recognition
of
Foreign Rights
in Personam
346
4.
The
Recognition
of
Foreign Judgments
5.
The
Theory
The
Applications of
6.
of
335
XVI.
OF
RECOGNITION
Estate
Recognition
Foreign Rights
352
...
Domicil
355
XVII.
CODIFICATION
THE
The
Legal
Work
Logical Work
3.
The
Literary Work
4.
The
Legislative
5.
The
Proposed
Revision
THE
LAW.
359
...
The
The
OF
Codification
of
2.
G.
350
of Domicil
CHAPTER
1.
.340
of
of
Work
Code
Codification
Codification
of
of
.362
372
Codification
375
377
Victoria
...
of
382
Code
...
Appendix
385
Index
395
I.
CHAPTER
THEORY
THE
"
Command
exclusively
the
desire
of
they
that
what
diffuse
they
is the
motive
the
self-will
that
motives
likely
pleasures
good,
in
trained,
so
second
his
of
case
be
may
his
and
be
may
so
pains
much
good,
purposes.
some
or
bear
to
as
or
that
takes
the
him
to
likely
Or, lastly,his
formed,
pectation
ex-
upon
threatened
refusal,
which
expedients
of
or
to
by
present
These
action
spontaneous
the
methods
expedients by
brought
be
may
of
case
of
strong
profess
the
effect
into
three
to
eager
sometimes
nor
"
present
compliance.
habits
his
nature,
in
or
some
evil
some
him
befall
to
averted
future
Or, again,
actor.
be
of
are
it is
need
effectively controlled.
is
application
of
but
indeed
persuasive influence,
Some
carried
believe
Although
of them
enumeration
are
truth
sometimes
I neither
and
"
they
great
some
advantage,
they
contradiction.
no
projects are
conduct
the
are
varied
There
diversity.
human
brook
be
the
be
sometimes
they
sometimes
to
look
they
sometimes
of power
love
can
desired
the
less
to
exhaustive
an
which
consider
mere
tliink
control
to
service
thus
are
furnish
wish
God
doing
interest
they
influence
to
Sometimes
men.
what
seek
men
personal
or
they
are
other
own
advantage,
whom
those
of
their
to
motives
many
conduct
the
Force.
From
1.
COMMAND.
OF
as
be
to
mind
may
use
becomes
the
place
of
obedience.
These
motives
sometimes
into
account
ready
way,
by
the
regard
and
these
in
concurrence.
must
They
of
student
be
society.
had
"
sometimes
operate
means
to
them
must
In
by
more
all
rately,
sepabe
taken
rough
all those
and
persons
Theory of Command
The
who
have
the
spontaneous
both
of
conduct
of
with
character,and especially
human
to deal with
of
masses
of
and
causes
is
means
mixture
Tliis inter-
men.
of the
one
principal
But, even where

possible,under
character.
of human
investigation
the phenomena are
the most
complex, it is
favorable conditions,to isolate a particular
class of causes,
and
difficulties in any
influences.
scientific
its effect
to examine
apart from
other
as
inquiryis necessarily
limited.
Sometimes, however,
result of such
The
an
imperfectas its premises are

is so distinct,
although perhaps not frequently,the cause
and the effects are so practically
important and so free from
the action of other
with
reasonable
dient alone
of
social
may
be made
prospect of
by
this exj)e-
in
least
that,at
advance
any
that the attempt

influences,
How
science.
present
our
the
possiblein
appears
It is
success.
susceptibleof separate treatment,

inquire; but there are at least two which
are
known.
well
of result with
the
purely
the
manner,
by
The
universal
the
minimum
certain
Political
desire
the
means
be
I do
not
found
the
maximum
basis for
In
Economy.
influence in certain
to
conduct
of other
to
sufficiently
now
are
that
attempt
of effort furnishes
scientific part of
universal
may
to obtain
desire
knowledge,
unwieldy perplexities
cases
many
of
state
like
stances
circum-
furnishes
men
purely scientific part of Jurisprudence.

of such a desire,whether
One great cause
we
regard the
the opportunityfor giving effect to the wish, is
motive
or
This inequalityis a universal
the inequality
of conditions.
plienomenon. Diversity of power, whetlier of body or of
basis for the
miiid
or
of
wealth,
nature, and
Within
is
certain
always
must
manhood, between
female, between
and
of
out
the
of human
conditions
consequently essential to human

society.
ficially
limits,such diversitymay perhaps be arti-
restricted
There
arises
folly,between
its presence
be
the
manhood
strength
energy
can
never
difference
and
be
wholly banished.
between
infancyand
old age, between
and
weakness, between
and
apathy,between
male
and
wisdom
experience
Command
as
Social
Force.
wealth
between
virtue and vice,between
inexperience,
and poverty, between
cooperation and isolation. Further,
where
exists,the mode of influence always takes
inequality
characteristic form.
Men
do not need to persuadewhere
one
Where
side relative
there are on the one
they can command.
and
and
power
the conduct
of the
as
of the
other
command
the other
on
to his conduct
party is likelyto affect the well-being
one
obey a command, in the true sense

but is always the
hope of pleasure,
to
is indeed
a
powerful inducement
that
impliesa
necessarily
to
not
inducement
which
But
invariablyappears.
is,a direction from

"
where
weakness, and
relative
party, command
that
"
side
stronger
threat.
to
weaker
The
of the term, is
motive
the
never
fear of
jmin.
human
action,but it is
operates in the
Pleasure
circtmistances
not enforced
are
considering. Commands
stuff.
of sterner
In
be made
by sweetmeats
; they must
other words, commands, properlyso called,
do not include
of securingin human
means
beings a certain
every possible
of action.
such method
course
They relate only to one
;
and the method
which
they adopt is exclusivelythe fear
of pain.
Thus, out of all the circumstances in which human
beings
seek to influence the conduct
of other himian
beings,and
which for this purpose they adopt,it is
out of all the means
and with one
possibleto deal with one set of circumstances
that
we
are
now
class of methods.
The
there exists between
two
method
is the dread
the event
hands
circumstances
are
those
in which
of
partiesan inequality
which
the weaker
of his disobedience
of the stronger. Even
The
power.
party entertains that in
he will sustain
when
evil
some
at the
the position
limited,
needs further restriction. Jurisprudencedoes not professto
deal with all cases
of unequal jx)wer, but with that particular
of inequabty which
exists between
case
a
community
political
and
does
the
it go
its several
beyond
consequences
the
which
members.
existence
these
a2
thus
Nor
even
in
this
of certain commands
commands,
when
case
and
rightly
Theory of Command
The
does
discuss
not
reasonably supposed
be
understood, may
either tbe wisdom
circumstances
"which have
the substance
of law
ConsequentlyI
of the law
with
include.
to
command
form
The
It
or
the
and
not
of Jurisprudence.
subject-matter
concerned
now
history. I
either with
accept the present state of the law

an
ultimate
and
fact,and
I shall
its correlations.
have
the merits
inquirewhether
does or does not effect the objectfor
statute
any particular
which it was
framed, or to trace the steps by which any particular
department of the law attained its present shape. I
or
its
of the
led to its issue.
is the
not
am
for my
as
to
immediate
to describe
attempt
in
I propose,
not
its structure
deal with
short,to
and
pliysiologyof law, and not with

history. To attain this objectthe first step is
the great genericnotion of command.
anatomy
The
"
Analysis
The
It may
the
command
comujandee,
an
or
group
;
conduct
that the
receives
One
The
The
act
some
accepts
or
The
either
in the event
of his command
the
to
to
call the
given and received

to
as
his
signifies
observe
tliis intimation
in
are
partiesgives
commander
former
Every command
commander
analyze
to
who
I venture
so
the
for his future conduct.
further connotation.
of these
command
of the commaudee.
Tlie latter
its natural
relation
same
party, whom
will of
do
the
occupy
of persons.
it.
of persons
group
of the
latter should
warning
and
the other
intimation
or
person,
the
implies two partiesat least.

not necessarily
mean
a person.
party does
circumstances
other person
is
commaud
term
be either
same
the
2. A
purpose
as
desire
ance.
forbear-
some
guide
or
term, however, has
impliesa
the
The
menace.
intimates
expressly or by imi)li('ation
being disregardedhe
will
that
cause
to come
The
painfulconsequence
u})on the offender.
is not now
diameter
of tliat consequence
material.
particular
It is enough that some
ulterior proceeding is indicated,and
that that proceeding will be an
evil. But
it is essential
some
that the commander
should
have,or
at least should
aj)pear
tHJferenee
of
the
to
commandee
to
he
effect.
practical
evil,the idle threat
of that evil and
the extent
himself
govern
There
these
act
forbearance
the
is
that
have
its
command.
to
as
infliction,
of the other.
forms
which
There
desire of
secondlythe
is the
Fourthly,there
desire.
in
six elements
two
or
certaintyof
the
to
parties. There
partiesas to the conduct
first the
he
not
accordingly.
thus
are
conduct.
of
will
will,in proportionto his belief
the commandee
power,
the
conimandee's
the
Commands.
have, abilityto give to his menace

in case
have not the power to inflict,
disobedience, the threatened

influence
Jrom other
Legal Conmumd
are
of
one
is thirdly
There
object of
the
the
notification of that desire
to
by it,and his consequent duty to

more
or
Fifthly,there is the menace
comply therewith.
less definite and always impliedif it be not always expressed
is affected
the party who
"
the
indicates
^which
"
evil
attendant
disobedience.
upon
assumption that of these two partiesthe

the power
has in some
of giving effect to his threat
way
of his disobedience,
the other,in case
of bringingupon
is the
there
Finally,
one
and
serious evil.
"
Difference
Command
from
That
onc.
speciesof commands,
fulfilsall the conditions
law
is
law
essential
to
other
i
commaud
Commands,
of
the various
3. Of
unequal
"
ti
the
sovereignand
the direction
to
other
is the evil which
; there
belief that that
essential
marks
difference
by which
from
the
term
State.
State.
the
this
to forbear
or
which
not
the
has
to
now
now
to
species. Law
discuss
what
is
of the country.
is, and
there
one
So
much
be determined
have
We
parties
gives to
and
disobedience,
particular
speciesof
such
subject;
will be inflicted.
of law.
It expresses
Government
which
the two
are
the
awaits
and
can
all other
I will
the Government
what
evil
That
assume.
may
act
There
readilyseen.
IS
power,
rm
search
command
is
is
the
the
we
is the
for those
is distinguished
command
of
the
precisemeaning of the
called in popular language
We
that
know
in
general way
it is different from
an
6
from
or
individual,
just as
experts in
differs from
of the
will
an
the
Church, or
though we
other
of the
existence
Theory of
know, even
biology,what
we
State.
tradingcompany;
not
the assistance
from
have
by a
Assuming
allegethat
is meant
animals.
State,we
may
of
man,
and
that
then
the
separate
is
law
he
command
of the
words, law is the intimation
other
In
Command
The
subjectsconcerning their conduct,

usuallyexpressedthrough certain appropriate
of the
State
intimation
its
to
by other organs. This is what is meant

by law as administered by Courts of Justice,and as enacted
by Parliament
or
acceptedby tradition. Law is a command
of the State by which, so far as it extends,the subjectsof
the State regulatetheir conduct, and which
its officers duly
and
organs,
authorized
enforced
in that behalf
This definition at
ambiguities. The
any
other form
of any
necessitymuch
they have much
reason
that
pu})ilto
learn
if he fail to learn it he
will
orders its members
not
to work
less than
wage,
certain
they disobey.
rents, and
men
All these
cases
of
are
duty,and
them
are
they are
the
In like
the
of
has
commands, just as
themselves,and for the

all speciesof the same
A
lesson,and
threatens
schoolmaster
tells the
A
punished.
beyond
intimates
boy
trades
certain
time
various
that
union
or
for
penalties if
essential
elements
of
command,
of sanction ; but
contrary to law.
not
house
league forbids tenants to pay their

if they fulfil their legalobligations.
shot
contain
be
and
land
It
men.
by dismission.
certain
of
It is not
order to his servant, and
givesan
master
bishop.
all these
between
common
neglectwill be followed
desires
namely, that they are
"
genus.
of
with
common
in
of
It is not the command
voluntary association
in
of obscurities
of the State is different from
command
of command.
multitude
It is not the command
command
same
removes
once
and
father.
enforce.
commands
manner
so-called laws
which
we
of
they are not law, and some
They are commands
indeed,but
of the State.
are
tlius disembarrassed
have in their time
of
number
of
impeded juralthought.
Customs
The
I have
cases
mentioned
true commands
varieties,
Customs
the
uniformityof conduct
means
by which that
honour,
laws
so-called
these
cases
exact
this.
are
Public
fashion,or
in
not
commands
but
whom
among
it fails
even
more
privatecommands
not
of
command
kind, in the
the
in the
in
is
The
a
not
similar
conduct
than
more
formidable
more
a
of
may
case
law.
true
command
It is not
of the term.
sense
of
weight of a heavy
disapprobationof
all the
State,but it is
of
These
completely than those domestic

I have
which
spoken. Not only
of the
proper
in
In each
There
penalty than fine or imprisonment. Such

reasonablyappear to fidfil all the conditions
Yet
law
of nations.
lives is often
man
to
not
customs.
to law.
manner.
are
produces a uniformityof
is due
refer
is the law
habituallyact
reason,
similar
cause
Such
the law
opinionoperates with
sanction,and
those
of
that which
now
they result,and
result is obtained.
force of habit
as
the
in
effect,not
some
their several
resemblance
Their
all.
in which
for
men,
The
way.
as
the law
or
but those to which
at
in
consists
mands.
"
according to
were,
commands
not
are
Commands.
not
are
or
is it
of any
command
though it be universallyaccepted by
all the people of the State, because
the State implies a
and
be expressed
its commands
must
political
organization,
But
the
these customs
are
through its accredited organs.
of an
outcome
uniformities
unorganized public will, mere
of
the
of
action, and
State,
of any
or
but
a
offend
person
and
breach
various
deliberate
and
and
are
of
of
command,
to the
of
are
custom
they
breaches
settled
of the
have
the
not
No
sanction.
true
of these customs,
general disapprobation. If
he
meets
proper
officers
penalty.
But
is that
of
whether
commands,
not
against the law,
inflict the
to
sentiment
there
intimation
authority,because
is attached
vague
punishment,
of
other
penalty
only the
guilt
the
characteristic
essential
definite
not
Further, they
purpose.
State
even
indefinite
indefinite degrrees less well
with
to
the
specific
his
ascertain
consequences
persons
of the
think
offender
in
than
The
otherwise
Theory of Command
have done.
theymight
There
is another
distinction
uses
hardly less important. Custom
for the attainment
well as
of its object approbation as
uniformity
disapprobation.In other words, it seeks to secure
of conduct by rewards
well as by punishments. But a
as
legal sanction is something very different. It has nothing
Thus
to do with rewards ; and relies on punishment alone.
also,and
that
one
the idea of custom

and
may,
inherent
is
is distinct from
often
does, become
force.
Such
law,
result*
that of law.
but
by
never
is attained
custom
its
when, and
own
only
when, to the vague and indefinite sense of popularapprobation

there is added, by competent authority,
the
or disapprobation,
distinct and specific
penalty with which the law visits the
breaches
Law
of its commands.
Closelv councctcd
an
with
this
subject is the unfor-
Equlvocal
...
ambiguity that
tuuatc
Term.
word
law.
This
confusion
when
it has
seems
to
scarcely
been
difficult to kill
of words
grown
been
understood
once
deserve
and
has
has
verbal
so
often
is
so
further notice.
error,
so
around
up
the
explained,and
apparent, that it
But
error
is
powerful is
always
tlie influence
to bear a charmed
life.
thought,seems
At the risk,therefore,
of seeming to write mere
truisms,I
must
add a word of warning. Law
produces uniformityof
conduct : uniformityis observable in the course
of nature :
and so we
have got the expression laws of nature."
This
unlucky equivoque has found such favour with the public,
the final arbiters as we
know
of language,that there is an
risk that the word
law will ultimately
be exclusively
appreciable
to the uses
of i)liysical
science.
aj)propriated
But
upon
"
between
is
no
the laws of nature
resemblance
and
no
and
means
api)lyto rational beingsand

of
conduct
sequence
sequence
them can
is
not
the laws
of the
Queen there
of
comparison. Commands
to
thingsor
events.
rule
thing,and an invariable unconditioned

is another thing. A i)receptand the allegation
of a
and any i)()S8ible
are
relation between
disparate,
of the word
only be metaphorical. The application
one
Sm
"
The
Aryai\HottMhoId,"806.
10
a
a
TTie
privateAct
publicAct.
and
of Parliament
to
regardedas eqtiivalent
superiorform of contract,
is never
It is deemed
is construed
Command:
Theory of
to be
rules which
the
accordingto
the
govern
of contracts,and not accordingto the rules

interpretation
of statutes.
which govern
the interpretation
So, too, when
divorces
were
granted by Act of Parliament,the procedure
in Parliament
is held to have been part of our
judicial
The object,
then,of a law
system, and not true legislation.
rule of
is to furnish a standard of conduct
a
; it prescribes
*
extend
may
all persons,
to
exclusion of others.
particularset of facts
longerone
no
advanced
these
of
this
When
new
it were, on the border

be difficult to say whether
the
the marks
of the other class
But
of
the difference between

is
legislation
which
in
divides them
The
provided
indeed
of the
the
is
for
which
occur
in which
line,and
marks
case
duty. In all
are
may
are
appliedto
it may
class or
one
conspicuous.
more
and
legislation
itself
and
distinct,
usuallybe
can
is
arise.
organs
so
prescribed
persons in
of executive
Cases
as
are,
rule
some
generalrule
separate
respectivefunctions.
to
or
relations
but
legislation
communities
The
it relates.
to which
action in the matter
the consequences
in practice
the line
drawn
with
reasonable
precision.
" 5. Somc
Objections
that
a
Law
is
to
as
this
misgiviugs
to have
seem
analysis, and
lamous
latelyarisen
recent
writers
Species o(
Command.
to doubt
lookiug at
wliether it
the actual
/"
course
the whole
of events
are
disposed
field of modern
legislation.
It has been alleged
t that,"laws purelypermissive,
laws declaratory,
rules of procedure,rules for public convenience,
rules conferringfaculties,
rules conferring
and
privileges,
cannot, without undue violence to language,be
brought under any strict partitionof all law into rights
and obligations."It may
be that this i)assage is intended
as
a
protest, not agaiust the theory of legal command,
but agaiust Austin's
adoption of right as the basis of
*
covers
B"e Shaw
r. Gould, L. U. S K. ii I. Ap. 86.
t By Mr. Frodcrio Harrison, Fort. Rev.,N.S.,xxiv.,697.
the
Objectionato
Theory
that Lavo
Speciesof
Command.
meaning, I have nothing to say

Harrison
other writers* succeedingMr.
against it. Bnt
conchisive argument against the
as
a
regard his remarks
that every law consists of a command, a duty,and
proposition
his
system.
of
admit
"
In this
sanction.
If this be its
explanation.
Rectum
et
in
the
of
will
to remove,
as
duty
are
and
the
present
arguments
There
index
sui
establishment
But
respectI think that the
serve
et
adhere
truth is the
case
both
the
which
to
best refutation
discussion
of the
I have
maxim,
that
of
the
error.
opjwsing
said and
difficulties.
the
on
the
I believe
to illustrate what
hope,reasonable
laws
indeed
and
ohliqui^^
mentioned
cases
face
of tliem
create
no
sanction.
They merely repealor amend

other laws or declare or otherwise interj)ret
the meaning
of such prior laws.
Austin
speaks of these laws as laws
improperly so called ; and advantage has been taken of
this admission
to found
an
argument
against his entire
But the explanation
scheme.
is simple. These laws are in
what in form they usuallyprofessto be,parts of the
reality,
Acts. They are to be incorporated
and read together
Principal
with
these Acts.
A
repealingAct merely withdraws
a
An
previouscommand.
amending Act modifies a previous
of
command, either by way of addition or of diminution
or
change. A declaratoryAct explainsa previous command
which
express
no
otherwise
was
the command
doubtful
obscure.
or
of the State with
In all these
cases
the usual
duty and sanction

had already been issued,and that command
subsequently
receives certain changes by the authorityfrom
which
it
The old law and the new
emanated.
taken together
originally
amount
merely to a new and re"'ised edition of the original
command.
With
it must
more
of
respectto
be
observed
Acts
a franchise
conferring
or
a faculty,
that,as I shall presentlyhave occasion
be created
wise
otherfully to show, a right cannot
than by imposing a duty. Consequentlythe creation
franchise or a privilege,
or
a monopoly, or
other
any
*
S"e Mr. Wise, Outlines
of
Jurisprudence, 9.
12
The
exclusive
Theory of Command
right,presupposes
In the
persons.
instance
duty of
in all otlier
forbearance
by Mr. Harrison, the right
cited
stance
jury, the duty is apparent. It is in subto the followingeffect :
Subjectto certain specified
shall when
and
exemptions, every man
disqualifications
requiredso to do serve on a jury. If he offend herein, he
not
is one
shall be liable to fine or imprisonment." The case
of a rightbut of a positiveabsolute
duty, a kind of duty
to
on
serve
"
"
which
desires
purposes
a
of the
case
empowered
active
of its
assistance
offices.
respective
in their
serve
is the
the
electoral
elect
to
of
Certain
the
still
franchise
so
was
to be
All
certainlya duty
the latter
To
law
does
has
the
Yet
and
regarded, although it has
now
are
persons
Parliament.
are
bound
are
strikingexample
more
prohibitedfrom doing so.

a
penalty is attached ; but the
it necessary,
although it obviously
compel electors to record their votes.
persons
own
subjects. Thus,
alderman,
franchise.
members
for its
State
the
when
an
Parliament, a sheriff,
of
member
to
unfrequentlyoccurs
not
in
other
tion
injunc-
not
think
to
power,
its
doubtless
become
origin
ought
a duty
of
the apparent
imperfect obligation. In all these cases
arises from the circumstance
that the duty,which
difiiculty
in its origin was
burthensome, has subsequently become
advantageous. It simulates a right ; but its true nature is
not therebychanged.
of enabling or permissiveActs is the compleThe case
ment
of those which confer franchises or otlier positive
rights.
of an
They exempt the party concerned from the oj)eration
existingrestriction. In each case the grantee may do wluit
others
not
may
relieved from
franchise
or
do.
But
under
the
enabling Act
duty of forbearance ; under

the duty of forbeamnce
privilege
a
tlie
from
he
is
grant of
which
he
is
exceptedis cast ujx)u others. The tlifference is expressed

in our
law by tlie terms
Tlie
privilegesand immunities.
do what
bidden
forothers are
person wlio enjoysa privilegemay
to
do.
The
person
who
has
an
immunity
may
forbear in
Theory that Law
the
Objectionsto
where
cases
others
is
bound
are
person
immunity is in fact
solutus legibus,
exempt from the operation of the statutes
do any specified
made and pro\aded; and he may
in such case
act or observe any specified
forbearance,anything in any law
to the contrary notwithstanding. An Act which contains such
of a previous law.
amendment
an
pro\asionsis substantially
It corrects
that law and limits its operation. In place of
who
both
enjoys
the
privilegeand
The
act.
to
13
Command,
Speciesof
that
proposition
such
no
except the person
or
forbear.
of
Sometimes
act
an
shall
this
result appears
same
exceptionis
the
case
observe
or
propositionthat
the
the class described
or
the
In
justification.
but
shall do such
person
forbearance,it substitutes
person
an
in
act
so
the
no
form
personal,
not
limited in wliich the law

are
specialcircumstances
does not apply.
Thus, no person may, as a general rule,
restrain another
of his liberty
a felonyhas
; but when
person
been committed, any person may, notwithstandingthe general
and the law wiU support and protect
rule,arrest the ofiender,
him in doing so.
some
There
is another
class of laws
to
come
within
created,and
are
intended
which
at first
sight may
those which
analysis. I mean
regulate dealings with rights. Tliese laws, however, are
of the command
merely extensions
by which the right is
not
seem
the
ascertaining
requires all
assigns.
devolution
with
and
Doe, his heirs
that
various
forms
of
the
Will
must
be in
of
when
furnishes
Mr.
means
Harrison
the sanction
the
writing,
relates to
property and
renderingit a
accomplishment of
and
Thus,
obligationor
which
these
asks
law
the
and
the
dealings
security,and
objectsprovides
ancillaryto the
facilities for its
or
in efiect where
in the familiar
answer
to the
financial
pre-appointed evidence,is
originalcommand,
execution.
administrators
executors
the transfer of that
for the better
facilities for
or
rightresides. Tlie
from
interferingwith
great body of law
it for the purpose
which
means
the
forbear
to
persons
All
to furnish
in whom
person
property of John
this
is
rule that every
that
is,first,
the rule
14
The
is
Command
Theory of
a
subsidiaryprovision which presupposes
right,and
consequentlya duty and a sanction ; and secondly,that this
particularrule actually contains within itself both a duty
a
and
sanction.
of
duty
making
compliance
It casts
his Will
with
this
the
upon
in
the
by
it enforces
and
specifiedway,
command
the
intending testator
sharp penalty
of
nullity.
of
Rules
judicialprocedure, and
either of the other

the
as
which
of the State
servants
State
thinks
I have
used
rules
are
regulate,
term.
They
the
of such
or
fit to
laws
to the
to deal with
those officers. In the former
if it be
not
otherwise
or
in
to the
expressed,is the
control
occupations
the
in
sense
of commands
consist
given either
public officers
for the
persons
who
case, the
have
sanction,
dismission
of the
officers. In the Jattercase, it is the refusal of the assistance

which
the persons
concerned
private occupations
the
their
duties
In all these
that
happen
case
very
is
regulated,duties
are
engaged
persons
in
these
cases
the
there is
When
imposed
a
upon
of
breach
the
ordinary methods.
sanction,although it may often
is not
sanction
are
occupations,and
usually punished by
of
proper
kind.
In
the
of
procedure,for example, the Legislatureoften gives

minute
it intended
and omits to state what
directions,
to be the consequence
of
excessive
this
indeed
is
ask the officers to render.
detail, and
directions.
This
of
want
infallible indications of bad
not
unfortunately
of these
breach
unknown.
specificsanction, are
drafting; but bad drafting
In such circumstances
one
of
usuallyhappens. Either the courts hold

that tlie Act is merely directory,
which
is a politeform for
declaringthat it is in fact not a law: or the sanction of nullity
and
is a])plied,
the wliole proceeding is set aside as void.
No mon;
fertile source
of irritation to judges and of vexation
and expense
to suitors is known, nor
which
such
causes
one
frequent miscarriagesof justice. But these disasters arise
two
consequences
from
tlie badness
Thus
the
of
the
law,
not
at
generalconclusions,
from
which
the absence
in the earlier
of it.
part of
Objections
this
of
chapter
sometimes,
as
diflfers
from
men's
conduct
These
acts.
law,
It
even
discernible.
we
other
that
Theory
arrived,
we
State.
the
the
to
Law
remain
implies
commands
their
shall
of
and
characteristics
though
Species
of
unshaken.
always
presently
generally,
is
is
are
presence
Law
fully
more
the
State,
not
limited
always
may
is
under
duty
it
always
It
regulates
individual
mere
present
and
right.
because
not
command
sanction,
see,
to
1 5
Command.
in
every
be
true
readily
16
The
Theory of Sovereignty:
II.
CHAPTER
THEORY
THE
The
a
"
State.
wliicli
Of the elements
1
.
three may
command,
SOVEREIGNTY.
OP
constitute
collectively
in the relation of
be included
connote
subject. These terms respectively
and the desire of the
their unequal powers,
and
the conduct
the two
to
one
already said that
I have
of the other.
sovereign
parties,
regulate
I
late
postu-
physiologyare studied
In like
without any settled opinionsupon the originof man.
one
portionof the anatomy and physiologyof the
manner,
social organism may
be studied without regard to the origin
of societyor to the stages through which, at diiferent periods
the State.
Human
and
anatomy
development,that portionof the organism

passed. It suffices then, without any discussion
of its
commencement
as
it
or
exists
now
of this
treatment
relates
the
his
to
of
character
subjectsuggests
two
and
is,he
this
studied
he
course
the unfounded
the
has
function
given
to
the
describe
sovereignty.
Austin's
observations.
The
the
to leave
the
of sanction before he considered
That
By
polemicalpurposes,
and to discuss
predecessors,
to
first
thought fit,probably for
He
arrangement.
temporary and
of his
as
history of the relation,to
the
have
may
meaning of .lawof duty
the nature
before he
the
arrangement
of
sovereignty.
studied
earlier
the organ.
part of liis work
of
sequences
dogmatism. The logicalconof admitted
premisesare thus presentedas though
the mere
they were
opinionsof the writer. But although the
eflfect9f Austin's book is by this means
considerably
marred,
appearance
the
error
The
second observation
The
words
is
one
wliicli
subsequent writers
relates to
more
ciin
easilyavoid.
formidable
difficulty.
sovereignand subjecthave associations that are

from a
dangerouslymisleading. They have been borrowed
particular
stage of j)olitical
development,and they retain the
memories
of their
origin.They imply,or
seem
to
imply,that
18
The
:
Theory of Sovereignty
such organ, and that

community possesses some
every political
scale may be meathe placeof each community in the political
sured
by that organ'sdevelopment. I proceed then briefly

of the State are
to inqmre to what
persons the commands
of the State,
given,or, in other words, who are the subjects
of
or, to again change the expression who are the members
like so
the community and their dependents. This question,
without the aid of
others, cannot be fullyanswered
many
and I have elsewhere*
detail my
history,
expressedin some
views upon its historical aspect. I shall therefore merely
state,as accurately as I can, the general rules of modern
law upon
the subject. These rules are taken from English
true in other
but they are, I think, substantially
authorities,
European countries.
"
Personal
Thcrc
and
grouuds
two
arc
which
on
State claims
Territorial
..,..
,.
..,
juHsdictiou ouc IS personal,the other is territorial.

The firstarises from birth,the second from residence.
Both
Jurisdiction.
these
"
causes
of
subjects
limits.
the
But
may
generally combined,
are
State
usuallylive
this is not
reside abroad.
Queen's dominions.
presents itself under

its own
even
subjects,
It may,
always the
within
its
allegiance
may
double
aspect.
tlie nature
whatever
territory,
exist.
Natural-born
Strangersmay come
The jurisdiction
of
The
extent
It may
case
State thus
the
claim to follow
it
jurisdiction.
must,
all persons
other claims
to which
jects
sub-
to live within
in another
of the
general rule, exercise authorityover

found
that State's territorial
case.
though they be
from
indeed
within
natural-born
since
who
upon
as
a
are
their
diiFerent States
their
their naturalclaims,or rather their claim,over

born subjects,
varies considerably.In France,t which seems
press
to mark
the extreme
personaltheory,it has been

recentlyenacted that an offence by a Frenchman
against
French law, in whatever country it be committed, is punishable
The English practice
has been
by tlie French courts.
to decline,
with but few exceptions,
all concern
for the conduct
of any subject
of Her Majestyoutside her dominions.
In
"
"
limit of the
See
Tho
Arvan
Household," cc. xv. and xvl.
t Soo I'rof.Uolknd'a Jurisprudcuce,310 (2nd cd.).
Territorial
Exceptions to
*9
Jurisdiction,
slave-dealing,
bigamy, and homicide,
law has made
our
punishablecertain oflfences by any of Her
Majesty'ssubjectsin whatever
part of the world they are
committed.
In all other cases, if an Englishman be charged
few
some
with
he
cases, such
serious offence
any
certain
is, on
enforce
rule that
laws.
our
State
no
subjectswithin
which
as
territoryof
highway
of
in
our
own
fcmdamental
against its
even
another
present purpose
our
it is
its laws
hand,
the other
breach
every
trial
his
State.
The
nations,has
own
sea,
its
own
it suflBces to say that the
to territorial
as
nation
offenders
country,
take
to
country. On
enforce
can
common
For
of another
laws
In all circumstances
the
is the
customs.
rules
of that
against all
country of
againstthe
conditions,surrendered
the laws
accordingto
we
as
on
jurisdiction
apply to the shipsof each
Such shipsare sometimes
described
high seas.
the
floatingislands.
merely
this somewhat
that persons
means
subjectto
ship belongs.
are
On
But
the
the
and
poeticalexpression
board shipsat sea
property on
of
jurisdiction
the
country
whole, then, the followingrules
to which
the
to be generally
seem
accepted. In the first place,every State may legislate

for its own
tories
terrisubjectsin all places,whether in its own
the high seas
in the territory
of any
other
or
on
or
State,but may not execute
or
any such law in any territory
ship
upon
any
every
State
or
on
that
may
board
the
not
its
shipson
ship within
farther
exceptions I
exclusive
its
the
In
own.
second
legislatefor all strangers within
foreign mercantile
waters, but
is not
am
high
about
seas,
its harbours
otherwise.
or
over
jurisdiction
the
all persons
or
its boundaries,
on
board
territorial
Thirdly,subjectto
enumerate,
to
or
place,
and
every
State
has
property within
its territories.
The
Exceptions
toTemtorial
Jurisdiction,
j.
exceptious
"
dictiou
are
in
the
to
first
ambassadors, and the retinue of

In the
case
of such
retinues
the rule
the
of territorial iuris-
place sovereign princes,

such princesor ambassadors.
is not that of the
privilege
20
Theory of Sovereignty :
The
but of the master;
servant
consequentlyextends
it
and
so
far
personalconvenience of that master is concerned, and

The
not further.
exceptionsalso include a foreignarmy in
State, ships
licensed transit through the territoryof the
as
the
pleasurein
the
In
accordance
may
in any
in the
these
of
commission
bearing the
of
personal use
circumstances
courts
of any
persons.
If
or
of
for any
commit
they
be taken
of law
breach
their
not
country
of
foreignsovereignprince.
Nations, no proceedings
Custom
the
with
vessels
State, and
another
against any
own
offence,they
any
of
be
may
requiredto leave the country ; and redress may be sought by

diplomaticmethods, but not by any judicialremedy. But
and
waive his privilege,
any such person may, if he think fit,
invite the aid of the court or submit to its authority. In such
is treated in
the once
defendant
cases
or
privilegedplaintiff
all respectsin the same
manner
as
an
ordinarysuitor.
Law
L^w
not
umversai.
iu the
^miyergaj
kind
strict
Rules
phenomenon.
is not
term
of conduct
indeed
of
beings live together;but

rules of conduct
not necessarily
laws.
are
Law, as I have
of the State,that is,it is the deliberate
said,is a command
command
of the community, through its definite organs
established for that purpose, and enforced by these organs,
with the intent of producinga generalcourse
of conduct in or
its members
its dependents. But the State itself
or
among
is of recent growth, and the function which it exercises cannot
in the nature of things have preceded it. The
State is
and is not the oldest
only one out of several forms of society,
some
exist wherever
of the
sense
of those forms.
their ancestral
we
The
largerpart of
customs, and
still live under
mankind
without
any
approach
call
wliich
political
organization.Except in those
descended
from the Roman
are
Empire, or
the influence of the

seems
human
to
be
mechanical
empiresof
Roman
unknown.
law
There
aggregations of
the East
has
have
persons,
but out
of
countries
to which
reached, the
indeed
such
as
Europe and
trne
been
the
to what
State
elsewhere
tax-taking
the
countries
21
'The Seiticei of the State,
organizedand law-making
peopledfrom Europe no politically
empire is fonnd. Thus in Asia the depths of the great ocean
life remain undisturbed in their changelessrepose,
of hnman
of the fierce and desolating
tempests by which its
regardless
their master
have
so
master,
long as
or
is the
conduct
but whether
he is their master;
they have
whether
none,
they
their standard
Such
of their forefathers.
custom
orders of
They obey the
their old ancestral traditions.
under
life
Its units live their humble
tossed.
continually
surface is
of
tion
condi-
of Englishis very different from the legislative

activity
speakingpeoples. Yet we seldom reflect how very recent is
this
activity.The
alarm
reform
a
of
conquerors
at any
necessitated
fatal obstacle to its
looked
projectof law, and
new
a
Crecy
statute*
new
All the volumes
success.
the fact that

and
admitted
an
was
guised
undis-
with
of
often
statutes,
our
beginningunder Henry III. to the close of the

reignof George II.,do not equal the quantityof legislative
work done in a decade of any subsequent
reign.
from
The
their
"
vices
Ser-
3. Some
misconceptionhas
existed
as
to the
of the
sute.
which
services
Various
the
has
State
importantsocial institutions
though they
the
were
creatures
of
are
rendered
to
society.
usuallydescribed
law.
Thus
as
Benthamf
that
"Property and law are born, and must die

together. Before the laws,there was no property. Take away
the laws,all property ceases."
The statement
also that the
is to maintain
end of Government
at home
and
tranquillity
acceptedas an axiom. Yet it may
peace abroad is ordinarily
of these statements
be alleged that none
is
confidently
true.
historically
Proi)ertyexisted long before the State,
and consequently
before the laws which proceeded from the
remarks
State.
It
the State.
but
The
such
exists in many
now
parts of the world
It would
without
probably,although in this case we can

survive,at least in some
conjecture,
degree,the State.
observations apply to other objectsof enjoyment,
same
the domestic rights. Even
as
expectations belong to
"
Hallam's
Middle
Ages, m.
49.
f L
509.
22
the
at least
stillcharacterizes,
societies of
many
sanction.
The
Tables
Twelve
Latin
the
long
who
lost
the
before there
his
not
Arabs
Parliament,or
do
so
or
at
settled
men
to unite
in
of the
disputes
between
of
Act
an
was
them.
State,necessary
invader
repellingan
for the
their
jury to decide
this day. Nor
other command
any
The
freedom
his
his hands
out
the
of the
his court.
held
Praetor
too
before
customs
property only but
judge
either
was
men
So
themselves,
laws or of legal
part of the
were
the
before
slave.
Bedaween
induce
is,they
terized
charac-
between
sponsio existed
the
gambling table,quietlyheld
fetters of
The
that
as
nothing of
know
and
nexum
clans
Teuton
who
men
has
plightedword
for the
Regard
class.
same
and
at
The
to
in themselves
or
invading any foreignterritorywhich they happened to desire.

All this is merely to say that men
lived,and in some
once
in a condition of societydifferent from
still living,
cases
are
that in which
call political.Yet it
live and which
we
we
be denied that under
cannot
society an immense
political
in all that we
has been made
advance
vaguely describe as
It is in these
civilization.
progress
of
the
human
the State
is most
race
arises in what
question therefore
does
and
societies,
to
an
answer
conspicuous.
and
way
to
what
The
extent
produce such great results ? It w'ill

not be expectedthat,
in a singlesection of a chapterof a work
in which the subjectonly incidentally
a complete
presents itself,
be given to questionsof such magnitude.
answer
can
Yet it may
be possibleto indicate to some
the direcextent
tion
which
tend
other,that the
none
such
when
it arrives is
likelyto
take.
Although it is true that in an archaic society the

law is practically
concerned
great objectswith which
are
alreadyformed, their development is very incomplete. Tliey
must
be exercised
certis
form
and
the least deviation
even
in this form
same
community
without
of
privilege
the
"
in
verbis^
available
or
the
only
few
commercium
as
fixed and
or
mistake.
between
was
complex
Tliey are
members
strangers to whom
"
often
the
of the
special
sparinglygranted. Even
The
in the
of its
case
various
phase of human
improvement.
an
then
and thus littleroom

activity,
which
extent
that
custom
The
blood
domestic
of the
consequences
Formless
First, such
"
for the
Formal
method
clausiiien,and
thus
larger coiunumities
place;
between
is, it increased
the
hands
during
life and
enabled
own
againstperson
only internal
and
peace
promises between
to make
one
influence varied
in
affairs.
being
great
and
thus
Fourthly,it took
custom
in
no
vidual
indiown
into its
of vengeance
but
property. It thus secured not

good order,but also the fulfilment
persons
of various
who
had
otherwise
mutual
no
these
immediate
changes were
of slow growth, and was
was
competing social forces. Its
in different cases,
other
tracts
con-
its
measure
and
in the
same
according to the degree of its own

it was
it gave to the community
successful,
placed such an impulse towards both wealth
as
and
dealingwith
different times
it was
take
and
specialrelations. But none of

in their operation. The State
but
after death
merely the terrible
not
all offences
When
of
number
Thirdly,it substituted
community.
in relation to its
most
onerous
whom
was
energy
at
for the
way
wills for the fixed customary rules of
property both
of
the intention of the
and exchange could

co-operation
it strengthenedfor all j)urposes, both internal
and
and
own
of
Secondly,it substituted citizens

rendered
possiblethe existence of
that
external,the whole
laws
kinds
transactingall
of
the
substituted
of the older time.
ceremonies
persons
of
Government
I think
important
a
moderately
the follov\ing
enumerate
we
to
the most
growth
ordinarybusiness; that is,it substituted

partiesas expressed in any reasonable
for
life insecure
realize.
dimly
if,among
but
strong and orderlyGovernment,
advantages :
the
left for any
was
rendered
too
be far wrong
cannot
we
feud
happily can
we
only of
it is
interested.
persons
fathers
the house
probable that at least in any

of
further requiredthe consents
controlled every
Further,custom
act ; and
importanttransaction
23
the State.
of
members,
own
could
community
JServiees
circumstances
the world
has
case
at
power.
in which
and
ever
wellseen.
24
Theory of Sovereigntyi
The
"
TheOmnipotence
of
material
4. It is Hot
to my
""
"".n
the motives
inquire into
State.
"-"
i-i
which
by
to
present purpose
the
men
are
maucea
form of government.
acquiescein any particular
Their conduct
rarelyproceeds from any carefullybalanced
considerations of expediency. They are influenced sometimes
desire to be ruled
by what we should call the superstitious
the
of some
particularfamily. Sometimes
by a member
to
adopt or
to
influence
dominant
is
reluctance
intelligent
for evils which
grounded
is almost
fear
and
where
in
which
destruction
impossible.
inabilityto
an
as
can
belief that
sometimes
it is
exchange evils which they

only dimly foresee,and a
to
they
custom
mere
is easy
that
the motive
Sometimes
ofier
but
successful
any
an
know
well-
tion
construcis
simply
resistance,
yoke of a
conquered country is held under the

harmost
of a pasha or a major-general. It
or
a pro-consul,
is not necessary
of constitutional disturbance
to inquire into cases
of the irregular
of an adventurer,of a
supremacy
discontented
minorityor of the inadequateexpressionof the
will of a majority. All such questionsbelong to a diiFerent
department of study. The super-organismnot less than the
organism has its pathology as well as its anatomy and its
the conditions
physiology. But before we can understand
of disease,we
of health.
must
ascertain
the
standard
Accordingly,I assume, as the type or normal form of a society
definite
makes
prevails,an
political
organs.
laws
whatever
I have
law
for its
those
Such
force
organs
can
particularobject.
community
guidance through
own
may
said,the community
its entire
be
be.
deliberately
its proper
organs,
In such
circumstances,as
machinery by which
possesses
directed
with
community
autonomous
without
hindrance
to
any
As
regards,therefore,
any singlemember
of the community, the law is irresistible. He cannot
struggle
tlie
whole force,physicaland moral, of the society
against
in which he lives. It is this inability
of any privateperson
to resist in any
by
the
circumstances
the
public power
expressionthe omnipotence of
the law.
that is meant
26
for
unchanged
with
in
Scotland
of Lords
the later Act
livingwhen
were
Church
Established
Church
same
disendowed
was
"
ThePracticai
5. It docs
absolutc coutrol
Legislation,
and
the
decided that
present reign judicially
prevail. In Ireland, within the life-time
must
the
Treaty of Union,
of the
passed
was
in the
who
persons
declared
relatingto lay patronage
Act
an
after the Union
four years
within
Yet
ever.
contravention
direct
House
of
The
the
bccausc
and
the persons
ovcr
had
that
disestablished.
foUow
uot
of Union
last for ever,
to
was
and
Act
State
the
has
property of
its
subjectsthat such power is exercised without restraint. In

for protection
every well-governedState provisionis made
but against the Government.
not only by the Government
which is one
of the leadingsubjectsof conSuch provision,
Government
Etitutional law, appliesto the Executive
only;
and the fact stillremains
is always beyond
that the legislature
Law, which suppliesthe machinery for
any legal control.
directingat its will the national force,suppliesno machinery
by
the lawful
which
But
controlled.
not
exercise of that force

the less is the power
although the
influences
to law.
rarelydo
There
Men
is the
partlyof
to which
all that
it is
can
be limited
actuallycontrolled,
subjectdo
they have
or
belong
of doing.
not
the power
great force of public opinion,itself the result
the
historyof the people,partlyof their traditions

and
customs, partly of the existing state of knowledge,
partlyof the existingstandard of morality. All these and
other influences determine
insure
more
power
shall be exercised
or
less
the
discretion of the
completelythat
in
in
measure
nation,and
generalthe legislative
consistent
with
the
Nor
is this all. It is not
prevailing public sentiment.
checked
merely that the legislators
are
by the dread of the
disapprobationof others or are encouraged by their approval.
of the community, and their
They are themselves members
habits and
purposes
are
formed
those of their fellow-citizens.
under
the like influences
as
They spontaneously,therefore,
The
their
use
their
derived
In
institutions the members

various
the
in
powers
originalpowers.
from
Political
Princijile
oj
^'
Liberty.
which
in
way
they use
representative
with
countries
of the
bodies are usually,

legislative
keenly sensitive to the prevailingtone
causes,
of
But
these
which
do not
matters
are
public sentiment.
should that theory
belong to the theoryof jurisprudence,
nor
be blamed
because it omits
subjectsof which it never
pro
fessed to treat.
Jurisprudence deals merely with the form
of law, and from that stand-pointdeclares that every independent
the
community has, through its legislative
organs,
laws it pleases,
to frame
whatever
whether
these laws
power
be wise
foolish,beneficent
or
conducive
cruel,conducive
or
vice.
It does
life.
It neither
to virtue
or
profess to treat of the art

of legislation,
and
it therefore
intentionallyomits the
consideration
of those numerous
and complex and powerful
forces which
form the total of national character
collectively
and
to
national
forces
under-estimates
not
denies
the
existence
of such
their
importance. It only asserts

the obvious fact that these forces are
not
law, and do not
within
therefore come
the sphere of jurisprudence. It has
been imputed as a fault in Comyn's Digest that the
never
very learned author simply states that the king has the sole
nor
authority
enumerate
Royal
declare
to
discretion
upon
like
the
manner
character
of
work
be
must
"
which
he
by
does
which
of that momentous
written
was
content
to
the
is
power
law,
upon
government.
ascertain
not
the
and
In
precise
the counteracting
investigate
practicaloperation.
we
limit its
6. It is iudccd
that
influences
constitutional
sovereigntybefore
influences
ThePrincipie
famous
and
peace,
obvious
most
principlesof
we
of
or
in the exercise
That
controlled.
not
the
even
war
the primary function of the State
Political
.
to
Liberty.
domestic
which
protect
evil-doers.
these
againstthe
members
its members
But
this is
stand
State itself.
against foreignenemies
not
in need.
Means
must
the
or
only protectionof
They requireprotection
be found
of guarding
28
The
:
Theory of Sovereignty
The
only insecurity,"
guards.
says J. S.
paralyzingto the active energies
Mill,* which is altogether
from
of producersis that arisingfrom the Government
or
all other depredators
persons invested with its authority. Against
It becomes
there is a hope of defendingoneself."
that while the power
of the
then to provide,first,
necessary
it shall not be more
State is suflScient to efi"ectits objects,
"
against the
very
"
than sufiicient for that purpose ; and second,that that power

shall not be appliedto any other objects. These limitations
State,both
regards their extent

and their direction,
constitute that which is termed political
consists in the total
liberty.It is idle to suppose that liberty
Such a state of thingsis anarchy,
absence of all restraint.
and anarchy is not liberty. Political liberty
impliessuch a
well-ordered arrangement of the political
organs that both
action which
is sought shall be secured,and
the combined
of the
the powers
upon
that the reasonable
as
limits of that action shall not be exceeded.
expressionsare indeed vague, and admit of many

varieties of degrees. Nevertheless,
in practiceand under
favorable conditions,
a
gradual advance has been made in
of all in England, to unite the
several countries,but most
desired conditions.
Even in England the attainment
of the
These
ideal standard
has
much
is stillfar remote.
But
in
other
no
country
been
done to insure that the State

practically
shall have all the powers
of sovereignty,
and that it shall
exercise these powers
with wisdom
and with justice.
so
The
The
Func-
tions
of the
most
sute.
the
cannot
be
solution.
and
difficult,
most
,
",-,
preciselimits
said that
of
asked
time
same
",
to assist
and
those
which
"
PoliUciU
that
to determine
the State.
It
yet received complete
distinction
must
be
and immediately
directly
matters
to restrict the
or
is
the
the scope of jurisprudence,

nevertheless furnish some
help in the
those matters
the State
of
beyond
jurisprudence
may
We
shall
presentlysee
inquiry.
concern
",
the functions
tliisproblem has
It is indeed
between
the
",
important, of all social problems
but
made
at
-
in which
action
the State
of individuals.
1. 130 (4th oU.}.

fioviiouiy,
is
To
FxtnctwM
The
the former
class
classes stands
the State and
individuals
claim
present purpose
these duties may
duties.
those
As
to
its commands
and
known
are
persons,
as
the State should
concern
in
itself and
its
to
these arrangements
interfere with
should
and
the
the absolute
issues
the claims
or
seek to extend
not
which
matters
For
the State
reference to the wants
beyond those
immediately
interest.
an
be classed with
duties,the State
particular
interference with hondjidecontracts
As
which
duties,then, in which
without
of individual
commands
duties
belong all the duties and rights

these two
to
Between
particularpersons.
class of general duties,in which
the mixed
relate
both
those
To the latter class
absolute.
which
belong
29
the State.
of
its
good faith directly

own
proceedings.
abstain
from
all
wills,except where
contained
provisionfairly
within the former class of duties.
Where
legislation
is needed in the absence of any privatedisposition,
the State
should so far as possible
follow the prevailing
custom.
The
One danger is that matters
practicaldanger is twofold.
which are merely of private rightshould be included under
The other danger is that absolute duties
public duties.
should be multipliedbeyond the point which the reasonable
The action of the State
requirementsof the State demand.
is indeed
a
great force ; but the greater the force,the
greater is the care that is needed in its application. It by
follows that because
no
means
some
objectis desirable it
should on that account
only be the subjectof legislation
:
much
less does it follow that everythingwhich appears
to
to be desirable should be carried into effect by legalpains
us
and
penalties.
I know
in that test I think
law
That
of but
that both
one
some
test in such
and
reason
the
cases
and
earlyhistoryof
test is the
questionwhether any proposed

absolute or general duty does or does not directly
concern
the well-being
of the State,or whether
the power
which the
concur.
Executive
seeks is
or
is not
reasonablyrequiredfor the
Burke*
in the circumstances
proper
observes that every nation

"
UL
253.
of the
case
exercise of State functions.

has
some
particularsubject
30
which
in
forms,
Romans
its
form
concrete
Among
taxation.
arises
from
survives
the
discussions
ceaseless
the
although
sight
of
practical
them,
of
are
What
he
needs
effect
of
legislation
when
it is
for
rule
above
is
their
the
on
and
the
hints
of
direction.
be
law, the
archaic
But
the
sought
may
full
all
which
elsewhere
such
to
of
Jurisprudence.
.oJ"^.
in
the
which,
basis
I
of
have
principle.
of Political
than
society.
and
that
development
lose
explains
think
seem
and
to
of
the
of
principles
history,
afford
furnish
I
least
tradition
government,
societies,
guidance.
at
of
student
principle
It
sentiments
never
advanced
outline
the
form
the
self-
arbitrary.
these
to
use
general
some
the
classificationof
Analytical
little
of
right
and
can
the
Among
is not
best
statesman
practical
indicated
must
the
sufficiently understood,
The
same
But
expresses
electing magistrates.
the
causes,
on
of
was
subjects
occasion.
actual
liberty.
right
it
historical
purely
the
such
and
honour,
of
the
was
of
choice
The
idea
forefathers
our
of
point
abstract
standard
ideal
this
its
it were,
as
of Sovereignty.
Theory
The
Economy,
in
point
such
treatise
the
ciple
prinon
The
Source
of
III.
CHAPTER
EVIDENCES
THE
The
"
Source
In his
1
.
31
Late.
OF
historjof
the Twelve
Tables
the
LAW.
scribes
Decemvirate, Livy de"
as
Fans
publici
omnis
perhapsthis passage that gave rise

to the well-known
juris." Like most
expression,^'"/ontes
either the
metaphors,tliis phrase is ambignons. It means
of the authorityof law, that is the legislator
source
; or the
Were
of our knowledge of law, that is its evidences.
source
it not for this ambiguity, the subjectwould
present no
So far as regards the first and proper
specialdiflBculty.
privatiquejurist
of the
sense
express
command
was
expression,there is no
of the
command
its proper
It
is
organs
is the sole
of the term
standards
law
of
of law.
of law is
source
I have
readilyanswered.
But
a
alreadyshown
to the commands
conduct.
for doubt
community duly
source
room
notified
that the
through
whether
questionthat
such
is less
that the limitation
of the State excludes
other
Revelation, morality,expediency,
men's
conduct ; but
concurrently
govern
is law.
of them
The same
none
reasoningwhich leads us
these standards
to distinguish
from law applieswith even
Law
is essentially
but
a command,
greater force to custom.
uterUium
mores
consensu
custom,
comprobati^"depends
simply on the free will of those who observe it. The
may
or
separately
"
relation of
custom
law
to
is
so
close,and is,as I think, so
and the weight of the authorityin

generallymisunderstood,
favour of the proposition
which
I disputeis so great,that I
to oflfera few remarks
the subject.
propose
upon
Justinian*
in his
Institutes,"declares,although it is
that customs
noteworthythat Grains is silent on the subject,
approved by the consent of those who observe them imitate
"
"
L 2, 9.
32
The
law.
Tlie former
that
latter connotes
"
the
But
further.
doctrine much
and
custom
is
law
accept the doctrine of
may
have
may
that law derives
It observes
it is law.
law, but that
imitates
misgivingsas to its
in the Digest* carries that
passage
It in effect alleges,
not that custom
Institutes,"
although we
practicalvalue.
Law
uniformityof conduct ; tbe

uniformityas the objectwhich it desires
denotes
we
far,therefore,
So
to attain.
of
exist between
resemblances
That
certain.
Evidences
people,and that it is
whether
immaterial
that will be expressed by their formal
held under the
it was
vote or by their conduct.
Accordingly,
Roman
system that laws were
repealednot only by express
I need
but by simple desuetude.
not repeat the
enactment
arguments by which Austinf refuted this fallacy.I will only
country ciTstoms are generallyobserved
say that in every
state
which are not laws ; that customs
which in their original
laws ; that when
observed have become
were
a
only partially
custom
becomes
law it binds all jjersons, and not those only
its force
who
had
solelyfrom
assented
the will
it
to
of the
by their observance
and
that
custom, however
be deemed
against the
of Parliament.
true
generallyadopted,can
of an Act
express provision
that the
conversion
; but
of custom
into
no
to be law
law is of
It is
frequent
and only
placeJ when
when the custom
is adoptedby the Legislature
and is enforced
in adopting
by its authority. There is no greater difficulty
by way of reference and in terms of general description
a
than there is in adopting in like manner
a
body of customs
body of laws. Parliament has given legal effect to the then
of the Church
existingcanons
; it has directed the Indian
duced
judges to have regard to the usages of India ; it has introoccurrence
such
into New
conversion
South
England ; and
existinglaws
of France.
these customs
and
in existence
to which
*
1. 8, 82.
it has
Wales
takes
the
confirmed
then
in Lower
But
these laws of
t L 666 " je^.
Canada
although these
England and of
long before the enactment

have referred,
they never
| See
"
The
of
existinglaws
of any
could
the
canons
France
then
and
were
of the statutes
of
themselves
Arân Household," S9S
tt se^.
34
Evidences
The
distinct.
I do not
of social
is very
in social
the
law, as
Digest
contends,all law
but
it is
one
admits
of
to
It does
branch
that
tend
not
to
not
sociology,
in existing
study than
however,
success,
writer*
recent
which
successful
Its
branch.
society
extent
an
Jurisprudenceis
more
of
social life is maintained.
that, as
or
it,and
of many
out
one
element
insist either that all custom
if we
is custom.
of
such
other
any
than
more
and
argues,
branch
circumstances
is the exclusive
phenomena.
facilitate that examination

is
separate examination
of
unusual
Law
existingcondition
is determined
admits
law
But
it is
the
in
which
by
conduct
human
allege that law
cohesion,or that
influences
of
as
almost
a
tributory
con-
exact understandingboth
upon an
and of what it declines to consider.
study depends
of what
The
of the
it undertakes
ledge of Law.
The
that
command
authority,our
may
there
knowledge
is derived
authorityissues
of legis"
source
from
of the
commands
various
sources.
and in express terms.

directly
difiiculty
except such as arises in
be notified
is
In
this
its
Or
interpretation.
case
one
"
.'
lativc
Know-
which
thcrc is but
" 2. Although
Sources
no
there
be
customs,
Mr.
Leslie
the
or
the
laws
Legislaturehas adopted as a
whole and without any specific
enumeration,and which must
therefore be ascertained and compared with other existing
of judicial
legislation.This process involves a long course
authoritative exposition
from the
decisions or other
; and
materials thus accumulated
made and rules
are
generalizations
Thus both statutes as interpreted
of law are extracted.
by
ascertained and established by the
the courts,and customs
as
furnish new
and improved data by which in
same
authority,
subsequentcases the judgments of these courts are directed.
Further,the law providesthat under certain conditions and
the laws of foreigncountries may
with certain exceptions
for
certain purposes
be accepted as having the force of law in
our
country. This courtesyboth towards the foreignLegislature
and the foreigncourts in no way impliesany political
of another
country, which
may
Stephen, Science
of
Ethics,146.
The
Sources
30
of the Knowledge of Law.
It is simply a mark
dependence upon tliat country.
goodwillto neighboursof like habits and institutions to
and
of doing complete justiceboth in
means
a
own,
of
case
abroad
citizens who
own
our
and
in the
case
of
have
entered
who
foreigners
into
are
of
our
the
engagements
resident in
our
country.
own
In like manner,
and subject
and under certain conditions,
the law permits that the agreements
to certain restrictions,
between
shall,so
parties
the force of law.
Under
with
other
been
accumulated.
far
these
as
this power
concerned,have
are
parties
in his dealings
each man
is
permittedto no inconsiderable extent to be

his own
lawgiver. But it is necessary to ascertain in the first
place whether
agreement has complied with
any particular
the conditions upon which alone the law will recogniseand
enforce it,and in the second placewhat the true intention of
the parties
On this subjectalso the assistance
actuallywas.
is required,
of the courts
and a great body of decisions has
men
Another
direction
in which
law
may
of publicbodies.
sought is in the delegatedlegislation
Legislatureoften authorizes various associations of men
make
as
rules for their
against the
Thus
members
colonies have
councils
statutes.
and
have
own
of the
by-laws.
Trading companies
other
The
to
government, and givesto these rules

association
the force of law.
their local Acts of Parliament.
their
be
Academic
have
bodies
Mimicipal
have
their
their articles of association,
societies their rules
or
regulations.
These
of subordinate
differ in their names, but they

legislation
They imply that powers more
or less
agree in their substance.
extensive
of legislation
have been conferred
the particular
upon
is
body by the authorityof the State. Such legislation
the act of the State itself through its agents authorized for that
the agents keep within
so long as
; and, consequently,
purpose
the limits of their authority,
their acts are
equivalentto an
to consider in detail each of
ImperialStatute. I propose now
cases
these classes of
e\^dences,
namely, statutes,customs, foreign
laws,judicial
decisions,
agreements, and delegatedlegislation.
c2
36
Evidences
The
Statute
" 3. The
Law.
simplestand fullest evidence

declaration of the Legislature,
or, as
is the direct
a Statute
indifferently,
Act
Law
of
or
Act
of Parliament.
of the law
we
When
it
term
such
an
is
passed, nothing remains but to ascertain its true

meaning. This task,however, is not always easy.
Partly
from
partly from the necessity
ordinary literarydefects,
do not always recognise of
a
necessitywhich legislators
reading togetherthe various Acts upon the same
subjectso
all from the like
to give their full effect to each,above
as
necessityin regard to the common
law, serious difficulties
arise in the work of interpretation.The rules of
sometimes
form
a
interpretation
specialbranch of law, and are not
within the scope of my
present undertaking. It is enough
to say that an Act of Parliament,when
it is duly passed,is
according to its true intent conclusive evidence of the law.
is the effect of a statute
Such
if it be duly passed. It is
"
"
therefore
necessary
is not
statute
to consider
duly passed and
defect in its enactment.

can
statute
be ultra
in which
the circumstances
the
any
words, the questionsarise,
In other
vires,and
of
consequences
the courts
can
go behind
statute?
The
questionsrequiresa little
of a sovereignState,that is of a
subjectto any external authority,
to the first of these
answer
explanation. In the case

political
community not
its legislation
There are no degrees
be ultra vires.
can
never
in sovereignty;and
has
when
the will of the community
been expressedby its proper
court can
disregard
organ, no
quently
it,and no force can lawfullyimpede its ojieration.Consein England the authorityof an Act of Parliament
is never
measured
disputed,and its provisionsare never
by
In the United
standard.
States,on the other
any external
is
hand, although the principleis the same, its application
different.
easy
is not
that
of
to
decide
sovereignty. It
inquiry. But this much
the organ
the
It is not
organ.
The
what
in that
is unnecessary
is
standard
certain,that
of
now
country
to pursue
tlie
legalityis
is
Congress
the written
Statute
constitution,and
are
of
amended
an
methods
course
can
nor
any
entirelynew
The
will of the
England
somewhat
the
Supreme
the
which
by
There
Court.
constitution
that,if it were
sovereigntycould be
of
community
is
uncontrolled
as
be
can
desired,
doubt
one
organ
by
that
with
inconsistent
statute
every
be set aside
constitution may
37
Law.
created.
as
it is in
the organ for the expressionof that will is

obscure.
complicatedand somewhat
but
will entertain
the courts
Upon the questionwhether
which
an
professesto be an Act
objectionthat a document
of Parliament
is not reallysuch the English Reports do
nearest
not furnish any definite authority. The
approach
to an
authorityis a case* that occurred in the time of
Charles II. An objection
to an Act passed by the Convention
taken on the ground that that body had not
Parliament
was
been summoned
not therefore a
by the Royal writ,and was
not
Parliament.
The objectiondoes
formidable,
appear
liament,
because,as the king had acceptedthe Convention as his Parthe omission
of the writ was
only an irregularity
held to cure.
the Royal ratification might be fairly
which
and seems
The court refused even
to entertain the objection,
in
bound
to have
by any instrument
thought that it was
which His Majesty professedto declare his will in ParUarBut although there is no conclusive legalprecedent
ment.
the subject,
arisen in
on
questionshave sometimes
grave
and the rules concerningthem may now
be regarded
practice,
settled. When
of the rules of
breach
as
definitely
any
Parliamentaryprocedurewith regardto Bills takes place,no
advantage can be taken of such breach aft^r the Bill has left
the House
it forms
which
in which
a
the
good ground
BiU
control of its
to
is
occurred,although in that House
of
objectionup
passed. Each
the other
It is with
branches
"
See
its
other
which
the
has
the exclusive
it arrived
petent
com-
at
its
its processes,
Legislatureare
Hist. U. 316 SoU.
at
moment
authorityis
not with
results,
of the
HftUam, Const
to
House
procedure,and no
inquireinto the steps by
own
final conclusion.
that
it has
concerned.
38
Evidences
The
But
when
Bill has
either in mistake
final form
or
practice,* when
is to pass
in
of the
Such
serious.
more
the
such
form
validatingAct, and
is in
the
the
so
The
incurable.
has
its
is much
case
event
earliest
to in
assented
fact
untoward
at
Royal assent,
Houses, the
two
error
an
any
due
received
inadvertently
without
having been
either
by
of Law
occurred,
possiblemoment
question has
never
the
to
come
courts.
recent
Statute.
case
There
authorityof
further illustrates the supreme

is
frequentlyobserved
of the law
maxim
no
clear
more
or
more
practicethan that of ^^Fraus vitiat

omnia.'''' Yet, as this case
of fraud
an
shows, even
allegation
will not induce a court of justiceto go behind an Act of the
A firm of solicitorsf
Imperial Parliament.
brought certain
successful
proceedingsfor their costs against shareholders in an unthat
defence was
The
main
railway company.
there
shares
it
and
not
was
in
shareholders
or
contended
was
been
had
never
therein.
that
such
any
In
support
had
Parliament
been
any
or
company
of this
position,
induced
by
fraudulent
was
"
recitals to pass the Act under which the company

formed.
On this contention Mr. Justice Willes observed
These
do not
Acts
of Parliament
sit here
are
the law
of this
land,and
"
we
It was
appeal from Parliament.
once
said,I think in Hobart, that if an Act of Parliament
to create a man
were
judge in his own
case, the court might
disregardit. That dictum, however, stands as a warning
rather than an
We
sit here as
authorityto be followed.
of the Queen and the Legislature.Are we
servants
to act as
regents over
the Queen
as
what
is done
Lords
authorityexists.
of
court
and
If
by
Commons
an
Act
with
Parliament
?
deny
of Parliament
tlie consent
that
has been
any
of
such
obtained
improperly,it is for the Legislatureto correct it by repealing

it ; but so long as it exists as law, the courts
to
bound
are
obey it. The proceedings here are judicialnot autocratic,
*
8eo sir T. E. May's
t L"e
V.
Bude
and
rracticc
of rarliuniuiit
Torrington Junction
500.
(titlicil.),
Railway Co.,
L. R. 6 C. P. 570.
be if
they would
which
The
them.
shareholders
persons
to the
may
be
take
the
passing into
to it."
objections
"
ctMtomary
instead
Parliament
makes
If it
not.
of administeri
these
does, there
is
an
and
the
case
needful
rules
shaU
is, the
prevent the
to raise any
now
State
existinglegislation.That
a
to
adoptscertain
adoptionis subjectto
4. "Where
be unreasonable
shall not
is too late
law, it
whole, such an
interpretation.These
rules of
such
laws
steps at the proper time
proper
from
Act
of
Act
it does
or
make
question. If it does not, that is a matter which

raised by a plea to the scire facias. Having neglected
end
to
could
we
"J9
Law.
Customary
customs
the
customs
be inconsistent
restriction which
in
with
suppliesin
law
common
ordinary
provide that
not
as
similar
cases
be
far as the same
so
can
by the words
Such restrictions,
or
by equivalentterms.
applied therein,"
needful though they be, give a wide latitude to those who
What
administer
the law.
is reasonable,
says Lord Coke,*
"
statutes
express
"
is not
but
of
of
law."
understood
artificial and
judges
the
be
to
In
meaning
true
legal
these
ascertain
to
of every
unlearned
warranted
reason
circumstances
what
and
man's
it is the
reason,
by authority
duty of the
within
customs
come
pariiicular
intent of the legislative
adoption.
of the
decide whether
a
They must
given usage be one
of England, or whether
it be reasonable,
good customs
of the community
or
whether,having regard to the circumstances
in force therein, the
and to the
other
legislation
that it should
be supposed to have meant
can
legislature
fairly
be adopted. When
has thus been judicially
a general usage
ascertained
which
and
of
courts
English law
of
"
Co.
t See
Goodwin
r.
62
bound
justiceare
contains
custom
Litt
p"r
established,it becomesf
into
abundant
law.
to
know
instances
The
part of the law,

and
to
recognise.
tion
of this transmuta-
common
law
of
consists
a.
Lord
Campbell, Brandao
Robarts, L. R. 10 Exch.
r.
at
Barnett, 12 CL " F. at p. 805
p. 346.
and per Cockburn
J.,
40
The
Evidences
of
Law
ascertained and recognised.These

judicially
and are now
have dropped their original
customs
description,
restricted
The word
is now
called emphaticallylaw.
custom
which
in legallanguage to specialcustoms
cular
prevailin partiand is contrasted with those generalcustoms
localities,
the
from which they derogate. The Law
Maritime
means
generalcnstoms
law, that is the
general maritime
in navigation,
observed
customs
England ; and is in truth,as it has

been judicially
than English law,
declared,*
"nothing more
in the
different measures
though dealt out in somewhat
Common
Law
and Chancery Courts, and in the peculiar
Law
Merchant
is
of the Admiralty."
The
jurisdiction
hardlyeven a custom, but is rather,as we shall presentlysee,
the application
to the construction of mercantile contracts of
Thus
all these customs,
an
ordinaryrule of interpretation.
administered
as
whether
of the
enforced
by
command
as
they
land,
the
successive
of the
or
officers of the
of the State
exist
now
in
are
of the
or
sea,
market,
and
of the
pursuance
these several branches of the law
the
result of
in
State
the
in which
manner
generationsof judges have performed their

5. Another
"
Foreign
are
class of
the
evidences
of
duties.
law
is
I have said that law appliesonly to

Foreign Law.
an
independentcommunity, that is a community which is not
of any external authority.It follows,
subjectto the command
that foreignlaw cannot
of itself be either a source
therefore,
or
an
evidence
of law in any
separate communities,
observed
between
with
more
or
other
various
are
the term
is
law
known
customs
less exactitude.
European nations,or
these customs
community.
as
nations
exist
In
of
International
the
As
between
which
are
intercourse
European descent,
Law.
This
use
of
metaphoricaland often misleading. Law

be predicatedof mere
cannot
which
customs
not even
are
true commands, mucli less the commands
of any competent
State.
Some
of these customs, especially
tliose which relate
to the sea, have
been accepted by most
nations,and form
"
Per
Willos
J., Lloyd
r.
Guibcrt, L. B.
Q. B. at p. 123.
4""
Tlie Evidences
because, in
the
French
is administered
of
circumstances
Law
society,sucli a
policyis expedientto themselves.
When, therefore,
foreign
laws are administered
in any court, they are
so
administered,
not because they are foreign,
but because,although originally
national.
Thus
become
means
foreign,they have by some
law
because
not
countries
their
and
customs.
that
expresslystipulate
may
with
reference
Quebec
in the
or
Mauritius,
these
because, when
rule, they obtained a grant of
Again, in contracts,the parties
law, but
British
under
laws
own
in
it is French
came
of colonial
their
shall
agreements
be
strued
con-
specificlaws or usages.
That which
they may expresslystipulatethey may by their
is
the foreign law
conduct
tacitlyimply. In such cases
be
imported merely as a term of the contract, and must
in the same
is interpreted.
interpreted
as
way
any other such term
But
the
its
whatever
of
court
administers
by
by
it
certain
to
method
foreignlaw
the
country into which
the
brought
enforces it
and
procedure,
its own
accordingto
it is
is introduced,
remedies.
own
" 6. When
Authorized
induced
system of rules of conduct
one
is supcr-
pre-existingsystem, there
The
is obvious need for interpretation.
two
systems must
be made
to fit. That
is,in determining the intention of
the Legislature,
be had
not
regard must
simply to the
ofLaw.
actual
provisionof
the
old
law
or
the
earlier.
the
old
It
law.
the
another
upon
the
is not
and
most
law, the
Judges must
of all where
of the case, not

tlie
by
the
one
two
is
customary
lata,be
custom
by
old
new
Law,
custom.
exposition. This
authoritative
kinds
to
the lex
or
the
its relation
the
tlie
construe
law
new
to
whether
consuetudo
of evidence
need
co-exist,
of them
easilyascertained.
judicialfunction
have said,the common
but
material
express
law, and the

therefore,
greatlyneeds
is especially
felt when
law
new
is, from the nature

Thus the importance of
apparent both
law, and
in
in
ascertaining,as
construingwith
reference
Authorized
43
Law.
Exposition of
provisionsof the statutes. The

which
has practically
cause
given to the decision of the
weight is the rule that every
judges their almost legislative
ing
decision until it be overruled by superiorauthorityis bindit and upon
all other
the judge who
upon
pronounces
the ultimate court
judges of equal or inferior degree ; even
of Lords
of appeal,the House
itself,*is bound by its own
decision.
The policyof this rule is the urgent need of certainty
in law.
It is generallymore
important,said Lord
to the law
ascertained
so
the
"
Cottenham,t that the
the rules which
speaking of
observes
is of less
that
And
shall
Lord
"Westbury,^
the transmission
govern
that
of property,
in the abstract
justiceor injustice
the community than that the rales
their
"
importance
themselves
be settled than
should
correct."
theoretically
be
it should
rule of law
be
to
and
constant
In
invariable."
other
be
is the gravest defect to which a law can
words, uncertainty
be avoided.
ingly,
Accordat whatever
cost
exposed,and must
the
as
a
previous decision " binds a judge as much
of
words
of
Act
an
Even
of Parliament.
combination
new
decision and
opinion
guide him, a judge is not at liberty
his own
notions of expediency and
law system, said a distinguished
he has
circumstances,when
of his
no
predecessorsto
to decide merely upon
of justice. Our common
judge,!consists in the applying to
"
those
in
rules
of law
new
which
even
no
cumstance
of cir-
combinations
we
derive from
legal
principlesand judicialprecedents; and, for the sake of

attaininguniformity,consistency,and certainty,we must
apply those rules,when
they are not plainlyunreasonable
far as you
possibly can the authority of all
as
have
decisions
later
interpreted and
although
may
unavoidable
limited
the application of earlier, they ought
not
necessity) to
(without
some
concurred
in a partictilar
be treated
lords who
learned
which
reasons
as
conflicting-. The
decision
have
have
the same
not
degree of authority with
assigned for their opinion
may
with
sound
the decisions
consistent
themselves.
which
is right and
principles
A judgment
*
former
"
It is your
decisions
the
upon
construed
facts
Lordship's duty
of this
and
House
circumstances
to maintain
and
of
the
case
which
the
House
have
to
decide
need
not
be
circiunstances,
for a substantially different
state of facts and
laying down
a rule
itself required may
though some
propositions wider than the case
appear to have received
from
those
countenance
who
then
advised
the House."
Caledonian
Railway Co. r. Walker's
Trustees, 7 App. Gas, at p. 275, per Lord Selbome.
Cr. 617.
r. Prvse, 4 Myl. "
t Lozon
Sc, App. Gas. 405.
r. Hamilton
I Ralston
; 4 Macq.
R. " C. Co., 27
instance
of this r\ile,Chapman
r. Monmouthshire
J See, for a remarkable
as
"
L. J. Exch. 97.
liSir James
Parke, Mirehouse
v.
Renuell, 1 CL " F. at p. 546.
44
The
Evidences
of
Law
and
which
at
abandon
in
to all cases
inconvenient,
them and to
to reject
liberty
those to which
they have
because
think that
we
reasonable
There
them
are
rules
other
forms
books, of
of the
state
of the
as
not
convenient
and
exposition.One
few
some
law
are
we
devised."
of authorized
which
and
analogy to them
judicially
applied
not
are
all
been
not
ourselves could have
we
is text
evidence
author
as
the
arise
at
the
received
are
time
when
of
as
the
general,however,text writers have no

merely those of
specialauthority. Their opinions are
the
experts,and depend for their value in each case
upon
of the author.
Another
such form may
be found
reputation
in the Responsa Prudentum
of the Roman
law,an institution
which to us is so strange,but which seems
peculiarto or at
most a survival of archaic society. In modern
law, however,
the authorized
expositionrests exclusivelyupon decided
observations suggest
From
this stand-pointsome
cases.
In
wrote.
themselves.
opinionof
The
the
first is that
judges,or
the
I should
standard
is the
official
rather say their conduct
the exercise of their office.
It is not what
its
observation
in
judges say*
but what
the judges do.
Tlius an opinion,!
though it be
to the judgment of a court,is a
erroneous, if it conclude
judicialopinion,and binds other judges. But an opinion
given out of court,or given in court if it be not necessary
to the judgment, is extra
and has no legalefficacy.
judicial,
It is simply the opinion of a lawyer of repute, and its
of the speakerbut upon
weight depends not on the position
own
of the
The
merits.
judges is
second
not
to
the
is that the business
or
promote juralscience,
to make
rules,but to decide cases.

They are above all things
Their office does not relate to any si)ec'ulamen.
l)ractical
tive question,
much
less to any matter of legislation.
They
hear
and determine disputes. The Courts,
are
appointedto
it has been said,
J do not deal in definitions." Neither,it
be added,do the judges make
laws.
A judge supplies
may
materials
for generalization,
but he does not necessarily
"
Uale's Hist
of the Common
Lord
reiizance, 5 App. Cos. 231.
) l-er Maule
Law, OO; Vaugh. 382.
See per
J., 7 Scott N. C. 006.
45
Agreements.
materials
generalize.His
are, from
fact that he
the very
supplies them, trustworthy, but his generalizationsare

subjectto criticism. In the third place,we can thus appreciate
maxim
the force of the Roman
non
ex
regulajus
sumatur, sed ex jure quod est regulaJiat" The rule is the
"
the
evidence, not
to
compass,
the
law
Lord
use
but
and
decision,
rule
the
is
Like
the
mariners'
it points out
illustration,*
Bacon's
make
does not
law.
of the
cause,
authorityprecedesthe
cisions.
defrom
a
generalization
many
have been skilfully
generalization
it.
If the process of
performed,the rule is sound.
The
If that process
be inexact
or
But unless and until it

the rule is not sound.
incomplete,
from the
receives recognitioneither from the legislature
or
statement
of
court of ultimate appeal it remains
a
mere
of decided cases, and is liable to be
a summary
uniformities,
modified
aside or
set
by a singlecontradictorydecision.
a common
Thus, althoughit was
opinionfthat the doctrine
that a share in the profits
of a trade created a partnership
so
therein, had become
iuveterately
part of the law of
to reverse
England that it would requirelegislation
it,"and
actuallydid take place on the assumpalthoughlegislation
tion
"
that this statement

of Lords
The
rule.
not
decided
now
case
of the law
on
was
correct,the House
inconsistent
principles
with
result of that decision is that the former
acceptedas
statement
correct
of the
the
rule is
law, and
difi'erentrule has ta,ken its place.
Agreements.
"
7. Another
cvideucc of law is the agreements of
parties. Such agreements do not indeed make the law, but

they prove it. No agreement has any legaleffect without or
againstthe law. Some agreements do not give rise to any
be effectual when
Act of
legal objection
can
; none
any
Parliament
or
subject to
certain
commands
themselves
*
De
rule
of
law
is
conditions
repugnant
to
them.
But,
and
the State
restrictions,
that the agreements of partiesshall as between
be carried into effect,
and undertakes
the duty of
Aug. ScL viii
c.
3, Aph, 85.
t Per
Blackburn
J., L. R. 1 C
P. at pp. 109, 112.
40
The
enforcingthem.
dolo
neque
When
and
to
inita
which
it, it is
obligations.For
which
obligations
command
of the
as
such
between
under
person,
them
law,they may
included
are
not
themselves
suntP
recognise
legal duties
under
the term
and
agreement
agreement
partiesto
those
not
who
as
law,
the
law
under
a
certain
contract
may,
claim
through or
regards any other
duties.
is
agreement
mere
make
to
the
their mutual
such
called consensual
by virtue of the
but
respectively
concerned, their
of
will
The
perhaps be
agreement,
an
determine
absence
law
contract.
by virtue of the legal power
conditions
observanda
the
leges
contra
neque
the purpose
of distinguishing
them
from
arise not from consent
but from the direct
obligations.Thus,
but
qua
that
gives rise
contract
called
omnimodo
sunt
is such
agreement
enforce
of Law
'"'"Pacta conventa
malo
an
Evidences
So
even
far
as
they
are
in
the
though
would
different
have
made
provisions. To such an extent is the principle

carried,that the partiesmay choose their own
judges ; and
the award
of these arbitrators,
will be
as
they are called,
enforced in the same
manner
as
a judgment of the court.
A remarkable
of this principle
and one which
application
has been
attended
is
by important practicalconsequences
found in the case
of associated but unincorporatedbodies.
of men
act togetherfor a common
Where
a number
object,
of that object;
rules for the furtherance
they may make
and
these
be
rules are
regarded as contracts, and may
enforced
accordingly. But the courts do not pretend to
rules
consider the merits
of such
than
more
they
any
consider the merits of the bargains of our
dailylife ; and
only so far as they relate to the
they deal with them
dispositionof property or other collateral objects. This
of law.
at a very early periodof the liistory
occurs
principle
sodalibus
Tables*
it is written "m^
In the Twelve
legem
their own
make
the gildsmen may
sibi ferre liceat
rules ; and a like rulef is said to have existed in the early
which applied to the
The
law of Athens.
same
principle
"
"
"
Tab.
IV. fr. 27.
t Dig. XLVII.
22, 4.
and
Custom
of
"Sodales"
in
Except
only so
not
various
the
of
the
far
as
of
that
church
is
If
affairs,they
same
and
manner
the
to
then
State
does
choose
men
to
their arrangements
make
may
tions*
rela-
Church.
Church, and
concerned, the
extent
same
These
their secular business.
they arrange
binding,as
Christian
the
established
an
the
governs
ecclesiastical affairs.
co-operate for such

the
now
of
branches
case
interfere with
in
association
Roman
47
Contract.
agreements
as
are
partiesto them, exactly as the

are
by-laws of a company
binding; and they are enforced
remedies
tribunals and by the same
as
through the same
enforced.
It is noteworthy how
are
ordinary contracts
in delicate matters
a
even
satisfactorily
system works in
which
between
the
the State is content
to
limit its action to its proper
sphere.
Custom
There
and
Contract.
is
Contract.
Custom
curious relation between
They
and
periods in the
periodsthey severally
contrasted
mark
historyof society. In each of these

Custom
is characteristic of
perform a similar function.
of modern
archaic society,contract
society. In archaic
society,composed, as it was, of small independentquasi
corporate bodies,there
of action.
Each
such
rather
by
kind
system
of
developed,the
old
before it.
way
and
the
but
no
for individual
room
almost
was
corporation
and the
self-sufficing,
on
was
if not
intercourse of these bodies

of treaty than
life.
modern
household
Custom
in its
and
new
by
When
the
form
the
freedom
altogether
was
carried
spontaneous
the
clan
State
change
ex-
became
graduallygave
of law
grew
definite
longer adapt itself to the wants of

for all change in it was
effected not from within
society,
from without, not by the tacit consent
of those who used
fixed.
it but
order
by
It could
the
no
express
enactment
of the State.
As
the old
order
provisionfor the new
became
When
the individual
emerged from the
necessary.
Familia," his personalrelations were
multipliedand were
often new.
But
it never
the object of the State to
was
graduallypassed away,
"
Eden
r.
Forbes, L.
R.
1 Sc.
App., per Lord
Cianworth,
at p. 581.
48
Tlie Evidences
interfere with men's mutual

did not
interfere with
Law
of
relations
public interests.
of privaterelations
regulation
It
for the
not
was
that the State
it has undertaken
these relations
longas
so
organized;
was
such
riably
duty,it has invaIn the absence,therefore,
either
been unsuccessful.
of corporatecontrol or of political
settled their
control,men
relations by mutual
agreement. Accordingly,as the State
not indeed unknown
They were
grew, contracts also grew.
in archaic times,but their condition was
so
rudimentarythat
of the law.
be regarded as creatures
they may practically
of the progressivesocieties has, in a phrase
The movement
been described* as
that has become almost popular,
a movement
and
whenever
any
"
from
status
I
proposition
with
but its form
concur,
in two
compares
With
to contract."
substance
the
to
seems
me
inexact.
the antecedent
sets of sequences
The
the consequent of the other.
of this
statement
of the
It
one
would,
if it were
allegedthat the course
think,be free from objection
to contract.
of juralevolution is from custom
custom
Where
a
poKticalorganizationis established,
Its former
often passes into law.
character is thereby
changed,and no alteration in it is possibleexcept that which
from time to time intentionally
the Legislature
make.
may
in its organs does not
But a change in the form of society
or
So potent a social influence as
change the nature of man.
custom, although its direction may be changed,must always
of publiclaw,
effect. In matters
continue to exercise some
custom
now
legislation.In matters of
operatesby affecting
law
private
its effect is different. Both
and contracts
customs
and
theyare adoptedby law are not adoptedunconditionally,

both of them require
judicial
interpretation.
consequently
But
in the
when
one
is the
attempt
of the most
ordinarycourse
relates.
presumed to
must
to ascertain the true nature
have
To
importantelements
of the
this
business
the
course
and by
referred,
therefore be limited.
*
This
Sir H. S. Maine's
course
ment
agree-
in the
transaction
to which
the transaction
partiesmay
this
Ancient
of any
course
of
Law, 170.
fairlybe
their language
business is only
OO
The
Evidences
of
Law
relation to
sovereignStates,attempted to give to the questions

Act of the Legislaturecan
whether
be ultra vires,
an
and
whether
court of law can
a
inquireinto the validityof
a document
professingto be such an Act.
It has
always been
emigrate from England
dominions
for
take
which
to
of
their
them
when
Englishmen,
other
some
purpose
with
that
part of
forming
Her
there
liberties and
they
Majesty's
munity,
com-
new
free
customs,
birthright. This birthrightincludes,among

called the
are
things,those powers which collectively
of self-government. But the necessities of the case
of these liberties and modify the exercise of others.
some
are
other
power
limit
Hence
in
the
held
their
arises
its
very
I
peculiarorganization peculiar,
"
results,for it is
of
extension
mere
mean,
simple
and
principle.As every town in England makes its own

by-laws, while it is subjectto the general laws of the land,
in the extended
so
aggregate which we call the Empire each
familiar
colony makes
its
laws
own
other
respectsit remains
other
is the Colonial
for its
wants, while
own
in all
subjectto the ImperialGovernment.

Thus, in every self-governing
colony, there are two distinct
The one
is the Imperial Parliament
legislative
organs.
; the
Parliament, which
exercises
the
power
has in its Constitution
Act given
ImperialParliament
and according to the rules of constitutional
it. In practice,
exercise of power, the ImperialParliament
rarelyinterferes in
of its own.
the internal affairs of a colonythat has a Parliament
Its legalcompetence to do so cannot be disputed. No Imperial
Act appliesto the colonies unless they are
expressly or by
in it. But hardly a session
included
intendment
necessary
colonial legislation
; such, to take but a
passes without some
few recent examples, are the Acts relating to naturalization,
to merchant
to juristo extradition,
shipping,to kidnaj)piug,
diction
that the
in territorial waters.
Acts
usuallygive
boundaries
Her
Majesty,with
almost
the
On
the
to the
other
colonies
plenary
advice and
powers
consent
stitution
hand, their Conwithin
of
their
spective
re-
legislation.
of the Colonial
51
DelegatedLegislation,
with
Parliament,may,
laws
in
for the
and
effect of such
Committee
make
exceptions,
inconsiderable
some
all
colony in
whatsoever.
cases
The
explained*by the Judicial

ing
Lord
Selborne,deliverPrivy Council.
grant has been
of the
"The
judgment on behalf of that Committee, says
Indian Legislature
has powers
expresslylimited by the Act
of the ImperialParliament
which created it,and it can, of
course, do nothingbeyond the limits which circumscribe those
But when
actingwithin those limits,it is not, in
powers.
sense, an agent or delegateof the ImperialParliament,
any
but has and was
intended to have plenarypowers of legislation
itself. The
nature
Parliament
as
as
largeand of the same
established courts of justice,
when
a
questionarises whether
of necessity
the prescribed
limits have been exceeded,
must
determine
in which
that question ; and the only way
they
ment
can
properlydo so is by lookingto the terms of the instruthe legislative
were
by wliich affirmatively
powers
created,and by which
negativelythey are restricted. If
what has been done is legislation
within the generalscope of
"
the affirmative words

no
Act
condition
express
limited
of
for any
which
give the
restriction
or
The
method
the
extent
part of the law
of the
in
force in
that all law
is enforced.
force in the
colony;
colonies
are
part of
powers
of
Colonial
Act
two
is
power
the
the
that
much
colony as
as
with
the
administration
be
that
D2
that
way
of
a
or
collision,
law, there are
t See 28 " 29 Vict,
Burah, 3 App. Gas. at p. 904.
same
is
the
judges are charged. K there

between
seeming collision,
any parts of
c.
rule
This
void.
law in
judges administer
ImperialActs affectingthe
law
the
Keg.
is
it is enforced in the
The
and
are
legislation
repugnant
the colony,
the Colonial Actf
repugnancy,
colony'sConstitution Act,and
that
restrictions."
by which these
is simple. When
harmonized
to an
ImperialAct which binds
which
by which
if it violates
(inwhich category would, of course, be included any

the ImperialParliament
it is not
at variance with it),
court of justice
further or to enlargeconto inquire
structively
these conditions and
is,to
and
power,
63, s. 2.
62
The
rules
which
conflict
with
its
with
each
the
other
Act.
Imperial
if
need
statutes,
delegated
the
Empire
Parliament.
from
be
must,
the
of
powers
the
to
by
of
law
conflicts
administer
both
the
Colonial
and
of
the
of
validity
exercises
the
Queen
vided.
pro-
with
the
supreme
in
and
tion.
construc-
judges
Colonial
the
are
Acts,
of
the
of
body
the
rule
Parliament
legislation,
command
definite
case,
into
inquire
with
may
conflict
may
construction
Colonial
have
nature
of
law
statute
statutes
conflict
rules
determined
the
because
is
the
The
two
may
cases
judges
is
judgment
schedule
when
the
decision.
law
these
too,
law,
Thus,
and
all
the
Law.
of
judicial
common
For
So,
their
the
guide
Evidences
may,
Colonial
merely
law
Imperial
of
(JorrekUea
0/
CHAPTER
Correlates
Command,
relations
the command
LEGAL
Command
a
n
new
OF
1. When
"
of
IV.
THEORY
THE
follow
the
DUTY.
been
has
/"
it
"
from
-i
The
who
person
will be
command
issued,certam
mi
it.
expects that obedience
person who receives

of
of obedience
or
53
Command,
paid to it.
has the alternative
gives
The
either
suffering.Further, the nature and the

of its infliction become
and the mode
of that suffering
extent
of immediate
interest. Thus a person
matters
to both parties
he
is under a duty to obey. When
subjectto a command
of
breaks that duty, he is under a liability.
The character
the mode
of its enforcement, and the party at
that liability,
whose
suit it is enforced,vary according to circumstances.
Command
The generalfact,
however, remains.
impliesduty.
Breach
of duty impliesliability.Liability,
when
enforced,
impliessanction.
follows
It
The
and
other
by
duty becomes
because
a
the
command.
terms
such
three
it would
because
be
it has
been
of them
unless
command.
to
that
that
givesrise.
to submit
the
connotes
observe
breach,and
command
Austin,*
that
it is distinct from
"
Each
to the
to
of these three
a
different
residue."
the
duty
is
prior to
the consequences
its
to which
primary or originalduty is to
secondary duty, where any such
sanction. This so-called secondary
The
the
and
anticipates
notion,but each denotes
same
part of that notion and

It is material
of
it
A
commanded,
sanction
extensive.
co-
implies the
terms
not
is enforcible.
the words
the
signifies
obey the
is
arises,
each
are
the disobedience
duty, and, consequently,
In
breach
duty
implies a duty, and
sanction
command
of
breach
and
applies to
of these
Each
Every command
two.
enforced
were
command
terms
observation
same
sanctions.
to
the
that
54
The
duty
is
reallynot
tion
of
obedience
Theory of Legal Duty
duty
of
or
sujffering.There
but
raises
liability.It
disobedience
it
no
ques
merely implies
in which
second
a
indeed, cases
is given ; these
the
or
are
cases
subsidiary command
where an intermediate
sanction is employed. Where
a person
is sentenced
to pay a fine,
it is his duty to pay
it,lest he
be imprisoned. Where
to imprisona
ment,
person is sentenced
it is his duty to
submit
to the regulationsof the
gaol,and not to escape or attempt to escape, lest a worse
the ultimate
In such cases
sanction
thing happen to him.
is
are,
postponed,although it is
is sentenced
absent.
never
where
But
man
death, or to mutilation, or to flogging,no

further duty is imposed upon
him.
He merely suffers. Thus
the breach of duty brings with it liabilities,
sometimes
mediate
imsometimes
When
a
mediate, and nothing more.
later takes its place.
or
duty is broken, a sanction sooner
Another
aspect of this matter
requiresnotice. Liability
expresses
breach
of
to
the
whether
as
all other persons,
that
is
absolute
observe
duty, he
is
to
state
that command
to
or
in "his
may
certain
no
attendant
consequences
accessory
its breach.
upon
where
duty
It is
duty.
conditional
even
immediate
But
the command
to
it also
becomes
general. A man
or
general; that
be
commanded
forbearance.
longer included,at least
originalclass.
has broken
to that
He, and he only,must
in Darii.
Thus,
of
well
action,
trans-
bear the
duty, whether the duty be

always results in a specific
liability.
generalor be particular,
If a new
duty be apparentlysubstituted for the former duty,
that new
duty is always particular.If,on the other baud,
calls an
obnoxiousuess
to a
there arise merely what Austin
sanction,that state of things attaches to the offender and to
of even
else. Thus a breach
a
no
one
general duty results
The
in a particular
relation.
legal syllogism of wliich the
major premiss expresses the sanction is not in Barbara, but
consequences.
breach
specific
subject
certain act
he
as
and
is,he, as
to do
When
be
may
upon
55
of Legal Duties.
Division
there may
duties,whatever
may
creates
a
origin. Every command
duty ; and as
be different and inconsistent commands
concerning
the
object,so
These
observations
their
be
same
such
questionsI
there
be
may
not
am
of all
true
are
concerned.
now
duties,and with legalduties only.

of legal duties, whatever
breach
a
which
induces
into
come
from
such
another
law,
particularcase
a
conflict the
whether
the law
aside
by
which
the
he
finds
leaves
should
of
reason
He
the
opposition
others
in
the
law
task
with
to
or
from
as
such
way,
questions
the legislator.
are
moralist
the
give
any
time
its form
time
to
alone.
He
bringing it into harmony

with other standards
of conduct
of adjustingit to the
or
Ita
has
present exigencies of society.
scriptum e"V
he
He
admire
always been the lawyer's motto.
or
may
to
the
to
himself
concerns
in
be
the
be itself set
or
these
"
would
as
is to
opponent
will
brave
to
of
motive
sanction
be such
prevailor
its
crush
juristmust leave
merely accepts
it,and
legal
legal
case
the
legal sanction
is to
the
be
may
whether
insufficient,
or
legal duty
that in
assume
resolution
the
whether
suflScient
I deal with
the motive
warrant
aspect
of the
terrors
disobedience,the
operation. Whether
With
conflict of duties.
of
"
condemn
may
be
the
opponents
of
the
law
whatever
but
his
personal feeUngs he declares that, whether

they be saints or whether
they be sinners,whether
they
be
traitors or whether
they be patriots,these opponents
have broken
a
legal duty, and that they are consequently
liable to a legalsanction.
may
Di\Tsion
" 2. In the
of
then
case
with
which
alone
we
are
Legal
concerned, that
Duties.
the
State
mandee
is
If
we
the
State
legislating
question still remains
extends
to
all its
in the
case
But
who
commander.
admit
the
is to say
that
has
he
or
whether
subjectsor
must
claims
the
to
be
to
of
legalduties,
is
command
com-
whom
over
person
have
the
the
jurisdiction,
of
the
particularclasses
State
of them
56
Theory of Legal Duty:
The
to
or
specificindividual.
some
first
The
general law, that is of duties imposed upon

most
events, upon
that
of
which
and
such
not
class.
at
all
The
is
second case
indefinitely.
that is legislation
speciallegislation,
any
division
been
certain
upon
upon
This
it has
all,or,
persons
exceptionalor
imposes duties
persons,
of
is that
case
kinds
outside
persons
comprises the
sometimes
or
of
limits
of
the
of
law
classes
Conditions,
less
happily called,
Thus
the law
the law of Status.
relatingto merchant
to licensed victuallers is important to seamen
seamen
or
who
to licensed victuallers respectively
or
no
; but
person
is not a seafaringman
licensed victualler or a person
or
a
to become
cares
having dealingswith such men
acquainted
this specialization
is carried to
with it. In the third case
its extreme
length. The command
appliesto a particular
it may
but
be to his legal representative,
to
person, and
else. Thus, if a man
no
one
by a properly executed deed
as
or,
undertake
the
law
to
imposes
the
the
his
and
executors
legal command
any
bilateral
be
engagement
follow.
will
is
not
trators
adminis-
or
To
no
other
in the matter.
unilateral,like
partieswill be respectively
several promises ; but no
Thus
by the transaction.
people or to some
people,
two
of their
liable to the extent

person
The
given
and
of money,
sum
duty of fulfilKnghis engagement.
consequences
other
certain
person
him
upon
however, is
person,
If
another
pay
though
directlyaff'ected
legal duties attach either to all

either certain classes of
and these particular
duties concern
or
merely the parties.
persons
There
is another
be
principleupon which duties may
divided.
Commands, whether tlieybe universal or particular,
be given with relation to some
third party or without
may
such
relation.
In
the
latter
Absolute; in the former

an
absolute
command
A
relative
duty
ceases
is
with
they are
case
in
one
the
duty relates
to
the
case
some
are
called Relative.
called
Thus
operation of the
it was
wliom
given.
the
which
person
duties
to
third
party who
has
an
68
The
constitute in fact
Their
half
class of duties which
which
did
he could therefore find
place,in
the
than
more
of
our
criminal
whole
law.
importance has been obscured by two circumstances.

first place,Austin's
based upon the consideration
system was
of rights,and
he was
consequentlyembarrassed
In the
by
the minds
breach
rights,and for
fitting
place. In the second
correlate
not
no
of the administrators
of the
duty
of the criminal
law,
has
smothered
the duty
practically
itself. But whatever
the cause
be, it is certain that
may
absolute duties have never
in detail,
been examined
and that,
their true importance has not been appreciated.
consequently,
The
Self-
those
Duties.
duties which
first division
duties which
of
absolute
Bentham
calls
aifect the person
includes
duties
or
self-regarding,
of the individual
upon
whom
the
duty is imposed. This division is but small,and contains

onlyprohibitions
againstsuicide,
drunkenness,and other acts
of immorality. Most
of these prohibitions
aiFected by
are
considerations of time,place,and circumstance,
and thus are
for practical
placed in other divisions of the law.
purposes
Thus drunkenness,although it is so far unlawful
that a contract
it will not be enforced,
to procure
and that it forms in
certain circumstances
for not performing a conan
excuse
tract,
is not now
in a public
punishable. But drunkenness
place,or while in charge of any dangerous thing,or when
with
attended
certain circumstances
of aggravation,is an
ofience againstpublicorder,and is punished accordingly.
The
Household
Duties.
duties which
of his
management
part
the
to
have
dlvisiou
ucxt
his
duties,that
is
requiredto perform
family,apart from any right on
a
enforcement
about
is household
man
of such
duties.
Thus
man
in
is
the
their
may
house
disorderlypersons, or may not

during the continuance of a valid marriage marry a second
not marry
under age without the consent
or may
a girl
woman,
of her jiarentsor guardians. He must
tlie birth of
register
not
"
If an
Victoria,
The
the
were
duties, both
reduced
into
absolute
one
(generalrelative duties would
and
fjencral,which
code, the absolute duties
contoui
about
now
would
364 sections.
law of
the criminal
eompoBO
contain
about 474 sections.
Absolute
his
and must
the child
cause
child,
Further,he must provide for the
and
children,and
for the
59
Duties.
properlyvaccinated.
to be
maintenance
of the
education
of his wife
latter.
These
difficult to
fendly duties are, for two
especially
reasons,
classify.In the first place,
they include both absolute duties
and generalduties,
duties
and also those special
and peculiar
condition.
form a status or special
which, taken collectively,
In the second place,the secondaryobjectof the duty is a
the duty enjoins
person ; that is,the act or forbearance which
has
to
be
done
or
observed
towards
who
person
difierent from
for whose
imposed.
also difficultto determine
the person
It is sometimes
person be merely the

he has a right to its
a
whether
or
the
duty of
secondaryobjectof
performance. Thus
maintenance
relative.
as
the
should
the
the
duty or
it may
duty is
whether
whether
be doubted
be described
as
lute
abso-
however, is only a
difficulty,
principle.The doubt is 'whether the
Such
questionof fact,not of
has more
case
particular
class.
advantage
be
may
marks
of
one
class than
of another
But
the classes are, at least in thought,distinct ; and

merits of the di\T[sion are consequently
not affected.
A
largerdivisiou than either of the two preupationa.

jelatcs to occupations. The
law requires
^jg^j^^g
not to follow at certain times their ordinarycallings,
men
certain kinds of business without leave given
or not to pursue
and received,or it in some
regulatestheir industrial
way
operations.The first of these classes comprises the laws
relatingto the observance of Sunday. The second includes
host of licensed occupations.The third deals
a miscellaneous
with certain matters
ing
printconcerningthe medical profession,
and publishing,
There is no connexion
factories and mines.
these cases
between
separately.They only agree in this
that duties concerningthe exercise of these occupationsare
imposed upon all people.
Concerning
"
Further, the law makes
Concerning
Imports and
Exports.
and
that may
enter
*
provision for the
the
thingsthat may not enter

subjectto certain conditions.
See Mill's Unsettled
Questions in Political Economy,
persons
jt
xr
the
country, or
Many
79.
of these
60
The
concern
regulations
the
Custom-house
mere
generalpublic,and
harbour
or
routine.
part of the general law, and
of administrative
mattcrs
Towards
should
and
towards
the
branch
natives.
which
of absolute
That
duties.
of
certain
lower
is, the Aborigines are
thinks
the
these
animals, the
owners
when
management
is also made
and
in
animals
upon
The
Duties.
fit
nature
are
so
or
be
But
the
to
objectsto
they
are
forbearance
position as
same
the
respect
but
law
in
The
so
main
to
certain
that
say
rights.They
these
simply
are
duties.
mentioned
the absolute
important and
separate consideration.
absurd
wild, had
duties I have
duties which
numerous
regarded
be
may
are
that
oi
as
public
they require
divisions of this branch
of
that is,the
relatingto allegiance,
negative side of the Eoyal Prerogative; duties concerning
public servants, that is,not the duties which such servants
are
requiredto perform,but the duties Avhich tlie publicare
them
tions,
requiredto observe towards
; duties concerning elecof justice,
concerning the administration
concerning
the public peace,
venience
decency, good order, safety,and conmeasures
; and
; concerning coins, weights, and
and
its protection. In all
concerning the public revenue
and
the State simply issues its commands
these cases
No
to them.
enforces obedience
question arises as to the
absolute
duties
in
to
It would
tame
private.
the
behalf
whose
secondary objectsof absolute
Absolute
benefit
mands
com-
all persons,
the
apply,
are
cast
are
interpose. Duties
of
of cattle concerning the treatment
their
mode
of slaughteringthem, and
vision
Prosufferingfrom certain diseases.
for the preservationand the capture of
of fish.
animals, whether
duties
forbearances
the
circumstances
game
These
public policy to
prescribed forbearances
the
third parties for whose
in
intended.
thus
They are
those
the
''
"
given for purposes

requiringthem to observe
is
duties
reoûlation. The
Aborigiucs form in this country another
Am-
^^-
not
form
provisions
kept distinct from
"
towards
these
Such
be
Abongines,
Lower
of
matters
not
are
are
duties
positionof
the
or
presence
duty and obedience
but the
"
General
Duties.
Relative
4.
,.,
that
they
18,
to determinate
persons
to
or
or
families,
exercise
of their
relate either
indeterminate
to
to their
or
relate to the
I sliallendeavour
circumspection.
subjectto
the
of
to state
to the
; some
of
fulfilment
bours
neigh-
our
veracityand of
in
generalterms,
operationof these
the
exculpation,
duties. No
by way of violence insult or annoyperson
may,
ance,
touch even
Tliere is
with liis fingerany other person.
no
questionof degree in such matters
slightesttouch,
; the
or
even
an
attempt to touch, is proliibited.No person may,
by word
or
sign or writing, expose any other person to
him
publicaversion,contempt, or ridicule,or cause
any loss
by attacks
rules of
to their
some
property
observance
or
persons
lawful
for their benefit the
and
particular;
^^
or
Of
homes,
nothing
.,.
enjoyments,or to the
expectations; while some
requiretowards
their
and
either general
are
generalduties some
feelingsof our neighbours ;
to their
is
party. There
to it.
.,
persons.
the
third
duties
,
61
Duties,
General
his
the qualireputation. In these cases

fications
and
the
unusually
exceptions to the rule are
and
numerous
important. But, subjectthereto, the rule
is peremptory.
It extends
too
beyond defamation, and
A like proliibition
appliesto insults and to threats.
applies
to blasphemy with
intent to ofiend; not, indeed, in contravention
upon
of the maxim
words
of
to
persons
any
this
way
whom
or
try
but because
injuri"Bdis cures,''''
descriptionnaturally shock
No
they are addressed.
interfere with
of any
prevent,
"i?/5
other
to
of their services.
the
wife
or
person,
prevent, his
Nor
may
and
finger may
be
Without
inserted
in
the
any
children
or
the
may
in
the
vants
ser-
directlyor indirectly
enjoyment of their societyor
person
dwelling of any other

In this
after dark.
especially
is of the widest.
person
pain
may
any
the
the
or
and
without
enter
person
when
case,
too, the
house
master's
part of the
it is
mission
per-
closed,
prohibition
consent,
not
building, not
a
a
62
The
latch
of any
unlocked
lionse is his castle and

no
man
door
his
interfere
may
surest
in
even
neighbour'sproperty. He
he must
not take,he
injure,
is his."
those
No
person
may
lifted,for "a man's

refuge." In like manner,
the least degree with
his
be
must
not
destroy, he
must
not
touch
must
not
anything that
enjoyment other than
interruptany
may
"
I have
to which
alreadymentioned
any other person
is lawfully entitled,or disappointany other person
in his
lawful expectations. Nor may
by any act or any
any person
mislead
other person
Nor
to his loss.
representation
any
he use
his own
his own
business,
property, or manage
may
or
his
govern
other persons
take
such
control
like
How
conduct
own
any
unlawful
order with
in their
as
in
every
such
harm
or
every
for
also to insure
case
cause
Finally,he
loss.
and
person
to
as
manner
must
thing under his

his neighbours a
security.
Certain
Abso-
differ^f'rom
general
differences may
duties
and
the
be
noted
duties
General.
under our
scctiou wcre
jirccediug
the first place,absolute
duties
be
may
be either
negative. The command
may
observe
but there
forbearance.
The
between
these
in
next
which
the
In
consideration.
positiveor
either
to
latter class is the
do
an
more
act
or
to
numerous,
publicduties of a positivekind.
of domestic
Such, for example, are the registration
events,
the vaccination of a child,service as a juror,assistance to the
policein the arrest of criminals,the giving true evidence as
in courts of justice. But
a witness
except as regardsthose
who
are
specially
dependent upon the commandee, and who
unable to protect themselves, general duties are
are
always
in their case
is to forbear from
negative. The command
the
the feelingsor with
or
interferingwith the person
enjoyments or it may be with the expectationsof the third
to give any
party. The law does not require any man
are
property or
owes
leave
many
to
absolute
render
any
service
to
another
to
specialduty. It merely provides that

Thus a man
their neighbours alone.
may
no
whom
men
not
he
shall
strike
Hmo
grievousbodilyharm, least of
specialrelation
Except, however, where some
less
another, much
all kill him.
snch
exists,
or
as
of his crew,
from
danger
rescue
would
him
cause
that of
man
is
; nor
not
himself,and
refusal to
63
General.
differ
fr"nH
Duties
Absolute
even
does
such
any
risk
inconvenience
or
to
his
that ujwn
he may
though
follow,and
must
though such
even
known
have
he may
though
help death
duty arise
with
attended
be
of his passengers
another
to rescue
shipmasterand one
bound
not legally
have
desired that result.

in
Thus
"
Daniel
have
wife Gwendolen
"
Deronda
Grandcourt
Mr.
and
living unhappily. They
been
his
out
go
tendants.
pleasure-boatwithout any atHe could
faUs overboard.
Grandcourt
accidently
him a rope.
had only thrown
have been saved if Gwendolen
She might easilyhave done so, but did not, and deliberately
drown.
let him
responsiblefor
Morally, indeed, she was
this man's
death, but no court could have found her guilty
his life,
It was
but
not her legal duty to save
of murder.
He, like
only to abstain from doing him positiveharm.
the
together on
other
every
in
sea
But
the
where, as
from
contract
only
not
from
of himself.
care
readilyabsolve
so
person
I have
or
take
must
person,
however, did
opinionof
to
the
whom
direct
some
her,nor
facts
alreadyintimated,one
command
Her
were
science,
con-
did the
known.
person, whether
of the law, is
legalduty to provide for another, and where such

other person is otherwise
helplessand unable to providefor
himself, if the person under the duty fail therein,and if
will be
death or serious injury thence ensue, that person
of his neglect. Thus,
criminallyliable for the consequences
his child,or a master
his apprentice,
if a father starve
or
a
the keeper of a lunatic asylum the
or
gaoler his prisoner,
the
within
patientsunder his charge,the offender comes
under
range
seaman
of the criminal
law.
So, too,when
falls overboard,the master
legislation
requiredto make
of the
reasonable
Bentham,* indeed, has urged

"
that
I. 148.
at
sea
passenger
ship is by
efforts for his
this
or
express
safety.
duty of assistance
64
The
should
be made

But
universal.
the
law
has
never
so
gone
far,and leaves to the spontaneous impulse of humanity that

it would
be both
difficult and
help which
dangerous to
enforce as a legalduty.
For
in
Sanction
Absolute
and
in
IS
Duties.
the
other
"Tin
in
whole
or
detection
if
State
is
and
his
in
sue
his
the
in the matter.
in
own
own
any
for his
alter
not
the
he
act
to do
But
so
sit
and
to
heavy
recover
may
these
ments
arrange-
offence is
The
case.
is
Thus,
amount.
such
use.
of the
nature
the
better
the
Parliament
to
chooses
own
no
Where
informer,and
for the
elected
who
person
and
name
the
to
name
be
and
pecuniarypenalty, the
is liable for each
therein,he
do
has
consists
cases
sanction
punishment. The State

of complaint,and
cause
offenders,given
penalty,which
in
alone
duties the
part of that penalty is sometimes, for
to
vote
of
way
disqualified
person
of absolute
directlyconcerned
such
of
allowed
breach
always by
person
sanction
the
publicduty. The sanction for the

offence is a fine. That
fine is not regarded as the property
of the informer, but may
like any other penaltybe remitted
Its proceedsare
and
by the Crown.
speciallyappropriated,
the procedurefor its recovery
is,as a matter of convenience,
of
breach
assimilated
does
case
absolute
an
that
to
have
in the
said,by
whom
the
the
of
duty
to
an
his
ends.
he
is
If
he
is
has done
If
of
reward
In
to
the
State
and
sanction
in
the
party is interested.
have
an
man
punisliedfor
another
his breach
paid
is,as
case
the
to
third
double
the
substance
offered and
felony. The
punishment. But
must
only
assault
party
quently,
Conse-
aspect. A breach
offence to the State but
neglect to registerthe
birth
his
of
negligence,and
the
wrong
of
matter
person, and tear his clothes,

of the Queen's peace, and he is
compensation for the mischief that he

sanction,
person injured. But it is the same
make
to the
of
addition
not
punished for
also liable to
that
duty lies,a
individual.
child,lie
of
sanction
involves
case
way
general duties,in
upon
civil action.
differ from
not
for information
I
in
66
The
of the
are
law, and
Roman
the
fact,namely, that
to the
obligationsto
introduced
prefixedwere
by
Quiritium,or
Jus
force of the term
merely an historical
to liave indicated
seems
the
old
the
which
Prastor,and
term
not
were
was
known
The
of lilome.
law
common
to be that
seems
classes the
prefixquasi is frequentin
The
kind.
same
of the two
in each
except the fact that
contracts
duties
Theoi-i/of Leqnl Duty
certain class of
tions
obliga-
legaleffect to that which they would have

had entered into a recognised
form of conhad if the parties
tract
upon the subject-matter.
Nou-conseusual
not very numerNon-conare
obligations
tinguishab
shall presentlysee, disobiigations. ous.
They are, as we
the one
hand
from implied contracts and
on
the
hand
from
other
those
on
secondary obligations
further
which
of duty. They are
arise from
breach
a
the
distinguishablefrom
obligationswhich
belong to
specialconditions,that is which belong not to all persons
who
have
casual dealings with
each other but to
have
like
stand towards
those persons who
and recognised relations. These
semi-domestic
and
which
such
In
the law
the
and
respectof
other
in
permanent
in the domestic
persons
husband
as
relations
and
wife,
formed
artificially
jjersons who
j)ursue certain tions

occupapurposes thinks fit to regulate,
for its own
and publicofiicers.
carriers,
innkeepers,
common
as
are
relations,such
parent and child,and

the like model,
upon
other
each
all these
persons
absolute
as
duties,
we
have
duties which
are
particular
im2)0scd
in
their
the exercise of
sively
occupationsare excluujion them
incident to their special
conditions.
It is not easy and
the non-consensual
it is hardlyworth while to classify
tions
obligato be consequences
of
properlyso-called. They seem
the principle*
be
that excei)t by agreement no person
may
enriched at another's expense.
Thus they include admission
exist
seen,
by
of
one
but
the
claim
due
account
; the
to have
paid ;
Jure
nut utw
to another
i)ayment by
(vniiiim
the
csl
one
cum
one
of money
atlrrius iliti iinulo
Dig. XVn.
-AXJ.
statement
wliich the other
of money
acquisition
by
neiitiiicin
ui)on the
it
which
of
an
ought
ought
injuria fU'iilofuplctioivm,
"
Conaenmial
to have
another
belonged to
found
; the
forbearance
hands
to pay
of
67
Obligations.
who
one
dealing with
the
the lawful demands
property
property in another's
has
of that other
and the great
estoppel. A tj-pical
example of this class of
action
obligationsis the recovery of money paid in mistake,a transdoctrine
of
of which
the
in similar
a
promise
precisenature
customary
to repay.
Such
where
one
words, may
inferred from
of the
nature
be
fairly
parties.The
the intention of either
is
had
what
restore
been
required. Two
an
had
is another
addition to those
direct
payment
party
to make
certain
law thinks
dealingsthe
obligation.
There
of the
breach
The
the relation
or
in mistake
tives
nega-
agreement
any
But
no
and
dealings,
such
arise from
to
fiction
to the result
fit to attach the character
of
obligations.In
and
contract
also arise
operationof law, obligations
is from
implies
expressedin
not
class of non-consensual
which
law
fiction.
mere
the conduct
given absolutely.
men
of these
plexed*
per-
In this case, and
agreement, though
an
much
say that the
to
promise is
have
to
seems
institutional writers.
Roman
cases, it is
is not
case
the
ex
from
the
that
delicto,
of
duty,whether generalor particular.I

have alreadysaid that delictal obligations,
or
rightsof action
and
as
generallycalled,are merely secondary,
they are more
intended
to give efiiectto some
antecedent
command.
are
They thus form a connectinglink between substantive law
and procedure. They are
to the one.
ancillary
They presuppose
the other.
But the primaryobligations,
those which
a
spring from
anterior
to
and
contract
any
originaland
breach
from
and
unconditioned
them
has
Consensual
obiigauons.
are
their
full
exist
quasi-contract,
of
irrespective
commands
and
given directly
or
indirectly,
to have
the
may
efiect,
although no
it.
They are
State,whether
of the
have
and
right of
are
intended
action
upon
accrued.
ever
Consensual
j^Qg^
formed, as
form
obligations
the
and
largest
conspicuous portiou of modern

their
^
name
JusUnian,
law.
implies,by agreement
Ina*. m
E2
14, 1. lb. 27, 6.
the
They
between
68
the
The
One
parties.
act
some
promises
man
observe
or
Theory of Lcf/al Duty
another
that
forbearance.
some
he
This
will
promise
do
or
its
equivalentthe law under certain conditions compels him

to perform. Usually the
parties exchange promises, the
for the promise
promise of each being the consideration
I have
of the other.
of
already explained the nature
cuss
an
agreement, and I shall in a subsequent chapter disthe
I shall therefore
in the
subject of contracts.
the precisepositionof this body
present place merely mark
of law, and
to two
to
invite attention
points that seem
requirenotice.
The
first of these points relates to what
called
are
These
do
contracts
not
implied contracts.
present any
structural
peculiarity.They diifer from other contracts
of proof. Sometimes
the existence
and
only in their mode
of a contract
the terms
tion,
are
proved by the express declarain whatever
form, of the parties. Sometimes
they are
but
Sometimes
by conduct.
they
proved not by words
are
proved partlyby one and partly by the other. When
the
or
contract
nothing
bound
Such
all.
varieties
true
which
contracts
contract.
mode
particular
is
contract
of
still
enters
his
thus
He
case
No
the
on
has
conduct
of the
contract
shop, orders
who
person
their value.
is, from
contract.
Implied
of
that
the
that
pay
implied.
supported be
is
politeshopman
circumstances
of
quasi-contract
is
to
the
in
the
and
conduct
be
to
is
it
man
the
sent to his house.
be
to
doubts
one
implied contract
inferred.
them
him
price. No
the goods is
from
is said
contract
contract.
directs
of
may
it
parties,
by which
evidence
but
between
passes
is inferred
inferential,the
be
or
goods, and
at
of the
the
whether
direct
pay
part of it
any
the circumstances
But
and
or
be
word
subject
ordered
made
an
promise to
reasonably
essentiallydifferent from
the
tract
spoken. An implied conis not a contract
quasi-contract
not
two
and quasi-contracts
are
have
The
proof.
former
The
is
latter
contract
is not
with
subordinate
t%rst
bnt
to contract
form
second
Another
maxim
conflict.
not
Tliese
No
inconsistent
often
makes
the
with
in
the
and
these
of
stipulations
is
of
command
contains
the
the
the
partiesotherwise
of the
land.
in
But
their
if
the
law
respect
to
affairs where
provisionsmay be
rebutted by the express
Tliese
be
may
do
contract
with
inferences
of
agreement
appearances,
become
this extent
contract
law
such
some
spiteof
declares
publicright.
the
indeed
silent.
are
parties. To
the
in
draws
inferences
that
true
law
of
terms
management
partiesthemselves
altered
can
the
of law
maxim
the
together
referred is the relation
derogate from
maxims,
provisionsor
conduct
One
not
agreement
it be
men's
I have
that
asserts
the law.
conquer
it
do
privateagreements
the two
it,and
obligations.
general law.
to
69
Duties.
with
which
point to
of contracts
that
is co-ordinate
divisions of
the two
The
Principlesof Legal
and
the
conquers
such
it
"unless
provision as
Tlie
law.
always
cases
further
no
in
effect
that
appear
modern
law
Substantially,
leaves all such matters
the discretion of the parties
to
silent and
interested,and only interferes when
they are
rule becomes
If the partiesdo not like
some
necessary.
the rule which
the law provides,
they have only themselves
to blame.
They might have made
arrangement they
any
We
shall find as
thought fit,and they failed to do so.
we
proceed the appKcation of the same
principleto the
devolution
Will
property after
of
disjjose
make
or
of
be
made
his
the
Will,
intended."
projiertycannot
the
subject
of
succession
of intestate estates
"
of
Legal
Duties.
an
law
which
the
is determined.
6. Tlie difference
the purposes
^
'
suggest
some
and
e^
owner
The
between
imposed for
duties
consent
to
If he fail to
left without
be
by his
may
man
general scramble.
rules by
lays down
interposes,and
Principles
property at his discretion.
therefore
Rret
death.
of the State
and
Ti."-
duties
imposed
I'll
with
the
^
,
for the convenience
important differences
of individuals
as
seems
to the foundation
of
70
The
Some
law.
writers
to scientific rank.
rules
more
of
In their
juristcan
coherent
fashion
contrary,hold
that
such
is to
is founded
the
in
heterogeneous
is
of
sentiment
mass.
the
based
current
all that
the
orderly and
some
Others, on the
science of justice
;
rock
the
desire
the
upon
justiceis
of law.
science
the
circumstances
arrange
claim
any
collection of
mere
represent
jurisprudenceis
that
the
wealth, so
with
the
In
politicaleconomy
as
is
view, law
arbitrary which
expediency.
usefullydo
views
deny that jurisprudencehas
less
or
for
which
upon
class,dissatisfied
exaggerating a newly
third
the
and
preceding explanations,
discerned
their initial force,
as
truth, look to custom
and
regard all jural phenomena as essentiallyhistorical.
None
of these views
to me
to be wholly correct ;
seems
each
and
being antagonistic,they are
yet, so far from
that justice
of them
It is idle to contend
partiallytrue.
settlingthe limits of the close season

for game
in prohibitingthe issue of bills of exchange
or
tion
under
twenty shillings.Neither is there any better foundafor the proposition
that the doctrine of general average
is
concerned
in
the
of
case
is not
trustee
temporary
the
in
Acts
law
truth
have
of domicil
have
mentioned
duties
can
we
"
the
or
law
the
these
of
basis
great body of law
of
result
attribute
to
some
custom
series of
the
railways.
life.
factors
judicial
Law
It is the
each
of
the
is in
result of
forces
justice,the conviction
holds a prominent place.
of
sentiment
of custom
that
half-centuryestablished
the last
of national
Among
the force
utility,
justicebe not the
of that
and
is the
his trust
Nor
within
great function
factors.
If
profitby
doctrine
the
or
relatingto publichealth
many
of
to
convenience.
decisions which
the
disasters
marine
"
of all
which
our
law, it is
the
basis
the
reciprocal
dealings. When
determines
in their mutual
rights of men
rights are enjoyed, when
obligationsare accei)ted,justice
is supremo.
But justice
has no placein determining the wants
of policy
and
the wishes
of the State.
mutters
Tliese are
and
First
and
of
of
case.
the
individuals
It
of
principle
absolute
duties
partly
public
to
governed
both.
It
and
forces,
It
than
springs
always
of
form
has
certain
of
existing
works,
and
antecedently
of
"
H.
S.
Maine's
"-""
Ancient
it
which
"'j""""
Law,
in
"
233.
these
constant
in
nothing
There
which
on
can
by
other
from
in
are
but
convenience.
combination."
new
are
sense
right,
that
that
relate
they
interaction
that
obligations
since
apart
now
is
and
forgotten
the
not
exclusively
observed*
the
that
need
private
to
'
circumstances
altogether
and
well
ideas
convenience
be
and
wants
contention
principles
acts
from
the
custom
partly
these
been
entirely
some
and
reaction
to
duties,
general
force
no
the
expediency,
however,
not,
that
operation.
of
one
must
affairs
complex
that
as
present
upon
policy
by
not-
My
'
legal system
our
Of
scope.
mainly
and
of
part
speak.
rest
according
this
utility finds
justice
upon
sense
in
particularly
more
are
shift
is
LhiticK
of Legal
shifting, just
discretion, constantly
wishes
law
Principles
do
no
the
more
T'heoi-y
of Legal
The
Sanctions
V.
CHAPTER
"
Anaijîsof
1. The
SANCTIONS.
LEGAL
OF
THEORY
THE
sanction
term
is used
by
the Koman
lawyers*to denote "those parts of the laws whereby

penaltiesare imposed upon those who have contravened the
laws."
If the word penaltybe taken to include all disagreeable
of whatever kind,this old definition implies
consequences
all the pointswhich
essential to the idea of sanction.
are
There
breach
is the contravention
of
duty.
There
of the
law, or,
in other
is the evil conditional upon
words, the
the
breach,
arises
onlywhen the breach has occurred. Further,

the entire provisionis a part of the law ; and
it is a part
which is merely ancillary
to the precedingpart. The
ditional
contention
evil is imposed not for its own
sake, but with the inand for the purpose
that the prescribed
duty shall be
ing
performed. Finally,effect is given to this intention by makthe breach of the duty more
to the person
disagreeable
that duty is imposed than
its observance.
The
upon whom
duty is not merely that an act shall be done or a forbearance
observed,but that it shall be done or observed by the person
indeed
the command
to whom
is given. There
are
cases
where
the State directly
and does,at the expense
interferes,
he ought to have
of the
wrong-doer, the act which
its interference assumes
performed. Even in these cases
and which
such
form
as
make
to
the
offender
feel
that
it is
costlyhelp. Thus a sanction is

force. It is the api)lication
pliysical
will of any
to the commandee's
painfulstimulant with the
But although
intention of thereby regulatinghis conduct.
differs from
a sanction
force,it depends upon the
])liysical
iorce will
that,if need bo, overwhelming pliysionl
expectation
ultimatelybe used. The law, as I have alreadyobserved,
prudent to avoid
not necessarily
mere
et let/um
/i/"t"
eu*
such
parks ijuiOusjiu-mi." iviixlitiiiiuiis uUccisiis

roctfmui."
Inst. H.
eos
1, 10.
qui coiitia liyesfittriiitsanctionei
"4
The
be
placed in
Theory of Legal
Sanctions
close
proximity to it. The typicalform of

enactment
to the followingeifect :
is,I think,somewhat
No
such an
intention,or in
person shall (with such and
other specified
circumstances,if any) do such and such an
"
"
observe
act, or
offend
such and
such
herein,he shall
(or)he shall make
(or) he shall both

compensation,as the
forbearance.
be liable to
and
such
If any
person
such
ment
punish-
compensationto the person injured

;
suffer such punishment and make
such
case
heP
may
The
"
passage I have above cited from the Institutes shows

ând the general usage of Roman
confirms the
legislation
view
that
"
belong to
in the
opinionof
substantive
is also the
doctrine
law, and
the Roman
not
to
of
juristssanctions
procedure. That such
is proved by the rule
English law
Act
Where
an
againstretrospective
legislation.
to conflict with existing
arrangements,
appears
in the absence
of express
to the
words
of Parliament
the presumption,*
contrary,is that
its
were
provisions
meant, if they relate to any existing
duty or
right,to be prospectiveonly, but if they relate to matters of
and retrospective.
The most
procedureto be both prospective
of the rule is in the case
of penalties.
stringentapplication
When
has committed
crime he is tried,
not by the
a
man
a
rules of procedurewhich existed at the time when
the crime
was
committed, but by those in force at the time of his trial.
be difiicult to persuadeParliament
But it would
to enact,and
still more
difficult to persuade the judges that Parliament
meant
to
enact, that such

than
punishment
offence at the time
always
to be
when
the
Statutes
punislimentsof
To take
old
law
says
in
had
was
Lord
suffer any
attached
committed.
creatingnew
onglitin
crimes
no
to
his
"It is
Macaulay,t that
principle
only when
crimes
heavier
spective
retro-
it affects the
or
case
increasing
to
be retrospective
merely alter the procedure,if

to be retrospective.
in themselves good statutes,ouglit
of our
own
time, the
examples from tlie legislation
; but
they are
the
such offence
remembered,
law.
should
man
that which
is bad
legislation
substantive
"
statutes
Wright
V.
which
Hall, 30 L. J. Ex. 40.
t Hist. V. 42.
The, CluAce
passed in
Act
of art with
works
for
1845
of
pnnishing the
whipping
against the ruffian who

that they could
they knew
had
feel
detriment
him.
the
to
the
On
of
affirmation
allowed, and
to
be
in
part of
law.
does
It
from
distinct
the
past
the
criminal
cases
affirmation
weU
as
scourging
allowed
in
as
in
practiceconcur
function
of
department
duties
future
of law
duties; and
or
appears,
determining
sanction.
It is that
enforcement
of
procedure.
It
analogous
it enforces.
which
those
to
sanction
which
provides for the

nothing to do with
has
attached
commanded,
Act
which
law
constitute
not
felony."
or
every
for
law
pass
vase,
serious
most
reasonably, such
of
case
both
true
that
the
might
Barberini
the
received
be
to
theory and
legal place and
Thus
the
justly and
most
misdemeanour
the
Quaker
received
not, without
hand,
other
the
of
tive
prospec-
of that Act
authors
broken
commonwealth,
destniction
properlymade
indignationthe
only. Whatever
malicious
most
was
7o
Sanctions,
But
wherever
ought
to
to
but
separably
it is ina
appear,
duty
at
is
its
side.
ifce
" 3. The particularform of sanction which
Choice
should
of Sanctions.
.
any
case
be
adopted
it depends ujwn
which
the
of the
question,however,
because
certain deductions
"
is
have
seen
primary command,
performance of
several
of
the
consequences
sanction
not
offer
I may
from
erroneous
that
the
and
that
depends
will in the circumstances
upon
"
respecting
aspects
some
few
remarks, partly
to be
jural principlesseem
views on the subject are
a
nature
sanction
is
its function
From
prescribedduty.
follow.
On
"
lor jurisprudence
matter
determine.
can
and partlybecause the true

jx)pular,
thus be placed in a clearer light.
We
/"
considerations
practical
Legislaturealone
applicable,partlybecause
of
sanction
can
ancillary to
the
is to
the
secure
these
principles
In the first place,the excellence

its
of the
success.
case
insure
Whatever
obedience
means
to the
76
The
Theory of LerjatSanctions
ever
fail,from whatcause, to produce this result is not a good sanction.
In this case, as in so many
others, the terms
good and
be
There
such
bad
relative.
no
can
thing as a
are
be
such
universal
no
thing
sanction,just as there can
law is
as
good
sanction.
medicine.
universal
certain end.
bad.
is
sanction
Every
in
means
of any
this circumstance
of the
means
varying circumstances
Nor, on the other hand, is any
The
price necessary to be paid
legislativeobjectmay be indeed
adaptationof
but
Whatever
the
proves
badness, not
If it be
command.
assumed
merely
an
obtain
to
sanction
lutely
abso-
for the attainment
dear; but
too
of the
that
sanction,
the
desired
complain of
the means,
however
painful,
by which alone that objectcan
be accomplished. Therefore,before a law is made, its framers
objectmust
at all risks
be
will do well to sit down

for
example, be
to do
so
; but
secured,we
desirable to abolish
of
the extermination
of the
not
the cost thereof.
and count
if the execution
must
largestand
it is
heresy,and
law
It may,
possible
to this eflfectinvolve
the
best
portionof
the
needs to be
the prudence of issuingsuch a command
population,
In the second place,
reconsidered.
sanction impliespain. Pain
is in itself an evil. An evil ought not to be needlessly
inflicted.
be sufficient for
Consequently,a sanction,
although it must
than
its purpose, ought not to be more
sufficient. In other
words, the
best
sanction
is that which
insures obedience
to
of suffering.Thus,
possibleamount
if a sanction be inadequate,the pain which
it occasions is
the superfluous
pain admits
simply wasted ; if it be excessive,
of no justification.
or
Further, when, either from excess
from repugnancy
similar cause, a
to publicsentiment
or
any
sanction fails to obtain general sympatliy and support, it
becomes
a penalty
practically
inadequate. Thus too severe
})e steadilyenforced.
defeats its own
A
object; it caimot
sympathy for the offenders is generated. The hiw fails in
tlie certainty
of its administration,
of the
and
the severity
punishment* actually
givesencouragement to crime.
the law
with the least
For
strikingexample,
ucu
Mocaulny's Uitit. IV, 23.
State's
The
Another
State's
The
in
desired
the
chooses
referred
of the
The
manner.
shall
that certain acts
is that the sole
of the
concern
conduct
regulationof men's
State,from whatever
be done
which
to
principles
is the
of sanction
State in matters
Punishment.
conseqnence
abovc
I havc
Punishment.
Theory of
motive,
certain forbearances
or
this
objectby punishing disobedience.

there is no punishment. Whether
If there be no disobedience,
arises from
from any higher
the obedience
terror or
mere
the State does not
motive
inquire. It is the regulation of
cerned.
conduct, not the regulationof motives, with wliich it is conConsequently,its aim in punishment is merely the
It
observed.
secures
of obedience
enforcement
So
the
offender.
the
law, the State
When
breaks
he
and
long
as
has
no
any
law,
way
of
by
administration
of criminal
circumstances
to
with
his moral
condition.
it
law
is another
the State has
when
outwardly conforms
is
thing,and
thing. They aim
under
moral
one
though to a certain extent

they employ similar means.
objects,even
that
of
moral
punishes him not by way of

prevention and of example. The
but
discipline
religiouseducation
person
concern
the
reformation
the
not
its absolute
at
and
and
different
in
certain
I do not
contend
control convicted
poence, it does not
felons,servos
therebyincur a moral resjwnneeds

not merely for the physicalbut for the moral
sibility
of these unhai)pymen.
Prison discipline
affords ample room
for a prudent charityand a reasonable philanthropy. But in
of its sanctions
the choice
the law regards the welfare not
of
the
criminal
criminal
has
provide for
but
disturbed
the
of him
upon
that
the
matters
a
settled
is to
or
comfort
in its treatment
such
of those
law
policy.
As
of the offender,so
by
conduct
law
does
trace
a
certain
that
not
influenced
of his crime.
to effect
in
the
it is not
its abhorrence
It desires
whom
persons
endangered.
proceeds without
regulate men's
it
innocent
In
of
feelingand
object,
sjjecific
manner.
sequently,
Con-
regards not the moral character of the offence

but
the danger of tlie example. A
comparatively light
punishment may be sufficient to deter the actual offender
78
The
from
of
repetition
Theory of Legal
Sanctions
his offence.
But
if the offence be
one
which, from its nature, other persons are likelyto commit,

the safetyof the public requires'
more
a
strikingexample.
It may
hard that a man
ing
should be punishednot accordseem
act but accordingto the proto the qualityof his own
bability
similar
The
acts.
he
whom
that persons
has
is that
reason
to deal with
never
will commit
seen
State
the
does
and
not
accordingto his
absolute deserts. It merely providesfor the safetyof society.
"The
observed,* of the danger and
extent, it has been
alarm
created
violent acts
by any
depends primarily
to
the motive
be inspired.
by which they appear
upon
Thus
robbery is more
generallydangerous than revenge,
because
he who
would
robs one
man
other,
probably rob anwhile
desires to be revenged on
those
a
person
he believes
to have
injuredhim ; and robbery
only whom
is dangerous generally,
have
not
although the robber may
than one
formed the intention of committing more
robbery."
cannot
Thus
attempt
even
we
understand
can
criminal
law
that
man
anomalies
apparent
some
often
it is sometimes
man,
every
beat
said,may
our
animadversion.
much
occasion
in
his wife
into
jelly
week's
imimsonment. A man
steals an
who
old coat may
go to prison perhaps for a
that the law
Hence
the inference is drawn
regards
year.
favour than it regards the life
more
property with much
of the
and
limbs of its poorer
subjects.The true reason
is
in administration,
errors
difference,apart from mere
and
with
escape
that
perhaps
the
temptation
temptation to steal.
even
from
has
caused
women
or
the
but
evanescent
not
only
some
other
his
example.
not
with
permanent.
that
the
victim
Mr.
offender
but
M.
in
assault
An
irritation.
in assaults
is much
violence
to
does
revenge
go
beyond
But
in
fit of
There
may
than
felonious
the
passion
intUvidual
the
intent to rob the
also that
Uomard'8
less
assaults
motives
or
who
upon
are
is,consequently,the
not
risk
repeat his offence towards

other
persons
Neutrality of England, 119.
may
follow
Saitettona
79
IhUien.
Absolute
to
" 4. The sanctions for the breach of those duties

Dutie^*^which directlyaffect the State are exclusivelyin
SMictions
to
Legislature.Offences of this class

of criminal law.
only subject-matter
the discretion of the
were
originallythe
Like
its
done, the
injurywas
could
or
of the
redressed
and
interests
own
society,the State ascertained
in archaic
privateperson
every
its
wronged
person
party, whether
that
party
When
wrongs.
of kin
his next
or
The
the aggressor.
the feelingsof the
thought fit smote

punishment rested ujwn
he
as
own
State
the
was
or
he
as
extent
injured
vidual,
indi-
an
was
an
In
the modifying influence of custom.
upon
of the State*
disputesbetween individuals the interjiosition
and
invoked
was
the
When
prevent or
to
not
"
the
by
not
done
was
wrong
injuredperson
to punish crime
but to limit revenge.

such
itself,no
the
with
dealt
State
possible. The
in each particular
case
was
interposition
the wrongdoer
by
State
the
to
but
thought fit.
assured
and
Gentler
more
a
position,and a
manners,
greater experiencein the adaptationof punishments to the
of
in the course
meant
to serve, have
purjioses they were
centuries mitigatedarchaic ferocity.
many
the
odious
narrate
I do not
to
history of
propose
punishment. I shall merely describe those punishments
Tliese are
which
law now
uses.
our
very simple and very
offender
exactly as
merciful.
all times
At
the
'"''ultima linea
can
inflict upon
the
English
inflicted in
form.
the
In
in
it is also
of
only
other
few
recognisednot
the
and
present day
then
is
man
punishment
of
less than
death
in its least
is
murder, and
is
painful
restricted to
now
of
aggravated circumstances.
certain
attempts
In
to
Victoria
robbery with wounding, and in

The necessity
the total amounting to ten.
imposed
cases
and
treason
at
cases,
death
penalty that
extreme
have
to
But
England
of
cases
murder
some
is said
law
death
the earlier part of this century
In
man.
all circumstances
in
rerum,''the
capitalcrimes.
230
and
it
"
for rape,
who
protectingwomen
*
See
"
The
are
left defenceless
Aryvai Household," 437
ei leq.
and
without
80
The
Theory of Legal
Sanctions
and the temptation to bushhelp in remote

country districts,
the
of the country and
ranging which the circumstances
of escaped or
liberated convicts in the days of
presence
trausportation afforded,produced this severityin our legislation.
In practice,
of exceptional
however, it is only in cases
is carried into execution.
sentence
atrocitythat the extreme
of
Flogging is also used as a punishment, chieflyin cases
sexual offences,but its amount
is strictly
limited and
its
infliction is carefully
amount
in
regulated. The maximum
with the ordinarycat
this country is 1 50 lashes administered
The principal
in equal portionsat three different times.
form
of punishment is imprisonment. The severity
of the infliction
is increased by hard labour, by the wearing of irons,and by
is now
confinement
solitary
given
; but scrupulous attention
to the general health
of the prisoners and to the sanitary
of imprisonment does
term
condition of the prisons. The
exceed
in Victoria fifteen years ; and under
the prison
not
of
regulationsthe length of the term is, except in cases
serious misconduct
in prison,considerably
reduced.
Solitary
used
confinement
too is now
only for very short periods. It
indeed be truly said that the rule on this subjectcontained
may
in the Bill of Rights is faithfully
observed, and that
cruel and excessive punishments
at the present day
are
"
"
unknown.
Sanctions
"
to
5. For
I havc
Dutiea.
of
brcachcs
general duties
already observed, a
double
there
is,as
sanction.
The
wrong-doeris punished for his offence againstthe State,and he

has to make
compensationfor the damage done to the injured
party.
There
is
no
logicalnecessitythat
Legislaturemay decline to make

duty an offence against the State, or
into that
shall merge
private wrong
Thus
theft,which with us is one of
The
crimes,
was
damages.
in
Libel
Roman
law
continues
to
be
any
may
done
the
tort
mere
in
this
should
given
be
breach
direct that
to
most
that
theory
an
the
so.
of
the
public.
heinous
sounded
of
in
indictable
82
TTie
of Legal
Sanctions
property of the wrong-doer,or of
sale"of the
is needed
Thewy
and
produce the requisiteamount
to
of it
much
so
the
costs
as
of
recoveringit.
selection of the
standard
by which in any particular

be
is
the amount
of compensation should
measured
case
of difficulty.
Some
often a matter
general rules,however,
there is a wrong,
if
ascertained.
Where
now
are
sufficiently
The
have
that wrong
real
occasioned
not
actual
any
loss to the
the
damages
will
be
merely nominal
loss,the
damages
will
be
substantial.
plainant,
com-
; if there
Where
be
the loss
to such
pecuniary, the damages will be j)roportionate
the pecuniary transaction
involves
pecuniary loss. Where
where
the injuryis not a
any aggravating circumstances,or
but relates to the person
the feelingsor
of money
matter
such
reasonable
of the party injured,
the character
sation
compenis
be
may
the
case
facts
awarded
jury thinks
disclose
fraud
motive, the
this
that
fit.
In
all the
such
circumstances
personal
crueltymalice or
damages may be exemplary.
that
is included
under
if the
other
proper
im-
It is probable
the
next
one
should
exemplary damages
reasonable
of the
wrongs,
violence
last rule
preceding it, and

merely as a
in
as
be
garded
re-
exercise of the
jury'sdiscretion
of aggravation. The expressionexemplary
in circumstances
of punishment ; and although
too much
damages savours
the case
approaches the line that divides the sanction of
from the sanction of privatewrongs,
it seems
publicwrongs
of compenthe princiiile
desirable to retain in such cases
sation,
with a
even
though the compensation be measured
liberal hand.
Sanctions
The
" 6. Whcu
to
Particular
Duties.
his
law should
contract, the
or
neglects to perform
i
appropriate remedy
"
apparent.
is
either to carry out his engagement

to pay all the damages tliat result from
its tenor
its breach.
Accordingly,the
are
compel him
accordingto
of contract
refuses
man
or
two
ordinaryremedies
specific
performanceand
for breach
the action for
damages.
Sancti"ms
83
Duties.
Particular
to
remedy is also nsed where there is a breach of a

non-consensual
obligation.Specificperformance appears to
at first restricted
to English equity. Its use
be peculiar
was
for the sale of land, and
to contracts
was
subsequently
for its
the court laid down
limited by various rales which
of the
own
guidance. I will not inquireinto the causes
of this apparentlyobvious
late growth and the limited use
of the High
available in every branch
remedy. It is now
Court in England, and this extension will probablyincrease
its practical
importance.
to be those which
are
Although these sanctions seem
appropriateto breach of contract,and although they are in
fact generally
employed for tlie purpose, there is no absolute
that they should be so used.
Other sanctions have
necessity
been adopted, and traces of them
at different times
still
The
latter
survive in
provisionthat
and
The
law.
our
time
But
until he
semi-slavery
ordinary remedy at Rome
We
have
ourselves
for
under
the thin
Domestic
class
and
contracts
workman's
certain
the
"
breach
the
has
with
state
the
a
of
debt
are
by
recent
criminal
gas
or
societysuch
the
was
like
countries.
prisonmen
present reign im-
called fraud
too
was
condition
Republic,and
in Victoria
summonses.
liable to
imprisonment
In England another
legislation
brought
law.
breach
of
is in
company
It was
felt that in
water
punishable offence.
to
stillsurvives
practice
are
pieces
pretendto
less advanced
some
what
been
operationof
conditions
the
into
will not
out the
of their contract.
contract
present
in
servants
agricultural
of
the
worked
strange
this rule
insolvent
an
during
disguiseof
mere
Whether
until late in the
debt,and
for
within
had
of
had
stillbe found*
practicemay
be cut
operationI
the reduction
of
contain-the
should
his creditors.
carried into actual
determine.
Tables
insolvent debtor
an
distributed among
at any
Twelve
companies exercise public
of
"
Writing
Cambodjee, Siam, and Laos, a recent traveller says
Slavery for debt is
not, strictlyspeaking, slaverj-: it is a temporary loss of liberty. VVTien any one is unable
to
due, he gives himself or one of his children up to the creditor.
pay a sum
The slave's labour
is reckoned
as
equivalent to the interest on the debt ; but he is not freed until the principal
is paid up.
If he is discontented
with
his master, he borrows
and
him,passmoney
repays
ing
"
by
this
simple fact into
new
ownership."
"
f2
De
CAmrs's
Travels
in Indo-China,
83.
04
The
and
functions,
Theory of Legal
Sanctions:
that
needed
to prevent
specialprovisionwas
the inconvenience
to the public that the interruption
of these
functions must
produce. The performanceof such a contract
is therefore assimilated
The
anomalous
has
given
is described
as
laws.
On
damages
case
positionof
rise to
much
invidious
an
possibleonly
was
to the
because
the other
of
absolute
an
to which
servants
criticism.
pieceof
it
side,such
On
class
servants
I have
the
one
ferred
re-
side it
which
legislation,
the masters
was
publicduty.
are
who
made
usuallypoor,
the
and
be recovered
from them.
practically
Thus,
in the absence of any other remedy, their employers would
have
of enforcing their
no
means
part of the contract.
The solution of tlie difficulty
both as to them
and as to other
to be an
working under a contract of service seems
persons
cannot
adherence
in
to the
such
general rule of enforcement.
circumstances
It is true
that
the
remedy by damages is illusory.

It is equallytrue that the State should
not punish when
it
undertakes
merely to enforce. But damages are not the only
There
still remains
remedy for breach of contract.
specific
performance. The servant or other employ^ may be required
to his work
to return
disobey,imprisonment
; and, if he
follows of course.
Such imprisonment would be inflicted not
for
order
of contract
breach
of
competent
said to be in
not
the term
of his
he
is
for wilful disobedience

A
court.
contempt if
But
got.
but
he
do not
usuallyable
and
cannot
man
to
pay
go
if he
be
back
to
the
reasonably
which
money
to
he has
his work
for
give a reasonable
discretion must
rest with
the
necessarily
excuse, a certain
It is true that Courts of Equity have hitherto refused
court.
to direct specific
performance in the case of personalservices.
The remedy would i3erhaps
be unsuitable where
skilled labour
concerned.
afibrd
was
Damages, too, in such circumstances,
adequate redress. In the case of unskilled labour no such
is practically
difficulty
felt,and damages afford,not indeed
fore,
an
imperfectremedy, but no remedy at all. It seems, thereto
be
engagement
deservingat
can
least of consideration
whether
au
The
extension
in
some
of specific
performancemight
principle
of the case.
degreemeet the exigencies
"
enforce
claim
of whatever
instrument
does
or
kind.
an
agreement
There
of which
It will not
an
an
agreement for the
It will not accept an
in the
and with
manner
evidentiary
the
lend its aid to enforce
is not executed
State to
the
ordinarykinds of
tion.
express its disapproba-
it desires to
of such conduct.
to
is sometimes
by
or
not
forms of conduct which
are
think fit to visit with
not
punishment,hut
furtherance
refnsal
It consists in the
misunderstood.
and
recognise
of sanction known
form
is another
7. There
j^^^ ^^^ ^^^ operationof which
^^^
which
85
of Nullity.
of the
Thesanction
of Nullity.
the law
Sanction
instrument
the forms
that
prescribe.It will not permitits officers to act

where the proceedingsby which their interference is invited
are
irregular. It is strange, says Baron Bramwell,* that
in making it understood
there should
be so much
difficulty
it tliinks fit to
"
that
not
thing may
aid
it."
would
be unlawful
the
it,and yet that
in the
law will not

the
to which
Perhaps the difficulty
be less if attention
sense
were
directed
that the law will
immediatelypunish
learned judge refers
of the
to the nature
the conduct in quesprohibiting

tion
in the usual form, but to
the law adds a sanction,
not
the following
If any person offend herein,any coneffect :
tract
made
by him for or in furtherance of the prohibited
been
for an
made
to have
conduct shall be deemed
illegal
and the earningof money
therebyshall not be
consideration,
deemed
to be a la\N*ful occupation." Thus, where
a
man
known
not
marries during the life of his wife,if he have
during the preceding seven
years that his wife is alive,the
is not punishable; but nevertheless
the act is unlawful
man
is void.
No person
and the second ceremony
by advised
may
He may
speaking deny the Christian religionto be true.
of this duty,but he cannot
not be punishablefor a breach
sanction.
the command
To
"
"
enforce
contract
of
purpose
*
Covan
f for the hire
deliveringan
r.
of
anti-Christian
Milbourn, L. R. 2 Exch.
at p. 236.
lecture
hall for the
address.
The
t lb.
law
The,
""
Theory of Legal
Sanctions
biit itwill not enforce

providesno pimislimentfor prostitution,
for the hire of a carriage
to a known
a contract*
prostitute.
So where
Act imposes penaltiesupon
who are
an
persons
unable to satisfy
that they have visible lawful means
justices
of support, it has been held fthat a person
who
lived by
had no such means, and was
therefore within the
prostitution
meaning of the Act.
^^^^ 1^"^ of contracts
furnishes examples of
Nullity in
contracts,
ûothcr
Varietyof this class. A contract is an
enforceable
agreement.
law promises its aid
the
and
the
When
not
are
the
conditions
upon
fulfilled there is
agreement is for legaljDurposes void.
which
contract,
no
One
of these
conditions is that the
objectof the agreement shall be lawful.

But there are certain contracts of imperfectobligation
where
the agreement is recognisedby the law for some
purposes,
although the law refuses to enforce it. The objectof the
but it does not giverise to any right
agreement is not illegal,
of action.
act which
The former case
that of an illegal
was
of illegality.
of the usual consequences
yet had not some
The present case is that of a legalact which yet has not some
of the usual consequences
is not
of legality.Thus a wager
unlawful act.
If money
be paid upon a wager, the person
an
who receives it may lawfully
be lawfully
retain it. If a wager
in a foreigncountry, the contract! will be enforced in
made
this country.
But
upon
action can, as a general rule,be

certain classes of contracts which
Statute
of Frauds
do not
made
wager
requiresto
the terms
satisfy
in this country
brought. Again, there

the fourth
be in
no
are
section of the
writing. If
of the statute,no
the agreement
action
can
be
brought upon it. But this provisionaffects the proof

only and not the agreement itself. Notwithstandingthat
It will
of proof,the agreement is a true contract.
difficulty
such rule of
be enforced in a foreign country where
no
evidence
exists.
It will be enforced
of proofcan
difficulty
the
be avoided
the law declines to assist those who

*
Pearce
v.
in
or
own
country if
overcome.
Again,
our
sleepon
their claims.
1 Rog. v. Snyors, 4 W. W. " "B. L. 46.

Brooks, L. R. 1 Exch. 218.
v. Colatou, 1 Ph. 147.
I (^luu-ricr
Nullity in Pre-appointed
87
Evidence.
consequentlybarred by the lapseof a prescribed

But although the remedy is gone the contract
time.
and a proper acknowledgment will,without any
stillsurvives,
the faded right.
suffice to renovate
further consideration,
rightof
action is
providesany form of pre-appointed

act shall be
directs not only that some
or
Lppo^êvidence,
the law
When
Nullity
E%idenc".
^Qj^g |j^^^^^^^
j^ gjjgj2 |jg ^j^jjjgjjj gQjjjg
particular
by the sanction of
usually enforces its commands
nullity. It refuses to recogniseas evidence any instrument
It refuses to consider
form.
that is not in the prescribed
that any requiredact has been performed unless it be done
the most
Of these cases
in the regulatedway.
important
examples are found, of the former in the law of Wills and of
way,
it
Contracts, of the latter
advantages of
solemn
some
the
shall express
in
the
Rules
of
declaration
deliberate will of the
Procedure.
of intention
testator
or
Tlie
which
of the
record in a permanent
contracting
party and shall accurately
form
that expressionare
sufficiently
apparent. But the
and grave*objections.It
sanction of nullity
is open to many
cent
innois severe
; it is indiscriminating
; it usuallystrikes the
be
client and not the offendingpractitioner
; it must
Tlie evil which
it is the
added that it is hardly reasonable.
aim of tlie Legislature
to avert is the frustration of the parties'
to
intention.
The means
by which the Legislature
proposes
effect that objectis the productionof the very evil which
it seeks to avoid.
has in many
Modern
cases
legislation
adopted a better method.
Following in this case, as in so
others,the suggestionsof Bentham,t it usuallyprovides
many
forms
the
which
are
declared
to be
but of which
sufficient,
compulsory. Thus forms of this character are

tion
providedfor proceedingsbefore justices.Articles of associaare
suggested to tradingcompanies,but they are merely
their proceedings
suggestions
; standingorders for regulating
offered to municipalities,
and they may
are
adopt so much of
these orders as they think fit. Or, to take a largerexamjjle,
it is left to the discretion of the Colonial Legislatures
to
use
is not
See
Bentham,
VI. 65, 518.
t lb. 521.
2Vie
oo
Sanctions
Theory of Legal
contained in'the"Third Part

provisions
of the Merchant
Shipping Act. In all these cases the law
of laying
suppliesmodels, but declines the responsibility
rules.
down
is required,
the neglectof
Where
registration
As in the case
of
does not invalidate the act.
registration
of marriage,that neglectrenders the person
the registration
the duty is imposed punishable. In the case
of
whom
on
of deeds or of titles a like neglectpostpones
the registration
between competing claimants the holder of a priorunregisas
tered
rival.
instrument
to his more
vigilant
in the direction of
Two
one
Opposite
oppositetendencies,
extreme
the other in the direction of
Sanctions,
strictness,
tration
extreme
be traced in the historyof the adminislaxity,
may
of our law of sanctions.
Both proceedfrom the same
adopt all
cause,
or
of the
any
the
defective
efforts of the
courts
criminal
savage
pleadingwere
clearest
The
of
most
rules
the
strict that
law
of construction
trivial clerical
is how
the wonder
conviction
guilta
substantive
the
the
in the
even
obtained.
indictment
in the
error
old
in criminal
been
have
could
the
and
prevent injustice.Under
to
law
so
case
of
state
was
fatal.
paralysisof justice.
The
excessive technicalityof criminal procedureacted like
Benefit of Clergy in practically
mitigatingthe ferocityof
the
Both
then
expedients doubtless
existing sanctions.
The
result
saved
to
was
great
of the lives
but
lives,
many
extent
so
saved
not
few
were
of
hand, when the activity
little
Parliament
were
increased,the limits of legislation
that almost
it was
understood
thought necessary
; and
Act
should
provide for an infinityof details. Tlie
every
to be done
what
was
if,
question then continuallyarose
of the details were
of course
as
frequentlyhappened, some
the
to
wrong
go
the
Lord
lives.
To
wrong.
doctrine
of
Denman*
vocabulary."
On
the
meet
other
this
the
difficulty
"directory"enactments
once
said,is the most
"
Wliere
direction without
statute
any
*
Dwairiu
Statutes, Ixxl.
word
wliich,as
healing in
contained
penalty or
0)i
"
invented
courts
any
mere
the
legal
tive
affirma-
negativewords,
""
The
Theory of
the
Legal Object
.
CHAPTER
THEORY
THE
Objects
of
"
"
OF
VI.
THE
Commands,
1.
LEGAL
as
OBJECT.
have
we
directed
are
seen,
Command
.
arc
Acts
to pcrsons
and
and
are
meant
to control
"
condnct.
tneir
Forbear-r"
j.
J3ut
ances.
liuman
condnct
in doing acts
inaction,
j_
"
"
"
either
consists
action
or
in
It
abstainingfrom doing them.
follows then that the objectof a command, that in respect of
which
it is given and to which the duty relates,
act or
is an
No metaphysicalsubtletyis needed to define
a forbearance.
act or
indeed any other leading term
of law.
Law
is a
an
When
practicalbusiness,and deals with practicalmatters.
it speaks of acts or of persons
of things,it uses
or
ordinary
words
to express
ordinary ideas. The speculationsof the
schools therefore never
embarrass
the legal mind.
For all
legalpurposes an act presupposes
a human
being. It assumes
that he is practically
free to do such act or to leave it undone.
It impliesthat he desires a particular
end, and that for the
he makes
certain
of attainingthat end
muscular
purpose
These motions
thus willed,
and their immediate
motions.
and
direct consequences,
are
called,without any minute analysis,
an
Where
act.
described
for any
termed, is
an
of the will such
the determination
is to abstain
such
or
from
making
such
muscular
I have
as
motions
end, such willed inaction,as it has been happily
called
omission,
because
forbearance.
the
A
is
former
forbearance
differs from
always intentional
impliesa positivevolition,
altlioughthe accompanying
inaction
is negative; while tlie latter term
denotes mere
any
further connotation.
The
word
act is sometimes
and
result
out
withused
law the obligation

negative,just as in Roman
"/acere includes the obligation non /acere." But where
the positive
and the negativenotion
the distinction between
to include
"
its
"
Command
objectsof
importance as it is in law, if there

great practical
is of such
be
to
apt word
an
external
It has
act.
the
the mind
But
the
law
and
does
omissions
who
of mind
does
conduct
not
whether
move
So
long
pursue
his
as
intentional
and
beliefs have
true
that
just as
It
the law
it may
may
law,
conduct
any
proved or disproved
manifestations
unintentional
or
pry
opinionsor
motives
the
can
forbid the
into
acts
are
and
the
law
which
purposes
man's
conduct
as
a
determined
which
the State
that
other persons.
lead him to
not
nor
beliefs do
is contrary to
winds
motives.
certain
of the
law, these opinions

interest exclusively
for himself.
It is
issue commands
upon all these points,
which
an
the
them, and
manifestation
the
These
neither
directly
opinionsor his
concern
of the
of the person concerned.

of command, and
to the word
will itself.
the
to
The
some
secrets
observes
be
may
belief.
qualified
by
be
or
regulationof them suflSces for all the

can
reasonablycontemplate. So long
conforms
the
indeed
may
bearance.
for-
or
forbearances
the
the
not
act
not wise
to leave undone
or
directlycontrol only
can
will and
forbearances
and
acts
do
over
jurisdiction
no
of states
the existence
by
to
of the person
of mind
state
commandees
Acts and
heart.
is an
legalcommand
motive or an opinionor
every
It is not
requiresits
negativenotion,it is
the
to express
rejectits use.
The
object*of
law
"1
Forbearances.
and
Acts
are
It
beliefs.
in its power,
to
rage
to
sea
penal
flow.
certain
their existence
prove
by
punish those who hold

them.
Of the possibility
of such
the historyof
legislation
the
and
world
furnishes
abundant
melancholy proof.
This question, therefore,
the
to belong not
to
seem
may
form of law but to its substance.
the acknowledged
Yet
failure of all such attempts at all times and in all jilaces
every
means
pointsto
confusion
all that
Cfesar
some
universal
of the two
is
has
and
render
may
It may
the
or
fact.
it may
That
cause
seems
great factors of human
external, over
our
authority,whether
acts
he
AuiitiD I. d7S.
and
to
be the fatal
conduct.
our
exercises
Over
forbearances,
that
authority
"2
The
wiselyor
Legal Object:
all
But
unwisely.
all its issues of
and
the
Theory of
within, the heart

allegianceto another
that
is
their
owe
life,
Master.
If
exclude
we
real
persecution,no
that
proposition
deals
with
Cogitationis
pamam
Digest. "So long,
an
of the
said
thought of
instances
the
even
to
the
freedman
it
the
forbearances.
rule*
In
the
in
the
rests
act
an
when
but
itself but
It is trite
of
law,
is not
man
doth not know
the
what
only two apparent
Roman
ungratefulto
was
"
thought
call to mind
can
contrary.
who
and
done."
was
law
English
punishableby our law ;

judges not only of the act
devil himself
is."
man
acts
the
to
not
judge,| that
earlier
an
for
triable,
that
said
which
with
the
"
done, the law
intent
found
he
nor
religious
to
the
patitur was
Lord Mansfield,t as
nemo
it is
intention,
is
act
Roman
object than
other
"
in bare
the
relate
will
exception
neither
any
which
laws
those
his
law
it is said
patron might
be
originalservile condition. Yet this example

the law transmutes
shows
how
a
quickly and how certainly
command
concerning a state of mind into a command
In the earlier periodof
concerningacts and forbearances.
still continued
in the maiius
the freedman
Roman
history,
of his former
subjectto the summary
master, and was
of the pater familias. But under the Empire,
jurisdiction
of
of the State supersededthe autliority
when the authority
the Household, the law in effect providedtliat if the freedman
failed to do certain specified
acts, or to observe certain
specifiedforbearances,towards his patron, he should be
to his
reduced
liable
to
return
to
intention to kill the
persuasionor
But
treason.
his
slavery.
In
our
law
the
mere
Queen, expressedin words of advice
in consultations
for that
amounts
proved by some
is practically
an
attempt to
this intention must
act, and thus the offence
purpose,
be
or
to
overt
commit
treason.
is
It
noteworthy
agreement go beyond
that
request and
the limits of
t Soo R.
VIII. 19, 18.
\ i'er Brian C. J. temp. Edw.
t'.
still
and
intention,
amount
Lawrence
J., at p. 21.
Blacliburn, 2 App. Cas. C92,
Higgins, 2 East 5, ;w
IV., cited by Lord
more
an
to
Jo
Secondary Olijeetof Command.
whatever
another
offence.
actual
result is an
commit
to
intent
mere
Accordinglythe offer of a
though the offer be rejected.The
do
to
persons
to
only the means
A
conspiracy,it
of two
to do
more,
When
but
act
such
two
the
in
to do
or
to
agree
carry
it into
" 2. Evcry
directs either
commaud
by
or
unlawful
the
effect,
and the act of each of

plotis an act in itself,
actum,
promise against promise, actus contra
being enforced if lawful, punishable if for
objector for the use of criminal means."
Secondary
of
Object
the
in intention it is not
designrests
act
in
of two
agreement
lawful
two
object.
merely
not
same
that act be
act, whether
itself the ultimate
be
or
more,
or
long as
indictable.
bribe
between
agreement
an
8aid,t consists
unlawful
an
So
means.
end
is
is
unlawful
an
an
"
intention
there
an
its
in
to incite.
attempt
punishable,even
applieswhere
principle
more
It is itself
unsuccessful
is
the
Thus
something more
is
offence.
an
which
Solicitation
done."
act
an
offence
an
commit
to
is
or
incitingof another, by
or
attempted,is
it is
means
incitingof
than
solicitation*
"
definite acts.
very
the
parties,
capable of
criminal
act
an
or
"'_
-
torbearauce.
Command,
to
the
effects extend
to
be limited
But
that
of the
conduct
other
some
prescribesrules of conduct
will
act
forbearance
that
or
commandee
by which,
may
the former
In
person.
or
in the
exercise
may
in
its
case
it
of his
in his
mandee
dealingswith his own
property, the comis requiredto govern
In the latter case
himself.
it
rules by which
members
the relations between
of
prescribes
the same
are
regulated. In either case the rules relate
society
such rules
to human
conduct,and thus the law in prescribing
deals with persons alone.
necessarily
Things,as such, do not
within
the sphere of jurisprudence. They
directlycome
make
their appearance
merely as subsidiary to persons.
own
They
are
or
sometimes
requiredto
are
to
and
men
*
R.
r.
the
act
not
Biggins, ? East
to
or
matters
in
to forbear.
things; and
at p. 23.
Mulcahy
respect to which
But
commands
it is
r.
The
to
Queen,
men
persons
are
and
given
not
L. R. 3 H. L. at 317.
to
94
The
things,whether
Th'ioryof
animate
the
Legal Object:
inanimate,that
or
duties and
rights
exclusively
belong.
Thus
forms
in many
the
object of
other
person
than
this
the
cases
the
the
thing is
act
the
forbearance
has
reference
or
command
commandee
to
or
sometimes
to
some
thing.
some
described
which
This
subjectof
the command.
But
the terms
subjectand objectare, when
contrasted, somewhat
perplexing to the ordinary British
mind.
What
is worse, some
of the most
eminent jurists
use
these terms
in exactly oppositesenses.
That which
Savigny
calls subject,
Austin calls object. I have therefore thought
it prudent to abandon
the ordinarydistinction,
and
to avoid
of the term
altogether the use
subject. In its place I
have
employed the expression secondary object ; and
person
or
the
as
"
"
the
although
that it will
found
be
sufficient clearness
In
no
the
object;
is to
thing,that
or
forbearance
of
the
it may
or
human
act
merit
of
indicatingwith
that I desire to convey.

the forbearance
or
relate
either
to
whether
object,
or
of the
to
or
person
animate
being. Examples
have
may
mate,
inaniact
mere
secondaryobjectare the absolute

duties to assist the policewhen
requiredto do so, or not to
and
all the
certain occupationswithout
a licence,
carry on
rules concerningpublicdecency and good order.
Examples
thing as
the
are
laws
regards their
in
health
duties
or
the
without
criticism,I hope
to
open
the
meaning
sensible
other than
have
to
duties
absolute
further
be
expression may
secondary object in
relating to
treatment
persons
the
But
who
are
between
the
of
the commandee's
the
animals,
lower
of
modes
the
a
liolders or,
who
as
conduct
persons
in
as
them
absolute
needed, because
such
prefer to
latter class will be

former
wliether
requiressomewhat
are
duties
dealing with
where
case
person
persons
of these
case
illustration is
Such
rights. The
separate cliapter.The
whom
the
secondary objectis
is easy
the donees
a
or
in disease.
fuller illustration.
confusion
any
are
and
relates,
the
objectsand
call them,
considered
in
merely those to
have no indepeu-
dent
concern
The
most
in the
either
Command.
Object of
Secondary
command
of
strikingexamples
from
the donee of
distingaished
concerning the family relations
or
the
""
performance.
secondary object as
in its
in
and
the law
forbids any
Aborigines. Thus
kidnapping another's child. In such a case
the secondaryobjectof the command, just as
if the
command
commands
the law
him
have
educated
duties which
not
were
to
standard.
certain
do not generate any
from
person
the
is
child
horse would
So, too,
horse.
vaccinated,and
his child
to have
man
steal
to
concerning
law
the
the
be
in the law
found
right are
These
absolute
are
in which
right,and
to
the child
As regards
subject-matterof the command.
the generalpublic
the Aborigines, the law has imposed upon
several duties, of which
one
though probably not the sole
is
the
merely
motive
was
absurd
to
benefit
the
contend
of
that
these
blackfellow
suppliedwith liquorwhen he wants

have white tramps wandering with
In
company.
observed,
this
also
case
the
and
absolute;
people. But
it ;
him
has
or
it would
be
right not to
has a rightnot
a
when
duties,as
he
desires
I have
be
to
their
already
the
not
the
Aborigines are
donees of rights,
but the secondaryobjectsof absolute duties.
In relative duties there is a further development of the
secondary object. These duties,as their name
imports,relate
to persons
who
have an
interest in their performance. In
other
are
words,
the act
or
final,but
is done
Acts
forbearances
and
persons
or
or
observed
to certain
advantages.
These
the State that it will

therein enforce
the
forbearance
is not
for the benefit of
absolute
a
and
third party.
requirednot merely as to certain

things,but also as to certain recognised
advantages consist in the undertakingby
are
at
the
request
of the persons
interested
the
performance of certain duties. In some

material
respects these undertakingshave the characteristics
of property.
They are in every well-ordered State permanent.
They may, if the law by which they have been assumed
so
permit, be transferred.
be transmitted
upon
They
death.
may
They
in the like circumstances

are
often
of very
great
S6
'
The
Theory of
the
LerjalObject:
value.
They are thus suited to become, and they do become,

the secondaryobjects
of legalcommands.
We
have therefore
to enlargeour previous
and to say that such
description,
where they exist,are persons or thingsor
secondaryobjects,
rights.
" 3. There
Object may
unconditioned.
of consequences,
command
of the
place. Thus
painted thereon. It
A
in which
cases
the act
or
prescribedby law is absolute and

There
is no
questionof circumstances or
of intention or of knowledge. Such is the
law. The maxim
that requires
has
a mens
rea
no
and
many
the forbearance
ditionai.
here
are
the
breach
tobacconist
of it
the
is
cart
must
have
his
name
plain straightforward
command,
is easilyproved and is duly punished.
a
under
not
may
of
owner
certain statute
have
in his
If he offend herein,he is
tobacco.
possessionadulterated
liable to a heavy fine* even
though he had purchased the
tobacco as genuine,and though he did not know and had no
suspectthat it was
to
reason
adulterated.
Where
an
Act
of
Parliament
in
no
providesthat no person who is not duly licensed

that behalf shall keep in his house more
than two lunatics,
defencef on the ground of innocent intentions or of good
management
or
of this
cases
the absence
bigamy
of convenience
the
description
indeed
is not conditional upon
an
ofience.
of
want
then
was
conviction.
knowledge
of intention is immaterial.
his first wife
that
prevent
can
Thus
as
well
In
as
the offence of
knowledge of the bigamist

That
alive.
knowledge has
the
important efiect upon

But the prohibition
of
the
such
consequences
a
of
marriage does
his
not
In bigamy, it is said,|there
depend upon his state of mind.
is no questionof guiltyknowledge or innocent ignorance.If
A marries B, livingliis first wife,he is guiltyof felony."So
he at the
has an intrigue
whom
with a woman
where a man
is in reality
time believed to be unmarried, but who
a wife,
for divorce.
in a petition
be sued as co-respondent
he may
The
prohibitionof adultery is not dependent upon the
"
Reg.
V.
Woodrow,
15 M.
"
W.
X Per Lord
404.
Brougham,
t Rcsr.r. nishop, 5
F. 500.
2 CI. "
(J.B.
D. 259.
yo
The
of the persons
whom
upon
those of
are
and
Theory of
the
Legal Object:
imposed. External
they are
time, of place, of
of consequence.
Of
of circumstance,
person,
of these
each
siderations
con-
influences
shall
cite some
briefly
examples.
Many acts which at one time are lawful are, when
Prohibition
of Time.
^-^qjare done at a different time,prohibited.Many
acts,too,that
punishment
Thus
season.
time
at any
when
they are
visited with
are
committed
fish may
and
game
unlawful
are
at
be taken
not
tional
addi-
special
during their
some
close seasons, although at other times there

respective
such prohibition.Many acts of ordinarylife which on
days
lawful,or which
are
are
commanded,
even
may
is
no
other
not
be
night too is for obvious reasons

law.
Thus
ordinaryhousebreaking,
that is the unauthorized
entry with felonious intent during
the day of a dwelling,is punished by imprisonment for a
of five years ; but for burglary,that is for
term
maximum
similar entry during the night, the maximum
^
Prohibition
of Place.
is fifteen years.
The influence of place is
term
performed on Sunday.
watched by the
carefully
to the law of the Precinct*
only refer
I need
also notable.
The
days. At the present day contempts

courts
of justice
sometimes
depend upon
earlier
of
in the presence
of the House
aggravated by
such
forbidden
the
Houses
cemeteries
of Parliament.
are
their
of the court, and
or
Certain
occurrence.
innocent, are
of Parliament
within
or
occurrence
are
always
wise
assemblies,other-
distance
specified
of
in churches
in
Disturbances
severelypunished than similar
more
in
or
acts done
tory
places. There is a large body of law, partlystatupartly by-laws,which regulatesconduct in towns or
of proother populous places. There is also a multitude
visions
of public convenience
which, for the purposes
decency and good order,prohibitin publicplaces acts with
which in otlier places the law does not interfere. Bathing
in other
on
and
the
sea
shore
or
laudable, but
and
publicly
on
it becomes
without
*
of rivers is in itself innocent
banks
restraint.
See "The
Aryan
nuisance
if it be
man
may
HonschoUI,"
222, 367
if he
practised
pleasebe
Prohibition
99
Person..
of
publicplacehe must not be

even
drunk, much less disorderly.He may in his own house
much
use
as
strong language as he likes ; but if he do so in
the offence which the Romans*
he commits
a publicplace,
called
Conmcium^''and which with us is not mifamiliar to
the police.
in his
drunk
honse, but in
own
"
Whatcvcr
have
may
Prohibition
of Person,
the
been
in earlier
case
affects
the influence of person
clays,
very slightly
modern
There are
indeed various disqualificalegislation.
tions
and
pacity,
exemptions arisingfrom age, sex, mental incacrime, and alienage. There are also,as I have said,
specialregulationsfor the practiceof various occupations
which
the
law
for different
thinks
reasons
fit to
control.
principalrules of law apply to all persons alike.

The
notable exceptionis the Prerogative,or
most
that
the legal positionof Her
branch
of law which
concerns
Majesty; and yet even here littleof the old harshness practically
remains.
There is also the specialprotection
which
is given in the execution of their respective
duties to the
members
of the Legislature
and to the various officers of the
State. Assaults upon clergymen are more
severely
punished
than
similar
assaults
other people. Old offenders
upon
receive exceptional
that class which
treatment, and especially
is known
to the law as habitual criminals.
For some
public
offices various qualifications
and
disqualifications,
mostly of
from
considerations of public
a
pecuniary character,some
in the nature of punishment,are provided.
convenience,some
Less frequently
amples
cases
exemptionsare in some
granted. Exof the three kinds are found in the Jury Act.f
All
subjectto certain exceptionsand having certain
persons
bound
to serve
are
qualifications
on
juries.The qualifications
for jurors
that they shall be of the age of twenty-one, that
are
they shall be natural-born
subjectsof Her Majesty or be
But
the
naturalized
certain
The
for
certain
property in land
for
disqualifications
"
Inst. rv.
term, and
or
pay
the
that
rates
office of
4, 1.
t Act
g2
No.
to
they shall
a
certain
juror are
560, Part
I.
have
amount.
attaint
of
100
The
treason
conviction
or
tificated
felonyor infamous crime,uncerilliteracy.The persons who are
of juror are
too numerous
to state
except in very
sixtyyears of
members
office
the
Legal Object:
of any
and
insolvency,
exempt from
the
Theory of
general
include
They
terms.
who
blind
deaf
over
persons
dumb
insane,
Council and of Parliament,public
age, persons
of the Executive
are
or
servants,certain professional
men,
militaryand volunteers,
and
of trading vessels
masters
licensed pilots,
municipal
functionaries
and
their staff,the editors publishersand
reportersof newspapers,
of the Governor.
of
words
returned
from
and
"
serving upon
commaud
Btances.
or
breach,modify in
also, either
various
of
drunk
when
he
is in
aggravationin
under
nets
the forfeiture of the nets

be
essential to
as
legal duties.
ways
but fishing
with
prohibited,
not
vants
ser-
jurieswhatsoever."
any
matter
as
officers and
these
Circumstauces
Prohibition
household
classes of persons, in the

freed and exempted from being
All
earlier Act, are
an
the
and
and
charge
of
a
a
of its
case
Thus
the
fishingis
certain mesh
heavy
fine.
vehicle
If
man
when
or
volves
in-
he is
he is,for obvious reasons, liable to a severer

carryingfirearms,
punishment than he would be if he were drunk and incapable
drunk and disorderly.So, too,any number
of people
or
even
peaceablyassemble for any lawful object,but monster
may
meetingsin circumstances likelyto cause reasonable alarm in
the neighbourhood are in themselves,and without reference
to the conduct
acts
which
men
may
are
become
"
number.
of the persons
innocent when
The
wrongful
number*
There
one's
done
when
and
the
by
one
they
man
That
by
or
is,
few
done
by a great
compact giveweight and
are
danger."
cause
Acts
assembled, unlawful.
is another
done
at
Peril,
marks
limitation of command
the
oppositeextreme
prohibition.In the latter
In the former
altogetherforbidden.
to
case
case
which
that of the
the
act
the act
ditional
uncon-
itself is
is not
bidden
for-
but certain consequences

of it are.
In these circumstances
is said to do the act "at his peril." There is
a man
"
Mulcahy
".
The
Queen,
L. R. 3 H.
L. at \\ 817.
Acts done
nothing unlawful in the

involve any damage, he
is
controversy
no
mind.
for the
is answerable
intention
the
The
did
exercise
not
such
care
in the
as
loss.
other
or
questionsimply is whether a
neighbour any loss,and, if he have,
his
or
lOl
Peril.
itself;but if its consequences
act
to
as
One^s
at
There
state
has
man
of
caused
whether
he
circumstances
did
the
law
requires.The varieties of this class are very numerous

and very important. They include the use
of property,
the keeping of animals, the keeping of things,the management
of business,personalcircumspection,
the custody of
another's property, the employment of servants
their
and
A
subsequentconduct.
man
lawfullydo all or any I
may
I
of these things,but he must
be careful not therebyto cause
harm
to his neighbours. Accordingly, the
amount
any
of
requiredto
from
been
considered
observe.
the
to the
not
be
must
care
Much
attempt
duty but
said,*
it is
"
wliich
to
respect to them
trouble has
breach
of
and
correct
arisen
duty. But,
he
is
this subject
on
its details with
arrange
to the
more
in
reference
it has
as
scientific to define the
degreesof care than the degreesof negligence." From this

it will be found that the law notices in different
stand-point
circumstances
in
question
three
is in
duties of
One
care.
is when
the
act
itself
dangerous to the public. In such

the defendant,
I may for shortness call him,
circumstances,
as
is understood
to warrant
tliat no
shall
damage whatever
in which
happen except in case of accident in the sense
this
will
term
where
there
is
sufficient care
In this
bound
case
presentlybe explained. The

no
the
only to take
that reasonable
can
control
of the defendant
reasonable
take such
must
is in all the circumstances

In
purpose.
nor
*
At
the
third
does it need
Monta^
care, or,
is taken.
care
Smith
is
anticipatedanger,but where, if
taken, danger might probablyensue.
not
duty
case
to
reason
were
second
That
care
as
of the
the
case
is less strict.
r.
G. "
or
those whom
is
see
he
in the
case
act
opinionof the court

fairlysufficient for the
is not
gerous,
naturallydan-
specialattention
J., Grills
accurately,to
more
is,he
He
S. CoUier
to
prevent
Co.. L. B. 1 0. P. 613.
danger.
102
The
In
these
Theory of
circumstances
palpable carelessness
by himself or by his
rashness
with
^hc
Burthen
Actons
or
of
shown
for
Negligence,
the
there
distinct and
some
part of the defendant
servants.
heedlessness
be
must
the
on
Legal Object:
or
He
with
distinction between
by the difference
with
acted
have
must
either
negligence.
these cases
is practically
in
their rules
to
as
the
proof. lu the firsttwo cases the damage

itself raises a presumption againstthe defendant.
He has
caused
damage, and he is consequentlybound to offer and to
the burthen
prove a sufficient explanation.In the third case
of proof rests with the plaintiff.
In order to establish his
of duty, that is, in the
breach
case, he must
prove some
circumstances
act or omission which
assumed, some
specific
led to the disaster in question. Thus
man
a
lightsa fire
in his field,and
it spreads and
burns
a
neighbouring
not in fault,
and he
house.
He
must
prove that he was
uncontrollable event,
can
only do so by proving that some
such as an unexpectedgale of wind, had led to the mischief.
A brick falls* from a railwaybridge,and hurts a person in
the street. The presumptionis that,as bricks do not usually
fall from
well-constructed
buildings,the defendant must
in some
to building or
failed in his duty as
have
way
maintaining the bridge. It rests with him to rebut that
presumption,and to show that,whatever may have been the
of the fall of the brick,he had exercised reasonable
cause
But where a gentleman's
to prevent such an occurrence.
care
servant f was
riding his master's horse through the streets,
and the horse,without any assignable
cause, suddenlybolted,
and, without any fault of his rider,knocked down and injured
who happened to be passingby, the person
a person
injured
fact that the horse
could not recover
damages. The mere
bolted was
not of itself evidence of negligence
gence,
negli; but
that is the breach of some
was
duty, the plaintiff
bound
iî^rthcnof
to
prove.
as
it
"
Kearney
v.
the old books
amounted
never
Thus
to
mischance,
mere
call
it,is not
"
fnerum
ground of
fortunium
inexcuse;
wrong.
L. U. " S. C. llailway Co., i 11. " C. 403.
t Manzoni
v.
Douglas,
Q. B. D. 145.
objectLimited by
5. Of
"
Object
state
of
form
words
No
than
these and
more
which
have
almost
any
the
from
present
most
"malice"
in
and
forced
to
with
now
part
ingly.
know-
criminal
onr
to be
seems
com-ts
meanings
universal
words
its paronyms,
do harder duty than
disappear
tongue, should altogether
our
languageof
law.
In the
extensions
of the
word,
the absurd
from
for the
of similar adverbs
probably been
other words
are
familiar in
more
word
the
that
consent
In the
commandee.
vituperative.There
less
or
are
relate to the
those which
are
and
negligently,
malicionsly,
multitude
of the law
distinctions
the adverbs
expressedby
limitingconditions
ol the
these
law
our
all the
mind
01
\^6
important
the Diost
commandee's
State of Mind.
Commandee's
case
there
of
is
malice,apart
incurable
an
the not very happy distinctions of malice in

Mdice
malice in fact have been unable to overcome.
ambiguitywhich
law and
in its
ordinary sense
sense
it denotes
denotes
both
the
motive
presence
and
in its technical
,
of intention
"
word
presentlyexplain and the absence of justifi-^

cation. Negligence,
too, is affected with ambiguity; in its
in its technical
a state of mind,* and
popularsense it means
law namely
it means
sense
a certain department of law, the
from malicious wrongs.
of negligent
Since,
as
distinguished
however,the perversionof the term is only technical,the
I shall
which
word
may
caution.
"
still be used
We
in its proper
indebted
are
sense, but
not
without
for the solution of the difficulties
questionto the masterly analysisof

Austin.
"Without
a
single metaphysical subtlety,says
J. S. Mill,t there cannot be a more
happy example than he
here affords of metaphysicalanalysis."This analysis^
seems
to be now, at least in its leadingfeatures,
universally
accepted.
is
It
therefore unnecessary
to repeat the investigation
that
has once
for all been successfully
completed, and to remove
I shall therefore
difficulties that happilyare now
obsolete.
content
and shall,
myself with a reference to Austin's work,|l
without repeatinghis arguments, state briefly
the substance
connected
with
this
of his conclusions.
"
Sec
Mr.
Markby's
X See
Mr
Elements
Markby's
of Law,
Elements
107-110.
of Law,
t Dissertations
106.
and Diacnssions, III. 232.

| Lect. xix.-xxi.
104
Theory of
The
Where
Intention.
does
man
act, he either adverts
to the
he
he
does
expects
Where
not.
Legal Object:
or
omits
deliberately
to intend
the act
he wishes
the consequences
them
ends
as
the omission.
or
them
he
follow,
not,
or
merely
as
Where
does
man
is said
advert
so
whether
or
to
means
Equally immaterial is the motive for his

enough that he adverts to the consequences,
might reasonablyexpect their occurrence.
Rashness.
and
consequences
to
or
It is not material whether
to follow
or
to do any
of his conduct
consequences
adverts to these
might reasonablyexpect
or
regards
the
end.
an
conduct.
and
he
It is
expects or
the consequences
to
of his
contemplatedact and expects that they will not follow,

if that expectation
be formed without reasonable grounds,his
is described
conduct
beings and
for fools
not
foresee the
men
advertence
these
Heedless-
YaB
will
duty, does
conduct,he is
the
to
these
that
their
It
conduct.
implies an
implies a belief
It implies that
occur.
to the consequences
He
duty to
matter
at
takes
and
consequences
all.
is where
would
that
this
without
the
conduct
act
which
ought
any
omission,the omission
thouglitof
of his
heed
to
sequences
con-
It is not
as
disregarded
not
happen.
in which
Where
an
without
acted
man
no
take heed.
that in circumstances
requiredthe
is left undone
of such
It
not advert
his
denotes
omission,that
done
of
elements.
foolishlythouglit that they
or
was
an
not
it was
he adverted
Heedlessness
upon
consequentlyassumes
said to be heedless.
of which
them
three
for rational
that is without such care

as
unreasonably,
who
formed it was
requiredby law to take.
Where
does a certain act and, contrary to
a
man
the person
though
is meant
formed
was
ness.
it
law
consequences.
consequences
belief
and
involves
the
to
The
ordinaryconsequences
thus
Rashness
rash.
as
spection
circum-
thought
any
consists in
to
have
been
the consequences
is
generallycalled
by high authority*been
laches
or
defined to
negligence. Laches has
is obliged
be "a neglectto do something which by law a man
to do."
Negligence,so far as it is applied to a
NegUgenoe.
*
Ar
Lord
Ellcnborough
L. C. J., Sebwf
v.
Abitbol, 4 M. " S. 402.
106
"
The
England
that
in
he
Australia
to
doing
sufficient
Theory of
so
reason
he
the
goes
he is
likelyto
that
he will
lerialOhjed
He
far south.
very
knows
ice,but thinks without
meet
If disaster
it.
escape
will be liable for rashness.
happen,
he
thinkingwhat
Or, without
is
doing,he lightshis pipe and throws the match into some

His
combustible
material.
and he is guilty
ship takes fire,
of heedlessness.
Or he gets drunk, shuts himself up in his
cabin, takes no observations and gives no directions for the
ashore, and the
working of his ship. She runs
proper
captain is guiltyof negligence. Or, desiringto make his
trip in the shortest possibletime, and quite indifferent to
the fate of himself his ship his cargo his passengers
and his
than
his run
make
hours sooner
a few
crew, if only he can
it,he carries on all his
any other captainhas hitherto made
In such a case
in stormy weather.
he will justlybe
canvas
held
been
to have
Other
men
cases
group,
would
He
the
case
that
he
of murder.
wished
he
stranger
stranger
on
had
storyis told that

hotel in the
an
approachingthe
was
button
the third
the
man
although
sharp-shooter,
no
An
to imitate
towards
ill-feeling
actor
the
put an apple on a
length of the stage.
in that
his
The
boy
was
some
West
of
One
he
bet that
of his waistcoat.
died.
No
from
the
one
can
nature
of
victim,was
country is said
exploitof William
boy's head, and
Far
hotel.
revolver,made
the
accordingly and
that
of
the door
expert with
an
hit the
hit him
doubt
easilybe put.
may
standing at
were
of America.
the
reckless.
Tell.
guilty
to have lately
Accordingly,
fired from
killed.
The
the whole
marksman
to hit the apple,not

guiltyof manslaughter. He meant
the possibility
of
to shoot the boy ; but although he foresaw
that it would
tlic misfortune,he rashly assumed
not occur.
A party of volunteers goes out for practice
near
a
a road, and
man
passingalong the road is shot. This is heedlessness.
A pointsman on
a
railway does not turn his pointsat tlie
He is guiltyof negligence.
proper time, and a collision ensues.
in
Or a squib is thrown
into a crowd, and it strikes a man
was
the eye and
blinds him.
said to have
acted from
motive,
"
be
it cannot
he
reckless
was
act.
for
wish
volition.
thought,but
of
Austin,* is
says
threw
who
person
want
of his
of the consequences
Motive.
The
wish
something
not
causing or
ceding
pre-
to be obtained
by
wishing it,but which the party believes he shall probably or

of those wishes, which
are
styled
certainlyattain by means
acts
of the will."
The
former
evidence
the
it.
men
it than
to
when
adverts
to the
acts
expects it
qualityof
expectationof
of another
deprive the
thus
intends
motive
of his
of the
condition
of
others,that
and
but
the
givesits
State
between
named
Martin
theatre
at
f put
Leeds
the gas
out
*
I. 423.
at
on
the
an
the
causes.
with
he
of that
property.
He
intends
it whether
his
the
or
gratification
evidence
as
motives.
of intention,
It is not to
to the moral
not
and
bar
of
the stairs.
t The
intention,and
in
criminal
English
close
upon
attention.
illustrated
iron
and
foresees that his act will
motive
recklessness,were
in
he
the results of his conduct
to
is he
takes the property
its consequences,
the actor
difference
of
to
to
patient,and
connexion
no
man
itself with
but
act
lately considered
turned
He
his act
of his
starvingmother
rarelyconcerns
are
pain,that
from
has
profligate
pleasures. Except
own
causes
nature
motive
One
consequence,
be the relief of his
the law
The
often
that
suffering
enjoyment
of the
that
follow
the
his consent.
owner
latter to
and
inflict
benefit
consequences.
without
the
dailyoccurrence.
to
likelyto
seeks to minimize
Further, the moral
has
evils is
is the
but his motive
deploresand
the
is
pain that
distinct.
altogetherindifferent. But
which
they sincerelyregret.
operates intends
he
thus
likelyto advert
some
likingor some
more
he
is
choice of the less of two
surgeon
the
he
when
are
be
may
is
man
do
intentionally
may
The
he
of his act when
consequences
aversion
indeed
Motives
of intention.
intentions
precedes the act,
what
relates to
follows
wliat
and
Motives
across
the
A
Queen
that
case
courts.
the
doorway
performance,and
panic ensued, and

r.
Maitiii, 8 Q. R
D.
M.
the
was
man
of
then
several
lOo
fheonj of the Lerjal Ohjecti
The
lawfully
injured. Martin was indicted for unseriously
and maliciously
wounding. The Recorder of Leeds,
before whom
the
was
case
tried, directed the jury to
consider whether
the prisonerdid the act
as
a mere
pieceof
foolish mischief,"and told them
that if they thought so they
The prisoner was
should acquithim.
found guilty,and on
It was
appeal the conviction was affirmed.
pointedout that
the direction of the learned
Recorder
was
clearlywrong.
A man
he wilfully
and without lawful
when
acts maliciously
will injureanother."
does that which he knows
excuse
The affair was
as
a practical
joke; but if such
probablymeant
jokes cease to be laughing matter, the perpetrator must take
persons
were
"
"
the
There
consequences.
ill-motive towards
of the
any
been
have
may
malevolence,no
no
sufferers.
acted
Martin
But
he knew
and
expected the consequences,
He
did not
these
that
might be serious.
consequences
he
desire the result, but
indeed
was
simply indifferent
intentionally
; he
to it.
the
the
it
the
thing
same
motive
was
the
Whether
the
not
intention
with
and
Recorder
learned
which
the
hurt, it
not
were
but foolish.
wicked
motive
or
The
to him.
not
was
people were
law
is
that
saw
failed to
He
was
see
that
concerned, but
its consequences.
rashness, heedlessness,
noteworthy that the terms
negligenceare dyslogistic.They imply that the conduct of
the person
to whom
they are severallyappliedis contrary to
to the eulogistic
his duty. They correspond respectively
terms
prudence, vigilance,and circumspection. Like all
of this class,
other terms
they have a composite meaning, and
of fact and a judgment ui)ou that
at once
a matter
express
of fallacy
fruitful source
In ordinary use, no
fact.
more
But for legalpurexists than this class of equivocalwords.
It is
})Oses, if
only
we
take
the
trouble
the breach
indicate
of that
the
duty
duty.
consideringinvolve,as
Thus
indeed
make
the
necessary
The
is convenient.
this peculiarconnotation
analysis,
terms
to
tlie
dyslogisticterms
these
terms
all others
which
of the
same
gistic
eulo-
indicate
we
are
class
109
Knmoledge.
is
involve,three distinct implications. There

omission.
This act
of mind.
This
or
state
takes
of mind
in reference
Such
is contrary to law.
omission
oflfences.
themselves
placein
omission
They
such
of mind
states
or
an
given state
to
act
or
in
is another
There
of which
of mind
state
an
and
They qualifyacts and forbearances ; and acts

forbearances so qualified
are
objectsof legalcommand.
offence.
Knowledge.
in
not
are
element
severallyan
are
act
an
the law
frequentcognizance. This is knowledge. It has been

said that without knowledge there can be no transgression
; and
is a commonplace with lawyers. I have
the maxim*
mens
rea
already shown that knowledge is not an essential ingredient
the law thinks fit to
in a legaloffence ; tliat in many
cases
declare a duty of which
sequently,
knowledge forms no part ; and, contakes
that
received rather
the maxim
as
an
In aU
be
may
and
qualified,
In
and
done
with
familiar
sometimes
scienter
and
show
presence
speaking of
of
the
indicates
the
adverbial form
the
it
to make
I agree
have
The
under
be
ActHt
nonfaeit
rtwn
facts.
shows
that
mau
its
is
once
sufficient
merely qualifies
for its
necessity
it
to the
formal
mere
The
with
distinction
or
the act
Thus, in
term.
"
the
the
nisi
its
stricted,
unre-
possessionof a die
Bovillt said, There is nothing in
part of the offence ;" and
word
shown, that
but
law.
for the
knowingly done what

duty created by the
knowledge
*
no
the intent any
that
must
was
indictment
coining,Chief Justice
act
material
frequentdisputesas
that
an
where
to
is
sometimes
cases
is limited
knowledge
plainness. Its
the act
the
words, the command
other
criminal
our
duty furnish the true test of

The
duty may be peremptory
correspondingresult appears in
its absence.
or
breach.
the greater part of
of the
the terms
cases
presence
"
than as a principle
interpretation
it is not disputedthat knowledge is
rule of
justice.Nevertheless
importantelement in
of
be
referred must
I have
which
to
'
accused
is made
offence
added,
ledge
feloniouslya guiltyknow-
an
was
Reg.
r.
"
Haney,
person
must
by the Act."
of
irrespective
thus
epithet " felonious

sit rea.
the
'
is that the
statute
for
at
L. R.
common
1 r. C. at p.
law
89.
110
The
implied,at
that
Theoi-y of
the
least in the absence
Lega? Object:
of evidence
guiltyknowledge existed.
is reallyequivalent to intention.
In
of mind
in which
the person
expects it,or
at least thinks
that
to
unlikely,
it is not
that the
doctrine
In
acceptance.
a
practically
other
does not arise until

of the
knowledge
notice
means
adverts
to
the
cases
certain
in
On
the
found
In
and
consequence
these
at all events
in this
sense
such
general
knowledge is
question of
the
cases
duty
is brouglitto the
facets
state of
commandee,
of them.
the
has
rea
condition
only the
or
likely,
Probably it is
mens
contrary,
knowledge
cases
that it is
of evidence.
matter
some
It
occur.
of the
to the
other
until
words,
assumption
that
he
has
knowledge
is
of fact,it
question is whether, as a matter
But the possessionof the means
exists.
of knowledge is
only evidence of the possessionof actual knowledge. That
ing
accordvaries in its cogency
evidence,like all other evidence,
under
If a man
to circumstances.
were
a duty to know
the presumption is that he performed his duty
a certain fact,
necessary,
the
and
himself
made
within
or
obtaining the
presumption is greatlyincreased.
the ordinaryexperiences of life,
reach
his
requiredinformation,that
within
If the matter
were
he
be
allowed
which
he
would
with
matter
if another
and
in fact
did
he
had
as
to
of law
that
bound
of the
is the
other
duty
of animals
It has
that
Thus
to
be
two
One
the
the
been
to be
settled
becoming
attention
aware
show
that
the
to
in the strict
ticular
par-
of the
sense
in questions
notice.
Thus,
classes of
one
questions,
tlie precise
are
is, what
party did
duty
were
acquainthimself,
requiredto
requiresknowledge
that he knows
now
are
of fact.
which
evidence
knowledge
of law.
commandee
given the
the
is,that
If it
ignorance.
commandee's
that
"
of
means
interested in his
knowledge, there
and
terms
what
not
were
call the
circumstances
word
affect
to
was
person
the
facts,such other person would
of the
he
not
in his possession
If he had
acquainted with it.
of
or
man
?
did
as
ferocious is
that
The
man
other
not
possess
keeping
proposition
keeps such
to
a
is,
the
they
damage
that
mischief,he
But
temper.
the
fierce,
that he
if it be
proved
will
be
owner
by allegingthat
he had
the
of
means
chosen
all
used
these
any
keep
not
was
allowed
to
does
that
dog
dog's
habitnally
of the
aware
the
that
beast,and
is
dog
escape
his
liability
always gentleto him, and

mischievous
propensity. He
the facts about his dog if he
was
of his
" 6. There
Limited
that
had
had
means.
are
other
some
of mind
states
which
by
small part in
play no
States
from
those which
limited
not
are
dog
knowing
to have
Object
Joint
the
heard
never
not
for
of the
nature
If he
prove
may
is answerable
savage
disavowal.
listen to any
will not
the
knows
person
every
is
keeping them
he
is
proofof knowledge
no
ensue,
HI
Mind.
keep a tiger,and damage

required. The law presumes
occasion.
may
of
he
that
by law, but
forbidden
not
Stateg
is that the act of
peril;that
at his
animals
Joint
by
Object Limited
conditions
that
to
an
we
have
difier materially
which
law, but
hitherto considered.
individual,but
They
certain mental
express
jointlyapplicableto two or more

persons.
Of these the principal,
and that which
underlie
to
all
appears
the rest,is consent.
Consent
of persons, a
impliesa plurality
common
design,and an agreement to giveeffect to that design.
It is not
to
material
now
inquirehow
silence.
mere
are
to consider
far consent
or
ordinarycourse
with
who
has
claim
for
partiesits colour
of business
and of lifeand
consented
or
to any
damages
on
account
excuse
which
was
intended
for the
that
other's consent
the
not
general good.
and
at
to him
of that wrong.
with
disobedience
can
the transaction.
to
his
one
man
the
ference
wrongful interno
man
maintain
can
Volenti
breaches
of
nonjit
public duty;
plaincommand
for the benefit

If
consent
the difference between
done
wrong
is otherwise
but
to
projjerty. In privaterelations
consent
law
admitted, that
marks
injuria. But it
no
be
its absence
person
for consent, or
proved by acquiescenceor by
If the fact of consent
givesin dealingsbetween
Its presence
is
the evidence
of any
of the
individual
kill another
request,it is murder.
with
Two
112
The
cannot
prize-fighters
leave
the
Theory of
charge for
upon
Legal Object:
an
assault
plead
and
themselves
such a
licence,
although as between
defence might be sufficient in an
action for damages. In
the law refuses to recognise
for consent,
some
cases
a capacity
in lunacy or infancy,
in certain circumstances
in the
as
or
of young
children.
Where
it is permitted,consent
case
be
given before,at, or after the act in question.
may
Where
it follows the act, it is usuallycalled ratification.
It must
a
be observed
that
Life is made
balancingof conflicting
frequentlyindeed the
present, and the competition
advantages and
are
disadvantagesexclusively
form
the
reluctant,is
up of a
disadvantages. Too
true consent.
assumes
consent, however
of
choice of evils.
Nevertheless,such
choice,however
Coactus
painfulit may be,is a true choice.
volui" are the words of the Digest ; and the Father of Gods
he surrendered
and men
this judgment when
to
anticipated
of Here the holy Ilion*
the vengeance
willingthough with
unwillingmind." There may, however, be a consent which is
not genuine. It may
mation
have been obtained by imperfectinfor"
"
that is where
disclosed have
extorted
or
threats.
But the consent

be free.
must
The
He
that
It may
have
It may
to have
have
been
been
been
procured
which the law recognises
be
must
consentingmust have at
person
least sufficient information
judgment, and
ought
wrongfullywithheld.
by violence
by deceit.
full and
been
facts which
certain
to enable
judgment must
in a position
to
him
not
to form
be disturbed
correct
by
cion.
coer-
and freely
intelligently
If he be not in that position,
the words of
his yes or his no.
idle sounds.
The difficulties,
consent are
mere
however, are
much
greater where a true consent has been given but has
been procuredby deceit.
I ought rather to say, since the
is not essential,
moral element
by the misleadingsilence or
the misleadingstatements
the misleadingconduct of the
or
person
Deceit.
must
who
be
procures
that consent.
It has for thousands

and
treatises whether
*
fKwv
say
how
dfKovn
of years been a topicin ethical

far a seller's reticence of facts
yt
Qvfuf.
"
lUad
IV. 48.
114:
The
merely from
of
course
cases
of
moral
the
the rule ; but
innocent
in which
way
had
been
Legal Object:
fraud.
term
dyslogistic
obliquity,but
Hence, when
motives
of tlie
use
within
comes
caused.
same
tlie
Theory of
they would
fraudulent,an
by the use of
to
Fraud
the rule
not to
applies,
loss wrongfully
of
cases
treated
persons were
have been
treated
in the
if their
the
distinguish
the expressionlegal fraud.
made
cases
was
I do not understand, said Lord
Bramwell,* legalfraud.
To my mind, it has no more
meaning than legal heat and
There
be
never
can
legalcold,legallight and legalshade.
a well-founded
complaintof legalfraud,or of anything else,
some
duty is shown and correlative right,and
except where
violation of tliat duty and right. And when
these exist,
some
it is much
better that they should be stated and acted upon
should be had to a phrase illogical
and
than that recourse
unmeaning with the consequent uncertainty."
A recent case,-jalthough its results were merelynegative,
named
Hobbs
illustrates these principles.A man
brought
diseased pigs. This proceedingwas
to market
some
contrary
of an Act of Parliament,and he consequently
to the provisions
made
liable to a prosecution. He
statement
became
no
as
asked no questionson the
to the health of the pigs,and was
in the ordinarycourse
but sold them
named
to a man
subject,
The pigs infected not only the other stock belonging
"Ward.
but also his land,and caused considerable loss. For
to Ward
this loss Ward
brought his action. But it was held that Hobbs
to disclose the state of health of the pigs,and
not bound
was
that he had not made
concerningthem.
any representation
and so was
committed
true that he had
It was
an
offence,
of
to establish a case
liable to criminal proceedings. But
be proved that something was
done with intent
fraud it must
attempt
to
"
to deceive.
It is not
enouglito
show
certain
conduct
not done
that intent but which
might have such a consequence.

concealed
false representation
had made
Hobbs
no
; he had
nothing which the law requiredhim to disclose. Nor did the
of sale any warranty that the pigs
law imply in his contract
with
"
W^r
V.
Bell,8
Ex. D. 24a
t Ward
r.
Hobbs,
Q. B.
D.
100.
1*5
Collusion.
act ; he had
illegal
done an immoral act ; but he had not infringed
any rightof the
given for the defendant.
Judgment was accordingly
plaintiff.
The term
used in connexion
collusion is frequently
coUusion.
had
certainly
were
sound.
He
with
fraud.
There
Fraud
may
be
done
the
of
act
with
intent to
It is
consequentlyof
denotes
the act in
to do
and
itself,
forbidden.
two
Idn to
near
agreement
an
is
act which
an
deceive,
But
singleoffender.
between
agreement
an
them.
is,however, a difference between
impliesaccomplices.Collusion
denotes
an
speciesof consent, and
persons to do,
is otherwise not unlawful.
or
more
conspiracy.The
unlawful
an
But
act.
It is the intent that
latter term
in collusion
intent,is
reference to the
without
collusion
it its colour.
givesto
not
That
intent is
always,as I have said,to deceive. The word means

and then,according to an
to play together,
etymologically
The term
expressive
metaphor,to playinto another's hand.
is,I think,usually
appliednot to words but to acts. We speak
of collusive proceedings
of collusion in
in a court of justice,
for divorce,of collusion in obtaining
gettingup a petition
evidence,of collusion in giving or withholdinga certificate.
In most
cases, collusion
fraud.
soughtin
done
a
a
sort
of
pound
com-
its
case
become
mischievous
separately,
number.
this may
But, however
maxim
to
analoguemay perhaps be
which, though inoffensive when they are
In either
those acts
amount
to
seems
of Courts
when
they are done by

be, it has always been
of Equity that, as Lord
Hardwicke*
it," in all cases where a legalrightis acquiredor

exercised by fraud or collusion contrary to conscience,
it is the
expresses
officeof this court

A
to
the
to
enjoinit or
made
contractor
decree
contract
with
compensation."
a
a
for the construction
of
satisfaction of
engineer of
the
waterworks
reservoir and
the
mission
com-
other works
commission.
other things,allegedthat
Disputesarose, and it was, among
the engineerin collusion with the commission
improperly
withheld his certificate. Upon this part of the case
Sir W.
F. Stawell,
C. J.,deliveringf
the judgment of the Supreme
"
Garth
t Young
r.
t.
Cotton, 1 Wh.
Ballarat Water
" Tu.
L. C. 481.
Commissioners,
H2
5 V. L. R. at p. 544.
116
The
Court,used
Theory of
followingwords
the
different motives
in this
Legal Object.
"
"
Two
yet entertain
may
fraudulentlycombine
may
the
to obtain
have
case
the
the
same
by
intent
and
The
neer
engi-
object.
same
anxious
been
actuated
persons
postpone the
to
of passing as
responsibility
complete works in which
searching hand of time might point out defects; and
the
defendants
the
immediate
been
have
may
settlement
in
of this debt
condition
undesirable
different
motives,may have entertained

intent,namely, the postponement of
and thus
prejudiceof the contractors
the
render
to
:
the
both, from
same
objectand
certificate to the
the
gaining of time.
The
fact of several persons
mere
entertaininga common
intent or being desirous to gain a common
objectdoes not,
between
them, although their
however, prove a combination
render that combination
more
community of object may
the works
As soon
were
pleted
comas
probable
and their
to the knowledge of both the defendants
due was
on
a fraud
engineer,their retention of the moneys
and
the plaintiffs,
and a fraud of which both the defendants
He
their engineerwere
aware.
professeshis readiness to do
to receive payment,
the act requisite
to enable the plaintiffs
he
if the defendants
will only direct him to do so in the mode
wishes.
The defendants,
of this readiness,decline to
aware
give the specialdirection for which the engineer asks,and
having previouslygiven a very plain direction decline to
enforce it. Thus both may
not inaptlybe described as playing
into each
other's hands."
several remarks.
motives
and
In
intention is
place,it
is shown
different
motives
the
the
presence
of
that
may
common
These
the
observations
first place,the
distinction between
carefully
pointedout. In the second
different partiesacting each under
intent.
common
a
Thirdly,
pursue
intent is not of itself sufficient to
prove combination.
of the
the conduct
amount
a
to
combination
suggest
is proved from
Fourthly, combination
in effect
must
and that conduct
parties,
"playing into each others' hands."
Lastly,such
may
properlybe
called collusion,
VII.
CHAPTER
THEORY
THE
IMPUTATION.
OF
" 1. "WTien the leoral command
ooiMtro".
has
been
ascer-
"
Legal
tionof
"7
of Legal Commands.
Construction
tainetl and
commanda.
awaits
i^t--^^
..
..
consideration.
hermeneutics,that
denned,
its consequences
those rules of construction
tion
interpreta-
refer to the rules of
I do not
is to the
its
legal
for legalpurposes
application
by
which
the
of
of written
meaning
of the
ascertained.
But the extent
ordinarily
the
it requiresand
command
which
the preciseconduct
it applies is sometimes
less simple than is
persons to whom
does the proat first apparent.
act is prohibited,
Where
an
hibition
apply to the completed act only or to the act in what
be called its inchoate state ? Again, acts are often merely
may
to an
end.
Is it the intention that the prohibition
means
should
or
particular
apply to the end itself,
only to some
method
of obtaining that end ?
Further, a legal command
the presence
of a commandee, and such commandee,
assumes
instruments
is
"
"
so
far
But
as
but
or
the forbearance
pluralityof
What
then
Sometimes
for
hitherto
seen,
if there be several such
what
be done
have
we
persons
is the
also
the
it
commandees
to be observed
may
be concerned
may
positionof the
happens that one
conduct
as
appears
of other
individual.
The
well be
act
to
single,
in its execution.
persons
related?
thus
is held
man
persons
an
over
able
answer-
whom
he has
obviouslyimportant that the conditions and

the extent
of tliis vicarious HabiHty should
be accurately
determined.
Nor is this all. The legalcommand
is limited
in its operationby other commands
or
provisionsof the law.
An act which generallyis forbidden may
be justified
by the
control.
It is
existence
of certain
notice
which
otherwise
and, consequently,the
would
to
circumstances,
be
of which
circumstances
an
have
act
been
breach
an
of
law
the
command,
ofience,ceases,
of disobedience.
takes
the
It may
in these
be also
"I"'"o
The
that
the
Theory of Imputation
law
recognisescertain extenuating circumstances;

it yet
its prohibition,
and, although it does not withdraw
relaxes
wrong
its
The
sanction.
be excused.
may
forming the grounds

which
upon
appliedto
in
"
tending
imputation
of
the
the
of
the
attempt."
That
offence
an
act
an
the
he
sanctions
person
to
which
attempt the law prohibits,
an
that
vary
accordingto the
a
given result
were
produce a
intention
to
result.
operate
When,
in
the absence
certain
and
offence,
which,
conduct
the
is, a
forbearance
tendencyf towards
of a cause
which, if it
naturally produce that
with
so
corpus
the intention
case.
existence
does
when,
Such
unimpeded, would
a
man
therefore,
any
pursues
of any disturbingforce,would
when
with
observes
or
thereto.
visits with
the
means
is
legal sanction
constitutes
consequence
it,he does
immediately tends
of
duty the
conditions
act
commit
nature
is the
as
an
to commit
and
described
intention,
says Austin,* coupledwith
secondary delict,styled an
attempts
be
may
that
"
breach
any
The
to
of
matters
individual.
any
Attempts.
These
the
wrongful, but
still
is
act
of
committing
that
match
guiltyof an attempt to commit it. The source

which the interruption
Thus,
proceedsis not material.
was
proceedingto set fire to a hay stack,and lighteda
for that purpose.
He perceivedthat he was
observed,
blew
out
he
offence,
from
a
man
is
the
attempted
done
an
given
match,
purpose,
the
ran
stack.
of the
from
law; and
whatever
I. 481.
"
These
had
was
held that he had
the
intent; he had
subsequent alteration of
the
he
had
it may
then
are
his
proceeded,did
actuallycommitted.
have
correctly indicated by the expression tendency. All laws of

require to be stated
liability to be comiteracted,
sciences
results.
In those
of
of actual
not
only, and
which
there
noniendature
are
special words
siK-nifya
accurate
facts
tlicir
of
conseiiiience
aflinnativo
of tendencies
In
He
motives
alter the offence which
not
It
away.
which, if uninterrupted,would have naturally

He
within
to that intent.
consequentlycame
act
effect
the terms
burn
to
and
causation,
in
words
causation
tendency
have
an
Thus
in
is conversant.
tlic science
pressure,
particular effect with which
mechanics,
not
reasoned
on
aa
with
causing actual
is synonymous
tendency to motion, and forces are
motion
but as exerting pressure."" Mill's Logic, I. 406 (3rd.od.).
which
to the
H*
Evasions.
His
to
attempt
complete,althouglithe
merely inchoate.
was
perform was
This definition of
A
He
pocket.
There
doubt
no
was
he meant
curious
omission.
hand
his
with
prosecutedfor
was
which
attempt presents
an
found
pickpocketwas
act
gentleman's
to commit
attempt
an
to either the feet
as
in
the
or
larceny.
But
intent.
stolen
had
The
man
pocket happened to be empty.
nothing,and he could have stolen nothing,because there was
not one
which, if
was
nothing to steal. The act, therefore,
led to the perpetrationof the
have
uninterrupted,would
offence ; consequentlythe pickpocketwas
acquitted. The
be denied,although the conforce of the reasoning cannot
clusion
is ob\douslylame and impotent. But if it be desired
be a change in the
from this conclusion,there must
to escape
of English Judges on
law.
Such a change the Commission
the Indictable
Ofences Bill 1878 advise, although their
in terms
to
is couched
which may
amendment
perhaps seem
The objectwould probably be accomplished
darken wisdom.
the
definition there
if in Austin's
added
were
to
"
the words
an
"
such words
or
as
consequence" some
The
which
the person doing such act believed so to tend."
of the hand
in another's pocket with a larcenous
presence
tending
act
did
intent
offender
the
to
that
believed
belief and
tend
circumstances
in the
not
it
to
for that
did,and
act
the
but
in that
done
that he should
that intent it is reasonable
with
theft
be
punished.
It Is
Evasions.
maxim
that where
any
conduct
is
prohibited
direct
the
to extend
to any means,
is deemed
prohibition
indirect,by which the prohibitedobject may be
As
the
powers
its
mode
be
be
must
necessary
for
construed
giving
prohibitions. Probably
no
found
which
than
the
the
law
deals
with
judgments
Admiralty Judges. Thus,
under
to
as
effect to
a
in
construed
so
in such
also be
must
to
law
its
confer
all the
commands,
as
better
it
so
to
fraudulent
some
the old
attained.
give effect
examples of the
manner
of
or
of
devices
can
the
great
navigationlaws, it
120
The
was
Theory of Impviation:
rule of maritime
could
not
on
carry
and
its colonies from
country
mother
country was
neutral
port the voyage
between
from
the
trade
from
equallylawful.
war
neutral
of the
one
trade he
which
trade
lawful,and
was
of
that in time
direct trade
excluded.
peace
law
in time
was
colony to
the
to
If,then, by callingat
divided,the unlawful
could be
of
neutral
neutral
that
gerents
belli-
whole
might be resolved into two innocent parts. But the courts

all such artifices;
and, when the voyage was
always rejected
reallycontinuous,disregardedall arrangements for disguising
In
its true character by a mere
of the transit.
interruption
an
appealin a case of this sort,where goods had been landed
at the neutral port and
then reshipped,
Sir William
Grant,
ing
of a very able judgment, made the followM.R.,* in the course
remarks
The truth may
not always be discernible ;
:
it is accordingto the truth and not
but when
it is discovered,
action
accordingto the fiction that we are to give to the trans"
"
its character
what
acts
the
it appear
to
attended
their
or
proved,we
can
have
the
if the evasive
of the
law
to
the
have
been
quality
weigh as
may
for which
purpose
purpose
accept as
be admitted
substitute
however
means,
operose,
been
The
same
to
making
alter their
expense
show
by
employed to cover a breach of it. Between

actual
importationby which a voyage is reallyended
the colourable importation
which is to give it the appearance
be a great resemof being ended there must
blance.
necessarily
which
and
and
from
not
of
acts
cannot
be bound
never
for the observance
the
trouble
but
those
expense
matters
his desire
evinced
That
of evidence
done
were
and
The
effect.
circumstances
the acts
have
ended.
trouble
with
reallyended, it
not
party may
have
If the voyage
denomination.
placeof lading be
the
or
and
"
acts
to
be
done
the
landing of the
and
the
payment
are
place requires,
cargo,
of such
necessary
the true purposes

*
TTus
be almost
must
the
entry at
duties
owner
waiiatn, 5 0. Robinson, 886.
the
tlie law
as
ingredientsin
of the
entirelythe
cannot
house,
customof the
portation
genuine imbe effected
122
The
offence has been

require some
an
explanation. Where
that offence
committed, the person who actually commits
is not the only person to whom
the law attaches liability.
The
like consequences
unlawful
intent does
offence,and
offence
to
in
or
extend
All
guilty of
procures
to
in
abets
or
the
who
person
person to commit
every
other
any
without
persons
the
aids
part of it,and
any
these
who
person
every
with
who
person
forms
part of the
every
which
act
any
or
employs,counsels,
it.
to
distinction
held
are
be
to
question,and no difference exists

to the degree of their punishment or to the character
as
of the offence or to the method
of procedure. When
Lady
Shrewsbury,* in the disguiseof a page, held the Duke
of Buckingham's horse while he
fought with and killed
her injuredhusband, she, as aiding and abettingthe murderer,
in contemplationof law as guiltyof murder
he
as
was
offence in
Where
was.
him
child
the
to
who
person
wrongful
incites to
for every
solicitation is itself
act, if it be done with

not
necessary
Herr
Most
justlylicld
less than
them
that
the inciter
if he had
Wlicrc
any
to incite
escape
such
an
is
When
murder, he
to
was
to incite to crime
attempt
his exhortations
to each
not
of
one
name.
person
with
punishment
conceals any person
quence.
conse-
person
attempt be
intent that the offender
the
may
knew,
act, and such
an
of his paper
addressed
and by
individually
its natural
be individualized.
the incitement
or
person
is sible
responin
commits
intent,is punishable. It
criminal
urged the readers

to be guiltyof an
Accessories
Fact.
other
incitement,and which
Such
Further,
person
be
unsuccessful.
after
such
other
supposed to have known, to be

The soliciting,
that is the attempt
offend is also criminal,even
though
must
to
theft.
guilty of
offence any
offence which
of such
consequence
or
an
is
act
incited the
who
man
bring
child,by
father,the
belonging to the child's

money
of its age, is innocent ; but the
reason
old to
tells a child of five years
person
whom
Macaulay,
he
receives,
knows
Hist, of Kng. H. 318.
or
"
"
j.
comiorts, assists,
believes to have
committed
the
fact to
woman
who
by
her
is said
he
offence,
any
offence.
that
in
acts
Except
this
be
to
in
an
the
after
accessory
of
case
towards
manner
married
husband,
her
or
friends,snch conduct
his
direction towards
husband's
123
FaeL
ajier the
Accesaories
simple,but in the
punishable. The rule is sufficiently
rassed
existingstate of the law its proper expression is embaraccessories
no
are
by practicaldifficulties. There
is
after the
to
felonies.
But
misdemeanours
has
The
old
the
long
felt to
been
distinctive
be
abolished,and
of
characteristics
of
opinion in
there
to
seems
of this
favour
venient.
incon-
useless and
be
misdemeanours
are
disappearing,and some
felonies.
with greater severitythan
some
advised
that
of English Judges have
should
felonies and
between
distinction
is confined
relation
This
fact in misdemeanours.
be
felonies
are
now
punished
The
sion
Commis-
the
a
distinction
currence
generalcon-
But
course.
the
on
assumption that all crimes are in future to be prosecutedby

substitute for those crimes which
the same
procedure,some
be found.
in the existing
law described as felonies must
are
The same
arises in other incidents both of felony
difficulty
and
warrant
arrest without
and of misdemeanours, especially
varies
the rightto bail.
The opinionof the English lawj'ers
is
a
good deal on this subject. In Victoria the difficulty
that our
increased
system of prison
by the circumstance
differs from that in force in England, and,
administration
that
consequently,
as
the
between
coimtries
two
there
is
no
is
system which
punishment. The
pursued in Victoria of giving to the judge a wide latitude
of any rule derived
in punishment prevents the application
common
from
to
of
measure
the
murder
person
have
would
regard the
This
punishment, but
maximum
common
equally blameworthy.
the
Manslaughter and attempt
of the sanction.
nature
two
offences
Some
as
offences
no
in all circumstances
entail
too
not
only
ordinary kind of punishment, but also certain disabilities.

is
distinction
which
has rightlydesired
Legislature
cannot
to
mark
be
in
abandoned.
a
specialmanner
The
1 24
Tlie
certain offences for
Theory of Imputation:
probably needless
to describe with
class of offences
by general terms.
best be dealt with
can
be
occurs,
described
offence other than

an
felonycan
in the
crime, or
where
of
description
as
misdemeanour,
by justices.In
and
the
with
these
as
or
stances,
circum-
to the other incidents
Crimes
it
as
indictable
an
will take the
give the power

provisioncan
cases, special
offence.
particular
Where,
5 3.
Community
Liability.
It may,
it is desired to
in other
warrant
as
this
separate offence
Eacb
demerits.
to accessories
as
sufficient exactitude
own
easilybe applied.
of felonies ; and
without
as
dealt with
the rules
of
its
upon
either
crime, that is
offence to be
is diflScult and
public reprobation. It
intent
common
place
of arrest
be made
for
and
of
mutual
unlawful
assistance, several
of them
one
commits
an
in
of the
where, in pursuance
undertaking,and
intent,any
engage
persons
mon
com-
offence which
any
is
of their illegalundertaking,all
probable consequence
the confederates
are
guiltyequally with the person who
It follows,therefore,
that in such
commits
the offence.
there is no
need
to
circumstances
identifythe actual
If the offence be committed
offender.
by any one of the
the
whole
number, this fact is sufficient

of
men*
all
went
of
or
any
of
togetherfor
out
them, and its range
among
at about
the
rest.
riflepractice.They had
was
or
They
mile.
four hundred
further notice
tion
support a convicThus, several young
to
yards from some

commenced
precaution,
set up
one
a
rifle
mark
houses,and, without
to fire.
ball,by
killed a little boy from one

person could tell,
On this state of
of the houses,who had climbed into a tree.
whom
fired
facts it was
no
held
that every
member
of the
party was guilty

intent,namely,
manslaughter. They all had the common

to shoot at the mark.
They all assisted each other. They all
arms
were
namely,the use of fireengaged in an unlawful pursuit,
with a total want
of proper circumspection.The result
of
was
the natural
consequence
"
Ucg.
V.
of their conduct
Salmon,
W- B. D. 79.
in the circum-
Accordingly,eacli of
stances.
for that result
If,in
and
party was
damages
of the party would
the members
of
for the amount
only wounded,
been
sought for the injurydone
were
damage
liable
mnch
as
been if he had fired the shot.
cirenmstances,the boy had
these
if
the
have
he wonld
as
125
LiahiHty.
Vicarious
that any
severallyliable
been
have
caused.
had
of them
one
him, all
to
themselves,have any right of

they,as between
contribution.
quences
Every wrong-doer is liable for the full conseto
of his conduct,and the law will not help him
Nor
would
diminish
his burthen.
two
governs
branches.
grounds
acts
gcucral principleof justice which

has
for their conduct
men's resi^nsibility
is that, subjectto certain specified
One
4. The
"
vicarioua
of
defence,every
his
and
The
ordered.
other
there
is that
no
are
They
liability.
If
part of the rule.
arise from
orders
he, in effect,
every
act in any
act.and every
that
authority,
observed.
He
not
the
must
the former
his
on
forbearance
other
another
behalf,
which,in
has done
or
particular
act,but
he
person
certain
class of acts.
For
of the order he is sible.

responcontracts.
confined to mere
He
of the execution
is
liability
not
for all the
answer
for the
givesto
matter
have ordered any
performanceof
the consequences
he
when
that
of such
His
has
liable for the orders that he
pursuance
may
of
application
an
be
man
gives,it must be understood

to
person a generalauthority
has ordered
he
which
is answerable
man
own
ever,
howTo the latter proposition,
other person.
of vicarious
certain exceptions. These are cases
of any
conduct
for those
forbearances,or
own
for his
is answerable
man
wrongful
acts
and
omissions
of his
in the execution of his orders.

representatives
According to
I have
had
and
shall have
occasion to
to which
a principle
refer,a man
employs servants,as he collects physicalforces,
have as many
at his peril. He
may
j)ersons to aid him in his
business
he thinks
as
publicagainstall
*
fit ; but
unlawful
Burtonshire
Cool Co.
he is deemed
to warrant
damage arisingfrom
r.
Reid, 3 Hacq. H. of L. Cas. 266.
the
the conduct
126
The
of these persons, in the course

of their employment, while
where a man
they are engaged in his business. Accordingly,
he is responagents or other assistants,
sible
for their conduct,whether
intentional or negligent,
in
employs
that
servants
or
to
capacity,
invested
the extent
He
them.
must
of the
authoritywith
which
he has
for all the consequences
answer
of
the exercise of their
that exercise be wise

whether
discretion,
whether
it be foolish. So long as a servant or agent is
or
employed, and as the person so employed acts as such, and
within the coarse
of his employment if he be a servant, or if
he be an agent within the scope of his agency, the employer
the principal,
if he could himself have lawfullydone the
or
is bound
class of act in question,
of doing
to the manner
as
it by the conduct of his representative.
This responsibility
exists even
though the servant or
agent may, without the knowledge of the third party,have
received special
instructions not contained in the instrument
givingthe authority,
or, in the absence of such an instrument,
of the obliganot to be reasonablyinferred from the nature
tion.
Hence
be and often is bound
a man
by acts done
may
contrary to
relations between
in
desire.
his express
the
instructions affect the
Such
the
employer and
employed, but they
third
parties. A strangeris not bound to

inquireas to the existence of any privateinstructions. It is
enough for liim that a proper authorityin terms sufficiently
no
way
concern
for his purpose
wide
exists; and
the
strength of that
it,with the
possessing
on
authorityhe deals,through the persons

have reposed
principal.It is not his fault if that principal
in an
his confidence
untrustworthy or incapable representative.
This doctrine appliesnot only to breaches of contract
or
done
to wrongs
by
tlie performanceof absolute

the
was
He
of in
of
quarry
on
Thus
the bank
of
an
a
old
also to
gentleman*
navigableriver.
personallyto superintendthe work, but he

directions that the refuse sliould be disposed
to his men
and
a particular
They disregardedliisdirections,
way.
was
gave
owner
duties.
another,but
to
party
one
unable
Reg.
r.
Stophons, 1
L. R.
Q.
B.
LiabUUy
Viearious
the
obstrncted,and
was
He
nuisance.
that
nrged
it
duty
conducted
take
to
was
it
obstructed, and
was
had
employed
found
these
excuses
that
his
ineffectual.
were
work
defence
no
was
to
He
in effect three
are
liability.There
so
navigation. The na\'igation
the
disobetlient servants.
There
be
should
that
say
conditions
had
men
will.
of vicarious
whether
relation,
be the
must
he
consequently
was
offence which
other
guilty of an
without his knowledge and againsthis
committed
the dis-
entirely
by
be
to
"
,^
ItsConditioM.
care
to obstruct
not
as
caused
was
But
rejrard of his directions.

His
indicted for
of the qnarry was
he had no
knowledge that the
owner
existed,and that
nuisance
navigation,
consequently,
fallinto the river. The
let the refnse
127
Condition*.
Its
manent
per-
employer and employed. The

employed must act in his capacityas such, and not
person
his own
In such action he must
account.
keep within
upon
the course
of his employment or the scope of his authority,
as
the
case
first of these
the
liable for any

at the requestof the
who
Where
In
be.
may
employer is
in their
of
temjwrary,
or
an
damage done to a
ordinaryworkmen
not
work, and
in
doing
employer
obtains
three
with
meets
so
cases,
an
teer
volun-
mere
joinsthem
mischance.
some
temporary assistance from
any
person, and no other relation of service exists between them,

the employer is liable for the actual orders he has given to
this
but for
assistant,
no
The
more.
does not
law
raise any
order.
implicationbeyond the terms of the particular
is employed for a particular
definite purpose, and
man
for
general class of
Thus,* where
the removal
and
man
of
the stewards
and
was
persons
and
in
liable.
not
there
implicationan
"There
is,we
express
*
who
were
doing so,
pre-existing
as
relationship
servant, and
of
publicmeeting directed
causinga disturbance,
their assistants draoôred out
injuredhim
not
acts.
the chairman
some
The
Locas
the
exists in the
Mason,
L. R. 10 Ex.
S51.
Court,
case
ground
authoritylimited
e.
wrons:
held that the chairman
it was
is, said
thiuk, no
the
for
no
of master
such
and
extendingby
in its terms.
The
128
The
disturbance
gave rise to the defendant's words

placein the presence of those who acted upon them.
were
which
if in doubt
might
instructions.
of
than
plaintiff
referred to the defendant
have
should
which
have
to
seem
that there
us
to the
that which
created
was
by the
words
.express
was
jury
the limit of
generalor impliedauthoritygoing beyond
for further
submitted
been
They
defendant, and
the
was
It does not therefore
evidence
any
the
to
nearer
took
used, or of
any
ordered to bring the disturbers

persons
disturbers."
to exercise a discretion as to who were
authority
forward
the
to
used in several
are
regardsthe second case, expressions
these is one by Mr. Justice Willes,which
judgments among
that the
I shall presentlycite from which it might seem
As
"
"
acting of the
servant
in his master's interest is
condition of
sally
univerBut
it* is not by any means
liability.
true that every act supposedto be done for the interest
is done in the course
of the master
of his employment. A
footman
for the interest
that it was
might think,and rightly,
the master's
"
of his master
coach
; but
of the
he should
that
no
would
one
footman's
for
responsible
I think
were
interest,
own
must
course
of his
purposes
and
to his
was
in the scope
the
master
in
as
these
servant
own
for his
master's
he
do
may
own.
may
that the
such.
This
acting witliin
act
an
the
which
do that act not
he may
duty,but
but
of
words, as
was
capacityas
that
was
taking charge
to convey
be in his
presentlysee, drive his

is employed to drive,but
business
that
meant
shall
he
and
so
that the idea which
requirement is not the same

of his employment.
course
for his master's
to do
drive the
and
box
the wilful act of the footman
action of the servant
is in the usual
the
on
say that
employment,
of the horses."
to the master's
get
He
may,
as
we
horse and
cart,which
drive with
it upon
destination.
He
is
his
acting
in
employment, but he is not actingin his

master's interest,
that is in his capacityas a servant.
As regardsthe third condition that I have mentioned, the
extends to all the acts of his servant
of the master
liability
the
course
"
Per
of his
Blackburn
J.,Liinpua r. London
General
Omnibus
Co., 32 L. J. Ex. 84.
1 "^
The
not within
the
Theory) of Imputation
of the
course
of the agency.
It may
employment
be doubtful
servant,or, if he were, whether

for his master
matter
and
of
depend
of
terms
express
arisingfrom
the
the scope
the actor
was
was
acts
were
within
the
questionsmust
circumstances
of the particular
case, the
the authoritygiven or
the implication
the
upon
within
whether
actingas such, whether his

his employment. The answer
were
scope
he
or
actingin the particular

himself,or, if he were a servant,
for
or
to such
of business
ordinary course
in similar
cumstances
cir-
The
working of the principlewill best be

by actual examples.
Henlock*
employed a labourer to clean out a drain
understood
A
Mr.
his land.
on
but
was
labourer
working
the work
from
This
without
not
was
in the
man
Henlock's
neighbourhood.
assistance
any
in Mr.
or
without
He
service,
finished
directions
any
for his services.

Henlock, and received five shillings
But it appeared that in the course
of his work the labourer
took up part of an adjoininghighway and replacedit in an
and with insufficient materials.
A horse
improper manner
passingalong the highway fell through this damaged place
and was
of the horse sued Mr. Henlock
injured. The owner
for damages. It was
contended, but without
success, that
the labourer was
an
independentcontractor ; and it was held
that he was
acting as the servant of the defendant and
under
his control,and, consequently,
must
his master
pay
his bad work
had occasioned.
for the damage which
Mr.
A
under
wine
the
of his
care
emjity bottles.
to drive him
were
to
of
his
about
two
business
f sent his clerk with his horse and cart
merchant
On
a
to deliver wine
carman
their return
placein
The
own.
from
miles
the
different
carman
the
and
clerk asked
bring back
the
where
direction,
did
so,
and, when
stable,injureda
man
carman
he had
they
by his
sued the wine merchant.

injuredman
But although the accident
happened by the fault of his
time
at the
was
servant, and although tliat servant
forming
pernot
held to be
his ordinaryduty, the defendant
was
negligentdriving.
"
Saddler
r.
Henlock,
The
24 L. J.
Q. B. 138,
t Story
v.
Ashton, 4 L. U. Q
B. 476,
liable.
The
master's
was
was
He
account.
he
for what
agriculturalshow
did
placedin a
by the same
and
travelled
the
station-master
that
againstthe
all
was
refuses to pay his fare,and

which
the carriage is unpaid.
arrested
been
such
and
authority,
"
I may
"
such
station-
the belief that he had not
would
act
an
of the
out
committed
never
an
wrong
of the servant
command
Poulton
t Bar*ick
r.
r.
London
or
acted
authorized
and
South-Westem
English Joint Stock
every
or
him
no
more
done any
to do."
by Mr.
Justice
the master
is answerable
agent
is committed
or
privityof
upon
be
assault
followingobservations
of his
scope
would
company
generalrule is that
principleis
*
If, therefore,the
as
of the service and for the master's
course
express
he had
the
The
"
the
the company
add
Willesf:
act
an
for which
other act which
That
any
charge allegedto be due upon the

a
reallydue, the remedy was
charge were
the horse until the money
was
paid. This
responsiblethan if
no
detain
person
goods for
any
arrest, therefore,was
in the
horse; and
arrest
in fact he had done so, such
for
man
the detention of
for every
duction
pro-
the scope of his employment,and the company

have been liable for it. But in this case
he
the
K
horse.
on
within
would
arrested
to
under
Poulton
when
paid his fare,
have
do
and
is entitled to
company
who
had
to
kept him in custody

and was
he telegraphed
to Salisbury
right. Poulton brought an action
the
for false imprisonment. Under
company
Railway Act, the
master
free
return
fare for the
the
refused arrested Poulton
it was
answered
omitted
or
produced his certificate,

box, procureda ticket for himself,
train.
At the end of the journey
demanded
when
half-au-honr,
for
and
new
certificate. Poidton
had his horse
when
on
not
was
arrangements, horses were, if nnsold,to

of
ont
his
on
responsible.
Poulton* broughtby railwaya horse to an
at Salisbury.According to the railway
named
man
in effect set
had
independentjourney,and
that journeythe master
on
A
bnt for
actingnot for his master

drivinghis master's cart,bnt not
carman
He
himself.
1"!
Conditions.
: Its
Liabiiity
Viearwus
the
benefit,though
day
in
be
proved.
running-down
master
Railway
Co., 1 L. R. Q. B. 534.
Bank, 2 L. B. Ex. at p. 265.
12
132
The
It has
been
appliedalso to direct trespassto goods,

in the case
of holdingthe owners
as
of ships liable for the
act of masters
abroad improperlysellingthe cargo.
It has
been held applicableto actions for false imprisonment,in
where
officers of railway companies,entrusted
cases
with
the
execution
of by-laws relatingto imprisonment and"
of their duty, improperly
intending to act in the course
within the terms
imprisonpersons who are supposed to come
of the by-laws. It has been
where
acted upon
jêrsons
the
of
to
boats
them
and to
owners
employed by
navigate
committed
take fares have
an
infringement of a ferry,or
cases.
such
like wrong.
said
here, that
true he has
the
his master
No
the
authorized
man
for the
authorized
to
in which
manner
doing the business

placehim in."
the act.
the
which
it was
said,as
particularact, but
in
but
his
avowedly
himself.
He
do
acts
acts
reallyholds,his
cannot
general duties.
can
justifyor
there
he
It is
has put
he
must
agent has
it
was
ducted
con-
the act of
offences
as
they
in
of
No
some
are
When
them.
concern
therefore
which
character
representative
is that of his principal
and
not
course
evade
any
absolute
between
any
two
thus
agreement
in
either of them
excuse
are
not
conduct
any
But
the
not
be
be liable for the servant, or

Although the master
may
be inverted.
cannot
principalfor the agent, the cases
duty that is cast upon the master extends to the servant.
binds
the agent. They are
duty of the principal
merely
elongatedhands of their employer. Their acts are his
acts
a
has
it may
cases
agent in his placeto do that class of acts,and

himself
No
the master
not
be answerable
the
In all these
offences
sometimes
of
breach
minor
called,in
he
of
or
persons
of the law.
nature,* police
which
the
justices
of dealing with the

discretionary
power
alone and of dismissingthe case
master
againstthe servant.
and are not })ractiThese
exceptionsare not very numerous,
callyvery important. They can scarcelybe said to affect
of law.
seriously
any principle
have
by
statute
The
Police Offences
Statute
1865,
s.
34.
133
ColUsicn of Comrnand.
Justijication.
"
Imputation comprises the principlesof

In the former
excuse.
there is
case
from
if not
all the
takes
where
in obedience
man,
does
act which
an
in the
engaged
in other
but
extension
law
givesto
of the
command
express
first is
The
grounds.
law,
generallyprohibits. All the persons

of justicedo, in the performadministration
ance
of the
part of those duties,acts
as
the
where
of
exercise
jx)wer, the reasonable
any
It is
offences.
be grave
to allegethat
principle
same
person
any
and
would
circumstances
which
an
is liable.
the law
ordinaryduties
of their
an
to
ment,
punish-
he
to which
several
place on
Justification
the law
case
the offender from
consequences
of
disobedience,but
true
no
In the latter
onlyan apparent conflict of duties.

but exempts
recognisestlie oflfence,
of
negative form
and
justification
is the
" 5. Excnlpation which
jn"tiflc"tion.
implied,is,in
of culpableinadverthe absence
tence,
of intentional misconduct
or
sufficient defence.
a
Further, the law requires the
of the publicpeace
service of its citizens in the preservation
these citizens,
and the preventionof crime ; it therefore arms
and
when
they are so engaged, with all needful immunities
The law also recognisesthe natural
impulsesof selfpowers.
the attempted wrong
defence and recaption,
whether
relates
to
man's
own
to his house
are
coiiiaion
Commands,
to
deemed,
even
be
or
express
of his household
the persons
property.
In all these
the
cases
general
of the present work
lengthened
(iigcussiou of thcsc
be left to the
farther
Where
The
equal
is
One
is unnecessary.
principles
lawyer. Two matters
practical
of these
the
justifies
authorityover
which
in
person
which
obey ?
notice.
matters
breach
law forbids murder.
officer.
But
soldier to execute
is the
of another
others
contrary to law, which
energy
or
though no express words to that

subjectto the foregoingexceptions,
^^^ ^^^ puTposcs
of
the command
with
to his
employed, to
details may
need
or
person
or
is
command
effect
limits,whether
witliin its
that power
the
the
If,then,a commanding
only
of
nature
command.
gives them
command
Their
are
mand
com-
they
to
law also commands

orders
of his
officer order
manding
coman
act
134
Theory of Imputation :
The
the law
which
himself
that the commands

commands.
the
It
military acts
as
the
do
not
blot
upon
elect
the
the
unavailable,
purposes^
practical
fundamental
obey
who
is
soldier,
in
a dangerous mob, should
have, even
between
the risk that he may
be hanged
upon
law
our
risk that
that
he may
be
a'
shot for
delay,and
case,
and
law
of
admit
of the
nature
know
must
man
every
by the assumption
obey are lawful
the soldier must
suggestedlimitation is of little use for

be dangerous to infringe the
would
that
a
But
which
legal advice is,from
as
soldier to govern
regardsas murder, how is the

is met
the difficulty
Theoretically,
rule
It is
it.
ordered
to
appearance,
for murder
In
this
propose
to
fire
to
and
difficulty
the course
of English Judges
suggested by the Commission
to be
the safest.
seems
They observe that the question
practicallyarises in relation to the suppression of riots.
to limit such
to make
a change, but
They propose, therefore,
class of cases.
change to this particular
According to this
view, the soldier would be authorized in the suppressionof
riots to follow without
hesitation the orders of his superior
officer if these orders be not manifestlyillegal.What
might
fairlybe considered as a manifestlyillegalorder would be a
questionwhich the judge would have to decide. Thus, in the
in practiceis of most
which
case
frequent occurrence, a
definite choice is made
duties ; but
the conflicting
between
the exceptional
limits,
principleis restricted to these narrow
and within these limits the danger of any publicinconvenience
is hardly appreciable.
The
Command
otlicr
Power.
the
the law
includes
of that
maxim
declares
everything that
commaud.
which
matter
which
mutiny.
This
that
every
command
is essential to the
maxim
is
not
notice is
of
ance
perform-
restricted
to
publicduties. It appliesto all transactions between parties.

Every grant and every contract implies,so far as the grantor
other
to do
or
promisor is competent to give it, a power
tual.
be ineffeceverything without wliicli the transaction would
of the direct commands
of the law, an
In the case
1""'^
implies Power.
Command
impliedpower arises only where its existence is essential to

If that object can
be otherwise
the object of the law.
accomplished,no power is implied. The advantage of the
The questionis
possessionof snch a power is not material.
not
it is essential.
not
inherited
their
of any
the powers
enable
powers
them
is thus
their constitutions.
to
any
remove
their functions.
otherwise
is not
These
obstructs
person who
they could not properly
although the
But
of removal
power
punishment for such

for selfThe
right*to remove
right to inflict punishment is
of
them, the power
essential to
disorders
authority,to
legislative
express
implied in
proceedings,because
exercise
convenient,but whether
be
since they have

Thus, Colonial Legislatures,
the privilegesof the Imperial Parliament,
have, in the absence

rely upon
would
its existence
whether
essential.
"
securityis one thing, the

another thing. The former is all that is warranted
by the
that has been cited,the latter is not its legitimate
legalmaxim
consequence."
arise as to its
If the power
be well given,questionsmay
It must
exercise.
be exercised in the manner
prescribed,
and
that
beyond the
not
proposed objectshould
the
and
not
be
by
other
any
method.
attained.
that
If
sufficient
is not
somehow
by the precisemethod
be attained
must
prescribed. It
extent
the law
sheriflFwho
It
mands
comwas
him
to be
to cause
hanged were
be
shot, the sheriff,although the practical result would
the same, would
be able to justifyon
not
a
substantially
is plainly
The limit,too, of the power
charge of murder.
ordered
to
marked.
the
case
moderate
to beat
have
man
Nothing
more
and
correction
thus the
did,
once
vitiates
excess
moderate
than
the
exigency of
actuallyrequires. An assault is unlawful.

correction of a schoolboy is not an
assault.
boy for two hours with a heavy stick,as an
schoolmaster
This
be done
must
the
is
whole
met
is
not
proceedings.
Doyle
r.
But
ligent
intel-
correction.
The
plea of
by the facts disclosingexcess,
character
originalillegal
*
moderate
The
of the assault
Falconer, L. R. 1 P. C. C. 338.
remains
136
the T^heoryof fmjnttation

.'
unaffected.
Where
enters
person
with
house
the housemaster's
himself therein,
misconducts
subsequently
his entry does not become
unlawful,and he is answerable
But where the entry
only for his subsequentmisbehaviour.
conduct
under the authority
is made
of the law, the subsequentmisleave and
back
relates
intent with which
unlawful
the offender is treated

Exercise
Whcrc
of
as
must
harm
take
thing must
the
that
care
with
whether
uses
the
dangerous
safetyor
at least be
must
in this matter.
any
There
execution.
its proper
who
man
either warrant
public,or
law
other person, the donee of the

little
its exercise shall cause
as
however, an importantdistinction
a
circumstances,
initio.
the
which
and
to any
is consistent
as
trespasserab
reallymade,
by implicationconfers is likelyin its
exercise to be hurtful
power
entry was
power
any
expresslyor
Power.
the
of the
entry. It is evidence
the
to
the
In
or
is,
ordinary
offensive
convenience
able to prove
that
he
of
has
precautions.But where the law authorizes

him to use any such thing,his responsibility
is placedon a
has sanctioned
much
lower level.
When
the Legislature*
the use
of a particular
for a given purpose, that sanction
means
taken reasonable
"
carries with
itself for
means
which
is
it this consequence
not
the
an
that
purpose
of the
nature
negligence." Thus
where
an
a
that
the
use
of the
(providedevery
suggests has
case
for which
act
"
action
lies
railway company
precaution
been
observed)
independent of
is empowered
engines,it is bound to take reasonable

precautions
againstthe emission of sparks; but if it do so, it
is free from
for any mischance
thence arising,
any liability
of proof that there was
and the burthen
negligencerests on
the plaintiff.But
where
a
Railway Actf empowered a
to make
and
maintain
a
railway passable for
company
and
other carriages
only,and the comi)any ran on
wagons
its line a steam
locomotive
engine,and sparks from their
engine set fire to a hay stack, a very different rule was
legislativeauthority was
wanting, and
applied. The
to
run
locomotive
Vaughan
t JoncB
V.
iv Taff Kail way

Co., 29 L. J. Ex. 247, per Cockburn
Fcstiniog Railway Co., 3 L. R. Q. B. 733.
C. J.
l"Jo
The, Theory of Imputation :
With
Consent.
consent
the
on
of any
which
duty
impose.
to
part of
On
any
the
other
for its
hand,
affect
can
person
the State
rule is clear that
the
respect to consent,
own
the
operation
fit
thinks
purposes
it is
no
equallyclear
that
no
out
duty withimpose on any other person any new
other person'sconsent.
Consent,therefore,has no
In obligations
it is essential.
absolute duties.
In
can
person
that
place in
generalduties
in
its presence
which
or
its absence
depends
duty is expressed.
The
'
the
upon
of
taking
another's property is not in itself and without regard to the
circumstances
of the act the subject of legislation.If it
with
the owner's
be done
consent, it is ordinary business ;
terms
if it be done
and
A
surgeon
consent
the
to
his
case
must
because
mere
mind
the
suppose
of
that
hostile
the
thinks, perhaps rightly,that
he
of
love
the
at the
man-of-war, and,
the enemy
While
and
opportunityoccurs,
consent
to the
shipowner.
The
former
the
promise to submit
promise. Coercion
captor
but
motives, and
of
one
the
The
bringing her
her
prize makes
"
his
upon
auribus
not
own
upon
power
must, however, be
what
latter
deliberate
course.
particular
has
implies a
the
port
His
escape.
rightsof
His
tenets
that
an
prisoner's
to enforce
that
as
distinguished,
been
called
conflict of
adoption after
In
into
aifect the
not
lupum
useless,
were
is
depends
already observed, from

consent."
resistance
since
capture does
liis prisoner
authority over
have
man
point of the bayonet is not a consent,

form
of words
simulating consent with which
Thus
the speaker never
we
reallywent.
may
in time of war
a merchant
ship is attacked by
surrenders.
the
seize
not
must
patient
amputation. The consent which the

In the first place,it
recognisesimpliestwo conditions.
A conbe given freely,
that is without
sent
any coercion.
obtained
but
he
the
suitable, for
was
law
patientif
his
amputate his leg merely for
will and
art, and
act
consent, the State will interfere.
his
without
grievouslywound
operation; but
may
againsthis
the
more
second
or
"
bling
grum-
opposing
less hesitation
place,a
lawful
130
Accideni.
full
impliesa
consent
enable
the
who
person
is consents
the effect of what

commits
man
the
assurance
He
is
he is about
by
crime
induces
man
to
to
In
cases
us
under
there
true
agent. A
is innocent.
There
drink,but
was
there
was
no
give poison.
these simulated
of contract
titles of mistake
the
is
so
certain
innocent
an
sick person on
administered
is medicine.
the attendant
consent, indeed, to give
So it is where
give poison to
the drink
that
to do.
of
means
attendant
an
guilty,but
consent
to
his
something to
to
form
to
rightjudgment
waives
that
a person
a right,
he must
stand
underdisadvantage,
consents
Tlins,when
the matter.
upon
of all the facts material
knowledge
third
that
consent, but
deceit.
Fraud
ground
for the
which
case
and
renders
voidable
rescission of the
There
have
may
contract
of intimidation.
is less clear.
consent
again meet
consents
been
;
may
be
obtained
by
that is it affords
by
contract
But
the
ceived
de-
person
discoveryof the fraud. But where a general

duty is imposed, that is where an act is prohibitedunder
if such
penaltieswithout the consent of the party injured,
be actually although fraudulentlyobtained,does
consent
the
on
the offender
side it is
On
the
take
criminal
urged that
other
side it is
of his
advantage
consequences
of
In such
there
cases
the terms
within
come
own
has
the
by
much
been
of the words
his consent
wiQ
remove
Accident.
this
sense
"
with
or
the
any
act
is forbidden
be desired
to render
the
referred,
if it be obtained
addition
by fraud"
difficulty.
Auotlicr
means*
political
agency
thus
escape the
of another.
commission
I have
to which
would
one
strictly.
offender would
and
of the law.
straining
statement
of the duty. Where
another
person'sconsent, if it
punishable the frauds
the
dispute,and sometimes
The remedy consists in
perhaps some
proper
without
the
wrong,
On
be construed
law must
plain that
offence
one
of the law ?
or
grouud of
an
some
cxcusc
is accident.
arisingfrom some
social convulsion,
which
event
Austin
I. 493.
Accident
in
physical or
could not be
140
foreseen,
or,
be
'theoryof Imputation.
ê
if
foreseen,could
It
prevented.
implies the
resistless
external
elemental.
Thus
accident,and
the
to
So, if
that
it to his
and
reason
in the
accident
thus
he
accident
in
done
by
skirmish
at
Such
act
killed
he
did
old
an
guilty in
not
kill his
of
be
in
had
reasonable
father
and
successfullycontended
See
the
ballad
of
"
Alice
Brand
"
."?"*.
in
theory of
the
for
the
damage
the word
It
sense.
without
a
implies
intention
in
man
it would
not
Oidipus intentionally
provocation,but
some
his father.
He
of
patricide,that
to
be
The
Lady
is he
But
such.
Oidipus
"
an
might reasonably
was
manslaughter.
*
was
kills his wife's brother.
him
that
his
If,however,
Thus
was
him
knowing
tempest
chance, but
man
sense
beyond
Sometimes
King
given
old
driven
liable
be
fatal
law.
this
that
any
he
different
spear
be
to
who
man
in
the
described.
knowledge.
throws
excuse
know
not
not
not
without
is said
an
tempest arise,
the
expect.
is used
sudden
party himself, but done
the
night*
to
to
to
of weather,
will
he
any
precaution
fire be
climate
for
liable
ample
the
above
is
resulting.of
if
thence
spread
But
change
reason
cases
some
an
had
mischance
or
amount
have
refuted, and
is
taken
liable,for
be
circumstances
accident
had
he
of the
anticipated such
or
neighbour by
sense
have
act
his
to
not
the
an
field,he
tempest
from
which
his
an
contract
express
fire in
ground.
will
he
an
damage
done
own
of
absence
or
is
invasion
hostile
animal
or
any
of such
boundaries,
human
or
and
unexpected
some
for
though
confine
by
be
may
fire,even
of
in the
is liable
light
man
action
earthquake
an
person
contrary
damage
the
no
any
force, wliether
precaution
reasonable
by
not
ot the
Lake."
not
was
did
it could
guilty
VIII.
CHAPTER
THEORY
THE
The
simplestforms
A
and duties.
somewhat
^^ commands
complex
command
a
requiresnot
presents itself. Where
ance
a
duty shall be performed,but that that perform-
Kig
form
now
only that
shall
be
of
some
and
definite
but
favour
the
the party in whose
interest
and
to interfere
is called
they are
called
arises
the
right.
"When
rights.
relation
thus
such relations
is
right,therefore,
The
are
be the
State
or
any
breach
of
complaint
established
mentioned,
characteristic
not
the commander
the
in
relation which
depend upon the person

and, consequently,the relation
speciesdoes
command;
whether
several
The
species of commands.
in certain
of these
his behalf.
on
of
to notice his
undertakes
duty, the commander
exists
commandee,
duty is imposed. This third party has an

performance of the duty; and, in the event
that
or
person
Tliis relation
the
and
commander
the
commandee
the
treated of the
relation arises.
new
only between
between
benefit
the
for
class of persons,
not
RIGHTS.
LEGAL
OF
1. So far I havG
"
Mean-
in"o
HI
Meaning of Right,
The
other
who
may
issues
exist
competent
the commands
of the
save
authority. But in all other cases
State rightsseldom
occupy
any conspicuousposition.For all
it may
be alleged that rightsare peculiar
practical
purposes
certain that legal rights,and
to law.
It is at all events
those
only, have attained any considerable development ;
and
others
it is of legal rights and
that I shall
none
treat.
now
Rights
which
occupy
value
holds
in
jurisprudencea similar positionto that

in political
Both
rights and
economy.
important part indeed, but stiU only

sciences,and each has been mistaken
part, of their respective
value
are
part,
an
142
Theory of Legal Rights:
The
for its whole
science.
the science of
values,so
be the science of
is
this
rights.
proved by
chapter in
political
economy
jurisprndencehas
In each
the fact
the
"
present
supposedto
been
the
case
tation
of the limi-
error
which
I trust
essay
tends
the
that
to
called
been
has
As
placeof
establish
"
that
the discussion of either science may
proceed*a long way without any inquiryin the one

into rights or in the other
case
There is also another and a more
into values.
case
unhappy
definition
The importanceof a precise
pointof resemblance.
is extreme, and
of each word
yet each word is hopelessly
it is,with care,
ambiguous. In the case of political
economy
the use
of the misleading term ;
possibleto avoid altogether
this expedient,
the only sure
but in jurisprudence
one, is not
practicable. We must accept the decision of that autocrat
of language common
that it prescribes,
use, and employ the words
have
however
they may
spoiledfor our purposes
become.
Yet, probably,the most serious obstacle to clear
conceptionsof the first principlesof law is the obvious
confusion
and
"
of
bewildering associations
the
the
word
right.
Right, in
to
its earliest form, is an
straight.
In
its
and
adjective,
secondary use
is equivalent
it becomes
laudatory
that the conduct or the opinionto which

indicating
epithet,
to some
it is ai)plied
conforms
standard to which the speaker
refers.
this adjective
the
From
expresslyor by implication
abstract substantive
right is formed, and denotes such a
conformity. But since different standards of conduct exist
for different purposes,
since conformityto one
standard
and
is not necessarily
conformityto another standard,it follows
"
that
the
measured
wrong.
statement
same
conduct
"
in the
same
be
by different standards,
Such
an
absurditymay
of the standard
be
matter
at
once
avoided
if it be
may,
both
by
right and
an
to wliich reference is made.
express
If the
questionbe one of morality,we may speak of moral right.

of politics,
If tlie questionbe one
we
speak of political
may
substiintive "a right" with its plural
right. But the original
*
See J. S. Mill's Political
Economy,
I. 525.
143
of Sight.
TTte Meaning
adjective
A right has nothing to do with
conformity to
It denotes a peculiar
any standard,legalor moral or other.
independentof the
legalrelation. This relation is altogether
sively
rules of morality or of abstract justice. It depends exclu"
"
"
of the law.
The
arises from
Where
in any
unwisely,whether
or
duty for
person
creates
in
that
it,the law
Sir William
law, whether
benefit of another
the
other
person
Blackstone
It
wisely
any
thereby
it in effect undertakes
thus authorized
it has
furnishes
it
person,
and
right;
which
expectation
disappointed.
be
it.
or
sinfully
piously,
imposes upon
that this
not
unmake
may
the
case
the creature
sense
by the law, it expires
it is controlled
law,
the law.
substantivized
the
makes
law
the
from
It is in the fallest
the law.
upon
with
distinct
is
rights
right."
shall
strikinginstance of
He says* that as
this confusion.
municipal law is a ride
is right and
of civil conduct,commanding what
prohibiting
it follows that the primary and
what
is wrong,
principal
objectsof the law are rights and wrongs." This inference,
a
"
which
a
forms
the basis of Blackstone's
puzzle,the confusion,namely, between

legalright. If in the above passage the word
rightand
means
legalright,the
is
that,as
law
conclusion
commands
is
what
But
untrue.
certain
if the word
would
conformityto
class of
drawn
taken
be
be
case
rule,whether
be
must
unjust.
in sound
similarity
All
such
between
*
dicta
two
1.122.
moral
right
the
tention
con-
form
rightmeans
the
and
is
there
tion,
asser-
notoriously
to express
be stillmore
the
that,as
so
glaring.
law
mands
com-
legal or moral, a certain
the
similar class is Hobbes'
argument,
rightsbe
in that
legalrelations
Of
can
of the
the word
the absurditywill
legalrelation,
contention
law.
form
the
upon
legally
right,things
by law, and
are
apart from
law
truism; and
is
legallyright are commanded

its subject-matter.If in that passage
moral
right,tlien no inference can be
The
rests
verbal
mere
that
great work,
principalobjectof
famous
rest
words
on
paradox that
a
and
mere
a
the
no
equivoque,
dissimilarity
144
in
The
their
stand
They
sense.
celebrated
puzzle
of
the
the
on
horse
level
same
chestnut
and
the
as
the
chesnut
horse.
There
does
is another
phase of
certain act
because
he thinks
is, because
the moral
he thinks
that his
; in other
law
this verbal
confusion.
that
it is
man
right; that
is conformable
doing so
with
words, because
morally it is his duty

To
to do so.
him, therefore,right means
duty. The two
terms
are
equivalent. It is right because it is his duty. It
is his duty because
the word
it is right. In this sense
right
moral duty. At one
means
time, in our language,righthad
in relation to law a similar meaning. Even
still among
the
less educated
classes
which
expression
writers
that
"
of the
the
and
right ;
such
has
would
the
of words
caused
ago
was
"
expression
"
used
has
right
be
to
in the circumstances
In like
to law.
an
good
by
"
included
obligatio,
fact that
manner,
both
duty
jus has
usually,and, in the
translated
by
term, accurately,been
a
greater confusion of legal thought
those who
to
the
man
be conformable
case
of the
"
hear
is,that his punishment would
and
sense
right
than
and
centuries
Romanje^s, like the Roman
older
"
three
such
that
punished ;
sometimes
we
have
reflected upon
not
the power
thoughts appear at first sight possible. But

of law rightin its modern
and duty are
in matters
not
sense
coincident
but contrasted.
They reside not in the same
A
has a. right when
man
person but in different persons.
is or when
another
other persons
under
are
a duty
person
A man
is beneficial to him.
which
is under
a
duty when
the
law
over
manner
or
does
not,
and
where
and
not
From
him
commands
under
we
as
a
in
the
because
he
because
the
certain
have
to
act
conditions.
seen,
person
That
in
upon
rests
whom
legal stand-point,a
has a right to do
law gives it to him
he
and
right;
another
duty
does
man
it
in
the
certain
duty, however,
necessarilypresuppose
right is implied, it
the
forbear
to
or
is
person,
imposed.
certain
lias such
this
right
act
right
consists
146
The
in the
State
the State in its legislative

practically
trative
capacityis one juristic
person, and the State in its adminiscapacityis another such person. In English law, the
;
that
difference between
the
and
Queen
the
Queen
in Parliament
is
In republican
clearlymarked.
governments, an abstraction,
under the styleof the State,or the People,or some
similar
is made to serve
This problem,however,
a similar purpose.
title,
has no
although it still exercises juristsnot a little,
used to express
names
are
practical
importance. Whatever
the distinction,
who
has the right is always
the person
regarded as different both from the law which creates the
right,and from the maker of that law, and from the person
that rightavails.
againstwhom
been applied,
^^^ word righthas sometimes
and
Right and
Power.
in a sense
inconsistent with
^jjg^|.
authority,
}iig}i
-j^y.
the foregoing
remarks.
Austin,* althoughhe insists upon the
speaks of
presence of the third party as essential to a right,
the rightof a judge or of a policemanto deal with an offender.
J. S. Mill,talthough he was
the first,
I think,to pointout
is inclined
that a right is always supposed to be desirable,
by a stretch of language to include in it,as Austin does,the
exercise of ofiicialfunctions.
far such
extension
an
Whether
favour he
whose
to
a
speak
power
to those
its creation
decides.
not
stop to discuss how
with
the
usage
of language.
not, the rightof the judge is
or
from
the
right of
It is convenient
separate notion.
of the lawful
exercise
the
party in
appropriatea
AccordinglyI propose
to
of officialfunctions
as
limit,as Mill suggests, the term right

intended to promote by
where the legislator
whom
it is
the advantage of the party upon
and
cases
so
thing
to each
separateterm
is consistent
it be
different
plainlya
I need
to
conferred.
and
was
some
riglit
years ago considered in the English courts}in the following
in mistake
of his duty,
A returningofficer,
circumstances.
The
refused
distinction between
to
*
receive
Sec I. 415.
vote
at
power
an
t Dissertations
\ Pryce
".
election.
and
The
voter
Discussions,HI. 230.
Bclchor, 4 C. li.800.
was
Bight
147
Power.
ami
He brought an action
and not entitled to vote.
disqualified
againstthe returningofficer. It was held that although the
in this way
to compel the rettirning
had the power
plaintiff
the apprehension of a prosecution,
to put his
under
officer,
the right to do so; that in
the poll,he had
not
name
on
doing so
of which
the terms
be
not
entitled to
to
amoimt
a
relation
to
of
violation
In
this
official
the
the
tenn
which
not
his vote
did
law
the
power
conduct, although if the
of Parliament,
should
he
of
rejection
anything
case
that
express
were
that
vote, and
right.
of the Act
in direct contravention
he acted
is not
acts
siders
con-
used in
of
the
duty, he might be
properly said to have had the power of rejectingthe vote.
to the plaintiff
The applicationof the term
seem
haps
permay
somewhat
rmusual, but the general nature of the case
in the performance
is apparent. The returningofficer was
exercise of that
of an absolute publicduty ; for the proper
to the Crown.
But every
duty he was criminallyresponsible
returningofficer
official is also
had
been
within
his
responsibleto every individual
the exercise of his office he causes,
either
by
to
in
whom
his action
or
by
specialdamage. In other words, every person

inaction,
has a legal right to the services of every officer in the
and the circumstances
manner
prescribedby law. In this
the plaintiff,
case
Pryce, sustained no special damage by
He could
the rejection
of his vote, because he had no vote.
his
not, therefore,maintain
action
any
He
for
the
breach
of
merely,as one of the

Majesty with the allegedmisconduct
of one
of her officers. To any
such well-grotmded complaint
Her
Majesty is always ready to listen,and she is
she thinks fit. Pryce, therefore,
free to deal with
them
as
had the power
that is he might
to give such
information,
The
lawfullydo so, but he had no right in the matter.
Crown
had never
undertaken
to act upon
his information,
and the punishment of the rettirning
officer was
not directly
rightwhich did not

public,acquaint Her
exist.
beneficial to him.
k2
could
148
Donee
The
of the
-^^
the
of
Object
Command,
the
The
right.
observed
In
from
prescribedact
towards
the
her father's
is under
who
forbearance
has
who
relates
duty
of
the donee*
be done
may
or
is neither the commander
derives
Thus
forbids
law
other
possessionany
In
sustains
gain and
no
the
certain age.
be
not
may
or
who
person
transaction.
take from
or
the
be
is to
duty
person
where
words,
may
commandee, and who
the
1111
Other
person
the
whom
necessarily the
is not
Tight.
that
person,
towards
person
performed
Secondary
to
The
this
loss
no
to
person
any
person'sdaughter
there
case
nor
three
not
are
parties.There are the commander, the commandee,

the
the father,
and the daughter. If in the circumstances
father be deprivedof his daughter's services and so sustain
loss,he will be entitled to recover
damages, because he has a
But
be the daughter'sage.
rightto those services whatever
but four
if he have
not
sustained
because
different,
the
there be services in the

of tender
imposed for
ownership in
It is not
rightof
for her
powers
holds
that
of the
the
child,and
of
Nor
any
an
no
duty
benefit
form
she is not
latter
the
welfare.
girlherself
of the
The
do
man
the
another's
away
father.
merely
whether
may,
involves
He
has
no
exercises certain
wishes
at which
right.
no
or
the dislikes
part of the question.

age
is
case
deprive
may
man
not, take
questionor
years.
No
but
respect,the
this
duty is diiferent.
of the services of his child
another
child
loss in
any
true
law
The
consent
can
given. The duty is therefore imposed as a matter of

the father has or has
publicpolicy. Thus the girl,whether
not a right to her services,has herself no
right in the
She is merely the res, the secondaryobject of the
matter.
of a contract,it is a
So in the case
prescribedforbearance.
rule that, except in a particularclass of cases,
well-known
but the partieshave any rights under it. If A agree
none
be
"
familiar
is
donor
But
this
use
of the
in
to
spcclflc individual,
select! nj;
place ill our

disadvantage
easy
expression, in preference to the misleading " subject of a right,"on the analogy

U8e"l
when
the
The
latter phrase is indeed
of a power."
phrase the " donee
a
lantûage,
tliat the
forget.
while
the
donee
of
rljjht implies tlmt
the
donor
is the
has
is urgently
which
somehow
never
needed, and
of a doubtful
in t)ie form
pcriphraso, I thoniiht that
should
it is material
to remember
suggest a truth which
save
name
State.
found
which
name
it
vras
and
a
no
ver/
Vocation of Donfe
with
of Right
defend
to
B to do
something respectingC,
general enforce A's obligation.
in
can
sccond
^^
vocaUonof
only,and
characteristic
1 "t9
it.
brieflyex-
be
may
C,
not
propositionthat npon the breach of

the
^^^ ^^^y ^j^g doncc of the rightonly may
sne
wrong-doer. Simple as this propositionseems, it inclndea
that call for notice.
In the first place,it
several matters
implies that the duty is enforced not by the pariy but by
R^wf
defend
pressedby
to
No
the State.
Of
the
it.
man
take
the law into his
led, if
which
motives
the
may
to the
yet ceri:ainly
not
continuance
hands.
own
to
the
commencement,
and
the
development of
of the strongest was

that that
one
organization,
political
of terminatingthe fierce
organizationafforded the means
and of clans.
and unceasing quarrelsof households
Every
well-developedState therefore insists upon retainingthe
these
whether
and
whether
the
State
duties do
at
or
do
or
it
mands,
com-
generate rights,
not
imposed for the convenience of

request of the pariies. No subjectis
been
they have
the
of greater historical interest

purpose
of the duties which
control of all branches
exclusive
than
it is sufficient to say
this.
that
"the
For
my
law*
of
present
England
both in spiritand in principleto prevent persons

appears
The
from redressingtheir grievancesby their own
act."
State
appointsits
claims,and when
into effect.
execute
can
But
a
proper
has
that
judgment
been
he has
determine
and
established
decide
now
can
man
his
own
all
to carry
it
dispute,or
lawfdllyobtained.
plaint
rights are enforced upon the comof
only of the pari:yinjured. It is of the very essence
the donee of the right
rightthat,if the duty be not fulfilled,
It also follows
claim
any
no
officers to hear
that
But, if he
may invoke the assistance of the State.
choose to seek help,the State will not volunteer it.
not
permit
make
worth
proper
such
any
other
If the
request.
his while
court, the
"
Ar
to
without
person
apply in
injuredparty
the
State wiU
PoUock
C.
proper
B., Hyde
proper
redeem
r.
Graham,
its
1 H.
think
and
promise ;
"
C. 59S.
It wiU
authority
himself
manner
do not
to
and
to
it
the
will,
150
Theory of LerjalRtfiUs:
The
unless the
applicantbe himself
it had imposed. But
disclaim his right,
or
or
which
waive
that
he
deserves
misconducted
in
the
himself
of the
donee
be
may
further
no
default,enforce the duty

remiss
so
right may
in urging it
consideration,or
in the business.
have
may
In all such
the
cases
State declines to entertain the
complaint.
^^ ^^^ follows that a rightis something different
Right and
Liberty,
^xovo. the abseucc
of a restrictive duty. A right
impliesa positivenot a merely negativeidea. It connotes
of which another person
a duty imposed upon
some
person
But
is authorized
to requirethe
enforcement.
the mere
relief from
a
duty does not necessarily
give to a person a
It is
rightto do the act which was
previouslyforbidden.
true that he may
lawfully do such act, and his conduct
will accordinglybe right or lawful ; that is,he will not
on
that
be
account
liable
however, follow
that he has
the
enforce
upon
other
any
which
does
will
State
confer
not
from
the
control,but
other
no
right,or that
been
imposed
destruction
The
is indeed
He
sanction.
any
fatal to
right upon
new
restraint.
has
person.
right depends
to
the
is to that
is
person
It
not,
any
duty which
for
his benefit
of
the
that
extent
duty
right,but
liberated
bound.
in
Thus
*
"
"
have
preciselythe
debts."
former
of any
person
same
he met
right to
The difference between

case
the
of indifference
homicidal
to the
act
in the
do
so
these two
of A.B.
law; it would
not
it
from
comparativelyrecent volume of the EdinburghReview

If
following startlingpropositionis laid down :
sovereignmade a law tliat A.B. should be at libertyto
off the head
on
is freed
who
person
thereby
does
the
the
cut
street,A.B. would
as
cases
would
to be
paid his
is this
be
bo murder
in the
"
matter
or
even
excepted out of the operation

of the law that now
providesfor the punishment of these
the law would
In the other case
crimes.
compel the debtor
the assistance
to fulfil his obligations.A.B. could not obtain
of the court to compel his victim to submit
to his
manslaughter,but
would
be
cxiv. 4C8.
Surthensome
blow
debtor
needful
distinguish.These
be
that
generalor
or
by
of
way
it is
and
right.
otherwise
or
in pursuance
doing of an act
given by the law,whether
the
discretion,which
be unlawftil.
circumstances
would
act
other
in
interference
rightimpliesthe
torily
peremp-
complaint and at the request of some

for whose
benefit a duty has been imposed, for the
is at libertyto
of enforcingthat duty. Thus a man
that he thinks
fit ; but the law, though it
wager
of the
the
law, on
person
purpose
lay any
does not
forbid
to
power
assault and
from
him
obtaining payment
compel him to pay
the
is unreasonable
means
command
some
which
liberty,
power,
are
interference
such
between
terms
such
whether
legalinterference,
tion
and usuallywith the connotapartial,
objectionable.Power
of
his
compel
to
of
the absence
Libertymeans
absence
assistance
that
three kindred
thus
are
to
1^)1
Profitable Duties.
his debt.
to pay
There
obtain
he conld
bnt
and
liights
in
wins, and will
he loses.
in certain
ofienders
arrest
may
that
amount
assist him
not
that he
of the amount
the
will
doing so,
cases
restrain of their freedom
A
;
persons
has
man
and
not
so
may
whom
in
permissionof
the law he could not lawfullytouch.
A man
has a right to
proceed in the proper court against his defaultingdebtor,
the amount
and to recover
of the debt by the compulsory
of that debtor's goods.
sale,through the sheriff,
We
have seen
that rightsand duties connote
B^jrt^gjj.
other
circumstances
a benefit
^dp^l^*" respectively
able Duties.
^^
granted
latter presuppose
would
all
may
things,sometimes
become
be
and
this
reverses
condition
in
once
pay
a
connotation.
the
lease
reluctantlyaccepted,may
become
may
valuable
was
mortgage
to
may
with
build, which
prove,
The
in their absence
time, which
duty
former
The
of the donee.
which
But
pursued.
it will not
burthen.
of conduct
property which
express
advantage
burthensome.
depreciatedthat
is charged. A
was
for the
course
probably not
time
the
without
and
for the
changes
A
right
tageous.
advanbe
so
which
at
it
one
lessee,a
152
"the Theory of Legal Rights:
fortunate
undertaking. Examples of such burthensome

in our
duties sometimes
occur
rightsand of such profitable
political
history. Thus the bishops claimed the right,in
of the Church, to withdraw
from
accordance with the canons
the House
of Lords in cases
of impeachment when
judgment
of life or limb is in question. This, as Hallam*
observes;
claimed
once
a
as
privilegeof the Church, and reluctantly
admitted
by the State,became, in the lapse of ages, an
In like manner,
exclusion and a badge of inferiority."
on
the other side,in the earlydays of political
representation,
electorates regarded the duty of sending members
to the
House
of Commons
as
a
grievousburthen,and, whenever
opportunityoffered,
eagerlysought to escape from it. The
residents in these electorates in like manner
struggledlong
in what
and hard to avoid the calamityof being included
should call the electoral roll.
But at the present day
we
localities constantly
clamour for representation,
and the electoral
franchise has appropriatedthat name
almost to the
exclusion of every other franchise. Every man
too is required
by law to serve, either as a Peer of Parliament, if Her
of
of the House
Majesty needs his services,or as a member
very
"
Commons
found
if he
necessary,
the
Analysis of
a Wrong.
be
elected
thereto.
at least in modern
penalties
by
which
" 3. Wroug "

.
But
not
been
into tion
operaenforced.
times,to put
those duties
are
is tlic coutrarv
''
the contrary of
it has
of
and
rio:ht,
'
"
biguity
amright. The same
therefore which
affects right exists in wrong.
As
the former
term
means
conformity to a standard, so the
latter term
quently,
Consemeans
nonconformityto a standard.
unless the standard be ascertained and recognised,
all reasoning on the subjectof right and wrong
is mere
In the case
waste
of words.
of legal rights and legal
that a relative duty is obeyed or
wrongs, as a rightmeans
is likelyto be obeyed, so a wrong
that a relative duty
means
A right exists before a breach
has actuallybeen broken.
wrong
is
Oonst
Hist, il 412.
1^4
Theory of Legal Righu
The
the
Subject become
set of relations is
a
new
disobedient,
introduced.
The
of the State,
Subjectincurs the displeasure
and
is liable to punishment or other painful
consequence.
The Third
Party no longer enjoys a right,but sustains a
the Subjectis liable to make
For this wrong
some
wrong.
means
that, upon proper
appropriatereparation. Liability
proceedingsbeing taken and proper proofadduced, a court of
competent jurisdiction
may order the offender to suffer suitable
suitable amends, or both to suffer
punishment or to make
punishment and to make amends, as the nature of the case
the disobedience concerns
the State alone,it is
requires.When
in more
serious cases
usually called a punishable offence,
or
a
crime.
it is
a
When
the disobedience
usuallycalled
general
Thus
every
command
to
term
include
both
produces or
of these
If the command
The
wrong.
and
name,
One
relations.
affects the donee
is normal
right,
offence appears
crimes
and
produce
may
and
of
two
to be
wrongs.
of
sets
the other is abnormal.
accomplish its object,there follow

from it obedience, enjoyment of rights,freedom
from legal
If it do not
molestation.
directlyaccomplish its object,
there follow from
it disobedience,
legalproceedings
wrongs,
that such proceedings involve,
and the painfulconsequences
once
Every offence is
ciassiflcv
tion
at
breach
of
duty.
Every breach
of
-^
Offences.
01
Punishable
,-
Cither
duty
IS
offences may
"
"Ill
punishable
be
or
not
is
prosecutedeither by
-111
punishable.
indictment
consider,or
proceedingswhich we need not now
of the peace in the exercise of their summary
before justices
as
they may be called,are
jurisdiction.Indictable offences,
or
other like
of two
kinds.
Misdemeanour
They
is
are
either
general
Crimes
name
crimes
misdemeanours.
or
for all indictable offences
speciesof
other
than crimes.
They
liave certain characteristic incidents that attacli to them
are
indictable offences.
Where
charge and upon conviction.
be arrested without
with any crime, he may
upon
is bailable not
court.
as
In other
of
man
is
charged
warrant, and
he
right but only at the discretion of the

statutoryauthoritybe
cases, unless si)ecial
155
Classijicatwnof Offences.
given,a
is bailable
amount,
of
crime, he
right. Where
in addition
incurs
for the offence certain
to
person,
reasonable
is convicted
man
punishment specified
to the
disabilities.
accnsed
an
sureties
sufficient
of
as
and
reqnired;
production of
the
upon
is always
warrant
He
ment
sit in Parlia-
cannot
He
exercise
cannot
Municipal Council.
hold
He cannot
any Parliamentary or Municipal franchise.
the Crown
He
or
any publicemployment.
any office under
cannot
on
serve
jiu*y. If he be an office-holder or a
any
pensioner in any form, his office or his pension or other
is forfeited unless
two
allowance
he be pardoned within
in
or
any
from
months
conviction
his
his
before
or
filled.
office be
Further, his rights of maintaining action and of dealingwith
suspended during his

property is placed in the hands
property and of making contracts

of
term
of
which
that
that
to the
their
depends
the
on
those offences
of the
are
described
crimes
as
most
the
which
over
speak
character.
be
to
which
Of these too it must
whatever
justices,
that
appear
dangerous
rough
same
by
the obvious
in
justiceshave
in the
law
already observed
I have
character,and, consequently,the
we
misdemeanour
terms
most
of
jurisdiction
of
summary
way,
be
need
those
of
said that the
of
be the character
may
in
offence,
depends entirelyupon
statutory grant.
express
such
is given in circumstances
some
cases
jurisdiction
which
where
otherwise
their
would
exercise
the
the
opinion
serious
of
nature, they
to send
amoimt
is
jurisdiction
superiorcourts
and
the
or
the
less grave
In
crime
uix)n
Legislature of the day
jurisdiction
are, if
the
conviction
subjectis available,except
repression. Offences
is
offence is created.
general rule
one
given offence
any
questionwhich
no
follow
consequences
misdemeanour.
Whether
is
his
of these
None
curator.
for
punishment, and
are
the
case
not
in all
distinctlytaken
away,
concurrent
justicesany
are
crime, and
to
bound
for trial.
appears
abstain
But
the
in
authority. Where
charge
to
cases
those
from
minor
to
be
of
adjudication
varieties of
15s
the
serious
T}ie(yry
:
of Legal Rights
ofifences with
whicli
not
tliey usually deal are
feres
regarded as crimes,and practically
no
superiorcourt interwith their proceedingsin any smaller breach of the law.
Thus
the
well marked.
Tlie minor
by justices.
courts.
to differentiation in criminal
tendency
The
The
graver
offences
offences
are
come
heard
procedureis
and determined
before
the
superior
differences of
ing
procedurein these courts accordto the nature of the offence no longer exist.
But a clear
line is drawn
between
those ordinary aberrations
to which
all men
in a greater or less degree liable and
those
are
darker offences from which the moral sense
of the community
revolts.
Crimes
"
and
has
between
4. Wc
caused
cau
much
crimes
appreciatea distinction which

trouble to jurists,
that,namely,
sense)and torts. Tlie distinction
discussion upon it might seem
to
uow
(inthe wide
is less important than the
indicate. In practice
is either aided
no
person
by it. In theory it is altogetheruseless as
classification of law.
which
or
embarrassed
basis for any
It
presents,however, certain features

require explanation. It does not arise from any
difference in the
gravityof the offences that these two words

respectively
imply. Such a difference does indeed generally
A
exist,but it is not necessary.
slander,for example, is
be more
morally worse, and its pecuniaryconsequences
may
than the neglectto register
serious,
a
dog within the
young
first half of January. Yet the former
is only a tort, and
the latter is a punishableoffence,
although it is dealt with
of proNor
is the difference
one
by an inferior court.
cedure
that
These
and
alone.
that of gravity
differences,
of procedure,sufficiently
distinguishindictable offences and
those less serious offences in which justices
of the peace have
at least for
a summary
jurisdiction.They mark sufficiently
the subdivisions of one
class of breaches
practical
purposes
of duty. But as between
the classes of these breaches tliere
is a further difference.
They differ not only in degree and in
and
Crimes
also in tlie character
procedure,but
for such
in the sanctions
and
broken
governing principleis, as
If the duty
of the duties.
nature
is a punishableoffence.
consequence
The
is
consequence
general,the
it be
offence
is
breach
of contract
is
consequence
and
different,the
who
person
of the duties which
might expect, the
we
broken
K
it be
tort
sets
absolute,the
be
other
or
a
are
breach.
or
all these
In
tort.
157
Torts.
the
particular,
obligation. If
both a punishable
the
cases
in
motion
sanction
the
law
is
The
breach
of
procedure is different.
absolute duty is followed
an
by punishment ; the penalty
mined
is enforced
by the Crown, and the complaint is deterof procedure
by those tribunals and those modes
The breach of a particular
which we
call criminal.
duty is
followed by compensation or other appropriateremedy.
now
different,and
The
person
who
right. The
by the courts
called
the
case
the
law
in
is heard
and
determined
sets
is the
motion
in the
which, in contradistinction
criminal,are
called civil. The
donee
from
breach
of
of the
and
manner
those that
a
are
generalduty
If it be
pursued in both or either of the above methods.
in which
it would
be pursued if
manner
pursued in the same
the duty broken were
absolute,the case is regardedas a punishable
is
offence.
it would
the
have
exclusivelyin
the
t^rms
pursued in the
same
pursued if the duty broken

"Whether
regarded as a tort.
the
one
of the law
general duties imply
or
way
by
which
in the
the
other
duty is
partiesinterested
two
in which
manner
been
is
case
If it be
particular,
it be pursued
depends upon
were
created.
in their
namely, the commander, that is the State,and

of the right,the breach of such a duty affects both
offence may
be treated
parties; and thus the same
wrong
by
to the
which
State which
special damage
deserves
is caused
Thus, defraudingthe public

In
some
of its forms
inflicted either
by
the
it is
revenue
punishment
to
is
a
a
punished by
Commissioner
of
and
But,
as
ance,
performthe donee
of these
both
as
as
a
tort
particularperson.
punishableoffence.
fine
and
Customs
forfeiture
or
before
158
The
justices. In
other
labour.
offence
such
the
conviction
for
not
"
offence.
another
One
and
man,
liable
or
to
decree
circumstances
then
for
Two
case.
to
crime
is
guiltyof a tort, and

fraudulentlyand without
he
crime
of
knows
to
theft,and
labour.
But
it
true, but
is
punishable
buy property
perform his part of
to
to
this
have
men
of them
but
other.
the
person
is liable
of
colour
to
will be sent
offender
to
has
or
Such
who
damages.
He
The
"
inci-
is
5. There
relative duties
that
done
man
guiltyof the
prisonprobably with hard
also by his wrongful act
distinction
act
an
property
is
of the property; and

damage to the owner
he is,in addition to his punishment, liable to
owner
compensation.
that
to
retains
has
right takes
another.
belong to
takes
the
the
dispute as
caused
tort
still
specificperformance,according to
of the
not amount
which
hard
is
refuses
ownership of goods, and one

property which really belongs to
so
mthout
or
streets
agrees
the
does
Court
Supreme
person has broken his contract, and

suit
of the
other party to damages
the
at
one,
offence,and
That
agreement.
is
in the
man
the
with
term
heinous
very
indictable
an
before
long
Disorderly conduct
an
from
it is
cases
is
punishable on
by imprisonment
between
for this
make
absolute
to
and
is of
primary practicalimportance.
lute
As the generalityand consequent simplicity
of absoduties render them
the typicalexamples of law, so the
greater complexityof relative duties and the additional legal
the largest share
relation that they imply give to them
and the most
conspicuousposition in every legal system.
Absolute
duties,and, so far as they result in punishable
Right.
offences,relative duties, are

whom
upon
the
duty
to
regulateconduct
by
his
uo
is
imposed.
and
life,the rules which
place after
his
limited
death.
since
are
The
the
actual
design
man's
meant
No
to
conduct
for its
person
of the law
is
is limited
regulationhave
therefore
liability
for any
Incidents
The
of
1 59
Rvjkt.
legalsystem
punishableoffence descends under any modern
real or personal,of the
whether
to the legalrepresentatives,
transfer a duty
For the like reasons, no person can
offender.
is
the
But
liable.
already himself
the transferee
to which
personaland
is
its nature
from
which
with
is otherwise
case
who
is to perform a relative
the person
rights. When
why the claim of the
duty is ascertained,there is no reason
not be transferred,or should
not
donee of the right should
his representatives
after his death, or should
devolve upon
not
during his life be dealt with as a securityfor the performance
of his obligations. These incidents of rightshave
acknowledged
been
always
has
there
thus
and
arisen
an
immense
body of law which is distinct from the law concerning
duties.
The
they
in
are
rem
other
against some
or
words, whether
they relate
to
whether
rights,
is whether
that
in personam,
or
world
againstthe
all classes of
appliesto
principle
they avail
individual,
specific
or, in
a generalor to a particular
duty.
difference which
The
the very
a
terms
"No
"
such
observe
person,
of
or
heirs executors
creates
and
to be
be deemed
the
such
imposed
one
of
command
would
for the
and
such
it
and
such
such
and
such
right.
donees
act,
an
such
and
such
his
class of persons,
of the words
of that
the
as
duty shall
this
assigns." The
the first clause and
contained
words
advantage of
and
new
contingencies,
be absolute.
do
such
firstclause
clause constitutes the
clause
the extent
some
forbearance
second
addition to the second
in certain
administrators
duty; the
of transfer mark
shall
person
of such
typicalform
The
expressed in
arises from
described
thus
command.
be
might
command
following:
or
of the
I have
right;
of succession
These
of the
no
words
right.If
more,
the
the
and
vide,
pro-
such
duty
of the donee
stopped at the name
of the right,it would
create
a
right,but a rightwhich was
personaland intransferable. Thus rightsare restricted to the
originaldonee,or they are not so restricted. Of the latter
class the rightsof ownershipare the most prominent example.
160
The
The
former
class may

be illustrated
by the rightof an officer

to the enjoyment of his office. The rightsthus givenrequire
form the largestand most
regulation
; and these regulations
intricate portionof law.
They relate to ownership and its
varieties ; to obligations,
in which, under modern
law,rights
and duties are so intertwined that theycannot
be conveniently
whether it be absolute as
separated; to the transfer of rights,
by way of sale,or conditional as by way of security
; and to
their devolution
The
after death.
difference between
these
restricted and
unrestricted
Actio
rightsis expressedin the maxim
usually cited as
As the definition of a perpersonalismoritur cum persona.''''
sonal
action can hardlybe other than an action whose
existence
is extinguished
with the existence of the plaintiff,
Austin,*
although his language is characteristically
emphatic,seems
in assertingthat "this
wretched
is a purely
saw
justified
identical proposition."Mr. Postef happilyconjectures
that
the word personalisis a mere
mistake for pcenalis,
a
copyist's
mistake I may add which might easily
arise when the abridged
form {p.lis)
the same
for each of the two words.
When
was
"
it is thus
amended, the
maxim
is
truism,but
no
the
states
doctrine which
very
in its
important doctrine,although
ordinaryform it is cited to support. It in effect declares
that where a breach of duty involves "JO(B?â,"
or
punishment,
its consequence,
such duty is deemed
to be limited to the
as
it was
imposed ; and therefore
original
person upon whom
not
that
the
consequences
person'sdeath
There
In
of
such
be transmitted
every
cannot
upon
that
to his
incident of
is another
breach
legalrepresentatives.
tion.
rightwhich deserves atten-
country the law attaches
as
condition
to
enforcingrightsthe requirementthat that

assistance sliall be sought with reasonable despatch. It is
be
of public policythat controversies sliall not
matter
a
indefinitely
prolonged. It is not conducive to the successful
should be made
that State demands
administration of justice
have been
the circumstances
out of which
when
they arose
its assistance in
II. 1018.
t Gaius, 493.
1621
The
Governor
Wall,
mention
to
hanged for murder
was
which
suffered.
he
Statute
the
cases
a right would
protection,
rewarded.
be
The
fails
is often
Justice
wrong.
ultimatelyto
for
reason,
the
breaches
of express
to
were
secured,but a fraud
impose what terms it
to enforce
successful
of
slow
overtake
like
event
be
may
the
encourages
never
the
apply to
fit for the exercise of its powers

it
for
lapse of time
not
State
instance,
after the
years
and
does not
well-known
one
eighteen
So, too,
of Limitations
If in such
trusts.
but
would
thinks
obligations. But
efforts
of
undetected
foot,although she seldom

criminal
the
afford
that
seems
so
far
before her.
The
"
Collision
6. Somctimcs
conflict of
guarantees
in
one
thcr-c occurs
case
may
be
real
rights which
The
rights.
or
may
seem
or
apparent
the
State
inconsistent
it guarantees in another
case.
rights which
Not
unfrequently the inconsistencyis merely superficial,
the
of the
true
extent
and
rights
disappears when
The
State does not
undertake
guaranteed is understood.
to insure
people against loss ; but provides that they shall
be
these rights may
worth.
enjoy their rights, whatever
sine
Thus
damnum
legal phenomenon.
injuriais a well-known
has a flourishing
business ; another man
One man
the
with
sets
up
similar
The
customers.
business
first
man
him, and
sustains
He
may
his
much
attracts
all his
harm, but
no
right,but that right

does not include any
duty upon his neighbour to forbear
from
exercising his corresponding right. Similar though
difficult applications
of the same
often more
occur
principle
and use of property. A man
in regard to the management
with
build his house
the public
as
high, consistently
may
windows
he
safety,as he likes,and may make in it whatever
build a wall higher than the
thinks fit. His neighbour may
house, and may thereby block all the householder's lights.
Each
seriouslyinconvenience tlie other,and each may
may
wrong.
exercise
beside
own
The
Collusion oj
protection.But,
rightfor his own

duty upon the one
his
use
any
ground, or
light,the
party
inconvenience
his
the exercise of
that
circumstance
mere
neighbour's
obstruct his neighbour's
to
not
of
in the absence
overlook
to
not
party
the other
upon
163
RujIUa.
an
another
loss to
admitted
rightcauses
does
afford suJfficientgrounds for the interference of the
not
or
even
is
of a clear stream
pollution
below
both injuryand damage.
to the riparianproprietor
of a stream*
The pollution
alreadymade foul and useless is
The pollution
of a clear stream
by
injurywithout damage.
who
is lawfullyentitled to jwlluteit is damage
a
person
since it involves no ground for legal
indeed,but is not injury,
the surface of
own
one
man
complaint. In like manner
may
So, too, the unauthorized
law.
another
field,and
of any agreement
of working, neither of the two can
In the absence
surface.
entry
or
The
one
The
owner
not
his.
reach
cannot
of the surface
The
Sooner
bring them
to
of such
land
anything
damage
thence
the
But
in
If
way.
damage,
from
natural
causes
into another
thence
the rise
on
was
by
the
the
bring upon
naturallythere,and
water
mine
held
accumulated
at
to be
if
of his
he is liable for the consequences
of the mine
owner
not
was
any
But if he
their
in its natural
reasonable
neighbour sustain
usually
to make
them
his
ensue,
mine, and drained
needs
land remains
it in any
them.
trespass npoa
common
use
that
touch
not
cannot
may
whatever
the minerals.
win
\nth property that is
leaves
for it.
responsible
Thus,t when
act.
a
use
is not
landowner
the law
Again, while
condition,its owner
reason
and
terms,
arrangements.
own
later their
or
rightof
of any
or
may
meddle
cannot
of the minerals
owner
another's land.
the other
them;
that
beneath
minerals
the
own
may
lower
in
level,
blameless.
similar
not
was
circumstances, the water
accumulated
naturally,but was
pumped up to the higher
level,although that operation took place for the better
when,
working
"
Per
t Smith
of
the
Fry J.,6 ChF.
Fletcher,L. R.
in the
ordinarycourse
of proper
Div. 772.
Kenrick,
3 H.
mine, and
7 C.
515.
L. at 341, ;""" Lord
Baird
Gran
r.
Williainson, 15 C. B. K. S. 376.
worth.
l3
Bylanda
",
164
The
mining, the
of the mine
owner
for the loss occasioned

test is whether
there
The
is not
question
but
whether
he
by
has
the rise had
on
In all such
the overflow.
or
has
whether
is bound
breach
do
may
man
do
to
so
been
not
it
the
cases
of
duty.
act,
some
avoid
to
as
damage
to pay
certain
consequences.
It sometimes
happens
that two
rightsclash
that
is
one
the stronger of the two ; that this difference of

practically
of
and that the weaker
strength is recognisedby the parties,
A
the two accepts the inevitable.
result is thus produced
which
much
is often called privilege,
is not
but which
so
a
of law as a matter
of prudence. Thus it is the right
matter
of the subjectof a neutral
nation,notwithstandingthe war,
either of them.
to continue his trade with the belligerents
or
be said to exist in
It is also the right,so far as a right may
to prevent any goods
international law, of either belligerent
that are likelyto benefit his enemy
in his militaryoperations
from
coming into that enemy's possession. Accordingly,
when
any
such
goods
belligerentmay,
sovereign,seize
to
not
neutral.
unlawful
have
But
either
hostile
destination,the
other
offending the neutral's

confiscate them, although they belong
the sale and
carriageof such goods are
by the municipal law of the neutral or
without
and
by the so-called
point there is no room
even
Law
risk
of Nations.
for doubt.
be observed
that the power

goes only to the goods, and
of
As
to
the
to
the
latter,it
of seizure for contraband

not
to the
former
As
ship; and
must
of
war
also that it
goods have reached the hands of

the purchaser. The
right of the belligerentis merely to
stop the goods,not to punish otherwise than by their loss
the carrier. There is no
duty upon the neutral to forbear
from
sellingor from carrying these or any other goods.
that the other
But he does so at his peril
; that is he knows
seize the goods^
in the exercise of his right,may
belligerent,
in the exercise of his right,may
wliich the neutral,
carry or
ceases
may
to
exist when
sell to his enemy.
the
The
The
principle
same
The
law.
the
or
Crown
its
that
abstains
the
of
of
duty
in
the
House
latter
of
House
its
right
adverse
the
to
do
of
is
Thus
enjoyment.
resultant
so
two
the
conflicting
it
so-called
forces.
really
exists
in
with
never
that
supposes
no
privilege
the
to
has
Crown
is
the
opinion
give
one
every
does
Nor
in
legal
no
word
The
Lords
which
that
it.
There
is
is
There
every
no
insists
forbearance
matters
but
fit, reject
of
But
coincides
right.
barred.
House
as
such
Bill
the
Such
before
invariably
prescriptive
Commons
right.
such
comes
Appropriation
an
of
on
of
them.
altering
Commons
any
rejected
legal
that
House
and
to
grants
think
it
privilege.
Lords
from
Bill
that
not
of
forbear
to
Appropriation
that
and
House
House
altering
calls
discretion,
Victoria
fact
from
if
may,
tutional
consti-
in
make
may
altered,
be
not
mle
well-known
Lords
the
165
liights.
Commons
But
Commons
the
on
of
of
shall
habitually
matter
grants.
grants
House
explains
House
these
alter
of
House
the
Collmon
pretence
is
simply
of
1 66
Sights
in
Hem
other than
those
IX.
CHAPTER
RIGHTS
Division
IN
REM
SI.
of
OTHER
We
have
of Otvnership:
THAN
THOSE
OF
OWNERSHIP.
that relative duties
seen
are
either
Eights.
that
general or particular,
is that
they apply either
to all persons
definite or ascertainable
to some
or
indefinitely
The
these duties generate follow
individual.
rights which
naturallythe same
principle.Rights,therefore,avail either
or
against all persons indefinitely
against some
specified
when, as
rightis indefinite,
the phrase is,it avails against the world, it is called a right
in rem.
When
its compass
is limited to a particular
person,
it is called a right in jjersonam.
The meaning of the latter
a
expressionis apparent in its unabridged form
right in
The
certam.
meaning of the phrase in rem is less
personam
either
obvious.
The Roman
by name
juristsdo not mention
of these classes of rights,but they applied this principleof
In an actio in rem^ the originalform of
division to actions.
procedurewas a wager between the partiesthat the thing in
the formula
disputewas the property of the plaintiff
; and
order of reference,
should call it,did not specifyany
or
as we
person.
When
the
compass
of
"
In an
actio in
by any specifiedclaimant.
named
in
that the defendant
the allegation
was
personam,
Hence
the proceedings
under some
was
duty to the plaintiff.
in
the phrases readilyacquiredthe respective
meanings of
general" and "in particular";and the Civilians applied
meant
them
in this sense
to rights. That
a
is,Jus in rem
right which ought to be enforced by an actio in rem ; and, in
ment
enforcelike manner,
meant
a right for the
^2^5in personam
the appropriate
of which
actio in personam
was
an
remedy. In the absence of any recognisedEnglish equivalent
contrary claim
"
it is convenient
to
use
them
as
to
phrases as terms of art ; and

without
sense
alreadyindicated,
accept these
such
in the
1^7
Division of Rights,
any
attempt
at
wliich
translation,
hardly fail
can
to be
misleading.
do not use the expressions
Although the classical jurists
these
and "Jus in personam^''the ideas which
"ju^ in rem
law.
Jus in personam^''
phrasesdenote pervadethe Roman
to have
"Jus
in rem'''' seems
obligatio.^''
is,of course,
been expressedby the word
"jus alone. Such, at least,is
the meaning of tlie word in such passages as* "placet enim
"Jus facit hoc pronuntiatio.*''
ejtisrei judicemjus facere^''
do not
to have
seem
It is noteworthy that the Romans
the duty and
the right.
distinguished
by separate names
Both "Jus and
obligatioexpress equallythese two ideas.
law (Z"zomnijure: omne
Jm^
with them meant
Jus quo
Obligatio
utimur) ; that is,both the rightand the duty.
well him who received as him who
inclnded both parties,
as
strange chance the meanings of these
performed. By some
formation.
words have, in our language,undergone a curious transtwo
translate "Jus''''
"We habitually
by rightwithout
the correspondingnotion of duty. But
obligationalways
with us a duty to the entire exclusion of the right.
means
These
and in personam
have nothing in
rights in rem
with the division of property into real and personal.
common
land and freehold interests in or arising
Real property means
In other words, it denotes both the objectand
of land.
out
relates to
the extent of ownership. Propertyis real which
land and to an
indefinite quantityof interest in that land.
Property is personalwhen it does not relate to land, or
when, if it do so relate,it relates to a quantityof interest
"
"
"
"
"
"
"
"
"
"
"
below
between
the
Hence
standard.
Chattels
Real,
and
freehold,
Chattels
devolution.
I shall
that
the
well-known
is interests in land
Personal.
The
distinction
less
than
personalis also
used in law with another meaning. When
it is appliednot to
that a duty is imposed upon,
property but to persons, it means
that a right is given to, some
or
peculiar
person for reasons
not capableof transfer or of
to himself,and is consequently
again have
"
Dig. XXV.
3. 8
word
occasion
;
XXX.
to notice these
two
168
nights in
kinds
the
of
These
between
their
only
desire
and
names
that
to observe
the
of the
names
consideringis merely accidental.

of
Rights in rem may be arranged accordingto the
from which
they spring.
objcctsof the commands
objectsmay be both primary and secondary,or primary
rightswhich
rem.
other than those of Oionership

:
property. At present
resemblance
Division
Hem
we
are
the act or the forbearance which is

only. In every command
its objectmay have reference to some
thing or to some
person,
he be or be not the donee
whether
of the right,or to some
right. It may, on the other hand, have no such reference,
in which
it does not imply any secondary object. There
case
thus four leading divisions of rights in rem, namely,
are
rights concerning things,rights concerning persons, rights
ances.
acts and forbearconcerningother rights,and rightsto mere
To the first class belong rights of ownership. The
other three classes may, for the present,be grouped together
under the title of rightsother than those of ownership. The
The right againstassault
followingare examples of them.
is a right where the secondaryobjectis a
person, and is also
the donee of the right. The rightagainst any infringement
of marital
the
or
parental authority is a right where
secondary object is a person, but is not the donee of the
right. A right of way is a right in which the secondary
benefit
A right to the undisturbed
objectis a rightin rem.
from
contract
is a rightin which
the secondaryobjectis
a
The
a
right in personam.
right to the support of land or
buildings by adjacent land or buildings is a right where
there is no
other
secondary object. These rights in rem
than
those of ownership will occupy
attention in the
our
present chapter. The rightsof ownership demand
separate
consideration.
"
Bights
Secondary
Object is
Rights
in
include
concerning persons
rem
all tliosc riglitsrelating to the

"
body of the donee
"
of the
Person.
and
2.
his
home,
right,or
or
to
his
"
or
feelings,
to the benefits that
he
to
his
expects
to
/.
-i
family
derive
70
Hem
-Rightsin
sustains
injuryfrom
Thus, when
Act
an
other than
the
of Ownership:
thope
neglectwill
of Parliament
have
right of
action.
directed that the master
of
ship should carry certain medicines for the use of his crew,
and the captainof a particular
shipfailed to do so, a sailor who
ill and suffered
from
the captain's
held to
was
neglectwas
be entitled to recover
damages. Such cases, however, are
have alreadyseen, never
rare
we
gives such a
; for the law, as
a
direction
except
are, from
in the
of
case
who,
persons
like the
sailor,
of their
position,dependent upon the

unable
to provide for themselves.
are
comraandee, and
Where, however, an absolute duty is imposed, that is where
the objectof the duty is to effect some
publicpurpose, and
not to benefit a particular
class,no such rightarises. Cases
of this kind, therefore,are
really questionsof construction,
statute.
and depend upon the true meaning of the particular
of the duty,
Although the rightdepends upon the terms
the
nature
former
rather
with
the
latter that
it is with
this
chapter is directlyconcerned, the present place is

for
the
than
and
observations
some
the
upon
extent
venient
con-
in certain
ously,
consequently,even though less obvihas a
of the right. Thus it is strictly
true that a man
In the early historyof our
law
rightnot to be murdered.
murder
in damages.
The
sounded
appeal of murder, as it
action brought against the murderer
was
called,was
an
by
cases
of the
and
of kin of the murdered
the next
and
of the
duty,
had
King's
different
peace.
But
man
and
objectfrom
to
ascertain
was
different proceeding
that for the breach

the limits
of such
duty must first be determined.

The term
murder
is ordinarily
used to express several distinct
Oases
offences.
which
frequentlyarose
obviously deserved
but which
the then accepted
not within
were
jninisliment,
It was
to change the
not
"definition of the offence.
easy
It was
not safe to venture
of the rule.
terms
a precise
upon
right the
written
not
exact
extent
miglit be excluded which were

not sufficiently
expressed. Tlie operationof
necessarilyslow. In these circumstances,
lest
definition,
foreseen
change also
or
was
of the
cases
Sights
merely did
not
meut, bnt
the
law
time.
this case,
as
law
would
in
duties
has
Bnt
The
"
elasticity of
"
old
name
of the
could
the
not
relied
therefore
courts
form
proper
statement
statement
The
the
under
"
accurate
an
such
called the
been
included
and
been
obtained.
be
prefix quasi'''and
the
by
the
which
remedies
constructive."
"
have
question.
time
what
described
would
of amendment
pnnish-
escape
an
They introduced
lawyers called
our
that
other
have
l7\
Bern.
in
imperfectcondition for an
for surprisethat in
then
matter
a
cases, the jndges sought to amend
It is not
in many
Bight
oflfeuder often
left in
was
by strainingit.
Romans
which
Secondary Object is
immediate
the
indefinite
the
where
at
upon
law,
common
variety of separate
comprises at least nineteen cases of

where
there
is neither
homicide
excuse.
nor
justification
tion
The precisedefinition of all offences depends upon the definiof the duties of which
they respectively
imply the breach.
offences.
murder
Thus
These are
also follow the duties.
rightsof third pari:ies
questionswhich in their details belong to practicallawyers,
and hardly fall within the scope of a treatise like the present.
each
It is not my
to define
duty or each right to
purpose
The
which
such
the fiict that
such
well-ordered
other
that
persons
right includes
family
on
the
but all other

takes
or
the
mcut,
not
one
law
In
they
has
man
guarantees
enjoyment,
from
and
the
prevents, at
and
and
the
the
right is
another
exercise
his
person
ownership on
expectationsof
cases
enioy-
any
tree
request,
This
of the
or
the other
which
place.
exercise.
of
this last class of
secondary objectof
him
to
in
that
find their
right to
to
call attention
exist,and
must
only enjoyments of
hand,
to
interruptingsuch
enjoyments
notice.
enough
do in fact
of the law
" 3. "Where
01
all
definitions
statement
"Riphts where
"Object is a
Jligbt in rent.
It is
duty gives rise.
hand,
the
law
the
subject-matter
right. The class
comprisesall "res incorporaUs" except such as immediately

arise out of ownersliip. Its principal
divisions are privileges,
offices, and
franchises.
In each
of these
divisions
the donee
1 72
of the
righthas a right in
privilegeor of his
of his
case
of
Pern other
tiights
in
be.
may
acting.
Such
That
than
those of
the nndistnrhed
to
rem
office
of his
or
right does
Ownership.'
not
franchise,as
alreadypossesses
before the interposition
of the law.
But
the duty of forbearance
imposed in his
fact
from
other
persons,
and
consists in the
in
consist
he
power
exercise
as
his
power
physical
rightarises
a
his
favour
interference
the
upon
of the
all
State,
complaint,to enforce that duty. It is similar to

the rightswhich
ment
protect his personal securityor the enjoyof his property. The objectsonly to which these rights
severallyrefer are different.
those commands
By the term
privileges I mean
PrivUeges.
his
upon
"
"
consist in
which
of
case
favoured
permissionto
would
otherwise
of
generalprohibition
or
person
such
be
some
act
class of persons,
person
unlawful.
or
The
except in the
in
or
class to do
sive
exclu-
an
some
act
positiveclass,to
that
which
includes the various

privilegeis usually restricted,
chises,
frankinds
of copyright, patents for inventions, offices,
the privilegeassumes
and trade marks.
When
a
negative form, it is called an exemption or an immunity.
Examples of the negativeclass are exemption from service
from liability
to arrest,or to judicial
on
a jury,or
proceedings,
to execution upon judgments. Both forms of privilege
are
or
the
name
sometimes
combined,
as
in the
well-known
formula
which
munities"
and imLegislatures"powers, privileges,
mons
not exceeding those held and enjoyed by the Comthe
The word privilege,
of Parliament.
House
or rather
expression Privilegeof Parliament,is also used to express
the whole
body of Parliamentary law. In earlier times, the
and then the
word in this sense
was
equivalentto Prerogative,
of the Privilegeof the Crown
records
and
speak indifferently
resemble
of the Prerogativeof Parliament.
These privileges
a
general
ownership, because they imply a right in rem
and a
duty of forbearance in respect of their subject-matter,
correspondingrightin the donee thereof which avails against
world.
the
the
They differ from
ownership, because
gives to
Colonial
"
173
Offieei.
has
secondaryobjectof ownership is a thing ; bnt a privilege
bearance.
no
specialsecondary object,and involves only a generalforthe double form of the
In the case
of pri\'ileges,
conspicuously
propositionin which a right is asserted comes
act ;
do the specified
The privileged
into view.
may
person
The
do that act.
other person may
right,indeed,is in
no
expresslygranted, because the libertyto act

usuallyremains with the privilegedparty as it was before the
effect is that he alone
supposedlegislation.But the practical
and that all other persons are placed in
retains that liberty,
a
negative duty. Certain conditions
respect thereof under
must, indeed, be fulfilled before these rightsare established ;
not
most
cases
but
these
in
are
of the
of the creation
manner
it has
facts,and
effect investitive
right,and
the
concern
when
its compass
not
created.
been
Offices differ from
employments. The latter

matters
of obligationonly,and give rise to duties and
are
But offices imply duties not only in perrightsin personam.
sonam
has been
but also in rem.
Where
duly
any person
he has a right in his office similar to
appointed to an office,
Offices.
that
of
an
another's
in
owner
or
office,
his
mere
disturb him
may
lawful
authoritydeprive him
estates
in
an
office
Champion and of Earl

present day. They may be
during good
They
may
United
behaviour
be held
States and
be
for
as
term
in
for life
and
of years,
as
as
some
other
officials.
hold.
held
is the tenure
during pleasure,which
in her
great majority of Her
Majesty's servants
may
services.
The
their creation
characteristic features of such

must
be
by
by Act of Parliament
not merely temporary ;
or
Crown,
the
that
and
they
in
England at the
bishops hold, or
whether
must
of the
the President
of Parliament
members
also be
may
granted
ordinarily
are
judges
as
There
hereditary,as the offices
be
Marshal
held
take
may
or without
exercise,
in its
to those
Offices may
of
person
thereof.
analogous
respect of property.
No
property.
offices
Or
they
of the
various
are
that
by Prerogative
be substantive
that their functions
must
and
affect
1 74
Bights in
the
"
public,or
these
and
the
those
of Ownerahip :
of the
large number
public. If
the employment, whoever

the
fulfilled,
be, will be an office ; if they be not fulfilled,
employer may
be
least
at
conditions
it will
other than
Bern
only
patron
be
obligation.The
rank,
immaterial.
bellman
an
are
The
emolument,
the
the
and
hog-
ringerof a parishhave been held* to be publicofficers. A

bishop.
parish clerk or a sexton is as much an officer as an archThe rightsof the manager
of the Barings or of the
Rothschilds
depend upon the terms of his contract, in the
the rightsof a carpenter or of a plumber.
same
manner
as
At the present day the difference between offices and property
have the character of personal
Offices now
is well marked.
trusts.
They are never
grantedbeyond the lifeof the grantee,
and rarely,
at least in civil offices,
beyond his good behaviour.
is
They cannot be assigned. Even the rightof nomination
not
now
hope
saleable,except, by a strange and we
may
temporary anomaly, in
the
akin
Somewliat
Franchises.
to offices are
called franchises.
commonly
of
customs
of ecclesiastical advowsons.
case
franchise has
defined
been
of
in the hands
of
and
Charta
Magna
These
to be
grant by the
rightsthat
the liberties and
other
our
are
free
early records.
gative
part of the Royal Prero-
a
subject,
are
those
Crown
definition that
suppose
of certain
rights in rem
class of examples is digthe law recognises.One
which
nities.
The peerage is a franchise.
So is knighthood. So
of
academic
are
degrees. The right of voting for members
has taken almost exclusive possession
of the name
Parliament
implies
the
franchise.
rights
they
they
But
which
the word
are
to
seem
rights in
are
denotes
rem
usually,if
not
warren
Parliament
to
*
or
V.
St.
fair
tolls
Nicholas, 10
B. "
of miscellaneous
the
seeks
of
or
on
C. 852.
"
of the old franchises
t of Victoria
levy certain
Rox
of
number
following points :
they are of a publiccharacter ; and
restricted to particular
invariably,
Most
persons or classes.
No person
obsolete.
now
free
in
agree
have
become
grant of free fishingor of
market.
But
grant by the
Henry Hopwood of the right

the Campaspe is a
bridge over
to
a
Rex
v.
Whittlesoa, 4 T. R. 807.
f Act No. 30.
Trade
franchise; and
in the
the
Marks
and
remains, although the property
statute
the
bridgehas passed to
Certain industrial
Trade Mark*
and Names,
recently obtained
marks, trade
described*
and
names,
public.
have
rightsof this description
recognition.
These
trade
are
goodwill. A trade mark
been
has
intangibleobjectof ownership;
an
as
1*5
Names.
tliat
is,
which
I have used, it is a
accordingto the nomenclature
sive
rightin rem other than that of ownership. It is the exclumodity
rightwhich the manufacturer or the vendor of any comacquiresto placeupon his goods or upon the vessels
mark.
or
individualizing
packages which contain them some
mark
Such
a
impliesas against liim a warranty that the
sold by him, and
or
goods have been reallymanufactured
that he usuallymanufactures
that they are of the quality
and
The illicituse
sells under this description.
of a trade mark is
the pubUc, but is a wrong
to the true
not only a fraud upon
maker
vendor.
or
By a false representationit depriveshim
of his market
tanto
pro
he has
which
the trade mark

actual
himself
earned.
by
For
trade
law
will
any
real
on.
for any
although not
purposes,
relates to the
one
man
imaginary,that
or
of
principles
the other relates to the
is carried
industry
name,
the
As
name.
so
productsof an industry,
the
of the
extension
An
is the trade
which
under
of the fair results of the reputation
and
he
other
which
that
using,in
that
or
The
business
law
the
case
permission
person
will
thinks
prevent either him
similar
recognised because
command
applies to
go
and
the
together.
of
case
man
*
ProL
name.
sell to
title under
In
stranger
any
such
from
trade
money
Holland's
takes
have
name
that
value.
goodwill. These
who
of that business.
conduct
experience proves
considerable
the
style or
or
the
either
likelyto produce deception,
stylefor the
mark
trade
the
use
fit.
purposes,
previouslyconducted.
was
circumstances
any
to
call
may
exclusive
recognise an
right to such
leaves any business,he may
"When, therefore,
a man
another
name
the
thus
they respectively
The
three
Like
reason
rightsusually
business
Jurisprudence, 154.
been
of another
1 '6
Bights in
Rem
than
other
those
of Ownership
and the old

using the old name
brand.
They do not require in this place any lengthened
notice.
The
by express
rights are generally determined
stipulation.It now suffices to say that, upon the occurrence
of the proper
investitive facts,
there arises against all the
naturallytakes
tlie right of
the
or
using the trade name
trade mark
so
acquired,or from interferingotherwise than"
The
by free competitionwith the goodwillof the business.
rights thus established are
assignable and descendible ;
and
they may be transferred by the donee during his life,
world
duty
his death
upon
Where
forbear
to
"
the
Secondary
is
Object
a Eight
m
IS
pirsonam.
cascs
they pass
to his
4. Where
the
"
or
it
or
I do
operates as
'
not
conveyance,
it creates
of the
some
transferring
or
personam,
in
new
as
interests
as
"
"
rem
certain
,i
to
those
that of
cases
marriage;
tels
sale of chat-
in the
property by
in the
in
singularrightsof ownership,as
tenancy of land.
the
in
reier
now
command
"
i.
rio;ht
produces a status,such
where
bailments
secondaryobjectof
"
in
ariscs.
contract
where
legalrepresentatives.
rio:ht
"
.
where
from
But
where
man
or
contemplates such an act, he
obligation,
as
regards strangers a
thereby brings into operation even
In other words, the libertyof making
of the State.
command
and of enjoying the advantages thence
resulting
a contract
enters
into
an
subjectwhich the law notices,and in respect of which

sponding
it imposes a general duty and consequentlygrants a correright. Therefore,although it is true that the terms
the partiesto it and
effectual between
of the obligationare
tions
none
others,it is also true that, the creation of such obliga-
is
and
upon
not
not
the
performance of
strangers
to
the
interested in the actual

to interfere with
the
them
impose
contract.
duties
Such
of forbearance
strangers
are
but they are required

obligation,
capacityof making it or with its
results.
There
class,and
are, I
of
think,five generalduties
course
five
rightsin
rem
that
which
come
under
each
man
this
in
1 78
Rights in
Rem
an
in
not been
fourth
our
any
who
executes
This
case
is
which
those
of Ovmership :
againsthim a legal
the person who so acts is justly
obligation,
punishablefor his
without regardto the validity
of the
or the invalidity
conduct,
thus improperly obtained.
instrument
lows
The like result folexecute
instrument
than
other
creates
as
instance,that is in
but
compulsion,
where
the instrument
has
with
usuallyclassed
similar offences.
varieties of the
been
under
of them
both
his free consent

last of these
false
to be associated with
seem
offence,
namely, the inducinga
same
against or without
an
obligation.The
of the person
obtained by fraud.
obtainingmoney
But
there has
the consent
pretences,while the former class appears
robbery or
where
cases
to incur
to be
person
the burthen
of
is the
rightto derive
the full benefit that results from any obligation
to which
the donee of the rightis a party,and the corresponding
duty
to forbear from obstructing
or intercepting
any such benefit.
there is a contract
two
between
That is,where
a
parties,
third party may
not for his own
advantage induce one of
to have
them to break his agreement. This principle
seems
it
been long acceptedas regards servants, in whose
case
derived immediately from the Statute of Labourers,
was
It
but was
probably a survival of far older memories.
that its wider application
was
not, however, until 1853
was
recognised.Two theatrical managers* in London quarrelled
The great songstress had made
about a prima donna.
engagement with
an
cases
of them.
one
His
rival induced
her to
The injured
joinhis company.
and recovered
sued his too successful competitor,
manager
to have been regardedwith
damages. But the case seems
doubt f in the profession,
much
although,as I have always
than a
thought, upon insufficient grounds. After more
raised,and the
quarter of a century,the questionwas again:|:
It is
authorityof the former case has been maintained.
another or to
settled that no person, with intent to injure
now
make
profitat his expense, may knowingly procure a person
break her
under
"
engagement and
oontrnot
any
Luniley
c.
to
to that
Gyc, 2 E. " B. 210.

J Uowon
other
to break
t See
V,
Sir W.
llaU, 0 Q. B. D. 333.
his
U. Anson
engagement.
on
Contract,198.
Bern
Sights in
Eij^to
5.
"
where
there is no
Rights
rem
in
"
there is
where
also arise where
rem
such
In
secondary obiect.
,
regard to
that there
it not
is
party who
has
have
we
as
.
right. "Were
interest in enforcing
thing or
to any
or
person
any
no
certain acts,without
is to refrain from
He
of forbearance.
simple duty
the
the commandee
imposes upon
seen,
the law,
cases
Secondary
Object.
is
there
it
Secondary Object.
no
to any
an
Such a
to be absolute.
command, the duty might seem
party, however, does exist,and the prescribedforbearance
the
to
amounts
there
generalduty
Of
classes,those relatingto duties
two
are
in his favour.
these
rights
and
of veracity
is nothing in
relatingto duties of diligence.There

the rights to veracity,
as
distinguishedfrom the duties of
of
veracity,that requiresspecialattention. The description
of
of the other.
The case
the one is in fact the description
those
however, is somewhat
diligence,
In this
different.
the
case
consist of a restriction upon precedingrights

practically
his
As a generalrule,a man
and manage
use
rem.
may
property as he likes. He is also the sole judge of his
duties
in
own
and
business
own
need
that
to
directs
conduct.
own
is his
injure what
They
to
so
man
these wide
But
limitation.
considerable
the maxim
not
of his
all
neighbour's.
of this
subjectto
are
is his
what
use
ments
state-
Austin*
own
as
indeed
although in its
general form it is insujQficient for guidance, it marks the
the general right.
of the limitation imposed upon
nature
when
it is regardedfrom another stand-point,
This limitation,
of the duty. I propose therefore
gives the accurate description
of this class
to notice the leadingqualifications
briefly
of rights,or, in other words, the nature of the duty of circumspection,
familiar to legal readers,
more
or, to use a name
speaks with contempt
of
maxim
but
Diligence.
When
his
"
land
"
must
condition,with
nature
man
be
"
U. 82a
taken
to
all its natural
produces them.f
With
t See
do what
may
land, the expressionneeds
own
word
it is said that
pleaseswith
explanation. The
some
mean
land
incidents
that land
Bryant
r,
he
and
in
in
its natural
advantages
that
Lefever, 4 C. P. D. 172.
as
condition
180
Rights in
the
owner
restriction.
its
he thinks
so
bricks*
though
and
the
though
performed. Further, in
reasonable
to
care
time, place,manner,
it any
He
man's
another
nuisance,even
purpose,
but
fit,
its situation.
near
of Ownership:
not without
act
that
ther
fur-
is
sary
neces-
according to its
not, for example,
may
dwelKng as to amount
ordinary use
and
make
those
do with
may
common
and
as
He
circumstances
to
other than
deal
may
to
Rem
the
land
suited
be well
for the
and skilfully
operationbe carefully
take
his right, he must
exercising
prevent discomfort to others in respectof

or
degree. Although the law does not
it is careful to secure
for
delicatorum,'"
nuisances.
No
exemption from undoubted
every
person
be pursued which
there and then
business therefore may
interferes with the enjoyment by any other person of the
existence.
If,
ordinaryand reasonable comforts of human
favour
"
the
however,
vota
of his
condition
alter the
man
land, if he
erect
bring upon it any animal or anything

he
does
his
at
not naturally
that was
so
there,
peril.
he may
That is,as I have before explained,
lawfullydo so ;
he is responsible.If a man
but if any damage thence result,
conduct his operationsas to
his land, he must
excavate
so
leave a sufficient support to the adjacentland in its natural
to support his neighbour's
state ; but although he is bound
land,he is not bound to support his neighbour'sbuildings.
but
He may
keep his premisesin any state that he pleases,
of the law relatingto the
he is subjectfirst to the provisions
and next to the condition
publichealth and to the publicsafety,
it,or if
buildingsupon
that he is not
visitors.
He
likes,but he
the
course
any
of
he
to
maintain
dangerous trap for his
employ any servants or labourers that he

is responsible
for any damage done by them in
their employment. He may have in his possession
may
that he
animal
knows
or
has
reason
to
believe
to
and if it escape
dangerous ; but he must keep it safely,
and cause
damage, he must bear the loss. In other words,
be
we
must
use
we
must
carry
property
our
on
"
our
See BomforU
in
its altered
business,and
r.
we
Turnley, 31 L, J. Q. B. 280.
condition,and
must
regulate
Rifjhtsin
Rem
where
there is
181
Secondary Object,
no
conduct
is
such
business
use
or
or
conduct, when
naturally dangerous or offensive,with such diligence
that
nothing short of some
physical catastrophe or
some
suspensionof law can excuse
any resultingdamage.
On this subjectthe courts speak with marked
emphasis.
The
of Exchequer Chamber,
person, said the Court*
whose grass or corn
is eaten down
by the escaping cattle
of his neighbour,or whose mine is flooded by the water from
his neighbour'sreservoir,
whose cellar is invaded by the
or
filth of his neighbour'sprivy,or whose habitation is made
unhealthyby the fumes and noisome vapours of his neighbour's
our
"
alkali
own
; and
it
who
has
not
was
confined
works, is damnified
without
but reasonable
seems
and
just that
brought something on his own

naturallythere,harmless to others
to
mischievous
his
own
if it
property, but
gets on
his
fault of his
any
which
the
bour
neigh-
property which
so
long
he
knows
should
neighbour's,
be
it is
as
to
be
obliged
make
if he does not
good the damage which ensues
succeed in confining
it to his own
property. But for his act
in bringingit there no mischief
could have
accrued,and it
but just that he should at his perilkeep it there so
seems
to
that
no
mischief
may
accrue,
or
answer
for the
natural
and
And
anticipatedconsequences.
authority this, we
upon
think,is established to be the law, whether the things so
brought be beasts or water or filth or stenches."
Where, however, the proceedingin questionis not in itself
dangerous,but is likelyto become
dangerousif proper care
be not used,the duty of the person by whom
under whose
or
direction that proceedingtakes place is less extensive.
In
these circumstances,
he must, in the event of a casualty,
show that reasonable
been taken ; and
has actually
if
care
he can establish this fact,
he is exonerated from all liability.
The burthen of proof,
A misfortune
indeed,rests with him.
has happened from his conduct
that of his servants, and
or
he is therefore requiredto give a satisfactory
explanation
of the event.
It is not enough for the purposes of such an
"
Fletcher
r.
Rylands, L. R, 1 Ex. at p. 280.
1"2
nights in
explanationto
ground of
the
^top
In
It is the
that
person
such
by
or
other
the
those
of Ownership:
or
should
care
any
of such care, the law does not

concerned.
the parties
among
absence
apportionthe blame
duty of the owner
to
cause
other than
personal diligence. Tlie only

prove mere
is that reasonable care
has been taken in
excuse
matter.
Hem
person
employer
be
it be
other
or
if from
; and
taken
any
In
is liable.
taken, he
not
principal
is
alreadyseen, the responsibility
still slighter.Where
the proceedingis not dangerouseither
certain contingencies,
is only
absolutelyor upon
a
man
liable for a misfortune when
it can be positively
proved that
he has shown
want
of ordinarycare
some
or
circumspection.
Thus a customs
in the exercise of his duty,was
on
officer,*
the premises of the London
Dock Company, and, as he was
passingunder a doorway,some
bags of sugar fell upon him
from
which
fixed over
the doorway. It was
a
crane
was
held that since in the ordinarycourse
of things such an
accident does not happen to persons who
use
proper care,
in the absence of explanation
the accident itself afforded,
by
the defendant,
of such care.
evidence of the want
In such
a case
res
ipsa,loquitur.In other cases, however, the facts
less eloquent. Thus,t a horse strayed upon
are
a
way
highwhere
child was
a
playing. He kicked the child in
the face and seriously
An action was
injuredhim.
brought
There was
further eviof the horse.
dence,
no
againstthe owner
but it was
in
not allegedeither that the child was
as
cases,
have
we
fault
a
or
that the horse
verdict for the

the
prove
Where
was
plaintiff
due
the
to
some
damage
of the
consequences
material whether the
the
intervention
ChambersJ used
road.
The
V.
See
LurbidKe,
In
these circumstances
set aside.
further
breach
of
done is within
It is not
be
shown
wrongful act
injuryhas or has
Scott
publicwere
i'. London
32 L. J. C. P. 89.
Dock
in the
Componv,
enough
that
to
that
duty by the defendant.

the ordinaryor probable
or
omission,it is not
not
of any third party. Thus

for athletic sports a field
British
"
t Cox
It must
casualty.
casualtywas
vicious.
was
been
a
caused
man
named
abuttingupon a
habit of climbingon
34 L. J. Ex. 220.
X Clark
by
r.
Chonibere, 3 Q, B. D. 827.
where
Rem
Sights tn
there is
no
Secondary Object.
183
To pregratnitonsview of the games.

vent
his
so
was
this annoyance,
Chambers, althongh
doing
Some
the road.
unlawful,put a chevaux defriseacross
son,
perwithout his knowledge,removed
a part of this structure,
and placedit uprighton the footway. On a dark night,one
Clark,without any want of care on his part,while walking
along the footway,ran againstthis obstacle and injuredhis
entitled to
held that for this injury he was
It was
eye.
recover
damages from Chambers, although if the chevaux de
his fence to obtain
frise had
in
and
trim
left where
been
accident would
a
not
very
have
dry
the
hedges
trimmings
Chambers
had
placed it
the
pany,*
Again, a railway comto cut the grass
employed men
occurred.
season,
the
on
sides of their line.
The
men
the
line for fourteen
heaps near
days. A spark from a passing engine ignitedone of the
mately
heaps. The wind was high,and the fire spread,and ultiburned
house
distance.
It was
at some
a
held,
the
though not without differences of opinion between
of
judges, that these facts disclosed a prima facie case
negligenceagainstthe company.
To these rules there are
some
exceptions. They do not
of contributory
that is to cases
apply to cases
negligence,
where the damage has been caused by the negligence
or other
misconduct
of the person injured. Nor do they apply where
the person injuredmight by the exercise of ordinary care
have avoided the injury. Nor do theyapplywhere the person
breach of duty which
has
injuredhas been guiltyof some
occasioned the damage.
These defences may,
however, be
rebutted.
They are insufficient when the act causing the
damage might have been reasonablyexpected to produce
mischief.
some
They are insufficient when the person who
does the mischief might with
ordinarycare have avoided
it. Nor is it contributory
negligenceif a person while doing
lawful act voluntarily
and
in an
a
not
unreasonable
way
expose himself to the danger and incur damage thereby. Nor
is it contributory
negligencewhere the wrongful act causes
left
the
"
Smith
r.
in
London
"
S. W.
Railn-ay Co., L. B.
C. F. 9d.
1"'*
Rights m
sucli
serious
other than those of
Rem
inconvenience
that
reasonablyendeavour to get
not obviouslydangerous and
rid of
If in such
sustain
circumstances
he
the
other
it,and
does
executed
compensation notwithstandinghis
Ownership.'
party
he
recover
may
share in
own
act
an
carelessness.
without
damage,
by
so
may
causing the
misfortune.
subjectis
The
to admit
large and too much

adequate illustration in
of any
however, cite
defective
one
immersed
too
two
or
cases.
I may,
these pages.
laid down
company
gas
in matter
place. A gas- fitter

sent for and
was
incautiouslyapproached the place with a
considerable
An
lighted candle.
explosion ensued, and
done.
It was
held that,notwithstanding the
damage was
misconduct
of the workman, the company
liable. Its
was
some
damage, and
negligencewas of a nature likelyto cause
vention
the consequent responsibility
not removed
was
by the interpipe,and
an
of another
these discussions
and
turned
its driver
hobbled
and
over
the
owner
But
person.
to graze
at
it
could not
killed.
held
There
is another
on
get
His
There
turned
that
this
his
hobbled
man
which
case
in
donkey,
highway. A cart without

along the road. The poor
the
out
in
of the way
brought
owner
been
to have
was
took
rapid pace
of the cart.
not
of gas
is often cited.
out
came
donkey
run
ought
him
escape
was
out
no
action
an
doubt
to graze
impropriety did
time, and
that the
on
the
not
was
against
donkey
highway.
excuse
the
ordinarycare, and that for the consequences of such

the manes
of the cart must
negligencethe owner
pay; and so
of the donkey were
appeased.
In the foregoing cases, as compared with other rights
in rem, the positionof the duty and of the rightis inverted.
of rights in rem
the right is in the
In those other
cases
individual, and the duty avails as against the
specific
of
want
world.
the
But
duty
in
avails
the
against
of land
not
to
use
noticed
in
the
present section
individual,and the right is

the individual
is a duty upon
it in a way
likelyto injureliia
the
There
in all other persons.

owner
class
o6
The
Rights of Oicnership:
CHAPTEE
THE
The
RIGHTS
S 1.
Analysis
made
been
with, but
to define the
of this failure is not
cause
have
attempts
^
little success
Bhip.
OWNERSHIP.
OF
Many
of Owner-
X.
rightof ownership.
difficult to trace.
There
is
The
such
no
singleright. Ownership is merely a collective term denoting

the aggregate of several independentrights. It has no meaning
other
of
than
the
of its component
sum
other definition than
no
parts,and
of these
enumeration
an
it admits
parts.
opinionexists respectingthis enumeration.

the
The rights which
constitute ownership are
collectively
right to possess, the rightto use, the right to the produce,
whether
the rightto waste, the rightof disposition,
during
Little difference of
life
or
death, and
upon
from
any
the
interference
right to
with
the
exclude
thing
all other
owned.
In
sons
perthe
includes jus possidendi,

language of the Civilians,dominium
and
jus utendi,jus fruendi,jus abutendi,jus disponendi,
jus prohibendi.
of the same
in the case
All these rights may,
object,
either co-exist in the same
person or be enjoyed in varying
there is
In the former
case
degreesby different persons.
full ownership. Subjectto the provisions
of the generallaw,
the
full
owner
may
do
what
he
likes with
his
property
he pleaseson his
during his life,
bequeath it to whom
may
exclude all other persons from
death, and may
effectually
If he
dealingwith it in any way or in any circumstances.
but
if he can
exercise some
have less than the full ownership),
not all the rights tliat I have
mentioned, he has a limited
not have the
kind ; and he may or he may
ownership of some
that may
full ownership of his interest,
whatever
be, in the
property. But it is not of these differences that I now speak.
I propose to describe the nature

be called the singularrightsof
and
the
extent
ownership.
of what
may
Where
juspotH-
property he is said
control of any
property. Where
of that
keeping it for
with the intention of

of
either
Where,
is said
he
use,
Thus
the
possession of
held
his
land.
possessionnomine
possession
cKent's
that
that
of
bnt
property.
detains
it for his
own
property.
until
papers
detention
these
his
papers.
of his
account
on
the
law*
old
The
termor
alieno
in
freeholder
for years
had
him
under
contradistinction
freeholder
proprio of the
nomine
of himself
custodian, he
of
his
money
custody of that
during the term of
ship. So under the
the
by
property
employer
The charterer of a ship
money.
the possessionof
his charter-party
receives
the
has
custodyof
the
has
not
nse
keeping
possessionof
keeps
paid
detains
the
intention
have
to
is
costs
clerk who
has
the
solicitor who
bill of
A
personallyor
property with
the
to have
is said
another, he
the
tion
the deten-
to have
person
any
physical
established
the
has
person
any
187
Passidendi.
Jus
to
in
the
other
custody of the land. A bailiff had no

The
liveryof the
possession,but merely the detention.
but a Uvery by the
termor
a transfer of the possession,
was
bailiff was
without effect.
absolutely
Detention does not merely mean
actual physicalprehension.
It denotes the power of exclusive access
to the object
and the power
it control at pleasure. A
of exercising
over
has the detention of a thing when
it is in his house or
man
words, he had
his land.
on
the
If
washed
up
ground,
if iron
house
or
goods be left in his house, if
his
on
master
be
or
found
bird
or
is it must
continuance
may
control
be
must
frontage,if
landlord
of that wreck
complete,that
sea
of
at
course
the
at
The
which
bottom
or
iron.
Such
line of establishment
*
BuUer'a
be
wreck
shot
of his
on
his
canal, the
of those
detention
be
goods
must
be
evidentlytransitory.Its
but the physical
precarious,
be
not
be
least for the time
the law
bird
has the detention
of this rule is easier than
of control
established.
The
ment
state-
application.The amount
requiresis merely matter of degree.
therefore be differently
drawn,
may
Note
its
on
Co. Lit
330 ".
188
The
differences
accordingto
Thus
stance.
Rights of Ownership:
of time
of
or
of circnm-
place or
in
law and
captures*both in the Roman
in our
Admiralty Courts, the fact of possessionat any
given time is often important and often doubtful.
Many
definite
attempts have accordinglybeen made to find some
standard.
The
Roman
rule,to which
our
courts
inclined
seem
lean,is that the adverse possessionis completewhere the

into
captivehas been brought infra prcesidiahostium,^^
some
placeof safe keepingwhence escape cannot reasonably
be expected. Another
rule,said to be derived from the
of the Langobards, takes as its standard
hunting customs
twenty-fourhours' uninterrupted
possession. Similar cases
to
"
arise in relation to the
capture of wild animals.
ever
what-
But
the rule itself is

involve,
cient
clear. The detention must be established.
Upon any suffiindication of the detainor's intention,
detention will
become
possession. There must, however, be reasonable
ject
proofof the intention. Most of the difficultieson this subare
reallyquestionsof evidence. If propertybe delivered
to poswill amount
to a servant for his master, such delivery
session
If property be found
in a man's
by the master.
to rebutting
house,the natural presumption,subjectof course
is that it is there with his knowledge and his consent.
evidence,
its application
difficulty
may
If
property be enclosed
in other
property, and
in
that state accessible to the person who has the detention of

that other property,it is reasonable to suppose that the possession
be shown
of the two thingscoincide.
But if it can
that the house
master
suspectedthe
never
existence of what
house,or that the arrangements with the

of the enclosingchattel exceptedall dealingsby him
either of the
its contents, there will be no possession
was
in his
master
in the
roll of bank
shop.
place.
The
one
case
notes
or
bailee
with
house
of the bailee in the other.
to the
value of
Thusf
"55 was
dropped in a
in the shop picked up
had business
person who
knew that the loss liad taken
the roll before the shopkeeper
finder delivered
See Mr. Ilall'sIntemationat
Law, 384.
the notes
to the
shopkeeperfor
f Dridgea v. Hawkosworth,
21 L. J.
Q. B. 75.
restoration
to the
the
O'vvner
could
the
finder claimed
the
advertisements.
entitled to
held
be found.
what
keep
that the notes
never
found
been
in the
were
years
the costs of
offered to pay
shopkeeper
had
of three
end
the
At
the notes, and

The
advertisements
after proper
But
owner.
not
189
Pomdendi.
Jus
he
that
insisted
was
shop. It was
keeper,
custody of the shopthe protectionof his
in his
not within
they were
house before they were
found, as they would have been if
depositedthere. Consequently
they had been intentionally
not affected
and was
the claim of the first finder prevailed,
and
by the
that
circumstance
that without
any
to abandon
intention
right he had given the notes to the shopkeeper for a

had failed.
specific
purpose which
intent
in possession may
be
The
either indefinite or
specific.A person may possess property merely for his own
that
and
use
without
reference
limitingcondition.
to
restore
Or
transfer
or
demand
the
possess
That
owner
be
may
or
other
payment
In
the
meantime
for which
the
the conditional
for whom
person
right againsta stranger
as
the
may
as
successfully
the
ment
fulfil-
allowed.
possessionwas
possessor
of
the real owner,
property is held, or the expirationof the time, or

of the purpose
of
occurrence
the
discoveryof
the
or
of that
event
any
the intention
it with
the
to
or
person
the property upon
event.
particular
of money,
given sum
or
other
any
he may
some
a
to
his
defend
he could do if his
absolute.
possessionwere
The right to the immediate
possessionof property has
always been regarded as a principalrightof ownership. In
earlier times
the
were
possession,
the
an
that
possessionwas
without
owner
at
owner
ideas, that of ownership and
inseparable. The
The
owner.
to be
two
all.
the
It
was
at
two
ideas
considered
in its
possession remains
and
must
the exercise of all the other
possessor
that
of
to
be
seemed
possessiondid not appear

vancement
a late period of social adwere
sundered, and that
separate form.
remain
as
the
Even
foundation
rightsof ownership.
The
still
of
first
190
The
Rights of Ownership :
take
must
step whicli a man
its fruits,
to deal with
or
or
others from interfering
with
it.
The
difference
the
use
it at his
pleasure,or to exclude
to acquirepossessionof
it,is
indeed
between
the
owner
these
admit
within
and
owner
personal than relative to

exercise the same
rights. But
of them
property
any
is rather
possessor
Both
desires to
who
third
the
parties.
in the
of
case
rights avail against the whole
world,and
dispute. In
their
do
the
legal limits of any
of the possessor
case
they avail against the whole world
except one party, and their exercise is subjectto that party's
claims.
Hence
possession has always been evidence of
conclusive evidence,in all cases
cases
ownership in some
presumptive. Hence, too, deliveryof possessionis evidence
of a change of ownership,and in earlier times was
essential
not
"
to such
or
transaction.
rather
occupationof
case
of land
be, different.
to
seems
In the
the land
The
itself affords
it throws
no
the rule
alone
possessionor
mere
evidence
the burthen
of
ship.
owner-
of
proof upon
The
claimant.
seisin,however, of the freehold,which
shall presentlysee
is a very different thing,is not
we
operativethan the possessionis in the case of a chattel.
At
the most
Where
owner,
person
he may
he possesses
possessionmay
bringswith it a
was
called
said to have
consent
the
as
less
of its
possession.Where
property without or againstsuch consent, his
be described as adverse.
Adverse
possession
law this right
right. In earlyRoman
peculiar
be
the
property with the
possesses
is,
usucapion.
In
our
consensual
law
it is called
itself to
us
unmeaning, yet having
property
are
effectuallytransferred
whatever
may
by
in
name
history prescription.
in adverse
When
has been
man
a
possessionfor a certain
time, his possessionripensinto ownership. Not only are the
claims of the originalowner
barred, but all his rights in the
be
the
relations
to
between
"
the
But
possessor.
the
and
owner
the
property, the possessor has against third

possessor of any
partiesall the rightsof ownership. He is entitled to retain
his
againstevery
possession
one
except the
true
owner
and
no
than
other
person
property,he
of the
that
owner
call him
can
in this
of
case
between
as
priorpossession,
like observation
detention.
"
"
limited
to
detains
have
to
rival possessors, is sufficient.

of
of custody or even
cases
"
or
These
custody of
special
has the
"
qualified or
otherwise
not
expressions,
any
"
"
or
he -is able to maintain
property therein,by which
action.
an
who
enjoyment.
his
question of title be raised,
no
two
appUes
person
property is said
land, if
for any
action
damages for its loss. He may maintain an

injurydone to it or for any interruptionto
Even
for
to acconnt
right of ownership. If he be deprived

the specific
recover
thing or ftdl
may
exercise of any
any
191
Utendi, Frufndi.
Jut
intelligible,
very
obligationsof the
holder of any
always
property in respect thereof, he may
defend his rightsin it against any
stranger ; unless indeed
he avowedly be a mere
agent, in which case his acts are not
his own
but those of his principal.
^^
rightof use and the rightto the produce are
At"*Mit,
"'**'"*"
sometimes
described
as
being merely the less and
that
reallymean
whatever
greater that includes
the
be
may
it.
the
They
however, distinct.
are,
the one
side,from
on
permissiveuse of property differs,
and on the other side from the rightto the fruits
possession,
or
produce of that property. Such a use is a case of custody,
in which
the custodian,while he avowedly holds the proi)erty
The
for
under
purposes
of
it with
another, uses
may
more
who
hires
period and for

fourth
a
applies. And
agreement, be entitled
the two
her
for his master's
the Roman
"
purpose
person
and
for life.
it
altogetherdifferent
Although
her
the
"
was
the usufruct
from
which
under
foals.
own
the master
; his
mare
has
to
may,
receive
usufruct
estate
afternoon
an
utendi
rights,iîQJiis
and
was
owner
the
to
of
Thus
the
her for
for that
for his
consent
fewer limitations.
or
be
livery-stable
may
have the custody of
customer
other's
that
groom
purposes
the
of her
use
his
; a
contract
special
some
In many
cases
bined;
jus /ruendiy are comreallyequivalentto our
was
modern
called
easement.
servitude,
It
was
!""
Hie
"not in the
in fact
was
of
charge
of which
burthen
land, but
of ownership,the fragment
largerportionbelonged to
or
"dismemberment"
ownership
an
of
nature
Bights of Ownership :
the
upon
another.
The
j^
abutendi.
jus
abutendi is generallydescribed
^j^g powcr
j[jjg
of alieuation.
Whether
includ-
as
the word
does
does not bear this wide
meaning, I shall not stop to inquire.

In any case
further analysisis needed, and is easily
some
effected. The rightof abuser seems
to correspondwith our
The
right of waste.
enjoys it may
entirely
person who
destroy the property, or may
change its form, or may
abandon
his claim to it. He
in short, not merely
may,
or
use
the
use
may
The
property after he
property without
be
such
physical laws
for
the
it has
case
not
as
to
involve
has
cease
to
be
its entire
dealt
permit, cease
time
his
but
restriction,
to
with
be
consumption.
it may,
far
so
as
it may
former
case
anything ;
In the
property.
of
manner
or
longer a visible individual existence : in the latter

it has no
has
In our
law waste
longer an owner.
wide a sense
it means
so
:
merely a change of form,
no
for the
whether
better
or
for the
in the
worse,
property.
change of pasture land to arable land,or of arable land to

In popular
buildingland,would, in a legalsense, be waste.
but it is
language the word is always used dyslogistically,
such
not necessarily
in law.
It there means
so
specialized
of property,irrespective
of any change
a change in the form
A
in its
value, as, in the interests of the remainderman
reversioner,a
limited
is
owner
in
the
ditponendi.
either to transactions
succession
have
to
now
Institutes
but
it is in
consider
vivos
former
the
it.
observe, that
inter
owner
property; and that a person who

alienate
propertycan, nevertheless,
*
II. "
or
some
I have
to
said,
of
matters
aspect only that
It sometimes
an
of
absence
specialauthoritynot allowed to make.

The rightof disposition
as
applies,
j^
or
happens,
cannot
part
is
the
not
it. The
as
with
owner
the
his
of
exampleswhich
1 94
The
acciimnlations
twenty-one
Bights of Ownership
from
years
for
permitted
are
the
exceeding
not
term
of the
death
grantor.
in their
form
rights I have enumerated
aggregate the positiveidea of ownership. They
The
j^
prohibendi.
the
state
law,
an
owner
has
exercise
may
have
at
his
of
duty
No
other
respect of it
duty
of the
the
persons,
rightof
the
of that
breach
right of
duty
exclusion.
of all the
regards himself
such
the
may
do
that
act.
Along
to
There
is the
idea both
duty.
All
to seek
to form
of any
property
teristic
charac-
most
No
property.
concern
for any
jus prohibendi,^''
to be the
right seems
owner
^^
the
"
all other
upon
legal redress
the
the
these ideas
of forbearance
the
general
that
owner
perty
pro-
with
idea of
acts
right by which
rights that
as
may
is also the
not
owner
of the
duty
This
contain
and
combine
"
An
is this all.
to enforce
the
notion.
person
there
Nor
owner,
to
any
of forbearance
is enabled
power
ship
owner-
respect of it all those
in
or
of forbearance.
owner
general
But
property.
examination
negative
legitimatepower
of the
or
hut
property
in
or
closer
on
mentioned.
idea
his
over
of Ihe
limits
other proposinegativeaspect. Like many

tions
to be simple affirmatives,
first sight appear
ownership is found
only an affirmative
to
the
also its
which
do
within
which,
powers
person
less he
un
can
nearly all others from its enjoyment. The

shall
first step in the
acquisitionof property is, as we
into possession.
presently see, appropriationor reduction
of a thing,
the
The very term possession,
sittingin front
exclude
all
or
"*
"
connotes
and
exclusion
limited
may
liave
it be
exclusive,he is
only
forbearance.
notion,that
Writing
of
the
prati a.nd in other

Latin
readiness
interest
to
in any
of that
owner
enforce
it.
yet,if
property, and
interest.
man
The
reason
implies the geueral duty of

All the other elements
belong to the secondary
of the right. They are important to the owner
is that the notion
the
of exclusion
preposition
languages,
which
Trpo-ri,
irpo-g, irpoff-Otv
Curtiua
says,
"
We
representative of this preposition, occurring
may
regard port (Umbrian
witli different
Grcelc
pos-sideo,pO-iio (tor /)04""o).""
pol-lingo,
por-ricio,
is found
Etymology,
in
Sanskrit
pur)
oa
phonetic niodiflcations
vol. 1, p. 355.
as
the
in
IvO
t/fw Prohibendi.
and
bound
are
claim
to those who
degreeor
doing any
which
to
the
notice
existence
form
in whatever
act inconsistent
law
the
nnder
through or
of
him.
ownership in
exist,and
it may
therewith.
guarantees, and
all
But
men
whatever
to forbear
from
This is the forbearance
this
consequentlythe
is
it
primary notion that presents itself to the mind when
regardsthe phenomena of ownership.
Like the other rightsof ownership,the rightof exclusion
admits of a separate existence and of different degrees. The
notable
instance
of the separationof this negative
most
of a trust
right from its positivecompanions is the case
A mere
estate.
has practically
trustee
neither the possession
the
nor
usufruct
the
nor
of
use
right of convertingit,nor
the
trust
the
estate, nor
rightof disposingof it. All

these
interested.
rightsbelong to the persons beneficially
But the trustee has the right of exclusion.
His duty is to
and to see that it is appliedto its
keep the property safely,
proper
has
and
purposes
to
aspect he appears
other.
none
relations with
certain
the
In the
latter
his cestui que trust.
before the world
as
the
aspect he
In the former
of the property,
owner
the visible
of the rightof exclusion.

representative
Of the degrees of exclusivity,
it may
be said,of
or, as
the exceptions
to the general rule of exclusion,a good illustration
is found in rightsof way.
I select this instance
in
to licence or any form
of permissiveuse, because,
preference
while these are almost
always consensual,the rightsof way
often adverse.
The essence
of such a right is not that
are
the
to
owner
some
is bound
act
done
to do any
his
to
act, but
to
circumstances
observe
of the
this
case.
personal obligationto
In other
a
The
duty
One
The
extent
is,his
vary
tlie whole
may
indi\'idual may
to which
depends
duty may
towards
n2
That
exercise in the circumstances
forbearance
words, the right of way
publicright.
he has to submit
property by others.
duty consists in a forbearance to

supposed his right of exclusion.
required
that
be
have
either
a
he
upon
from
is
the
mere
community.
a
privateor
right of
way
over
i 96
of Ownership
The. Rights
another's
a
Another
ground for himself alone.

right for himself,his family,and
may
have
may
be
for
be
times
and
of way,
for cattle
or
Various
in the
rights
have
these
property. Finally,the
and
by
right
for vehicles
or
may
persons
same
highway,
in all circumstances
may
all Her
be
exercised
at all
Majesty'ssulrjects.
the
the
cases
ownership,but
of
declares
half
there is
exclusion
feelingthat
case
principleis
the
greateror
There
same.
is the
property abutting
the
owner
of
the
essence
upon
is
division
no
less restriction
It is noteworthy,too, as
of exclusion.
his
is the
These
certain tenement.
in the
a
that
third
ownership of the soil is vested,not in the

to the right
or in any
publicbody,but, subjectof course
of the adjacentland.
In all
the owners
in the owner
or
Crown
these
be
servants.
of easement
footways
purposes.
may
his
snch
have
may
specifiedindividual,but
any
of them
highway
way
being of
mere
for all these
rightsor any
right of way
the
in
vested,not
too may
In
right by
for the time
owner
or
such
of
the
right
indicative of the popular
of ownership,that in
road, although the law
adjacentland to
road, even
though that
of the
be
on
the
road
of
owner
was
never
that he has
granted to him, no such person ever
supposes
interest
is supposed by his neighboursto have any special
or
He
cannot
in the road.
keep other people off it,and he
consequentlynever
regardsit as his property.
expressionsrelatingto possessionneed
the right
to be carefully
These are possession,
distingiiished.
to possess, and the rightsof possession. Possession
means
intent which
that state of facts coupled with
in the
an
next
to explain. The
precedingsection I have endeavoured
the right to acquire and
to keep
right to possess means
possessionof property which at the time is not in the actual
control of the donee of the right. The rightsof possession
the
the
fact of possessiongives
mean
rights to which
"
Possession.
rise.
These
possession
;
2. Three
rights are
the
the
right
of
right of retaining and

action
for
any
recovering
disturbance
or
197
Possessian.
of the possession
againstany person except the
deprivation
of
and the right in certain circnmstances
rightfiil
owner;
by
acquiringthe full ownershipagainsteven the true owner
adverse possession
for a certain lengthof time.
uninterrupted
has purchased goods, he has before he
Thus, when a man
he takes them,
When
takes them away the rightto possess.
into possession,
them
they are
or, as it is said,has reduced
in his possession.When
the
they are thus in his possession,
and
into operation,
rightswhich arise from possessioncome
he can
enforce these rightsas the occasion may
require.
Hence
arisen.
has
one
or
That
term
in the
the
means
notion
own
use,
now
obsolete
use
is used
of the term
sion
posses-
express indifferently
I have mentioned.
times
Some-
of the three
more
it
serious confusion
to
meanings
fact of takingand holdingfor one's
mere
which
forefathers expressedby the
our
word
?iam,
and
which
we
call in relation to
land*
occupation,and in relation to movables

taking or
Sometimes
it means
convertingor some
equivalentterm.
a right to take
present possessionotherwise than by way of
This is usually called constructive
mere
permissiveuse.
possession.Thus, a person who has bought goods but not
removed
them
maintain
action againstany person
an
may
who has converted or damaged them.
He has acquiredthe
ownership and consequentlythe right to presentlypossess
them
; and for the infringementof this right the law gives
includes both these meanSometimes
a remedy.
ings
possession
well as either of them, a notion which
mercantile
as
men
sometimes
express
by
the
form
'
and
Romanst
which
the
expressedby the word utrumque. There are some

such as the use
of the word
smaller ambiguities,
possessions
in the plural,to which
I need
refer. The
not
especially
is thus beset are increased
difficultieswith which
the subject
by the singularfeet that no formal treatise exists upon
the English law of possession. Some
treatises on
recent
have chaptersof greater or less merit upon
jurisprudence
"^
See
t See
Rex
r.
Luhabitanta
Sa"igDy
on
of EatingtcHi, 4 T. B. 177.
Possession, 247 tl itq.
Xvo
The
the
but
subject,
discussed
with
law.
Rights of Ownership :
in these
even
works
the
fulness customary
the
Savigny'sgreat
questionis
in other
not
branches
of
long been familiar to

English readers, but its practical applicationis still
obscured,partly by the ambiguitiesI have stated,and
partlyby those to which I shall presentlydirect attention.
Upon the English law of possession,
says Sir Nathaniel
Lindley,*there is not to the writer's knowledge any work,
good, bad, or indifferent. The doctrines upon this subject
of cases
are
only to be found by wading through a mass
the old possessory actions,
ejectment,
trespass,trover,
upon
and larceny;and, as in some
actions the pleaof not possessed
our
work
has
"
puts in issue the right to possess and

it
possession,
is necessary
the decisions
to
relating
plea.
The
he has
as
from
no
remarks
right to possess and
admissible
misled
under
by
that
made
very distinct
togetherrightsso
flowing
right of possession,
i.e.,
Tlicsc
are
not the
only troubles
possessiongives rise. Another
The
to be
possession."
importance
is
seisin
term
confusion
the
is
In
the
possessio/ratris,
But
the
some
of
notions
of
of seisin
the
subject
still
greater
possessionwith
to
are
the
and
actual
maxim
old
regarded as
of
seisin.
the
mean
in
as
cases,
words
two
to which
matter
generally taken
possessionof land.
oi
the evidence
constantlyconfounded
Seisin.
of
to be careful not
fact of
mere
by Blackstone in his
for not only has he
are
very unsatisfactory,
but
definite meaning to the word possession,
few
very
Commentaries
attributed
the
not
mous.
synony-
possessionare
not
possession,
the
fundamentallydistinct. Seisin] means
of the land,but of the fief ; that is,in the language
older books,of the inheritance or the freehold.
Where
of inheritance
granted
were
inheritance various estates
regarded as
parts of
expectant interests
immediate
*
tenant
of
to
were
any
person,
carved,all these
The
singlewhole.
fee.
composed one
a
freehold
and
interest
was
lands
of this
out
estates
present and
Of
this
were
the
fee the
the ostensible
cxvii.
to tho Study of Jiirispriidonce,
Introduction
Butler's Note on Co. Lit 200 b. 1 Uayoa on Conveyancing, 12.
t See
of the
199
SariH.
holder, and
fee
of the
property intact until the

in addition
was,
to
time
the
when
came
the
kept
expectant
words, he
the
in
But
remaindermen.
the
rights of
the
preserve
He
acquirethe possession. In other

a trustee
to his own
interest,substantially
should
grantees
been made.
grant had originally
possessionagainst strangers.
the
defended
services
the proper
Lord
the
to
the
of which
in consideration
He
as
rendered
He
fee.
the whole
his vigilancethe conand

tinuance
fidelity
whole
depended. He represented
a
his
npon
The seisin consequently

unknown.
trusts were
days of fiefs,
in expectancy therefore
and the tenants
governed the title,
From
sympathized in every disturbance of the freehold.
such
of things several
state
important consequences
a
followed.
rights of
of the
wlio
person
had
and
him
on
the
seisin
claimed
acted contrary to the
reposedin him,
followed
be
rule
limited
to
the
by
reasons,
Seisin
is thus
land.
It includes
of the
hind.
the
to
repudiatedthe rights expectant

adverse
possession,he evidently
of his office and
to the
be in existence
never
could
freehold
no
day, and
future
could
It
this fundamental
From
corollaries that
confidence
accordingly.
understood
thus
as
that
be
particular
support remainders.
to
transfer
But
these
far
complex
more
uiK)n
term
than
sion.
posses-
occupationor the actual possessionof the

also the right to the present possession
it further
rights.
includes
It
the
fee ;
series
of duties
in
duty to protect
duty to perform the
implies a
expectant interests,if any
services due
If the
necessary.
It includes
addition
turbance
dis-
freeholder of
by the immediate
of the possession,
stranger, a publicdelivery
of liveryof seisin,was, for
technical name
every
his interest to
was
remaindermen.
abeyance.
at
always
Moreovei-,on
obvious
in
the
seisin
forfeited his estate
he
commence
must
known
duty
moment
derived
were
estate
and
an
actual
an
all the
jilsothat the seisin

for
even
of
disturbance
The
duty
to
secure
against trespassers. Finally,it includes
the
the
property
rights of the
^00
7%e
Rights of Otmership :
to their future
expectants or remaindermen
the
of
doctrine
from
and
seisin
still
possession. Both
the
more
deduced
rules
it still
continue,although the state of societyout of

result is
which
has long ago disappeared. The
they arose
that the law of possessionas applied to land is in an extraordinary
Thus
obscure.
it is a
degree perplexed and
common
saying that the possessionof the tenant is the
the tenant
Where
holds merely
possessionof the landlord.
the servant or agent of the landlord,the maxim, according
as
to
the
is of course
ordinary principlesof representation,
true, although as against a mere
trespasser the tenant
has
which
right
holds
he
can
enforce.
Where
the
tenant
lord
character,the landrepresentative
is not
reallyin possession,nor can he maintain any
action for any cause
other than an
injuryto his reversion.
But
otherwise
than
in
claiming through him is not

allowed while he is in possession
to claim that he holds by any
title superior
to that of his landlord.
Further, the possession
the tenant
of the tenant
or
any
person
is sufficient to maintain
undisturbed.
the
favorable,
the
If, however, other

acquirea title
may
tenant
of the
hold
free-
circumstances
be
seisin
under
the
Prescription.In such a case the landlord by his

loses his rights,
and the possessionof the tenant
to become
such
from
adverse
laches
3. There
it
Sometimes
it
We
our
even
the
means
speak both
of
property. Nor
elaborate*
but it is
time
which
at
of
laches
own
is deemed
it is held
that
commenced.
"
Property.
the
Law
our
is
serious
the
means
thing
which
property in
is this
merely
legalworks.
of constant
source
over
ambiguity in the word property.

times
over
a
riglit
thing. Some-
The
that
horse
and
right
of
popular error.
two
confusion
exists.
horse
as
It infects
ideas need
to
expression,
them
by
express
*
of
into the House
Code (Indictable Offences) Bill," introduced
Thus in the " Criminal
Justice
a lawyer
as Mr.
Stephen,
Commons,
1878, the work, as it is understood, of so eminent
occurs""
sentence
Oblainiiuj properli/ hii a false pretence is
the following,' curious
(sect. 1!)'2)
obtaining
person
with
intent
to
by persuading him
misappropriate
to transfer
such
it anything
from
capable of beinp stolen
any
pivperti/as he inay have in it to the offender,"iSjc.
ÔZ
The
the
"
to which
general sense
estate."
Rights of Ownership
It would
be
referred
I have
speak of
jurisprudenceif
we
in
great advance
now
habituallyto confine the word property to things,

and the word ownership to rightsin rem
over
things. We
might then, in the absence of any specificname, designate
valuable
as
rights all rights in rem which are in comthe
mercio
other than those of ownership,and as
estate
be.
of our
kind
they may
rights of whatever
aggregate
Rights arisingfrom obligationsmight be called "choses
we
wore
"
"
"
"
"
in action
and
which
whatThings
what
ovcr
its strict
and
the
law
we
are
sense
law
title
valuable
be
classes of
the
practice,
place, when
things that
the
"
would
evidence
or
rightor
of the
to any
all documents
mean
title
chose
to
any
in action.
the thing
Assumiug, then, property to mean
Avhich Ownership exists,I proceed to inquire
thingsmay
those
securities
valuable
form
to any
property or
Property,
"
of
property,or,
things
in
in other
words, to
which, contrary
to
enumerate
its
general
recogniseownership. In the first

for
speak of property as a general name
take the word
owned, we must
thing in
exclusive
of persons.
as
Happily, our law
does not
"
"
nearly
every
civilized State
does
not
now
recogniseany rightsof ownership over human

beings. The
family rights are of a different character, and the true
meaning of slaveryis that the slave is property in the same
next
a thing. The
sense
as
exceptionis that of those things
which
do not admit of appropriation. The
shines and
sun
the rain falls alike upon the just and upon the unjust. The
The sea
bloweth
where it listeth.
is the highway of
wind
The
nations.
land indeed
be appropriated,but not
may
the
scenery
of nature,
cases,
that
also
it
rarely admit
however, where
The
contains.
what
of
we
great invisible forces
appropriation.
may
call
the
In
those
storage of
possible,
ownership is recognised. We thus arrive at
third exception,
our
that,namely, of forces which are capable
but are
in fact appropriated. While
not
of appn 'priation
such thingsare unappropriated
they are not property. AVheu
force is
203
OffencesagaxnO, Property.
they have
continue
is
water
into
is not
property
is accumidated
has
all its incidents.
in
it
reservoirs,
Wild
lawfullyreduced
possessioncontinue. When
his
become
the
property until
not
such
unless
by
any
may
landowner, and
person,
be
duced
re-
thereupon
property.
Complexityof the law which

Property,
agaiust property is well known.
has been justlyattributed to the fact that
relates to ofiences
The
Offences
stream
property,and
another, their bodies
possessionby
into
of the
out
killed
are
in
Running
stolen.
possessionand
they
of
land
the
fall ui)on
and
into
are
are
ordinary
it is confined
becomes
animals
in
gas
it is taken
property; but when
not
be
can
long as they
so
when
but
property, and
becomes
and
they
and
possession,
property. Thus
they become
so,
circumstances
pipes it
reduced
been
That
complexity
this branch
of the
of the offence
only,
and without regardto the theory of ownership. It is impossible,
Stephen,*to understand the provisions
says Sir James
of the LarcenyAct without a knowledge of the doctrines which
law
has
been
from
framed
consideration
"
that is to say, the doctrine

to things capable of
as
it presupposes
of theft and
definition of theft turns
on
is unintelligible
except in
The
law
remarkable
of theft and
instance
of
but
by
of its cognate
of the
their breach.
duties,the subjectdoes
The
may
duties which
owe
we
to the definition
being stolen. The

and this
the doctrine of possession,
relation to the doctrine of property."
system of juralarrangement
duties
as
not
is indeed
practicalinconvenience
of that
classifieslaw not
by its
Regarded from the stand-point
diffictdty.
present any particular
which
to others in
readily be enumerated.
offences
We
respect of their property
are
not
to
interfere with
neighbour'sright to possess. We are not to interfere

him of
not to hinder
with his actual possession. We
are
the rights wluch
the fact of his possession.
fiow from
of the
We are not to deprivehim either wholly or partially
of his proi)erty or to disturb him in its enjoyment. We
use
firom selling
his title,
to prevent him
are
not, by slandering
our
Digest of the Grim. Law, IM
Sole.
'^"'*
The
Rights of Orvnerskip:
his property to the best

to
interfere
to
another
These
with
who
advantage. We
any
property
has
not
which
know
we
authorized
in any
not
are
way
belong
to
interference.
such
rules
apply to cases of detention and of custodyas well

as of possession. So far as
strangersare concerned,the duty
is unlimited,
and takes no notice of the shares into which the
ownership of the property may happen to be divided.
In all the cases
I have mentioned
the law givesa civil
remedy,wliether by restitution or by damages or by injunction
has sustained.
or
otherwise,for any injurythat the proprietor
But in certain cases
it proceedsfurther,
and deals with the
offences criminally. The
with
which
it so deals are
cases
theft and mischief,
that is,the unlawful taking of movable
propertyor its destruction or damage. Of mischief I shall not
treat,and
now
my
cognate offences.
remarks
will be confined
theft and
to
offence of theft consists in the
The
its
sion,
conver-
in certain
of another's movable
circumstances,
property.
Conversion impliestwo things,
of the former
the dispossession
The
of the converter.
possessor and the adverse possession
questionsof which I have alreadytreated thus arise in relation
to
possession. A
without
giving it
said to convert
liishands
Hence
receives money
to him
absconds
not
yet
for his master, and
with
How
it.
by its owner's
property which
had
and
servant
consent
into his master's
come
he be
can
in
was
?
possession
separate offence called embezzlement, and an

infinite displayof legalingenuity,
not always perhaps to the
arose
advancement
man
sold the coals and
to determine
the coals
former
was
the offence
larceny;
and
of
ineffectual if the facts
cart
or
coals,and
after that
embezzlement
was
course
fetch
to
cart
in the
V.
Kecd, Dear.
one
the
267.
was
In other
the
he
the
latter it
crime
to the other.
words, the questionfor trial was, not whether

did or did not steal the coals,but whether
Bex
In
event.
conviction for the
reallyamounted
where
essential
kept the money, it was
took place before
misappropriation
put into the
were
case
the
whether
Thus*
ensued.
justice,
with
his servant
sent
servant
of substantial
prisoner
stole them
'^""
Offences(igaxwtt Property.
at
particular
one
moment
separate offence
another
words, theft
in other
bailee,or,
agent of property of which
the owner's
mistake
or
in
presents itself
of offences
case
in
slightalteration
certain
intent
owner's
consent.
"
the words
by
in
definition
That
mistake
The
or
with
forms, as it is
is called
or
personal violence
generalprovisionas to
with
any
of his
He
master's
was
sense
has interfered
only take
certain
the
property without
be added
should
by
fraud
Theft with violence
or
found
or
revolts
the
theft
orders, gave
and
guilty,
would
against
such
expressly to prevent
the
include
from
his
But
case.
result,and Parliament
it.
form
unsatisfactory
logical
consequence
accepted. Our law both of
difficult to frame
seems
not
horse
prosecuted for
was
man
it
exception.
master's
his
or
the
To
arms.
curious
one
to
This
corn.
of
use
is
there
wounding
with
attended
with
with
or
Robbery, again, has
robbery.
is not
definition of theft which
common
can
to
contrary
larceny.
according to the circumstances
committed.
various
feed
with
person
if it be obtained
of theft varies
of violence
no
by intimidation."
or
it has been
groom,
that
by
duty.
of
of the breach
another's
his consent
threats
distinction
the
propositionthere
this
To
creases
greatlyin-
tronble is removed
All
provides
convert
may
character
in which
effect
In the
rise to the offence
gives
definition
the
law
criminal
our
false pretences, and
under
embezzlement.
theft and
between
difl"culty
This
difficulties arisingfrom
practical
the
given by
to the offence.
is essential
it
indeed,
were
part of
one
against property
obtaining property
of
than
more
of consent
the want
where
or
without
consented
owner
were
were
larceny as
property
procured by fraud
extorted by intimidation
if his consent
and
if the
what
But
consent.
by an
possession.
and
of
but
servant
conversion
the
bailee,imply respectively
larceny as
the consensual
had
he
by
not
offences,theft,embezzlement,
three
These
of
developed,that
was
Similarly,
another.
at
or
certain
Such
of
an
interference
declaring that
premisesshall
theft and of mischief
has
not
grown
be
up
-^06
The
in the most
been
much
Rights of Ovmership
fragmentarymanner.
increased
Its natural
extension
the
by
of the
of justices
of the
jurisdiction
of
perplexing form in which many
jurisdiction.Probably in no part
amending hand
be appliedwith
without
"
4. Since
Modes
of
Ownership.
number
in
distinct
either
"
of
at the
law
to the law
could
of theft.
thCvse
with
the
of substance
i"i
since
absolutelyor
this
of
composed
"
rights,and
time
same
and
without
rightsare
restriction
some
in one
qualification
impliesthe unrestricted
collective rights by a
any
This is full
ownership. It
and
present -enjoyment of these
singleperson for an indefinite time to the
of their legal compass.
But the ownership
person.
in
introduce
alteration
very
or
person
vested
"
the
the
persons, ownership presents itself under

All the rights of ownership may
five forms.
be
some
one
oi
vested
necessarily
of
has
offences
by
Acts
our
is thus
ownership
such
and
peace,
advantage than
more
confusion
to many
material
any
of four
The
whole
may
extent
be limited
be
rights may
held for a limited
time, or may be jointlyheld by two or
Some
more
ship
only and not all the rights of ownerpersons.
be enjoyed. Or
the
collective
rights,whether
may
be held by two or more
not jointly
or
singular,
may
persons,
but in succession.
That
is, limited ownersliipincludes
interests of limited duration,condominion,rightsin re aliend,
and
successive interests.
Of full ownership nothing more
one
any
needs
be said
of tenure
in the
land
same
deemed
was
except that under
in fee
in land
simple.
sense
as
to be
estate
now
been
or
in
limited
follows from
not
chattel is
that
that under
as
the
owned,
this distinction.
of future
term
I include
the
old
estates
system
subjectof ownership
but
the estate
in
it
full
The dominion
or
rightin re aliend.
the Crown, and the grantee held merely
interest.
But no practical
consequence
repealedor replaced by
limitation
collective
It is true
regarded
was
ownership rested
an
ways.
other
estates,there
The
incidents have
rules.
is
now
Except
no
as
either
to
the
substantial
ownership of
of land
acre
an
and
the
of wool.
bale
ownership of
the
difference between
207
Interests.
Limited
singnlarrightswhich collectively
constitute
ownership may be enjoyed separatelyor
Kj^^hte^f**'
owTiership,
of the other rights.
jjj conjunctionwith one
or
more
Thus
the lessee of property has its possession,
although he
of the
Each
Separate
has
its
not
ownership.
temporary purpose
the
has
chattels,although he
of these
use
for
chattels
hires
who
person
possession. The purchaser of a growing crop

be said to have the right to the produce of the land,
may
The lessee
although he has neither its possessionnor its use.
of minerals
has a rightof abuser,even
though he may have
has
no
their
not
other
has
right whatever
right of sale
the
ownership and
to
the
even
without
of exclusion
enforce
although the
security,
The right
in another.
his
possessionbe
rightsis
of the other
any
like
singularrights.
lias the
trustee
may
Thus
of
all the
exercise
Even
waste.
the
use.
found
in
In
church.
of the
more
ownership but
usufructuJ^ A
for life
A tenant
ownersliipexcept sale and

of exclusion,though it can
hanlly be
be restricted in the case
of particular
of
powers
the power
not
a
or
one
deducto
propnetas
ownership but
by
has the
the reversioner
possession," nuda
the
exist less
ownership may
manner
creditor
secured
the surface.
trustee, as, for example, the trustee
mere
not
to
entirelyremoved, may
has to
of a particular
owner
an
or
purjjose, as when
persons
whether
to a right of way
submit
private or public. Such
rights are for the most
part rights in another's property or
with rights in personam.
rightswhich exist in combination
In either case
further opportunitywill arise of considering
a
them
and
modes
of
rights
mtereste.
years,
some
among
Those
jjnjit^
^j^^t of
or
interests.
ownership where
of
or
divided
future
also
at will.
of
the
them
full
enjoyment
in
now
those
notice
of the
collective
its duration
or
is
owners.
of which
owucrship
Estates
shall
is limited
of
plurality
interests
tail
the
estates
are
are
quantityis
mere
less than
tail,for life,for
accidental
growth
208
The
in the
by
historyof
real
substantial
They
as
and
will
interest.
encumber
not
unprofitable
learning.
absorbed
the
are
now
in tenancies
from
the
Estates
year
barred
hardly be
can
have
their
run
present inquiry by
at will
to year
be
now
may
therefore
course,
In
They
property.
simple disentailingdeed, and
regarded
their
Rights of Ownership
are
in the
practically
case
of land.
personal chattels they are called bailments,

and in each
case
they have in the absence of any special
rules.
therefore,there
Substantially,
agreement their own
years.
these
of
case
but
forms
two
It may
be
interests
are
of inferior estates
said that
whether
governed by
now
for life and
"
in land
or
for
in chattels
the agreements
of the
is
only where the contract is silent that the law

interferes with
its implied conditions.
Everywhere tenure
has given place to contract.
Condominion
is probably the oldest
form
of
condominion.
ownership. In its archaic form there was no notion
of shares. Thejamilia or property of the household
was
held,
not by any artificial or juristic
person, but simply by all the
interested parties without
division.
distinction and without
So old is this mode
of ownership that it has been entirely
forgottenin our law ; and this oblivion is so complete that
in other
tribal
when
in India
us
or
co-ownership meets
it has been a cause
and
societies,
always of embarrassment
parties. It
too often of unintended
rudimental
When
wrong.
form, appears,
this tenure
the
shows
State,even
in
signsof decay.
provide a specialform of action for

dividing the familia. In later times the rule has become
settled that no
shall remain
a co-owner
againsthis
person
will.
Our law now
recognisestwo classes of co-proprietors,
The difference between
jointtenants and tenants in common.
mined
these classes relates only to succession,and is in fact deterby the terms express or implied of the originalgrant
of joint
In the case
of the interest.
other foundation
or
The
Twelve
Tables
tenants, the limitation

the survivors
of them
is in
and
effect to all the tenants
to the
and
to
of the
legalrepresentatives
"wlv
Bif/htsof OionersMp :
The
of the
law
largerholder.
part of
of
the
our
and of their descendants.

which
law
ownership
called the law of servitudes
Romans
stand-pointof
is the
former
the latter is that of the Romans
Accordingly,that
treatingof modes
There
The
limited
or
or
certain other
describe
we
burthens
interests
as
the
property.
which, although
alienct,
upon
rightsin re
they are equallywith the largerinterests rightsin rem, our
law in regardingnot as estates
law agrees with the Roman
in land but as burthens
is
it. Of these rightsone
upon
that class of
servitutes rerum, which we
real servitudes,"
or
are
"
call easements.
It is of the
relate to two
called the
for the
of
essence
tenements
modern
that
benefit
of
is,that
be
servient,should
another
of
This
tenement.
occupierfor the time

is legallybound
either to
for the time
or
occuj)ier
from doing certain acts in
or
relation to the servient tenement, or,
advantage
certain burthen
dominant
that the owner

propositionmeans
being of the servient tenement
forbear from excluding the owner
being of the dominant tenement
forbear, for the
tenement, usually
one
subjectto
or
that it should
easement
the
as
the
case
dominant
may
be, to
from
owner,
servient tenement
certain ordinary
exercisingover his own
easements
most
which
acts of ownership. The
now
are
important are rightsof way, rightsto water, rightsto light
and air,and rightsof support to lands or buildings. They
neighbours,
express, in fact,the rightsthat arise between
the
in
whether
of
use
a
man
not
may
country
their
in town,
or
respectivehouses
his
excavate
land
own
for
the
and
in such
more
lands.
a
venient
con-
Thus
manner
as
land of its natural

deprivehis neighbour'suuburthened
he may
not
there is a right of way,
support ; or, where
prevent that neighbour from passing over his field. How
consider.
these rightsare acquiredand lost I shall presently
I shall now
merely observe that there cannot be created in
to
any
tenement
time of its
any
easement
or
attempted creation
"
Hill
V.
other
the
interest which
law does
Tuppor, 2 H. " C.
121.
not
at
the
recognise;*
Bights
that
that
have
cannot
man
easements
in acts
and
owner
for the
owner
of water, and
use
to
cast
bearances
for-
duty
The
they
to make
duties which
But
there
forbearances
which
but
contract, and
consideration
until
and
are
Some
acts.
from
directly
rem
imply
are
use,
servient
the
and
tenement,
duties
property,
I shall therefore
treat
of the
postpone their
of
combinations
Others, which
in personam.
of forbearance.
although
positive,and imply
of these rights arise
interests in another's
are
such
large
cannot
easements
easements,
not
are
the
used
years
compel the dominant

former consumption,and so relieve the
compensation for the damage done.
his
resume
overflow,or
many
discontinue
he
of the latter tenement
owner
owner
for
has
consequentlyoverflow
surplus water
in
in
consist*
they
or
quantitiesof the water, if
not
property;
own
occupier of the servient tenement

in its exercise.
that he has no
or
rightin the easement
The
right belongs exclusively to the dominant
or
occupier. Thus, where a manf has an easement
the
upon
the
his
forbearances
these
that
on
that
-H
Property.
easement
an
indivisible
are
not
Another's
in
have
rights
different
law
origin,are called in the technical language of our
profitsa prendre.''''
They denote the duty of paying to
the donee
of the right, or
at
least of placing at his
disposal,a certain part of the property or of its produce.
To this class belong tithes,the various
rights of common,
of these are
similar charges. But
most
qmt rents, and
either
the examples
obsolete
obsolescent ; and
now
or
which are of present practicalimportance are charges upon
of capitalsums
of annuity,
or
property, whether
by way
and
whether
the
personal. Such
property be real or
amount
to a distribution in a particular
charges practically
of the proceedsof the property.
The person
entitled to
way
^^
The
maxiius
(a.) Nulli
of the
(b.) Sereiiuium
law
Roman
are
"
terviL
ma
tes
non
ea
at
natura
ill
aliquid facial quu,tel
facial,
(c.) SerrUui
t Mason
r.
S. "
rere.'tulii etse
H.
RaUway
non
pdaL
Co., L. R. 6 Q. B.
at
587.
tU
aliquid foliat
rti
nom
21"6
The
the
has
charge
owned.
To
Rights of Otonership :
rightof
no
him
law, appurtenant
and
interests
of licences.
without
it had
well-marked
in
not
of
and
has
he
It
been
that
be created
in land
by
hardly be
Such
unlawful."
They
no
lawful
act
revocable
are
means
than
more
licences have
exclusive
not
are
an
sidiary
sub-
regarded as
now
to
It makes
peculiarities.
They
of the
is said
reallyamounts
"
ticular
par-
It
gross.
can
trespass.
of the grantor.
him,
to
nature
the
may
licence
true interest in land.

a
due
do with
in gross
But
permission of
of money
thing
ownership.
limited in their operationto some
that is,they are, in the language
are
tenement
in the
of exclusion
or
property is merely in the
the
securityfor an amount
substantially
nothing to
Easements
user
the
which
certain
at the
either
pleasure
against the
They transfer no interest.

the
When
the grant of a licence is coupled with an interest,
instrument
is not a licence but a lease,and should be pleaded
such.
It seems
indeed impossibleto put a licence higher
as
to a
than a right in personam.
A ticket to a racecourse
or
owner
against other
or
theatre
is evidence
theatre
at the
but
the
"
at
sounds
in
6. Where
one
any,
Beneficial
be
may
he is sometimes
that
licence to enter
time
specified
licence
remedy, if
of
persons.
and
the
on
or
that
conditions
specified
revoked,
moment
any
course
and
the
damages.
is the
person
of
owner
property,
rightsof
exercise all his
requiredto
but for the benefit of

purposes
another person.
The rightsof that other person are in such
circumstances
called the beneficial interest. The duty of the
ownership,not
for his
nominal
is called
owner
follow the
rules
"
An
use
thing collateral
that
eeitiiyque
to
are
trust
or
confldenco
So
in
tliat he
who
hath
an
use
and
he hath
trust, for which
only a confidence
Lord
remedy was
only by suOp"jsnain Chancery.""
is not
which
and
privity to the estate
shall take
the profits,and
that
the
annexeil
u.w
These
trust.
beneficial interests
ownership,and are formed upon similar

they rest upon the personal duty* of the
enforced
by personal proceedingsagainst
(i.e.trust) Is
his direction.
of
principles.But
trustees, and
own
hath
issuing out
touching
person
shall make
ter-tenant
to
the
not
.;'("iieque
of
land, but as a
land (Scil.),
the
estates
ing
accord-
in re, twqiie ad rem,

Common
Law, but
remedy
by the
Coke, Chudleigh's case, 1 Ucports 120
no
but
his
a.
213
BeneficialIntereaU,
these
and
ftmctionaries,
arose
probably from
Statutes
land
of
by
not
to evade
desire
effective. Since
method
The
was
of evasion
made
to
the
alienation
of
simple but
was
would, under the
third
They
rem.
provisionsof
the
direct grant to the Church
statute,be void,a grant
in
prohibited the
Mortmain, which
to the Church.
action
any
party for the
all went
faithful,
If he were
not
well.
sought in the
faithM, redress was
The
Courts of Common
courts.
Law
regarded such a use,
for so
then
not
it was
only
called,as illegal. It vras
contrary to the Act but repugnant to the preceding part
of the grant.
They consequentlyheld that the third party
the full owner
of the property without
was
cation.
qualifiany
of Equity.
then had to the Court
Recourse
was
The Chancellor
troubled
more
was
by the breach of good
faith
than
grant
If the third party
of the Church.
use
the
formal
and, himself
statute
no
by
which
was
special assistance
were
difficulties in
the
terms
of the
he thought that
dignifiedecclesiastic,
deserved
meant
to injurethe Church
from
He
him.
had
therefore
little
deaKng with the state of facts I have described.

He acknowledged the conclusive authorityof the Courts of
Common
of freehold right. He admitted
Law upon a matter
that,in accordance with their judgment, the third party was
in fee,and that he could deal with
the land in whatever
owner
hesitation in
added
pleased. But the Chancellor
conscience and good faith required the third party to
He might do
his discretion in a jmrticular
way.
way
the
he
he
projjertyas
should
please to
might be, he
was
pleased,but it would
do
his
morally
duty.
bound
Whatever
to
give
with
for him
be well
his
cise
exer-
if
legalrights
effect to
the
trust
directed him
to
obligationthe court now
perform. If he declined to obey the Chancellor's order, he
was
guiltyof contempt, and went to prisonuntil he attained
If he sought the aid of the Common
of mind.
a better state
Law
told that they could do nothing for him.
Courts, he was
They had alreadydecided in his favour the controversy as to
and
this
he
that
moral
"214
The
the
of
ownersliip
Bights of Ownership :
to
jurisdiction
interfere with the orders
of the
Chancellor
on
questions
Much
less could they
touchinggood faith and conscience.
there was
interfere where
of a court of co-equal
a contempt
rank.
The
third
and
contempt
tlie
party
submit
They
property.
had
thus
had
no
choice but
no
to the Chancellor's
order.
his
to purge
In this way
double
established ; and under

was
jurisdiction
favouring
the
conditions
the legal
equitableinterest prevailedover
estate.
This is not the place to narrate
the historyof that
certain of its aspects.
struggle. I shall only notice briefly
a
relations of the
The
of liis cestui
and
trustee
are
merely obligations.They arise
the
trustee
and
the
out
These
grantor.
of the
que, trust
of
contract
obligations,however,
The
interest of the cestui que
right in rem.
It is a
trust
is a right which
avails against tlie world.
maxim
the
that equity follows the law, and
beneficial
therefore moulded
interest was
according to the ordinary
rules of ownersliip. The
cestui que trust had, with some
the
of dealing with
trifling
exceptions,the same
powers
in possession
of
property that he would have had if he were
Thus
this beneficial interest is reallyv^ju^s
the legalestate.
in re aliend,but of the strongest form.
It is a right in
another
person'sproperty, but that rightis so extensive as
to smother
the rightsof the nominal
I
owner.
practically
have already indicated the position
of the trustee.
He has
He has not the right
all the rightsof ownership save
one.
There
is against him
of user.
usufruct,which
a peri)etual
generate
extends
to every
with
it,and
part of the property, and

interest
to every
arisingout
the beneficial interest is distinct from
of the Roman
of agency,
law.
The
of which
latter
to every
Avas
of it.
the Fidei
in substance
tion
transac-
Further,
commissum
a
mere
tract
con-
Emperor Augustus* was induced

to grant specific
performance. Nor did it o})eratei7iter
vivos, but only in respect to testamentary dispositions.
When
the
Roman
testator
understanding that
the
gave
Lucius
*
certain
was
Inst. n. 23, 1.
property to Lucius, on
to transfer
it to
Titius,
agreement between the testator

if he had once
the latter,
acceptedit,was
in fact
an
perform it,the
If he failed to
matter
that the interference of the law
bonnd
to
perform.
of snch
and
was
Lncins,which
and
was
easy
was
terms, this
these
accepted the property on
Lncins
and
215
Estates.
FxUure
nature
consistent
was
ance
justice. It could compel Lucius to make the conveythat he promised ; and his duty was
completeas soon as
he transferred the propertyaccordingto the tenor of his agreement.
Such a duty is very different from that of an English
trustee.
Trusteeshipfollows the analogy not of a contract
with
but of
It may
office.
an
for
involve
period
indefinite
an
The Fidei
unceasing responsibilities.
was
a
mere
commissarius
conduit-pipe. The trustee has
duties resembling those performed
important and onerous
duties
active
by
and
and
public officer,
powers
of his functions.
for the due performance
needed
" 7. If
Future
to the time
as
that the
assume
we
of them
some
arises
which
certain
exercises
exist
at which
are
rightsof ownership
or
any case, a further question

is to commence.
their operation
enjoyment may be postponed,

be delayed.
vest but its enjoyment may
or the rightmay
be distinguished
These
deferred rightsor enjoyments must
Tlie latter are simply future
from mere
executory contracts.
the j)arties.
But
and take effect only between
obligations,
the interests of which I now
speak are rightsin rem relating
either contingentor iX)stponed.The
to ownershipwhich
are
Both
the
Roman
vestingof
did not
law
time*
conditions and
rightand
its
recognisesuch
were
admitted
rights.
in
In the later law
contracts,and
of
were
legacies.But the law of property was

and to the Roman
mind
founded
possession,
sion
possesupon
present possession. Occupatio was
always meant
did,and not something that he merely
something that a man
in
frequentoccurrence
"
"
Further, the necessityfor
to do.
intended
the
"
Heres
possession,who cordd perform the

important Sacra,"twas not less imperativein Roman
actual
in
owner
"
S"e Mr.
Hunter,
Roman
Law,
40S.
t Gains
II. 55.
"
or
aUlaw
21b
The
Rights of Ownership:
tlian the
the
of the
the
of the tenant
of
necessity
seignoryand the guardianof
the
furthest
The
ancestors.
interests
Jura in
as
upon
property.
from
those
In
the
Law.
are
ownersliipwas
aliend,or, as
re
The
we
nations whose
of Rome
"
made
that the Romans
advance
direction of divided
fee, the champion*

tenancy,"was to onr
all minor
treat
to
in
should say, as burthens

laws have been derived
generallyfollowed this example.

in our Common
of chattels,
a like rule prevailed
which
Blackstonef assignsfor this rule
reasons
case
The
have
cogent, but the fact remains
not very
that
future estate
no
relaxed in the
recognisedin personalty. This rule was
of Wills.
In other cases
no
questionpractically
arises,
was
case
since from
in
interests
into
chattels
But
trustees.
Common
has
limited
estates,so
The
simultaneously.
present purposes
we
of Future
Estates
doctrine
of seisin.
the
forms
intervention
The
it deals
with
deals with
feudal.
in
estates
Settled
limited estates
from
shall
not
the
now
explanation. For our

to acceptthe recognition
definite
be content
must
an
of
division of the fee
for this deviation
more
as
of land.
case
in fee and
doubtless
offer any
to
the
it also
estates
reasons
practicewere
attempt
the
As
estates.
Estates,that is with both

Roman
of
always recognisedthe
separatesuccessive
with
in
safetyfuture
and
arranged by
are
it is otherwise
Law
fee and
of convenience
considerations
the
Togetherwith
characteristic feature
It rested
fact.
ultimate
of
upon
of trusts,it
doctrine
law.
English
the
It
has
present day, and upon it,as a recent learned

of limitations
writer } observes," depends all the intricacy
occurringin the settlement and distribution of land."
survived to the
The
expectant interests
called Reversions
are
the full
The
ownership is
reversion
means
in
and
divided
the
property which
interest
expectant U2)on the determination

which
he has
remainder
means
*
grantedto
another
the limited
of
two
the
or
more
persons.
grantor that is
of the interest in
person
in his
expectancy of
See 1 Hayes on Conveyancing, 12.

t Mr. Leake's Digest of Law of
nises
recog-
They arise where
Remainders.
between
law
our
some
t II. 898.
Property, 7.
possession
property. A
person
other
*lo
The
Acquisitionand
CHAPTER
THE
XI.
IN
RIGHTS
EXTINCTION
THE
AND
ACQUISITION
of Hif/htsin Hem:
the Extinction
OF
HEM.
be
acquired in
Riglits of Ownership may
had some
or
property wliicli previouslyeither had no owner
In the latter case
the new
owner.
rights may arise with
"
Occupancy.
the
consent
1.
of
the
former
owner
or
his
without
consent.
Consensual
acquisitionis in effect transfer whether

partial
old right,not
of an
or
complete. It is the conveyance
the creation of a new
sion
right. I shall presentlyhave occaI now
to discuss the doctrine of transfer.
speak only
did not previously
of the commencement
of a rightwhich
arise either
exist.
Such
commencement
a
by the
may
appropriationof unowned
property, or by so dealing with
his
the property of another
to acquire therein without
as
The
of res
consent
a
case
nullius,
proprietaryinterest.
is very old and very simple. It
or
unappropriatedobjects,
is merely the
ownerless
reduction
into possession of an
The
be
thing. It contains three elements.
thing must
It must
be brought within the physical
without an owner.
control
take place
of the claimant.
Tliis proceeding must
with
the
intent
own
iûrposes.
upon
is called
The
finder
takes
In
his
the
part
case
finding,or
possessionof
to
of
the
the
hold
and
chattels
use
sucli
it for his
an
priation
appro-
right of tlie first finder.

thing ;
but
as
possession
against every person except the true owner, and as

in this case
exists,the
by the hypothesis no such owner
possessionand the ownership coincide. In the case of land
this mode
of acquisition
called by the Roman
was
lawyers
"
in international
occupatio" a word stillof liighsignificance
Its principlesand
law.
its practice seem
been
to have
familiar to every branch of the Aryan race.
Any person or
avails
219
Things Found.
of
body
that
clan,and
of any
to
which
is,knd
land
might
persons
citizen
deemed
Thus
of
All
beyond the
occupied for And
be
all land
since
Her
within
that
subject
occupied by any
this rule is
land
State is
of that
behalf
on
to
occupant
boundaries
State
to
times
In modern
limitation.
important
an
the
title of the
thereby the
established.
was
within
not
was
nnappropriated land,
recognisedbonndaries
any
occupy
State.
of that
is held
Majesty'sdominions
since all land
acquired
by her subjectsoutside those dominions, and not forming
is acquired for
of any other sovereign,
part of the territory
Her
has in our
country
Majesty,the doctrine of occupancy
become
A
surv-ival of it
curious
practicallyobsolete.
lingeredto the time of Charles II. in the case of a lease for
grant of the
the
from
lives upon
is
death
the
dormant
lessee,but
which
upon
England,
or
foundation
occasions
are
in which
this
of the
had
have
that it has
Romans
of the
owner
See
"
Curlewis
Thesaurus
r.
habecu.""D\g.
in
soil.
XLI.
the memory
Crown
laid
of
the
In
our
in this
whereof
law
all such
an
above
"
an
does
and
owner
speciesis
f to be
between
I have
things which
had
once
Property so
equal shares
than
those
only
not
is defined
sense
owner."
Campbell,
eii vetu*
the
ancestors
is wider
nullius
typicalform
in this
no
divided
res
but those which
property
now
for
Aryan
our
includes
It
The
Treasure
of valuable
non
class of
lost him.
Trove.
which
owner,
an
claimed
was
European nations.
indicated.
never
into
Australia
upon
The
.pjjjj
Found,
wakes
this survival
even
unexpected activity. It
of Crown
lands, not indeed againstthe
operates in the case
after possession
Crown, but against all subsequent comers
The old squattingtenure
of the Australian
has been taken.
colonies,*before the occupationof tlie Crown lands was made
the same
of legislation,
matter
rested upon
as
a
principles
that
doctrine
of the
Still there
forgotten.
now
Crown, and
Treasure
old
not
deposit
exist,so
circumstanced
the
the finder and
the
property goes
to the
4 Shadforth's
queedam
1, 31.
Reports, 3.
deposUio pecania: ett/u*
non
extat
memoria
tUjam
domiitum
2iii\)
The
Crown.
Acquisitionand
But
elsewhere
claim
the Extinction
it sometimes
in the
than
of Rights in
that
valuables
liappensthat
earth,and
Rem
no
owner
found
are
to
appears
is to prove
that
difficulty
there is no person who has the right of ownership or at least
of prior possession.The
duty of the finder is sufficiently
plain. He must take reasonable painsto discover the owner.
tain
If,after he knows or might with reasonable diligenceascerthe owner, he appropriatethe property,he is guilty of
But
where
title exists,there are
theft.
often disputes
no
of possession. I do not speak of those cases
to priority
as
the ownership can
where
be distinctly
traced,and where
of the true owner
claims by
consequentlythe representative
longing
title against the possessor.
a superior
Thus, a bureau* beold lady went
after her death through many
to an
adventures
and upon
and
ultimatelywas
many
voyages,
found to contain,in a secret drawer, a considerable
sum.
Her executor
the true owner
of that money,
even
was
though
he knew
nothing of its existence and though he had sold
the bureau.
But where
there is found in some
repository
all trace of ownership has disapvaluable property of which
peared,
the questionbecomes
of priorpossession.I do
one
not know
that this questionhas been decided in the English
In
them.
courts,but it
A
another
books
in the
crevice
found
safe
to their
the
brought an
refused
to
"
notes.
could
trace
the
compel
whose
book
have
Sir
I agree
James
Cartwrijfhtv. Green,
in Mr.
Stephen
8 Yes. 405.
on
this
t Mr.
0. W.
the
safe,and
very
subject.
Holmes,
"
The
pected
sus-
pute
dis-
latter
The
courts
case
insists
in this
concur
criticism
in
able American
this
taken
his
who
man
the
of the notes.
I cannot
Holmes'
history. A
between
their restoration.
had
person
their
arose
action for the recovery
bailee found
No
of the
owner
this decision is wrong.
although
of
and
it for re-sale to
sent
This
bank
some
or
sold.
was
in America.
permissionto keep
gave
claims
respective
notes
writer f from
that
he
safe until it
of the
dealt with
been
afterwards
whom
to
their existence
as
have
to
safe,and
person,
the
cases
appears
bought
man
such
on
In
view,
the remarks
my
Connnon
opinion
Law," 226.
^^1
Abandonment.
the
whether
question is
the
"
If he
the notes.
the intent
to possess,
to
respect
In
the existence.
his
he
When
intent.
had
could
had
he
Posscssiou
without
continucs
Abandon-
l)odyor
Qf
ment
it
the
by
comes
of
obtained,
the
These
act.
both
do
renewed
not
now
fact and
end,
until
or
Dispossession
which
under
the
judgment
from
re-entry
the
of
or
a
caption
re-
some
contrary of possession. Like
is the
is
complex
state
of mind.
nature
fully
unlaw-
merely wrongful
sideration.
require our
specialconneeds to
something more
from
or
effort
lawfullyor
grant
from
of abandonment
Abandonment
of mind
the
or
owner,
matters
its
possession,
any
an
the
not
the fact.
to
means
or
jurisdiction,
true
But
be said.
of
terms
competent
by
external
some
the
possession was
court
until either
were
not
voluntarily relinquishesit.
possessor
arise from
may
of mind
had
fact,he
the
intent,he had
the
know
he
the
with
that intent
confessedlydid not
/actum and the animus
which
case
it had
as
have
not
possession
existed
possessionwithout
have
not
This
it.
the safe for sale
he
When
conjoined.
never
and
object of
an
part with
he could
But
event.
at
did not
he
had,
after he sent
remained
before that
safe had
of the
owner
cluded
ownership being exof
any time possession
of
all claim
"
; like
it implies
possession,
But
this
fact and
this
negativesof those which in possession

characteristic.
As possessionimpliesthe detention
of a
are
of that
thing, so abandonment
implies the discontinuance
detention.
As possessionimplies the intention to apply the
detained thing to the possessor's
own
use, so abandonment
impliesthe intention not to apply it to such or to any use.
state
Where
intention
an
the
effect,
to the
the
are
ordinary rule
and
owner
away
take
to
his old
them,
kind
has
been
once
put
into
complete; and cannot, according

be revoked
of election,
sequent
againstany subto
Thus, if a man
were
intentionally
clothes,and
it would
allege that
this
is
abandonment
possessor.
throw
of
he
not
had
be
another
person
competent
for the
chanoêd his mind
to find
were
and
original
to
insist
^""//i
The
the Extinction
Acqmmtio7i and
Rem:
in
of Rirjlds
the mere
absence
upon their restitution. In sucli cases
detention is not a proof of an
intent to abandon.
Such
intention must
from
be shown
the conduct
Thus,
case.
tlie Roman
by
of
means
reasonable
to take the favorite
has
who
a man
jurists,*
example upon
a
an
inference
of the
party in all the circumstances
of the
of
of
subject
this
pasture in the
summer
pasture in the plains,does not

either of them, although each of them is left vacant
mountains
and
abandon
for half the
winter
The
year.
of such
nature
the fact of absence
presumptionto which
rebuts
case
any
give rise.
might
" 2. Whcu
is adverse and continues for

posscssiou
a certain length of time, it ripensinto ownership. This rule,
which
and we, after the
the older Romans
called usucapion,
of the Empire, call prescription,
example of the Romans
to
in every system of European law.
It is subject
appears
but such details as
which affect not the principle
variations,
the length of the time and the kind of the property. Thus
Usucapion.
under
the
a
in
two
Twelve
much
Tables
law
later Roman
lished
estab-
usucapionof land took effect

England the periodis by a recent Actf
longer term
years.
for the
"
In
the
"
twelve years ; in Victoria it is fifteen years. In earlyRome

the
for movables
term
was
one
year; in England and in Victoria
it is six years.
mentioned
very
of the
passes.
respectthe law of the
last-
change of ownership. I am not

of any express decision on the subject. Mr. Markby, J
states that the generalopinion
competent authority,
holds that in this case
also the ownership
profession
In the
case
to any
as
of
to which
contract
it is familiar law
applies,
although the remedy is barred.
that
two
presentsa notable peculiarity.The six

at which
the right of action is barred,
the time
but the law is silent

aware
in this
countries
mark
years
But
man
may
recover
his
If then
peaceablydo so.
for more
adverse i)Osses8ion
*
t 37 " 38 Vict.
c.
See
that the
obligationsurvives,
Nor, again,is
propertywhen
horse of which
than
Savigny
57, 8. 1.
tations
the Statute of Limi-
on
six years
Posseasion, 272.
{ UlemenU
and
it doubtful
where
there
were
to
had
he
can
been
strayinto
of Law, SOO.
^"w
Usueajnon,
stable,would
its former
could
maintained
have
not
he
be
so
not
differing
in
returned
thus
entitled,there
he
it,be entitled
to
of
?
possession
prescription,
in
their
into his
kinds
two
are
only, but
conditions
their
for
action
an
had
that
retain the animal
althongh
originalowner,
the
result.
of
mode
acquisition
by
are
merely superficial.
user, and the varieties of that mode
the true lâl
The answer
in my opinion depends upon
should
atlverse possession
theory of prescription. Why
the
transmute
ownership? The theory of acquiescence
If he be not
so
is
there
entitled,
one
rests
upon
theory of
no
what, in
most
is
cases,
positivelaw merely states the fact,but

explanation. The phenomenon is universal,and
therefore be attributed
coincidence
I
of
imitation
mere
It
policy.
have
must
suggest that
to
venture
of
principle
to
We
abandonment.
have
to
or
cannot
tion.
jural founda-
foundation
seen
offers
accidental
an
some
this
The
fiction.
mere
that
is the
possessor
possession
by ceasingto detain the proi)erty
his interest therein. If his
with the intention of relinquishing
abandonment
be complete,he cannot
change his purpose to
a matter
any other person'sloss. This intention is of course
for proof. For many
the law
thinks fit to prereasons
scribe
shall be deemed
to be conclusive
a certain periodwhich
may
abandon
of the
evidence
earlyRome
year
his
and
intention
this
two
years.
it determined
the
sufficient to break
the year
was
not
fixed
periodwas
But
in this
period
the
of
at
case
so
short
said that in
term
the law
Possession
which
for the
If there
necessary.
as
one
further
went
discontinuance
user.
considered
I have
abandon.
to
was
whole
were
of
stantial
sub-
then
compliancewith the law, it sufficed. What
substantial
was
a
compliance,or, in other words, what
amounted
to a usurpation,
a
breaking of the settled cotu*se
To this question the Twelve
of jX)Ssession
?
Tables
fix in
certain
cases
the
"
trinoctium"
nights,as a "usurpation"or
possession. To me then it
*
See Dalton
r.
Angus,
the term
fatal breach
appears
kpp. Gas
per
Lord
that
of three
in the
the
Blackburn,
days
of
continuity
fixed
at
and
p. 818.
term
of
"^-4
The
the Extinction
Acquisitionand
Rem
of Rights in
adverse
is pre-appointedevidence as to the intention

possession
of the originalowner.
If dnring the whole
term
fixed by the law he took no
eifectual means
to recover
his property,he was
estoppedfrom any snbseqnentassertion
of his claim.
the possession
became
in effect that
to
hold
of
against the
longerclaim.
coincide.
entitled
possessor was
world save
could no
that one
one, and
the possession
and the ownershipagain
Thus
explanationof
In this view the
the limitation of actions

The
lapseof
evidence
six years
The
nullius.
res
to chattels is
as
in the
English rule of
readilyunderstood.
of chattels is conclusive
case
of the abandonment.
the
barring of the right is

mode
of expressing
this presumption of law.
The same
one
ship
presumption may also be expressedby declaringthe owneramount
to this,
Both these provisions
to be transferred.
than this,that the lapseof the six years raises a
and no more
tinuing
presumptio juris et de jure as to the intention in disconthe possession.
" 3. It sometimcs
Accession.
with the
of this
of the two
one
This mode
or
one
and
that
an
of
more
the
they
owner
accession
The
^
rests
to
case
upon
the law
that
of the altered
owner
It
other, become
the
will
property.
where
occurs
the
so
cognise
re-
labour
of
intermixed
separated,or can be separatedonly at

Two
cost.
questionsthus arise. The first
The second is,what
of the jointwhole?
forms of accession*
movables
such
one
be
compensation,if any,
questionsarise or may
of the
the
property of
cannot
is the
if it were
as
dealingare
as
person deals
his own, and that the
that
is called accession.
acquisition
of different owners,
or
properties
unreasonable
is,who
happens
property of another
circumstances
two
The
arise in every
land
to
land, of
accession
of
principles
*
See Mr.
its
Hunter's
movables
to land
AVherc
Roman
various
to
heads
land,of
to movables.
of land
own.
the
the several
under
movables, and of labour

of the
But
case.
themselves
group
of
These
is the loser entitled to receive ?
is
simple,and
the increase
Law, 129.
or
the
326
The
Acquisitionand
intention to
spends
the
incorporate.When
his money
that he has
claim, he
no
wilful silence
burthen
He
equivalentto a
taken possessionof
land
the
certain interest therein

and
with
and
from
he
landowner
show
that
has
title to
the
which
he
that
he
should
has
have
the faith of such
on
was
expectationcreated
expended
tation,
expec-
the
upon
will be
In
land.
and without
money
case, the landowner
In the former
assertinghis
conduct
knowledge of the landowner
the
from him,
objection
property.
that
that there
or
an
encouraged by the landowner
and
show
may
under
he knows
of his
consequence
of offeringa sufficient
may
He
consent.
was
open*
the
part of the landowner
the
on
with his eyes
man
take
him.
property to which
must
the
Bern
in
of Rights
one
another's
on
folly. At all events

explanationrests with
any
Extinction
the
estopped
latter case,
compelledto give effect to the expectation

in such manner
in the opinion of the court the
as
circumstances
of the case
require. There are, however,
may
certain presumptionsf of law as to the intention so to incorporate
the movable
with the land.
When
the thing is accessorial
the
to the
without
view
of the
use
where
to the
the
of
to
their
On
In
these
the immovable
have
have
Eamsden
or
with
property
or
intention to
hand, it is
is
incorporate
presumed, in the
the former
case
v.
one
of
erected
month's
Dyson, L. R.
1 E. "
of houses
and
furnish
be
removed;
notice of
I. App. 120.
with
but
(iucen
Victoria,if
the
landlord's
the
r.
transfer
in
removal, and
f The
to
therefore,
proofin its
direct
some
tlie tenant
to
landowner
fixtures
agricultural
by
movable
of intention
the
parts of
and
of the
attachment
evidence
no
consent, they may
entitled to
"
been
the
cases
claim, must
any
In the
support.
written
made
been
value of the
of tenancies
affords
ownership of
they
the other
has
land
the
some
and
accessories,
if he
be removed
tion
expressionto the contrary, that no intenexists in the case
of trade fixtures and
incorporate
houses.
the
of the
improvement, the
shown.
sufficiently
it cannot
disfigurementto
attachment
enhancement
for its permanent
absence
land, or where
injuryor
substantial
building,or
a
be
may
landlord
may
is
during
Lee, L. R, 1 Q. B. 256.
^^*
Accesnon.
that time
exercise
them
over
or
Of the accession of movables
suppliestwo
paper
former
the
own,
the
he
which
he
rightof
paintingto
where
in
good
give it
up
emption.
pre-
law
the Roman
to movables
of
held that
reftise to
conld
writingto
the
In
canvas.
wrote
paper
faith believed to be his
man
unless
he
were
on
paid for
the pajêr he must

pay
of the paper got possession
that if he retained
but
writing;
is that
was
material
its value.
of
it
case
other
or
other
is the accession of
One
examples.
of them
any
If,however,the
owner
If the writer knew

remedy againsthim.
that the paper belonged to another person, he had no claim.
On this subjectthe English law follows the law of Rome.
Thus
vendors and
arisen between
questionshave sometimes
purchasersof land,where important opinionswere written
by counsel for the purchaserupon the margin of the abstract
of title furnished to him by the vendor.
If,says Lord St.
Leonards,* the purchaserobtain a privateopinionfor his
and allow this to be inserted in the margin
own
information,
of the abstract,he throws iuto the generalheap that which
otherwise woidd
have been his own
privateproperty; and
it,there
was
no
"
the vendor
when
and
it was
all
counsel
must
last sent back
him
all the observations
solicitor,
purchaser's
subsequentlywritten on it,except the opinionsof
formation.
procured by the purchaserfor his own
privatein-
and
private,
without
have the abstract with
by
to the
It will be referred to chambers
to
this
the abstract
part must
reference
be erased
from
report what
is
; or
the
what
erase
was
purchaser may
the erasure
procuredfor his own
privateinformation,
being
made
aflBdavit." In the case
of pictures,
the same
on
ciple
prinhas not always been regarded. The Roman
jurists
held,
that
althoughnot without considerable difference of opinion,
the canvas
was
merely accessorial to the picture; and that
the ownershipof the former consequently
followed the ownership
a
of the latter. For this deviation from

no
reason
satisfactory
*
Vendors
and
j has been
assigned. The
Porcfaasers (13th ed.),356.
p2
the
ordinary rule
difference in
Gaius, II.
78.
ZtiiO
The
value
and
Acquisitionand
which
on
the
the Roman
than
unwritten
sheet.
considerable
same
is not,
difference
the
For
blank
inscribed
with
painted
may
not
written
and
be,
the
there
purposes
sheet of paper
the
of
verses
commercial
mere
when
the
the
least
at
or
between
difference between
paper
Rem
in
of Rights
jurists
relybetween
unpainted canvas
greater
the
the Extinction
is
and
Mr.
Tennyson.
The
"
fourth
of accession
case
or
specification^
combination
one
in
man
of two
mixes
man
such
be
with
will be
the
that
parts
is lost
is the
owner?
question we
made
the
owners
and
the
by
Romans
article
new
ownership.
the
by
Where
the
property of
another
the
identityof
each
of
quid
is
that
For
tertium
the
to
proper answer
distinguish.If the intermixture
must
to their
property with
circumstances
component
the result,who
of
making
articles of different
his
the
this
the
is called
consent
of
both
of the
result
in
parties,both
and
common,
If
shares.
resj)ective
the
of the parties,
one
made
it be
parties
in
by
portion
prothe
Roman
law
gives
wrongful act of
the ownership indeed to the innocent
party, but allows
the wrong-doer compensation for his property. The
to
English law* is more
rightly
rigorous,and as it seems
Under
its provisions
the whole
so.
property goes without
to the innocent party,and the wrong-doer must
any account
bear
the
loss which
his
misconduct
own
has
occasioned.
the prowhere
apply to those cases
perty
where
of each party can
the
be distinguished,
or
the
and
quantity is
quality of both articles is uniform
But
this rule
known.
mix
owners
does not
Thus,
if
togethertwo
would
be
man,
of
bags
regarded
whatever
flour of
as
tenants
may
the
in
be
same
common
his
intent,
brand, the
of
the
For
share.
heap, and would be entitled each to his own
remains dispracticalpurposes the property of each owner
In such circumstances
tlie costs and charges
tinguisluxble.
the division would
of effecting
probablyfall upon tlie person
who
caused
the commixture.
"
2 BI. Ck"in. 406.
4. We
"
Crown
ing
owner
or
the
bnt
owner,
the
like
that
case,
bnt
that
the
rules
did
the
not
not
We
law.
to
consent
recognised
change of
tion,
requiresatten-
namely, where
the
property has
State.
For
the
owner,
an
of snch
case
also
have
any
which
case
of
acqnirpreviouslyan
property had
the
is yet another
is the
owner
where
case
owner
There
ownership.
property had
the
recognisedby
owner
the mode
thus considered
title where
an
considered
have
229
Grants.
Crown
property
prescriptiondid not, until a comparatively

form
of prerecent
the modified
period,provide. Even
scription
against the Crown
hardly requiresin this place
it may
all practicalpurposes
For
specialconsideration.
be said that
the only mode
of acquiring a right to such
Bocland, or the booking of
property is a Crown
grant.
public land to a private person, is found at a very early
period
of
in
our
charter, its
the
with
King
liis Council
of
matters
convenient.
It
is found
owner
shall be
duly
manner
as
any
see
providesa
to
upon
Such
becomes
him
how
by
such
death.
may
for
both
owner
such
grant from
grants
are
for all
such
Where
Her
made
dealing with
such
property
and
purposes
any
highly
public
lawftil individual
no
direct.
to
is
of
all
of
trustee
arrangement
providesthat
entitled
In
effect the
where
be
may
protractedseries
an
definite
it further
and
Parliament
hereafter
Crown
State.
cussing
dis-
Without
Men.
of
in
now
administered
indi\4dual
conveyed
is
result
for all property
and
property
the
by
made
merely antiquarianinterest,it
shortlystated that, as
changes, Her
Majesty
the property of the
of Wise
of
form
substantiallya
history. It was
chief peculiarity
being that it was
by
in
any
such
means
property, it is
Majesty.
in the
We
case
shall
of
living persons,
cessions
suc-
the
exceptionalpowers in respect to personal property

of land that its grants are
in the case
; but it is chiefly
of
important. Such grants are the foundation
practically
in new
all titles to real estate,and, especially
countries,to
important interests in land for mining, pastoral,and
many
has
230
The
other
Acquisitionand
The
purposes.
part of his
grantee
Rem:
of Rights in
the Extinction
transfer
may
the
whole
or
of the
right as he thinks fit ; but the foundation

the ultimate fact in conveyancing,is the
rightitself,
Crown
grant.
any
The
first relates to their

the
form,
second
the
their construction,
to
grant is made
repeal. A Crown
Seal,either of England or
third
their
to
the Great
under
grants requireattention.
relation to Crown
pointsin
Three
of that
part of
in which the property is situated,

Majesty's dominions
and is signedby Her Majesty either under the sign manual,
her agent. The issue of
in a colonyby the Governor
as
or
Her
grant under
checks*
which
but which
Great
the
intended
are
with
say
to
needful
it is not
to
Seal
series of elaborate
guard againstfraud
here
such
whatsoever
through
come
so
many
should
pass
hands
to
nothing
should
Seal
esteemed
and
that
inconvenient
pass the Great

of in law
accounted
was
anything should pass

intended not by any undue
that
; or
which
anyways
that
he
mistake,
cient
It is suffithe
was
Seal should
or
to enumerate.
"
Coke
Lord
prudent antiquitythat
involves
wisdom
Great
the
end
the
is
of
that
highly
againstlaw or
from the King
or
surreptitious
so
warrants."
terpretat
privateinstruments,a liberal inis appliedwhere such an interpretation
is needed
to give eff'ectto the true
intention of the parties. If there
be any ambiguity in the terms
of the instrument,the words
construed
are
against the person who uses them, tliat is,
the grantor. But
in Crown
grants oppositerules prevail.
The
is strictly
literal. The
interpretation
presumption is
In the construction
always
very
of the
in favour
words
of his
on
when
it
made
the
was
and
to insert in
Crown.
The
be
incorrect
grantee. This strictness

upon
grantee gets what
grant lawfullygive him
If therefore these words

falls
of
the suit of
the
or
was
and
See
"
The
Government
more.
the loss
insufficient,
observed
especially
grantee that the grant
accordinglyit is usual in the grant

the charter words
importing that
"
no
of
the
England,"94.
was
of franchises
the
grant is
Croum
231
Grants.
cvzroK
made
from
of the
motion
specialfavour, certain knowledge, and
the
Sovereign.
is somewhat
of the construction
relaxation
such
that
if land
Thus
if it be
will
private,
deed, the grantee

cases, he will
amended
it
will take
occurs.
estate
an
take
take
his
heirs
itself the
male,
If it be
But
the
be
case
interest at all.
no
task
TTiU,
in other
than
in
of
nature
in fee.
severe
an
grant,
instrument
less
are
think
property.
If the
in tail.
estate
an
of
case
recognise,such
accordingto the
not
grant* the grantee will take
will not
law
be
and
rigour
I do not
But
in the
man
rules of construction
the
Crown
does
in which
the instrument
where
law
the
relaxed.
the
circumstances
is admitted
]ye granted to
which
estate
snch
In
mere
of
The
of
remodelling Her
Majesty'sgrant; and that which in the supposed case Her
Majesty has actuallygranted has no legal effect. It may
have been that this distinction between
Royal and private
towards
courts
grants had its originin a leaning by its own
securities
serves
i)rotect the
as
in its grant,
weakness
not
effect.
the
It
this
effect
Crown
all
along with
his remedy to
fall
lands
needed
much
have
the
be mistaken
grant is
descriptionis
which
or
not
deceived
contrary to
That
merely voidable,but
intended
was
be
or
absolutely void.
follows,therefore,that where
cancelled
Crown
of
grant be informal
law, such
is, a grant of
has
if the
or
of
ndes
the
of many
one
public trustee
imposition against private rapacity
to
to
liability
greed.
if the
It is also a rule that,
and
for
now
his
and
is
it
But
the Crown.
upon
or
any
similar
the
pretended grant
derivative
titles which
it
depend upon
it.
The
innocent
look
purchaser must
the originalerring grantee.
Thus, where
been
by
any
means
trary
imduly acquired,con-
provisionsof an Act of Parliament, the proper

mode
of redress is not a resumption of grants or any indirect
action, but the order of a court of competent
legislative
to rescind the grant either
scire facias or
jurisdiction
upon
in Equity.
upon an information
to
the
232
Acquisitionand
The
S 5.
TheAcquisitionandthe
Extinction
anotlier's
in
"
bj grant, testament,
former
the
carving of
smaller
they necessarilydepend
as
that
of
x-
the
upon
of the
terms
ine
two
They
larger interest
and
ment
instru-
It
specialnotice.
them, they requireno
creates
mv^
of transfer.
modes
out
arise
may
prescription.
or
merely
are
cases
Rem:
property
re.
are
Rii^hts
of Rights in
Extinction
the
here
arises
prescription.The difficulty
the extension
from
to mere
rights or res incorporalesof
the principlesof possessionwhich
apply to res corporales
have
or
one
as
we
things. Prescription,
seen, arises where
for a certain period the
adverse
has
man
possession of
another's
property. But possession* and property denote
phorical
something tangible. The possessionof a right is a meta-
is otherwise
with
expression. We
or
even
person
but
can
cannot
we
thing
possess
or
in
possess,
animal
an
the
ordinary
jural relation. Rights of ownership,

other
than
be divided,and
rights in rem
however, may
The
those
of ownership may
arise.
enjoyment of such
rights needs regulation,and for their disturbance remedies
sense
of the
imust
be
look
for
the
Tn
found.
guidance
though
were
term,
new
cases
rules
established
the
to
it
circumstances
such
of
were
natural
was
of property,
class for which
to
even
those rules
designed.
never
indicated
thus
I have
"^^^ distinction
was
ex-
QuasiPossession.
pressed
possession. The
jurists. Its use
various
The
juristswere
was
not
"
stands
*
in
Possideri
139.
the
aulem
incorporate."lb.
t IV.
word
law
itself
rarely
indeed
they used
They
possunt quw
S, i,
Quasi-
in
the
classical
limited
to
occurs
which
single
it conveys
were
familiar.
periphrasis sufficiently
that the expressionunder
any form
aware
same
ideas
term
of
forms
than
the
the
by
be
to
seems
But
accurate, but
specificname.
nothing else
Roman
the
t of Gains.
passage
under
in
meant
the
sunt
t On
the
to
of
the
co/yora/i'a."Dig. XLI.
Possession,131.
of
absence
any
SavignyJ observes,
by it, as
exercise
relation
it in
jus
actual
2, 8.
JVec
in
jus
re,
in
which
re
as
jut
poisiJeriintelligitur
û4
The
and
Acquisitic/ii
the Extinction
of Rirjhtsin
whose
the right is claimed

nor
any
expense
interfere with
the exercise
of the right. The
in
Rem
stranger may
circumstances
which
quasi-possessiongives rise to a similar result

The right claimed
be briefly
stated.
be actually
must
may
be exercised as of righttanquam sui juris,
exercised.
It must
but
in the avowed
that is, "nee vi* nee clam nee precario,^''
assertion of
the other
and
between
the
exercise must
have
must
be known
acquiescedtherein.
to
This
have
continued
as
acquiescence must
their representatives
for
or
partiesthemselves
twenty
claim
the
This
this
than
less
he
party, and
exercise
not
distinct claim.
If all these
years.
is established
and
filled,
ful-
be
conditions
the
right is recognised
and enforced.
arise unless
But, as I conceive,no right can
until the term
of prescription
and
be actuallycompleted.
far these
How
principlesapply to all rights other than
not
those of ownership it would
perhaps be safe at present
It is certain,however, that they apply to
to pronounce.
easements.
be
acquired by use
may
discontinuance
of that use.
a
If,therefore,
fail to exeris not under
cise
any legal disability
person who
a
right in re aliend for a period of twenty years,
he will be held to have relinquishedhis right. The
same
of course
be obtained
result may
by express disclaimer at
which
Rights
lost by the
any
earlier time.
the
right
the
servient
also
absorbs
the
easement
have
In
his
do
not
come
use.
property ;
less.
such
In
in the
effect
the
to
of easements, extinction
case
place when
own
own
belong, however,
and
the
takes
merges
also
been
tenements
proprietorfor
in his
have
of
the
into
A
the
the
the
hands
man
cannot
of
have
and
the
same
ment
ease-
an
greater right includes
ownership.
Various
and
other
causes
They
extinguishing easements.
learning of that specialsubject,
for the illustration of any
general principle.
*
dominant
circumstances, therefore,the
to be necessary
seem
both
of
See p"r Blackburn
J., L. K. 0 Q. ". at 684.
Hghts
Extinction
of
in
Rights
those
than
other
rem
,..-1
acqnisitionof
of ownership
the
to
"
rm
.,".
divides
Other
rem
tTi
235
of Oumerahip.
learning as
6. The
"
TheAcquisi-
tho9e
than
Other
itself into
Ihat
parts.
two
"
L-
acquisition
thanthoseof
.
""
either
Ownership,
does
does
or
of
occurrence
effect.
take
can
that
the
certain
depend
are
eases
presence
where
the
the
right
before
where, beyond the
cases
are
the
upon
is necessary
events
There
-i
There
facts.
special investitive
of
not
fact
right is a member, whether

manent
peror
temporary, of the community or actuallyhas
secondary object of the right,no particularevent is
the
of
donee
the
to his
rightto his personalsecurity,
he becomes
a member
as
so
soon
freedom, to his reputation,
of the community.
He
has a right to the societyand the
control of his family,and to the enjoyment of his property,
he has a family
and to the benefit of his contracts,so soon
as
required.
to
control
hope
may
rather
the
or
property
to benefit.
enjoy or
to
In these
of the
statement
very
Such
right.
cases
also
been
described
"
as
are
have
add
which
is until
some
he
dies
of them
The
by
other
As
or
is
for the
quisition
ac-
natural,*
ciently
suffi-
perhaps
of their
the
is in
their
the
Duties
I have
donee
to
be
expatriatedor
of
true
character
is
rightswhich
late
corre-
and
nothing more.
alreadysaid of
becomes
ordinary cases
ceases
than
rather
stump
such
has
when
a
those
member
he
is bom.
member,
forfeited
of
them
that
or
his crimes.
of
rightsin rem find their originin enjoyment.

its possession,
enjoyment of property means
cases
the
when
he
facts,or
implied in
called
may
he
origin.They have
inalienable,"and by various other
to what
rights. They arise

the community, that
until
They continue
been
rightshave
classes of Greneral
notliing to
those
necessary
terms
which
of the
savour
eulogistic
philosophicanalysis. I trust that
now
sufficiently
apparent. They are
certain
which
investitive
no
beyond
case,
epithetmisleadingindeed,but
indicate the negativefacts
from
contracts
facts
specialinvestitive
no
of his
an
has
man
Be" Austin, II. 592.
"ido
SO
The
the
enjoyment
A
of
pursues
man
circumstances
wiU
investitive facts of each

certain
a
invention
; he
grant from
Her
forbid other persons

invention.
These
publicoffice in
certain
his
without
favour
by
its
in
a
ercise.
ex-
certain
general
constitute
makes
man
obtains
certain conditions
they exist
Thus
then
from
in
create
case.
letters
Rem
non-proprietary
riglitmeans
some
particularconduct
either with or
duty of forbearance,
precedent. These conditions when
in
"
law
the
of Rights
the Extinction
Acquisitionand
and
the
uses
specifiedprocedure
Majesty of letters patent, which

using during their continuance the
be registeredin the proper
must
Such
prescribedway.
grant and
such
the investitive facts of the exclusive

are
registration
right of the patentee. In other cases, as in copyright and
out
withtrade marks, no grant is required; simpleregistration
the desired right. But that right
secures
anything more
The
depends in the first instance upon the actual use.
is introduced
for the purposes
of public convenience,
registration
and
exclusive.
is the condition
which
upon
the
use
is rendered
recognisedby law without

of registration.In all these
or
any
the foundation
of the right is the use.
This use
is
cases
acknowledged and protectedby the law ; and the laAV gives
its recognitionand its protectioneither unconditionally
or
of each case.
upon conditions varying with the circumstances
goodwillthe
requirement of grant
The
of
cases
different.
essential.
The
inverted.
which
even
use
offices and
them
In
But
grant.
in
In
the
with
It follows
the
the
of
franchises
are
somewhat
rights depend directlyupon the

offices the exercise of the right is
grant, which
positionof the use

Except where the
case
is
and
service
office
term
in
in other
of the
is
its
an
cases
it precedes.
right is merely
absolute
duty,
ordinary
sense
is
the grant of an
office is ineffective until
hardly applicable,
vestitur
it has been accepted by the grantee. Nor is this all. Inis needed.
or
sometliingequivalentto investiture,
That
is, the
thereof
grant is
issued
formallyconferred
and
and
tlie office in pursuance

in addition thereto the officer
on
his
part does
exercise of his
the
but
necessary,
seems
official
acceptance of his
of the
disuse
capacitywhich
duties
new
franchises
In
rights.
new
his
in
act
some
the
both
indicates
ô7
Corporales arul Incorporales.
Res
the
and
the
grant alone
rightwould
usuallybe
the
where
cases
relinquishment. In some
condition
franchise is created or is regulatedby statute, some
precedentis frequentlyimposed either ujx)n the acquisition
in the Australian
its exercise.
Thus
of the rightor upon
be conferred
in the first instance
universities degrees can
A degreeactuallyconferred in contravention
only after examination.
of Incorporation
of this provision of the Act
of its
evidence
would
doubtless
act
such
as
be void.
until he
has
If he fail to take that
taken
oath,
of Parliament
member
the
oath
he does
not
cannot
prescribedby
to be
cease
law.
ber,
mem-
of liis rightsis
materiallycurtailed.
It may
Ret corpoperhaps be convenient if here I briefly
what
the leadingpoints of difference between
imeorporau*. statc
called ^^res corporales'"
the Romans
and "r^5 incorporates^^''
I have
called them, the rights of ownership and other
or, as
Most of what I am
about to write is mere
capitulation
rerightsin rem.
; but in certain respectsI shall have to anticipate.
that is,where a
"Where a '"'"res
is a '"^res nulliiiSj''
corporalis''''
subjectof property or thing capable of appropriationhas no
and ownership coincide. Where
of
a subject
owner, possession
the possessionand
the ownership
property has an owner,
This
be
result
take
divided.
place where the
may
may
several rightsare successive or where
they are simultaneous.
In the latter case
the possessionmay
be adverse or consensual.
Adverse
of years
possessionfor a prescribednumber
but
the exercise
is conclusive
evidence
of abandonment
by the
The
owner.
possession therefore of the adverse possessor

ripens into
his ownership, and thus the possessionand the ownership
Consensual
are
again combined.
possessionarises by, and
is equivalentto, accordingto the circumstances
of the case,
either transfer
property.
But
or
the creation
where
there is
of
a
some
minor
grant of the
interest in
rightto
the
possess,
238
The
there
the
or
be
must
of
subjects
implied.
Implied
grant.
claim
and
offices
by
trade
of
the
right
and,
any
Beneficial
or
by grant
of
such
right
and
dealings
it
is
interests
acceptance.
be
must
sought
but
in
except
to
the
by
and
from
without
are
In
given
."g""5..
either
dealings
to
the
by
with
person
his
and
the
are
right
copy-
assent
are
exercise
by
tration.
regis-
contract
them,
whose
the
sent
con-
they
by
patent
class
goodwill,
created
affect, although
required.
his
Crown,
this
of
of
Letters
the
From
by
exercise
acquired
case
or
express
differ, because
are
the
Rights
evidenced
opposition.
goodwill
grant,
consent,
cases
to
copyright
interests.
by
owner,
emanate
law.
in another's
franchises,
such
acceptance.
and
marks
from
derived
all
and
grant
the
is
relate
not
rights
beneficial
effectual
franchises
and
acquired
of
his
without
and
evidenced
is
transaction
do
classes
in
session,
pos-
prescribed by
"
is
consent
knowledge
the
to
four
Rem.
physical
the
which
rem
acquired
consent
Express
in
and
are
the
manner
offices
goodwill,
property
which
the
rights
patent
and
another's
in
comprise
of
delivery
by
registered
property,
marks
trade
not
actual
in
of Rights
Extinction
instrument
letters
property,
the
an
incorporales,'"'or
^''Res
in
be
either
must
effected
and
Acquisition
notice
actual
is
not
XII.
CHAPTER
"
aria-
Rights
relative
indeed
able,not
liavc been
Contract
treatingof
In
PERSONAM.
IN
RIGHTS
-39
Contract.
Sights arising from
in all
general
duties
but in
cases
some
importance,to discuss separatelythose duties

and
the rightswhich
they imply. In treating of relative
particularduties this distinction is less imjwrtant,and in
is in fact impracticable. I have
for
some
cases
sufficiently
described
non-consensual
obligations. I shall
my
purpose
"vithout any attempt to distinguishbetween
now
objects,
which, although tlieir stand-point is different,in fact
coincide
examine
more
closelythan I have already done
the obligations
and the rightswhich
arise from contract.
I venture
in a previous
of what
to repeat the substance
chapter I have said of obligations.They apply not to all
of considerable
"
"
but
persons
other
that
certain
to
duties,they arise from

is
command
In
purposes
ascertainable
thinks
fit to
not
make
their
it is assumed
Contracts
one
own
are
some
will and
own
other
beyond
permitstwo
own
such
the
but
directly.
in-
for its
ascertained
some
or
person
cerned.
partiescon-
or
more
It
way.
the rules which
for
made
called
contracts.
two
classes
contain
is permanent
class is essential
to
their
conditions
of the State
all
parties
merely
by mutual
if they will
themselves,or,
the terms
which
rules,it prescribes
on
their dealingstake place. These enforceable
that
agreements
classes
have
upon
extend
in
conduct
certain
they
agreement
not
the State
cases
regulate their
under
do
Like
sometimes
directly,
impose
in reference
person
certain duties which
enforces
the command
the State of its
cases
In other
individuals.
given sometimes
some
own
to
determinate
to
the
and
of
elements, of
the other is variable.
idea of contract, and
no
which
The
first
State
has
^40
Personam:
Bights in
enforced
is
or
elements
likelyto
not
are
times and
enforce any agreement in which these

The other class varies at diiFerent
found.
in different
and its elements

countries,
matters
are
rather of local
than of general principle.

The former
practice
their intent,the genuinenessof
class includes the parties,
their agreement, the character of the subject-matter
of that
agreement, and the extent and duration of the obligation
thence resulting.The other class relates to the presence
or
the absence
of any special
form or of any consideration,
and
of proof or other rules of procedure which the
to the modes
courts
of each country think fit to require. Each of these
classes needs
examination.
" 2. To
Per-
The
two
of
Elements
or
parties. A
morc
agreement with
an
agreement
management,
annuities,it
where
others
and
loan
the
repay
covenant
which
with
to the
can
man
events
one
other
such
not
Thus, where
other
separate
for
granting
department could
department. In
money
from
an
not
like
fund in which
jointlyinterested,and covenanted
joint account, it was held that such
nugatory, and
was
were
the
borrowed
manf
the
the
ing
bind-
departments under
two
that
valid contract
manner,
he
held
was
make
himself,at all
for fire business
one
be
necessarily
cannot
man
law will notice.
had
company*
insurance
make
modern
as
there must
evcry contract
undertake
that the law knows
no
to
a
by
means
himself.
to pay
must
be definite. An obligation,
parties
its name
as
imports,denotes a vinculum juris,a specific
parties.In other words, the
legalrelation between two or more
In every contract
right arisingfrom
law
does
not
allow
the
isjus in personam
the voluntary creation of
contract
specific
persons or
conduct
certain specified
Two
claim
enter
of persons
through them
this direction the law allows is that

"
Grey
r.
Ellison,1 Giff. 438.
an
in relation to
But
The
utmost
offer may
f Faulkner
an
ment
agree-
partiesand
the
is ineffectual.
generalduties.
may
into contracts.
affects to bind others than
which
who
groups
The
certam.
r.
Lowe,
those
that in
be made
2 Ex.
676.
to
"w4^
Bights
Personam
in
the mutual
the
must
The
of that concurrence.
signification
agreement must be genuine,and the
be proved. Of its genuineness I
marks
of
realitywill best
In other
words,
fact of its existence

will not
when
be understood
speak.
inquire
cally
practi-
now
we
of the intention
signification
itself to some
form
of question and answer.
reduces
The stipulation
of the Roman
law
^'SpondesnePSpondeo''
apart from the use of any technical term is the typicalform.
The
into their absence.
"
One
the other accepts. In the bilateral

party ofi'ers,
the process
much
is
repeatedwith
set form
less any
from
the
bidder
in
hammer
bidder
of
an
of
partiesinverted. But
words, are not necessary.
auction
in
England
words,
A
nod
consequent fall of
the
the
by
utterance
the
syllable,a complete offer and acceptance. Where
by correspondence,questionsof
negotiationis conducted
much
nicety often arise.
years, and
and
room
constitute,without
may
contract
the
the
of
"
on
It
country where
of these
some
is strange that after
exchange
never
questionsis
so
ceases,
many
the law
still unsettled.
It
acceptedmay be at
though it professesto remain open
any time revoked, even
for a specified
it is
period; that an offer is complete when
tion
posted to the other party ; and that it is a sufficient revocaof an offer when
which distinctly
circumstances
imply a
before his acceptance of
revocation have by any means
come
it to the knowledge of the party to whom
the offer was
made.
It is an agreement
Every agreement relates to conduct.
appears,
to do
the
some
however, that
act
forbearance
or
ofier until it is
an
to observe
forbearance.
some
The
act
or
the parties
concern
directly
either of them, but it is the parties,
and they alone, that
or
in the contract.
concerned
When
the secondaryobject
are
of the command
is a person,
those secondary persons*
respectingwhose conduct or for whose benefit the contract is
made
not privy to the agreement.
are
They cannot, as a
general rule,sue or be sued upon it. Apart, however, from
these
may
or
considerations,it is
*
Tweddle
not
may
not
v.
every
Atkinson,
act
1 B. "
or
S. 398.
every
forbearance
The
that the law will

act
recogniseas
forbearance
or
of money,
terms
by law.
that
obligation
same
mnculum"
"Jwm
The
extent.
freedom
what
contract
of action
is
of money
terms
It is with
the
be
must
show
serious
alreadyobserved,and
precisein
who
is,it
in what
with
operate.
also be reducible*
be of
must
whose
to
particulars
restraint is to
must
its
and
the persons
practicalbusiness
not
of
essence
its duration
are
period such
the contract
that
be not
must
For the
afiect definite persons.
be affected in a definite way.
must
restrained,and
of
subject-matter
appreciablein
be
that it is of the
seen
must
for what
and
extent
The
it should
these persons
reasons
The
have
We
Such
for contract.
fit subject
and
physically
possible,
be
must
243
Contract.
of
must
definite,
be
must
forbidden
an
Elements
Permanent
actual value.
some
of
to
as
life,
its amusements
I have
its
even
or
itself. It will not

higher interests,that the law concerns
therefore notice the neglectto attend a dinner
the
to which
offender has acceptedan
refusal to keep a
or
a
invitation,
promise to dance at a ball with a particidar
partner, or the
omission to take the chair in pursuance
of promise at a public
much
vexation and
meeting, although in each of these cases
inconvenience
The
serious
when
result.
of the promisemust
subject-matter
of physicalpossibility.The
law
range
fancies
may
arrangements
or
of reasonable
the idle humours
the
of fools.
is
men,
also be within
desires to
and
the
help the
the vain
not
at
If,therefore,
the time
promise be practically
will be created.
impossibleof performance,no legalobligation
If it subsequentlybecome
different question,
a
impossible,
and
I must
to which
one
subsequentlyrefer,arises. The
of impossibility
is the state of physicalknowledge
measure
of the day.
and of the appliances
A promise to touch the
it was
in the days of
as
sky with my fingeris as foolish now
agreement
Grains,but
is
much
Ea
emm
to
go
less
than
*
contract
made,
it
i"
from
the
London
strikingillustration of
he selected
appeared when
obligationecontUltre
gva
it to
pecunia lui prcettarire pottunL
Q2
in
Rome
day
physicalimpossibility
to
"
Sir William
Dig.
XL.
7, 9, 2.
244
Blackstone.
treated
in
In
is
But
is unknown.
did
Little needs
as
be
alike
What
nature.
prohibitis
But
agreement which
is
certain
and
religion,
He
where
was
condition
its
lawyers included
in
Such
the
the
which
or
Thus
fit to
to oppose
engaged* for
lecturer
attack
a
of Parliament.
certain Act
legality.If
never
Christian
the
upon
for breach
is deemed
contract
by
quently
public lecture-hall. Subseascertained that the subjectof
him
its
other
tends
of
law, in short,impliesin
The
ments
agree-
thinks
law
allow his hall to be
to
precedentof
the
fulfilled,
to
contrary
by
sued
disappointedlecturer
success.
it
an
forbidden
accordinglyrefused
without
of
use
lecture
was
is
naturallyvaries under each

legal prohibition
exists,no
any
of the hall
owner
proposed
the
which
forbearances
or
the
evening
the
of
the Roman
contrary to
legal effect.
receive any
can
Hence
questionwhich
system of law.
it
consideration
impossibleagreements.
forbidden,the one by law,
acts
of
ation
the rule of consider-
doctrine
agreement
an
express commands.
class illegal
and
one
are
avoidance
impossibilityis
characteristic of the stipulation.
said on the subject
of illegality.
No State
enforce
likelyto
for the
reason
law, where
Roman
prevail,the
not
expresslystated
is
the
applieswhere
principle
the
In the
the failure of the
consideration,and
assigned as
agreement.
is usually
impossibility
text-books
our
relation to
consideration
the
Personam:
Rights in
used.
so
The
contract,but
every
contract
that condition be not

to
have
into
come
existence.
"
The Variable
Contract.
other
Formal
3. Tlic Variable
thcmselvcs
uudcr
is consideration.
and
the
Of
Formless
elements
in contract
present
two
aspects. One
the
great strugglebetween
this is not
is form
the
the
the
place to
speak. It is enough to say that in archaic societysome
set form of words, varying according
specialsolemnityor some
of each people,
to the custom
essential
was
always deemed
to a promise. Law, followingcustom, lent
to give validity
*
Cowan
r.
contract
Milburn, L. R.
2 Ex.
230.
Variable
The
promisesand
its aid to those

the
word
proper
these
words
Elements
or
the
to those
245
Contract.
promisesonly in
ceremonies
proper
these ceremonies
or
0/
were
which
If
nsed.
were
of
intention
used, the
If they were
not
nsed, the
partieswas
unnecessary.
insufficient. By slow
clearest expressionof intention
was
the needs
of a growing
degrees and from various causes
and the Formless
or
societyburst the archaic restrictions,
The
Consensual
latter epithet
established.
contract
was
the
indeed
The
happy.
not
was
is
case
where
of many
out
form of expreselliptical
sion
in which
busy men, themselves perfectlyfamiliar with
the subject-matter,
frequentlyindulge. Every agreement is
But the obligations
which arose
""x
consensual.
necessarily
serious
has
error
solo
consensu
from
one
arisen
"
were,
for
that
brevity,called consensual
in contradistinction
form.
The
requireda specific
that is omitted
indicated by the term
to those which
distinction is tlius
the
by
not
but
law
the
that
term
some
Formal
are
seal.
power
of the seal
it is
the
deed
retains
some
and
All
contracts
others formless.
survives
in the
deed
are
marked
wanting
that
sensual,
con-
are
In
or
and
English
instrument
the
mystic
to its close.
is approacliing
Still,
although
of its former
shadow
or
self,the sjjecialty
Indications
but
now
formal
contract
under
is retained.
true
not
characteristics.
It
be
cannot
It requires no
consideration.
It is
directlycontradicted.
The
exclusivelyused in certain important transactions.
obligationarisingfrom it can be released in no other way
Its term
than by a similar ceremony.
of limitation is much
There
indeed
are
longer than the term of parol contracts.
other
survivals,as
they
rather
are
These
are
contracts
they
seem,
substitutes
of the
Formal
for it than
by record,which
the
include
Parliament, judgments
by confession, and
The
are
the
two
former
not
contract
itself.
privateActs
of
recognizances.
properly contracts, but
for
so
giving effect to their real design are
in derogationof their apparent authority. Recognizances
are
only a peculiarkind of unilateral promise made
purpose
treated
classes
contract; but
of
246
to
Personam:
Rights in
the
Crown
Other
in
Formal
business
by
express
The
one
of the
sufficient
any
variable
other
which
the
which
forms
and
English
the
"the
any
This
of the
feature
that
is in
that
therefore,
seal whether
it be
oral
or
be
affords
agreement
an
every
which
contract
every
in
mentioned,
nor
In
sufficient consideration."
modern
Except
have
country*suppliesno means
compel the performance of
is
reached,
never
is Consideration.
contracts
parties.
referred
I have
approached but
element
formal
to
without
contract
to which
characteristic
to
which
contracts
of this
remedy
under
the
of the
law
made
law
by
the intention of the
means
element
Roman
contract.
case
is transacted
present day
known
great bulk of the
The
obsolete.
now
are
times been
in former
have
judicialbusiness.
of
transaction
contracts
law, but they
our
the
parol
is not
sideration
writing,the conordinary course, that
the case
of negotiable
in
proved. In the
proofis given by the plaintiff
; but in
the
of the
instruments
presumption is,from the nature
ation.
held to be in favour of the presence
of considertransaction,
The
rests
burthen therefore of proving its absence
he
with the defendant.
If,as between him and the plaintiff,
show
that no consideration was
can
given for the making of
be
must
the instrument
Thus
maintained.
contracts
for its
or
not under
indorsement, the
rule
the
action
in
prevails
exception.
of consideration
seal without
any
be
cannot
all
Although the law relatingto consideration naturally

attention,the
occupiesa large part of the practitioner's
it is
needs
be but brief. When
of its principles
statement
have some
said tliat every parolcontract must
consideration,
ation
two
are
propositions
implied. The first is that the considerof
be genuine. The
must
second is that the amount
that
consideration
requiredto
the
the
material.
not
decide upon
the
between
is
the
would
law
partiesinstead
partieshad
made
*
r.
the
court
were
sideration,
conadequacy of any particular
the bargain
make
practically
of enforcingthe bargainwhich
for themselves.
Rami
If
Hughes,
7 T. R. 350.
But
whatever
may
The
its amonnt,
be
Variable
of
Elements
consideration
the
qnestionof adequacy may,

other grounds, be
npon
relevant
is
agreement
the
to
the
real; and
be
must
the
when
247
Contract.
challenged
faith of the
good
transaction.
"
been
consideration,it has
is of
which
in the eye of the law."
value
some
something
Legal value is
This expression
said,*means
of a consideration.
reality
benefit accruing to one party and
includes every appreciable
inconvenience
or
fallingupon the
every appreciable burthen
thus the test of the
other
man
the first
In
follow.
make
may
no
wishes
But
done.
benefit
accrue
Again, the
law.
or
because
and
not
that
thing
some-
to be
ought
to
nature
bear
the
In
of sentiment.
matter
delicate
or
moral
mere
he wishes
he thinks that it
because
Gratitude, natural
consequences
consideration.
is not
obligationis
honour,
affection,
words,
several
however
laudable or sound, if
opinions,
from them, have no value in the eye of the
be a
advantage or the disadvantagemust
of business
matter
place,motive
agreement
an
be done
should
definition
this
From
party.
not
consideration.
handling of
rude
of too
sentiments
are
other
the
law.
actuallyreceived at some
because the promisor does not
previoustime is insufficient,
the promisee does not sustain any
receive any benefit and
in return
for his promise. Further, a promise
inconvenience
to do the promisor'slegal duty is not a consideration ; nor
he cannot
is a promise to observe a forbearance which
legally
It is needless to add that the subjectobserve.
or
physically
Even
in
of
matters
where
absence
and
be understood
abound.
text-books
of
be
possible both
be
must
best
can
nature
must
definite in
sufficiently
enforced.
These
being practically
fact,and
admit
been
consideration
of the
matter
and
has
benefit which
I refer to them
consideration
and
valid consideration
merely
the familiar
exists,English
disturbinginfluence
of any
enforce
by examples
to the
"nioinks
r.
Thomas,
and
with
to
law
terms
to
similar
which
illustrate
our
the
that,
proposition
law
will,in
the
contrary, maintain
contract.
"
its
in
Q. B. 851, per Pattcson
J.
"4o
Void
I havG
" 4.
Agree-
wliicli HiiTst
Voidable
Contracts.
by observingthe
difference.
permit
not
the
"
Their
effect of their absence.
in the latter
former
the
case
class the
the
case
main
"/
of avoidance
causes
an
as
another
the
to
in the
one
of
nature
true
in
error
an
sense
the
to
Where
both
''''
partiesare
where
Thus,
named
Mr.
is
is not
There
Jones*
Brocklehurst.
man
that he is
thinks
and
failure in
vitiates not
as
transaction,or
of the term.
placitum consensus.
of dealingwith a man
hurst sold his business
person
where
nor
there
subject-matters,
in idem
habit
or
person,
different
severallymean
mistake
./
agreement with
dealingwith
the
Of
are
neither
mean
fit to
is said to be void
nor
a failure of consideration
expression
performance; but such a want of real consent
only the contract but the actual agreement.
makes
rescinded
think
omission
the
does
times
Some-
is liable to be
agreement
By mistake
illeo-ality.
and
Mistake
present
cases
contract.
understood
is said to be voidable.
contract
two
be
Such
to become
ever
is
former
the
of these conditions
the absence
agreement
contract
In
so.
-n
all of
af^reement into
an
operation will best
complete,but
affected by
party injuriously
if the
do
convcpt
to
"
Sometimes
the
certain conditions
mentioned
conciir
mi
contract.
Personam
Rights in
taken
mis-
they
ment
agree-
no
duorum
"
in the
was
Brockle-
Boulton, and Jones, not knowing of
Boulton,
change,sent an order as usual to Brocklehurst.
A dispute
the change,executed the order.
without notifying
arose
respectingthe goods, and Boulton sued Jones for the
held
no
suggestionof fraud, but it was
price. There was
with
must
that the plaintiff
sliow that there was
a contract
the
himself.
This
he
could
at the
do, because Jones believed
not
dealingwith Brocklehurst,and had

The
therefore
of Boulton.
heard
was
even
plaintiff
A fortiori the
same
principleapplieswhere
mistake is produced by fraud,but the result follows not
time
that he
was
the fraud but from

Even
sometimes
where
the absence
there
happens
*
is
that
Boulton
no
one
".
never
suited.
non-
tlie
from
of real consent.
as
difficulty
of tliem
Jones, 2 H.
". N.
to
the
is mistaken
5C4.
it
parties,
as
to the
250
Rights in
conception which
In
the
first of
other two
be
the
these
whatever
which
there
the
"consensus"
sold which
was
be
to
the
at
its voyage
on
from
unloaded
and
since the
thing about
had
gentlemanf
the west
It
which
the
from
of Ireland.
The
property.
own
void,although in
granted upon
There
be
may
and
one
the
"
were
to
Bombay,
the value
other
result
have
a
was
from
buy
to
to exist.
So, too,a
salmon
fisheryin
The
lease
declared
was
of the
relief
case
be
to
was
of the
that
not
as
of them
in
be
to
Couturier
t Cooper
V.
% lUfflea
V.
} Sir W.
R.
merchant
one
chant
mer-
cargo
of
the
v.
ably.
ships diff'ered considerdifferent ship,and the
existed.
third
The
case
is
tlius"expressed.
Where
there
subject-matterof
the
agreement
Hastie, 5 H. L. C. 673.
Phibbs, L. R. 2 H. L. 170.
Wiiichelhaus, 2 II. " C. 906.
Anson,
cotton; but
had
the vendor
the two
contract
may
Thus,
There
Bombay."
Peerless, trading from
the
partiesmeant
no
other.
another
named
cotton
of the
the
Peerless, from
each
on
mentioned
mistake
to contract
family property was

subsequentlyfound that the
and that he was
lessee,
paying
meant
party
arrive, ex
and
Each
relative
contract,
no
of
ambiguity in the subject-matter
is,the descriptiongiven may equally
the
things,of which one party meant
ships, each
two
was
latent
That
agreed J
cotton
ceased
circumstances
either of two
apply to
there
terms.
agreement.
an
the
the
title to the
complicated; and it was

fisheryreallybelonged to the
for his
of corn*
cargo
partiesintended
near
very
rent
partiessupposed
to England, but which
and
was
consequently
that
of the agreement
leased
sale
heated
held
was
of
canse
enough that from

subject-matterupon
Thus,
Salonica
become
sold.
the time
at
of the
the
It is
operate.
time
the sale had
prior to
whether
available
can
erroneous.
placitum; in the
placitum.''Îf there
idem
legal.
no
be
to
no
material
not
is
is
"a^
not
physical or
cause
knows
there
cases
partiesare
faihire be
promisor
placitum, it is
no
the
the
Personam
Law
of Contract
(2nd cd.), 136.
251
niegaFtty.
bnt
terms, if
to its
as
one
of the fact of the
advantage of it
take
made
no
thinks
is
error,
he will not
be
agreement,
on
representation
the
snbject,will
where
seller is not
even
legallybonnd
if the seller know
Bnt
be
and
old oats
wants
man
old.
not
are
time nizant
cogto
allowed
thongh
he
held
be
to
certain
bnys
tell him
to
that the
that
bnyer
promised to seU him old oats, and

he must
either
snch oats acx^cordingly,
snbniit to the risk of having the sale
the seller has
that
him
sellingto
the
correct
at the
the
oats,*the
specific
the oats
partiesbe
bnt
Thns,
void.
of the
error
or
rescinded.
The
niegaiity.
second
which
canse
prevents
an
agreement
from
There
be a
ripeninginto a contract is illegality.
may
genuine consent of snitable partiesfor a definite object; in
other words,there may
be an
agreement complete in every
or
respect ; bnt the objectof that agreement may be illegal,
the means
involve
for its accomplishment may
necessary
some
breach
I do
not
which
In snch
the law
cases
no
contract
is created.
acts
of
interdict.
It
in detail the various
examine
to
propose
forbearance
is
of the law.
has
thought
fit to
general rule that every agreement is

void which cannot
be performedwithout
or
some
illegality,
of which the objector the tendencyis a breach of any legal
duty,or which is made with the knowledge that such breach
enough
is intended
intent.
the
to state
and
But
that the agreement
the effect of such
circumstances.
"Where
distinct parts, and
the
is meant
to further
such
varies accordingto
invalidity
agreement
is in effect not
consists
of
several
singleagreement but an
aggregate of independent promises based on independent
the illegality
of one
such promise will not
considerations,
invalidate the rest.
Where, on the contrary, the agreement
is indivisible,
where
the consideration
if there be
or
or
several
any
the
illegal,
are
no
means
of
the
whole
considerations
transaction
for
is void.
severable,but considerations
of
ascertainingthe
*
Smith
V.
Hughes,
L.
several
In
are
such
not.
projwrtionsin
R.
Q. B. 597.
promises is
cases
There
which
mises
proare
the
252
diiFerent considerations
"Where
to
Personam
Rights in
in
and
message
promisor'smind.
shillingsa man
promises
influenced the
of
consideration
a
carry
have
five
commit
to
assault, the
an
two
promises can easilybe separated; and the good part can

be performed,and the bad part rejected
as
surplusage. But
where, in consideration of "6 and of service rendered
in committing
an
assault, a man
promises to grant a
of the promise
lease,it is impossibleto say how much
to the guilty
is due to the innocent money
and how much
service.
is
There
difference also between
notable
promise of
objectis illegaland a promise for which the

the agreement
consideration is illegal.In the former case
is merely void,and every subsequentpromise in respectof it
which
the
is deemed
to be
not
only
case,
without
made
the
but
agreement
also
transaction
every
is itself illegal.The
of the agreement
arisingout
In the latter
consideration.
of this distinction appears in the case

is void
"Where
instruments.
agreement
an
consequence
without
of it is
bill be
a
bona
of negotiable
being
as
bill of exchange given on account

a
consideration,
the partiesineffectual.
between
as
If,however, the
put into
circulation
he
fide indorsee,
that
promise was
that
as
will
between
and
the
drawer
and
the
transaction
rests
on
the
an
stance
the circum-
acceptor the
ordinarypresumption
for value
was
by
the
and
of
the hands
into
come
be affected
not
merely voluntary;
the agreement
where
practical
arise.
will
But
illegalconsideration,the
no
consideration,and tliat
presumption is that there was
the original
party, not being able to sue on the instrument
himself,transferred it to another to sue upon it for his
benefit. The
consequentlyprove
subsequent holder must
that he received
by
the
stain
defence
its
on
Two
it for value ; and
that
when
received
be
may
it he
knew
repelled
of the
origin.
men,* Needham
the amount
he
his claim
of
and
Jones, made
liopduties payable in
the
*
Fitch
V.
the
Jonc8, 24 L. J. Q. B. 293.
respecting
precedingyear.
bet
Voidabie
Jones
"40
lost,and
The
Fitch.
Besides
action.
payment
indorsed
Needham
19s.
it to
in
gave
bill
certain
It
transaction.
illegal
prohibitedby law, but
law
would
therefore
bond
taken
could
claim
Xo
value.
such
bet upon
if
the
There
but not
true
complied with
has
been
In
lawful
contract
as
been
The
he becomes
of
no
agreement
of wliich the
cases
has
consent
may
been
have
required conditions,but
some
violent
circumstances
to
having been
proceedings
regarded as
class
has
been
prima facie contract
is liable
it without
maintained.
is that
the
agreement
a
been
consideration,and
consent.
such
his
that
diflferent. It would
been
have
another
procured by
means.
is
aU
was
was
statute
characteristic
a
was
produced, and Jones had to

the bill had been given in payment
of
ball
upon, for example, the result of a foot-
given upon an unlawful

respectingit could have
Voidable
Contracts,
therefore
value; and
result would
under
have
the
case
Fitch
by proving that he took
met
game,
the
the
that
not
were
which
wagers"
in
given
was
bets
that
the
to
consequentlybe presumed
must
bill for
evidence
But
any
match,
then
the
only be
the bill.
pay
tliat he
such
idle
of consideration
want
indorsee
fde
have
to
of
one
bill
the
punish;
nor
material
not
that
"mere
enforce
neither
that
held
was
were
to
defences
pleaded
an
for
months
two
Taylor,who indorsed
paid,and Fitch brought his
the bill
other
present question, Jones
bill at
not
was
253
CorUractit.
the
apparently
the
deceitful
or
agreement
be rescinded
been
the
by
consent
unfair
or
is not
improperly made,
has
obtained,
created.
and
void.
quently
conse-
But
injuredparty
as
acquaintedwith
the wrong
done to him
differ in
Voidable
contracts
this
soon
in
so
procuring his consent.

some
In the first place,
important respects from void agreements.
they are while they last true contracts; consequently all
before their rescission are
legitimatedealings with them
valid.
such
Their
rescission
dealingsthat
place,the rightof
may
therefore
have
must
taken
rescission rests
be
subject to
any
place. In the second

with the party
exclusively
^"4
Bights
injured.
other
No
he
If the
he may
do
may
applies to
and
objectioncan
person.
rejectthe
is
contract
before it
be taken
the
to
but
his election
He
contract.
; but
he
he
take
may
In
of intention
the
third
be
regarded
in the two
rescinded.
differ in
cases
alreadysaid,the
rightsthat may
as
have
arisen,and
whole
be
may
or
likes
he
the
distinct
some
complainant
Fourthly,the
subjectto
be
tract,
con-
place,as
respects; and,
some
rescission must
of
any
be, it
may
the
part of the
the
on
the
accept what
cannot
dislikes.
to
prima facie valid,there is need
can
affirm
elect
whatever
by
contract
injuredparty
whole
what
notice
or
the entire
leave out
act
so
Personam:
in
dies
reme-
I have
as
intervening
controlled by
the
even
them.
The
which
in which
cases
the contract
whether
innocent
Of
occasion
each
to
the
contracts
are
those
in
procured by misrepresentation,
fluence.
or
fraudulent,by duress, or by undue informer
classes I have
two
already had
has
treat.
been
In
that consent
case
voidable
are
each
is not
case
is consent, and
there
genuine.
In
the
one
case
in
it is
obtained
intentional or unintentional ;
by falsehood,whether
in the other by intimidation.
of the two
A sort of mixture
evils,a mischievous
compound of fraud and of duress,is that
It
influence.
vitiatingelement which our law calls undue
is more
is not peculiarto contracts, and indeed
frequently
in cases
found
of gifts or
of testamentary
dispositions.
When
between
two partiesinfluence has been
acquired and
abused, and confidence has been reposed and betrayed,a
formed
contract
no
affirmation
in such
of any
circumstances
such
contract
be
set aside ; and
will be
recognised so
may
in any
influence
degree continues.
long as the noxious
Many examples of contracts rescinded on this ground may
be found
whether
limited
in fact
in the
abuse
of their power
by confidential advisers,
spiritual,
medical, or legal. But the
If the undue
to any specialrelations.
there is sufficient ground for the
exercised,
of the court.
rule
is not
influence be
interference
awl
Conditional, CoUatfral,
statements
'
made
oiten
are
and
"
promises
often
are
Con
.
tracta.
"
wnich
given
Where
"
-ini
the mind
influence
these statements
they
called Conditions.
are
questionwhether
any
representationis
the
oi
other
party.
part of the
promises form
or
part of the contract,they are
contract,
"
.
andAiternative
tlie neorotiations for
" 5. Durino'
Conditional,
Collateral,
255
Contracts.
Alternative
tract,
con-
they do not form

Representations.The
Where
called
is
statement
particular
condition
or
of the intention of the
matter
parties,
case.
Except
uberrimce jidei
and
depends therefore upon the facts of each

in certain specific
those said to be
contracts
as
representations,
they are not intended to make a part
of the contract,either form, as we
shall see, subsidiary
contracts,
idle words, the one-sided
are
or
regarded as mere
recommendation
by the speaker of liis services or of his
"
"
The
wares.
its breach
made
if it be
to be
These
untruth
of
condition
if it be
promise,entitles
statement,
the party to whom
discharged from his liabilitiesunder the
conditions
or
it is
contract.
differ from
contingentcontracts, in which
the promise depends upon the occurrence
of some
contingency
and does not come
into operationimtil that contingencyhas
taken place. The difference between
and a
a
representation
condition depends,as I have said,upon the intention of the
parties,and not upon the relative importanceof the subjectmatter.
Parties,said Lord Blackburn,*may think some
matter, apparentlyof very little importance,essential ; and
if they sufficiently
the literal
express an intention to make
fulfilment of such a thing a condition precedent,
it will be
one
or
they may think that the performance of some
;
matter, apparently of essential importance,and prima facie
condition precedent,is not reallyvital,
and
a
be compensated
may
for in damages ; and if they sufficiently
expressed
such intention,
it will not be a condition precedent." Tlie
"
failure of
option of
the
he
elect
will
to
condition
renders
the
promisee. If either
in terms
affirm the contract, the
give him
rightof
*
action for the
Bettini
".
Gye,
voidable
contract
breach
or
by
the
his conduct
of the condition
damage, if any,
Q. B. D, 187.
at
that he
-ioo
Rights in
has
and
sustained,
Personam
In other
in
words,acquiescence
its breach reduces a condition to the position
of a warranty.
In addition to tlic principal
Warranties.
contract,the jiarties
also make
contracts
that
may
any collateral and subsidiary
they think fit. Such secondarycontracts are called warranties.
Their breach does not dischargethe original
contract,but
givesa right of action for the damage that such breach has
occasioned.
The questionwhether
a
given agreement be a
condition
or
intention of the
sale may
t dated
charter-party
Messrs.
between
ship, now in
Newport, and
''
Hong
and
Behn
there load
The
Kong.
and
question
turned
until the 23rd.
were
they mere
to
the
upon
Were
Amsterdam."
these
terms
load
of
words
in that
day should
which
would
breach
of
render
which
damages ?
It
of the
that
by
When
them
the
on
to
19th,
she reached
the
in
"now
the
part of the
?
description
it intended
that
carry
the
words
of the contract,was
port on
of coals and
coals,and rejDudiated
thereupon brought his action. The
Behn
contract.
by an example.
not at Amsterdam
ship was
arrive there
did not
warranty is broken."
October,1860, it was agreed

that Behn's
Burgess respectively
Amsterdam," should proceed to
cargo
Newport, Burgess refused

the
null if the
19th
port of
the
The
in the
these distinctions
shall best understand
We
a
to be
conditional,
be
"
making and in the

If the parties
so
intend,the
warranty super-added; or the
of all contracts.
with
of construction.
matter
parties*governs
be absolute
sale may
In
more.
warranty is
construction
no
If
port of
contract
they were
or
part
that the presence of the shij)

be a condition the breach
of
contract
voidable,or
warranty the
be
was
sufficiently
compensated by
stances
held that in all the circumultimately
case
the words
would
its breach
the
amounted
charterer
was
to
condition,and
dischargedfrom
his
to perform his part of the contract.

obligation
be impliedas well as expressed. Thus,
Warranties
may
when goods are sold,there is an impliedwarranty by the seller
that he has a good title. If the goods be sold by sample,
*
r. White, 10 C. R. N. S. 800, /""/"Erie C. J.

Durness, 3 B. " S. 751.
naiinonnaii
t lloluj
c.
^"io
Personam
in
Bights
the conduct
unlawful
therefore remains
prohibition
; and
Where
whether
the penaltyhas or has not been enforced.
but there are two or more
also the duty is single,
remedies,
seeks to enforce the duty may
the person who
any
pursue
remedy that he thinks fit. In this case the duty is not
of
than one
method
but the law providesmore
alternative,
enforcingits performance. There is another rule concerning
optionswhich is of considerable practicalimportance. Where
facts a person has
with a full knowledge of the necessary
In
he cannot
made his election,
change his mind.
definitely
Lord Coke's phrase, Quod semel placuit amplius displicere
wider
is only a case
of a much
This maxim
non
potest.''''
declares that "no
that remedy which
man
principle,
may
change his purpose to another's wrong." An example of the
"
limited form
more
insurance
fire policy,
an
or
to pay
dangerous,and
authority they
entitled
But
it
abide
to
by
that which
act
excused, or
at
the other
take
that
of
they elected
had
they had
its
"
ThoDis-
charge of
least
to do ; and
to pay
"
Douud
the
the
was
more
were
money.
must
as
same
to
that
expensive
why they should
reason
do
be
been
has
"
r"
first to mamtam
"
the
made,
the
contractual
and, second,to
Royal Insurance
B. 265.
Brown
t Frost
-x
performance,if it be
perform his contract accord-
obligation!until
*
no
contract
IS
prouiisor
arrive
deferred,
they
that the circumstance

tedious and
more
6. Where
that
performance.
"
Obligutions.
insurance
contracted
originally
they had
become
fire,was
their choice and
made
had
anticipatedwas
released from
declared
competent legal
alternative and
they
if
been
have
their contract
Consensual
this
by
The
pulled down.
pany
com-
municipal
powers,
effects of the
it ; that the effect of their election
it would
than
that
were
held
was
so, the
they did
the
it to be
caused
contended
company
the
the exercise of their lawful
house, apart from
either to rebuild
occurred, and
loss
Before
Under
case.
bound
was
to rebuild.
in
authorities,
the
insurance*
an
company
certain amount.
elected
that
in
occurred
v.
V,
Knight,
tlie time
L. U.
for
Society,28 L. J. Q.
7 Ex. 114.
The
ing to
Consermial
Discharge of
Where
its tenor.
if before the arrival of that

of
intention
either to
once
and
regardthe
contract
at
as
end and to
an
the arrival of the time
to await
gentleman promised to
his father
while
Subsequently,
it
as
for its
lady after
marry
future
day,
his
promisor announces
to treat
or
it,the promiseeis entitled
proceedingwith
not
action for its breach
an
the
day
for
is made
contract
259
Obligations.
at
commence
still continuing
his father's death.
living,he broke off
was
performance.
the
for a breach of
lady sued him successfully
his promise. If,however,the promiseeelect to adhere to the
The
engagement.
contract,he takes the risk of any

interval exonerate
cargo from
within
to be loaded
was
cargo
shiparrived,the agent
that he might go
told him
refused
treating this refiisal
breach
the
as
to make
continued
away,
in the
may
promisor. Thus, Reid, a shipowner,*

Hoskins
that his ship should
named
the
agreed with a merchant

proceedto Odessa,and there take
which
which
event
away.
his demand.
Hoskins'
agent,
forty-five
days. When
and
to supply a cargo,
The captain,
instead of
of contract
and sailing
Before the expiration
of the
forty-five
days,the Crimean war was declared,and the
performanceof the contract was thus rendered legallyimpossible.
Reid
held that,since
brought his action,but it was
the contract was
Hoskins
treated as subsisting,
entitled
was
of his contract
to the discharge
by the declaration of war.
If the promisor fail to perform his contract,he is liable
either to be compelled to specificperformance or to make
he fulfil his
compensation to the injuredparty. Whether
duty
case
fail in it,the
or
the
case
which
think
that
the
waived, or
upon
to
be
I have
this
The
correct.
which
end.
an
obligationhas dischargedits function
it is said to
reasons
obligationis at
in
merged
stated
in
be
barred
judgment.
is
of
Reid
".
new
merely
the
Such
by lapse of time, or
It is then
said to be
Hoskins, 26 L. J. Q. B. 5.
Bk5
latter
another
originalobligationis enforced.
may
; in the
obligation.For
previouschapter,I do not
supposed creation
right of action
In the former
obligationis
sanction
by
right may
be
may
merged
be
in the
sued
new
260
Rights
that
obligation
is assumed
of the
statement
case
event
But
be its
precisenature,
there
old
one,
waiver
the
be
events
or
of the
such
an
certain
are
contract
of
this
grounds of
tion.
exonera-
agreement in substitution for the

have
I shall not
which
occurred
which
originalright,or
contract.
is
obligation
legal proceedingsby
whatever
obligation,
the
are
from
new
may
which
upon
there
it is enforced.
the
arises from
which
This
There
needlesslycircuitous.
seems
which
may
arise out of the record".
to
that
only one obligation,
the parties. There
is an
becomes
and
enforceable,
There
Personam
in
destroy
practically
discuss the rules
now
to
amount
relatingto
performance or to breach, and shall only illustrate briefly

the principles
of exoneration.
The new
agreement must generallybe made in the same
the originalagreement was
made.
form as that in which
According to the metaphor of the old lawyers, the legal
tie must
be loosed by the same
formality as that by which
made
it was
fast. This rule has lost much
of its importance
of the Formal
since the decadence

a
contract
under
seal must
It is true
contract.
still be released under
seal.
that
But
parol contract may be released by parol,and parolin this

is not
sense
equivalentto oral or verbal. It follows then
where
that
contract
released
by
word
impliedfrom
of
be
in
writing,it
mouth, although* a
for
be substituted
cannot
agreement
must
it,nor
invalid agreement.
any
lutely
be abso-
may
unwritten
new
will
release be
writing is
The
not
the
agreement, but only the evidence of the agreement. But it

contract
that the law
is to originate not
to terminate
a
requireswritten
by
promisee may of course
act waive
his own
the completion of the contract or of any
part of it,or may deprivehimself of his rightby preventing
ing
the execution of the promise. Thus in a contract
t for builda
or
on
house
it was
before
evidence.
made
"
Noble
p.
the work
in default
the
of
to the
Ward,
agreed that
given day,and
imposed. During
were
The
L. R.
erection
design of sucli
2 Exch.
135.
an
the
should
finished
were
heavy penalties
building, additions
extent
t Thornhill
be
v.
as
to
necessarily
Neats, 8 C. B. N. S. 831.
The Discharge of Cotuensuai
261
Obligatkms,
On the expiration
delay the completionof the entire work.
time the owner
claimed the penalties.But
of the stipulated
it was
held that there was
a
new
substantially
agreement,
restriction as
that the additions to the work and the original
in
and
that the later provisions
to time
were
inconsistent,
effect repealedthe earlier.
So where
artist* engaged to
an
perform at a concert and was prevented from appearingby
hired for the
dangerous illness,or where a buildingt was
and
before
burned
down
was
purposes of a public concert
had arrived,
the day for the performance of the concert
the owner
held to
of the buildingwas
neither the artist nor
It was
contracts.
be liable for a breach of their respective
That
such
that
observed
cases
not
were
the
within
contract.
is,neither party coidd be reasonablysupposed to have
contemplated their occurrence, and consequentlyno promise

The same
made regardingthem.
was
principle
applieswhere
forbearance
the promised act or
becomes
impossible by
for himself and his
operationof law. A lessor covenanted
assignsthat during the term of the lease certain adjacent
then belonging to him
land
shordd
be buUt
not
upon.
under its Act of Parliament,
Subsequently,a railway company,
took the land comprdsorily,
and built upon it a station.
lessee sued
The
held
the
that
the
meaning
aU
In
the
landlord
his covenant;
on
railway company
not
was
an
these
he
it
cases
non-fulfilment
undertaken
the
parties,if
specialengagements by
of
in
Robinson
in
been
his
the
bound
contract.
he
of
event
The
circumstances
no
c.
term
of the
lease
Da\isoD, L. R. 6 Exch.
26Q.
on
well
was
his
The
death
or
his
damages for the

lessor might have
to pay
The
landlord
should
liable.
been
that at all risks the hall should
during the
*
have
evening required.
that
within
competent for the
was
ill,and
was
woidd
executors
assign
was
of the contract.
they thought fit so to do, to make

which the respective
promisorswould have
artist might have
agreed to sing,whether
whether
but it
any
the
be available
on
might have promised

building be erected
adjoiningland. But
t Taylor
r.
CaldweU.
2 B. "
S. 826^
""6"
Rights
Personam.
where
the
such
law
make
stringent
declines
however
harsh
will
force
unable
it
him
force
of
operation
really
cases
to
obligation
which
had
of
in
to
fact
repair
fair
arisen.
of
useless
service
personal
render
to
physical
Such
obligation.
of
is
he
that
will
Nor
events
the
possible.
im-
which
calamity
They
own
or
profitably.
interpretation
its
of
construction
Parliament.
breach
on
least
or
Act
an
for
excuses
in
prevent
not
is
what
to
agreements,
will
it
do
choose
parties
deliberate
adopt
render
at
or
to
man
to
the
But
therefore
not
render,
to
their
appear.
any
man
If
enforce
may
compel
It
would
will
they
motion
mere
law
expressed,
distinctly
not
are
them.
imply
to
the
them,
stipulations
or
are
are
contract
the
not
rather
no
in
Rightfi
Rem
COMBINATIONS
THE
in
1. Wc
"
rem
classes of
otherRightB.
Of
these
OF
have
Seen
lights,thosc
two
"ZQo
Rights.
Xm.
CHAPTER
Rights
other
followed by
RIGHTS.
that there
in
classes there
and
rem
two
leading
those
in personam.
are
four combinations.
are
Rights in rem may be combined with other rightsin rem or

with rightsin personam.
be combined
Rights in personam
may
with other rightsof their own
with rightsin rem
or
combinations
take placewhen
class. Such
it is desired to
give by the use of the one right greater effect to the action
of the other.
They consist therefore of primary and of
accessory
rights. The
occasions
which
on
this
supjwrt
of
rightsby other rightsis desirable are frequentin business,

and the subjectis consequentlyof much
importance to the
practitioner.In the theory of law, however, they do not
of separate rights
requireequal attention. The combinations
which in their simple forms have alreadybeen ascertained
merely require analysis. Many a fact or event, says
is property a
Austin,* which is styled simply a contract
and a contract,
complex event comix)unded of a conveyance
and impari;ing
unojlatu a rightin rem and in personam^
Where
the primary rightis in rem^ its combinations
may
I
be
described.
do
call
mind
not
to
where a
easily
any case
rightin rem has another similar rightaccessorial to it. But
attended by rightsin personam.
rightsin rem are sometimes
This combination
is commonly found in transfers.
In the
of land with the usual covenants
the
ordinary conveyance
"
same
rem
instrument
and
rights
the
are
convenience
contains
creation
of
transfer of
several
entirelydistinct,and
that they aU appear
"L67.
an
existing risrht in
new
obligations. These
it is
merely
in the
same
matter
of
instrument.
'"-t"4
The, Combinations
The
transfer
the
contracts
title,that
and
that
of the
by
he
he
the
to
the
in
primary
the
warranties.
sale
of
object;
he
that
buyer
has
and
good
buyer quiet enjoyment,
will,if required,make
the
is the main
rem
the seller to
guarantees
subsidiary to
obtained
right in
of MgfUs
further
A
purpose.
chattels
by
are
assurance,
similar
of
means
is
result
implied
sells to another
goods by sample without

except the agreement as to the price. The
any stipulation
bargain and sale transfers the ownership,that is the vendor's
But
the law implies from the nature
of the
right in rem.
transaction
that
he
man
collateral contracts
has
correspondsto
genuine and is
Of
part of the vendor
of the
case.
which
thus presuppose
rights in personam
existingright another example is found in the contract
indemnity. This contract in effect provides that upon
these
of
occurrence
detrimental
shall pay
some
in
loss, that is of
some
the
to
to
the
who
person
that
is the
the
is
the
Two
one
the
case
amount
of the
he
not
does
payment
other
damage
is the
.contract.
contract
liable
familiar
of
example
arise
not
each
and
if in
indemnity
of the
is not
contract
ticular
parof the
measure
any
such
In
of
the
short,the
to avoid
an
other
stances
circum-
it from
have
words,
ditional;
con-
actuallysustained. Second,
Consequently the liability
exceed the
equal,can never
paid the amount, he may recover

promisee as money
paid without consideration.
objectof the contract is not to make gain but
In
is
contract
liability.Again, if the loss be compensated from

quarter, the promisor is
or
circumstances
againstloss.
of the promisor,although it may
damage sustained by the promisee. Further, in
contract
the
loss the whole
First,the
for
occasion
of
less
or
more
an
right,the promisor
some
damage.
unless and until the loss has been

the
event
some
sustains
notice.
deserve
contract
of
enjoyment
stipulated
portionof
this
"
"
good title to the property, that the bulk

the sample, that the trade mark, if any, is
lawfullyused,and other promises according
to the nature
the
on
loss.
aleatory
indemnity
"^66
Combinations
The
of Rights:
It cannot
been
set
paid,and
sustained
that
consequentlythat
loss.
no
defence
the
up
the
difference between
The
has
originaldebt
insuringcreditor
the
has
classes of
the two
in the rule as to misrepresentation.

also appears
Life assurance
is not a contract
"uberrimceJideL" Whether
contracts
it
ought
it
so
made
affect the
the
to
of
validity
in
stands
now
the
they be
unless
be
law
tations
represen-
life insured will not
the
to
as
truth
the
as
there
which
upon
untruths
the contract
their
unless
or
But
"
that
insurer
matter
opinion.
settled
be
to
seems
is
not
or
difference of
be
may
be
to
made
ulently
fraud-
made
express condition
an
of the contract."
primary rightis in personam,

have
reference
acccssorial right in rem
Obligations, the
may
either to persons
to things. No further division in this
or
to be practically
required. The accessorial
respect seems
fore
rightmay also be another obligation. In this class there"
combina-
three
2. Where
arise.
combinations
generate rights in
which
the
rem
generate rights in
which
to
as
There
There
persons.
rem
things.
to
as
generate accessorial
rights
which
contracts
are
are
contracts
There
tracts
con-
are
To
in personam.
belong contracts of marriage,of service,of

of partnership. To the second division belong
bailment, of carriage,of hire, of securityfor
the first division

and
agency,
contracts
of
debt, and of sale.
To
the
third division
indemnity, of suretyship,and
Each
of these
indeed
with
belong
classes I shall
now
that fulness of detail
negotiableinstruments.
separatelyexamine, not
treatise
which a practical
subjectdemands, but so far only

explainits nature and its relations.
The
Obligations
with
serial Rights
rem
as
classes
includes,as
to
said,
thosc
I'll
I have
which
coutracts
relate
not
to
thmgs
to
but
Persons.
not
first of these
is needful
as
Acccs"
in
of
of
the
on
contracts
to
pcrsous,
and
which
merely proprietaryrights
domestic
or
the
*
industrial
Sir W.
U.
Anson,
Law
"
but
relations.
of
consequently generate
riglitsaffecting the
These
are
Contract, 149 ^2ud oU.).
marriage,
267
Marna^t,
whole
the
which
upon
service,which
of free
contract
for the
numerous
community
of
well
objectsto
which
rise ; agency
give
special form
as
labour,
employment
specialform
two
with
each
other,and
"lives. This
before
form
for domestic
of
the needs
with
customary
connexion
partiesare
is made
either
religiousdenomination
of the parents
consent
When
the ceremony
the
it is
essential
has been
or
tween
be-
together
Certain
or
in the
before
duties in
the
nor
be
under
age,
the
guardians has been obtained.

is requiredto
completed,he
duly registered. But
celebrant
during their joint

in a specified
form
that,if either of them
or
proper
that
is
are
marriage ceremony
imposed upon
is requiredto see that there is evidence
and that they
capable of intermarriage,
He
of full age,
the
celebrant.
that the
are
with
is
other person,
no
some
industrial
to live
sexes
recognised minister of that denomination.

the
an
ofiScial appointed by law for that purpose,
an
as
purposes
which
representation,
and
partnership,which
Marriage is a contract
of different
with
agreement
of
or
of agency.
persons
family depends ;
employment is the
the
form
its modern
in
of
doctrine
neither
fulfilment
the
of any
see
of
qualification
of these
duties
is
to the
marriage. The celebrant,or in some

cases
the bridegroom,is punishableif the prescribedduties are not
performed ; a heavy penalty is imposed upon the celebration
of marriage by an unqualifiedperson;
but where
the parties
are
innocent
breach
no
of
validityof the contract.

relatingboth to the
of its celebration,
and to
and the powers
capacities
main
feattires the law

is
of
prevailsbetween
There
the
has been
marriage is
legal consequences
of the married
same,
persons.
all Christian
and
that which
the
in
relation
polygamous
the
upon
But
in its
ties
communiis fundamentally
cotmtries
sexes.
much
contract
its
marriage in
the
substantially
different from
duty by a third party affects the

Every country has its own
tions
regulacapacityfor marriage,to the form
discussion
or
status.
on
It
the
questionwhether
is,in truth,both.
It
"ôo
is
2'Iie Combinations
wliich of itself gives rise to
contract
is not
term
of Rights:
which
one
writer
who
The
status.
wishes
latter
avoid
to
guity
ambi-
would
But
the proposition
means
willinglyuse.
the completion of the contract
of marriage there at
on
both as between
the married
themselves
arises,
persons
as
between
of
specialduties
each
of them
and
all other
once
and
largebody
persons,
that
and
rights. These consist mainly in various

modifications of the generallaw.
Consequently,the law of
marriage is not found in any singlechapterof a code, but is
scattered over
different parts.
Some
of its pronecessarily
visions
under
come
absolute
duties.
Some
under
come
Its origin must

be sought in contracts.
general duties.
Important rules concerning it are found in the succession
to rights. And
the main
body of the rules relatingto the
and the personalduties and rightsof the married
proprietary
pair find their place in the law of SpecialConditions,in
which they form a separate chapter.
The coutract of service is the modern
Service.
representative
of
of the oldest of human
one
in recent
times
far
outgrown
relations.
That
contract
only the originalstatus
not
has
of
service
slavery,but the domestic relation to which the name
attached.
I have alreadyindicated the general
is especially
duties which
prohibitall attempts on the part of an outsider
the respective
to disturb this contract,or to interfere with
duties
the
of the
terms
and
parties. It is not
of
the implications
merely notice,so
which a man
liability
now
acts
of those whom
for
any
conduct
another,if
course
he
of
it be done
the contract
itself.
I shall
alreadydone, the
for the wrongful
incurs to third parties
employs. We have already seen that
which
servant
causes
damage to
a
far
I have
as
in his
not
capacityof
servant
and
in
the
employment, the master, and not the servant,

This rule prevails
even
though the servant's action
of his
is liable.
be in direct disobedience
between
to consider
here
necessary
him
and
development of
to his
his master
modern
he
and
instructions,
is liable to
industrial
though
damages.
life the contract
as
In the
of service
269
Service.
has
received
day
The
is in itself
which
is twofold.
personalduty
the
the
for any
from
employer is liable
the
negligenceof a
contractor
work
in which
is
of
one
acts
ordinary circumstances
own
purposes,
servants
harm
arises to
arise
of
execution
the
in
other
the
On
that may
damage
can
imdertaking
an
person is liable
done or forborne or
has
think
ordered,and
K, however, for his

to take
is bound
to a
neighbours from
own
care
employ
that
no
operations. If
the work be in itself dangerous, the employer is deemed
to
the safetyof the public. If the work be dangerous
warrant
his duty is to see that reasonable
only in the event of carelessness,
is exercised not by himself only but by all persons
care
concerned in its performance. Thus, where a man
erects* a
seats to view a procession,
platformfor the purpose of letting
if it give way and damage ensue, he is liable for the disaster;
and no proofof care
trouble upon his part, or that he had
or
let the work
his
for his
bring togetherand
fit to
workmen, he
other
or
of
of any other person.
he
contractor, or
every
he
for the conduct
not
no
negligenceno damage would

repeat that the employment of servants
which
does at his peril. In
man
a
I may
conduct,for what
side
one
for such
but
those
to
public.
side,no
have occurred.
the
On
sent
preslave
educated
the
consequences
dangerous to
of the
contractor
line from
wide
now
evade
contract
rule
shift his
employer can
The
extension.
separatedby
is
of Rome.
by
wide
skilful contractor,or
their
that he had
used
every
conceivable
will exonerate
him.
A shipownerf
precaution,
employed a contractor to painthis ship. The staging which
the contractor
erected along the side of the vessel gave way,
and one
of the painters
who was
standingon it was severely
hurt.
He
brought his action against the shipowner. It
held that the shipowner owed
was
no
duty to the plaintiff.
The
work
taken
was
involved
precautionswas
Francis
nature
that
no
danger to
the
due
to
alone that the
contractor
*
of
r.
Cockrell,L.
R. 5
Q.
the
if proper
public.
The
contractor,and
had
plaintiff
B. 501.
precautionswere
it
was
contract.
any
t Heaven
failure in those
r.
with
the
He
had
Pender, 9 Q. B. D.
302.
270
The
therefore sued
Combinations
the wrong
of Rights:
gentleman* kept in
man.
his
office a
A clerk,contrary to orders,
lavatoryfor his own use.
used it and forgotto turn the tap. The water overflowed and
beneath.
The tenant of that room
sued
damaged the room
the
master.
was
But
it
held that
was
although
servant, the neglect in questionwas
of his
employment, and
-^
Employer's
Liabiuty.
vcxcd
more
^j^g abseuce
of the master
the action
of
any
wrong-doer
in the
not
course
therefore failed.
remains.
questioDstill
of
the
agreement
What
the
are
in
relations
?
These
undertaking to his workmen
relations are
for
Where
obviously of a specialcharacter.
his own
in any undertaking,it is
a
man
purposes
engages
spection.
circumjust that he should be bound to exercise the utmost
who
have
an
He
exposes
to risks
no
option as
to
more
or
risk
the
less serious
and
no
strangers
in the
concern
undertaking. But these conditions do not apply to his

dealingswith his assistants. These assistants of their own
and
take a part in its
free will have joined the enterprise,
operations. They thus accept the risks incident to the
employment which they have entered voluntarilyand with
For
them the quesa full knowledge of its consequences.
tion
is
of wages.
substantiallyone
The
of the
character
and unpleasant or
employment ^whether it be hazardous
safe and agreeable largelydetermines
of those
the numbers
who pursue
ation.
it,and consequentlythe rate of their remuner"
"
In
these
less
other.
kind.
degree of circumspectionin
His
The
duty, too, differs

care
which
the
the
master
which
which
arises out
vary
have
must
observe
than
in the
degree but in
of an
cises
undertakingexera generalduty ; the care
safetyof the publicis

he exercises for the safetyof the
their
to
case
one
merely
not
for the
of
duty of the
is bound
He
employer is necessarilymodified.
a
the
circumstances
altered
contract.
in
is
workman
It may
duty
consequently
indefinitely,
accordingto the terms upon which they
agreed. But in this contract, as in others,the law
make
provisionwhen the partiesare silent provision
"
Stevens
v.
Woodward,
Q. B. D.
818.
Employ
which
271
Liability.
fr'8
but which, in
stipulation,
the absence of such stipulation,
is impliedas arisingfrom
of the transaction.
the nature
The questiontherefore is :
What
of hiring
contract
implicationsare just in a mere
is expressed beyond the amount
of wages
where "nothing
and
be altered
may
the character
by
of the work
of the
held that the master
care
that
the
to
But
these
to the
as
in
employed
with
his workmen
bound
was
in
he
if
is,of
reasonably favorable.
ing
equipments accordadequate supervision.
to the behaviour
is different.
its
He
of the
does not
strangers whose
deal
safetyhe
who
men
For
always
suitable
own
for the
and
liable.
course,
as
has
personalconduct
be
they were
warrant, but
to
It has
ditions
con-
to exercise reasonable
work, as
it,his duty
as
dispute.
work, and
of the
enterprisewhich
an
his
maintain
conduct
men
shall
of the
nature
is no
be called the
may
undertakes
conditions
provideand
must
to what
As
undertakingthere
been
He
express
the
knowingly take part

recognisedrisks. For
directions which
he gives
conduct
of his
to
servants
other he is
each
only so far as the ordinaryprinresponsible

ciples
of vicarious liability*
apply. According to these
he is not liable except where
the act or default of
principles
which complaint is made
is his personal act or default,or
takes place in obedience
to his orders
whether
general or
is the act or default of some
or
he
special,
agent to whom
has
given authorityin
the
It follows then
matter.
that the
of the contract
of service,
far as regards
implication
so
safetyof the workmen, is that the employer shall see
the undertakingis conducted without negligence. That
proper
the
that
negligence relates
the conduct
and
wholly
control.
harm,
or
the
in
from
without
his
to
any
conduct, his
own
orders
of those
to whom
rule
or
negligence as
any
feult
that workman.
by-law
any
he
has delegated
part his functions of superintendenceand
or
thus
But
See
must
if without
ordinaryworkman
*
understood
any
contributorynegligence upon
part, befall any workman, the employer

to
orders,and
own
above, page
125
"
et teq.
that
make
sation
compen-
reference
is any
his
to
any
workman
272
The
wlio
is not
set
authorityover
injury,although
such
the
of his
employment,
of Rights :
in
workman,
course
Combinations
and
others
it be
done
by
service,is yet
not
the
is therefore
employer
fellow-
injure a
"
within
the
in
servant
of his
scope
responsible
not
for it.
These
conclusions
doctrines
of
the
of the Common
Act
of
in substance
appear
the
Law
to coincide with
corrected
as
Imperial
the
by
Parliament
the
provisions
known
the
as
Act 1880.
It has been held*
that the
Employer's Liability
meant
the
to remedy was
grievance which that Act was
done to
where injurywas
liability
escape of employers from
workmen
other
or
through the negligenceof superintendents
having control
persons
rule
in
caused
injuries
employment the
common
to have
seems
the
was
been
extended
to
foreman
work
he
cases
is
previous
to another
liable.
not
was
thought that the
It
employment
common
of the
statement
duty, and not a mere
it was
applied. Accordingly the rule was
of superintendence,
because,as it was said,t
servant
as
is not
He
servant.
master
The
much
the
as
other servants
whose
superintends." This propositionis certainlytrue,

not less true
that the foreman
is something more
but it is
than
employment.
by one workman
of the
cause
facts in which
"
the
that for
was
in
of
only
he
but
workman,
is
also,
superintendence,the agent of the

The
although its
employer.
Employer's LiabilityAct
meaning may not be at first sightapparent, and although it
to
of compromise
shows only too plainlythe marks
seems
the
to
extent
his
"
"
have
but
effectually
in the
without
not
inevitable clumsiness
some
the necessary
frequentoccurrence
changes. It at least furnishes trustworthymaterials by the
of the rights and duties
aid of which
a
complete statement
be
constructed.
of employer and
of employed may
both
made
But
the
indeed
*
of most
cases
case
to which
is otherwise
Griffiths
r.
Earl
of
I have
referred
above
abundantly clear,that
Dudley,
decides,what
this Act
does not
Q. B. D. 857.
t I'ei-Willes J.,33 L. J. 0. P. at 335.
See
Feltham
v.
England,
L. R.
Q. B.
33.
274
The
usual between
of Rights:
until the
continue
regards third parties,
notice of its change or of its
of the
communications
strangers. They
with
possessingall
one
his commission;
those
to deal with
the
agent
expressedor
the
on
Marriage of itself* does

the
a
circumstances,and
sister
or
of
daughter
Where
the agency
either
from
the
pleasureof
the
in
or
direct
of
as
of
does
in
authority of
As
in
needs
Except
in
wife exists in
the
of
agency
housekeeper exists.
fact exist,
it arises
the husband
or
by
other
every
power
of
case
the
at
of agency
power
Such
comment.
no
remarks.
be withdrawn
given may
principal.An express
the
of
to
agency
few
other,as
authority so
husband
the
to
terms
same
agency.
agency
even
conduct.
his
any
none
of the wife
the
implicationfrom
agency,
not create
the
by necessity,
of agency
same
as
implied in
information
have
Upon one point as regards the relation

marriage,I may in the present place ofier a
cases
fidential
con-
dealt.
they originally
which
on
the
concern
deal
to
private
not
they
continue
contrary they may
The
do
the powers
until
and
them
far
party has
principaland
between
authorized
are
third
termination.
of the
agent and
the
of the agent, so
the powers
established,
as
relations
When
similar circumstances.
partiesin
has been
agency
Combinations
from
be
may
has habituallyallowed
his wife
impliedwhen the husband
for the use
of the
to purchase goods for her own
use
or
The only implicationpeculiarto a wife
joint household.
be that while
of necessity.It may
is the so-called agency
they are livingapart the husband fails to provide his wife
with
that
necessaries,
is with the
to her condition
in life.
contract
In
of maintenance
means
such
able
suit-
circumstances,if
for such necessaries in his name,
she
his silence amounts
requireshim to maintain his wife,and

consequentlyraises a presumption,which may however be
rebutted,that she has authorityfrom him to pledge his
to consent.
The
credit for the

But
law
necessaries wliich
in
either
*
of
Debeuham
these
v.
he
cases
has
not
he
Mellon, 6 App. Ca. 24.
otherwise
may
revoke
provided.
the
275
Partnership.
and
implied authority;
do
may
at
has
authority that
may
he is of
course
may
in that
take
away.
that
agree
their
of
they
or
Where
agency.
between
each
becomes
for the
not
of
them
their mutual
of them
the
existence
but
not
settled
now
application
or
more
shall carry
persons
business
on
tain
produces ceronly between the partiesbut also
and
the public. Each
partner
binds
relations,
It is
duct,
con-
of the termination
two
contract
of their
purpose
members
of the firm;
other
some
husband's
the
partnershipis only an
account, such
relations
show
can
power that her husband

her he may
if he think fit
given
some
common
new
the
have
customer
that any
and
relation of
doctrine
the
on
behalf
inquiries
such
wife
the
woman
impliedauthority,
merely as such is not
apari;from
that
agent
The
Partnership.
from
entitled to notice
remember
must
her husband's
of
implied
authority. But
of such
he
be
his
any,
If he
credit.
husband's
pledge her
to
married
unpleasantsuch
authority, if
what
be, ascertain
may
with
she
whom
with
persons
must, however
peril. He
his
the
tradesman, in fact,deals
deals.
subsequent dealingshe
any
notice to
without
so
to
as
each
business
the
agent
of
may
be
and, whatever
of them
that, as
by
his engagements.
in all other
contracts,
of
tion
partnershipdepends upon the true intenof the parties
shown
be
this intention
; and
may
either expresslyor by implication.The receiptof a share
in the profitsor any
similar form
of payment is relevant
evidence
principleappliesto
same
such
is
conclusive
as
to
induce
partner.
business
If
in
a
man
to
establish the contract.
every
others
who
is
person
whose
reasonable
not
The
conduct
belief that
partner
act
is
he
in any
a
though he were
partner, he will be estopped
from
denying his partnership as against those persons
have
been
misled
who
These
sequences
conby his conduct.
may
follow from
the actual contract
of partnership.
It is this contract
which
of itself gives to the partners
as
s2
276
The
the
a
of
power
from
mutual
the
conduct
agency
is
of
itself continues.
in force
The
other
the
case
Their
and
original agreement,
long
so
that
as
of
members
agreement
firm
of
cannot
against his will the power of one of their number

they dissolve the partnership. Such a revocation
in terms.
be a contradiction
They all have agreed
for certain purposes
they all shall be reciprocally
revoke
unless
would
that
agents.
While
bind
rest of their number
the
those
others
serial Rights
a,s
that
are
not
is that
of them
lasts,some
agreement
by
new
cannot
to which
agreement
parties.
" 3. The
Obligations
rem
that
concerned.
persons
their
is not
case
necessityof
the
the
part of
consequently continues
in
Their
reciprocalagency.
implied by law from
power
or
of Rights:
Combinations
second
of coutracts
class of combined
which
generate
obligations
rights
in
rem
to
.
rrn
"
"
relating to things. This

which
hire,sale,and the contracts
class includes
things.
relate
to
-i
bailments,
property given
securityfor pecuniaryloans. The rightsin rem thus produced

belong,except in certain cases of sale,to that division
which
is known
of rightsin rem
in re aliend.
That is,
as
the contract
does not generate a right of full ownership ;
but only what
is called a qualified
limited ownership,a
or
partialrightin property of which the principalownership is
The
vested in another.
idea may
be expressed in
same
if we
other words
say that the rights of ownership are
divided ; that the larger portion rests without
qualification
in one
person, and the smaller portionrests temporarilyand
for a certain specific
in another
Difiicult
purpose
person.
arise as
to the precise legal impliquestions sometimes
cation
of some
of these relations when
the partieshave
But
these questions
not
fullyexpressed their intentions.
belong to practical
law, and are not essential to tlie present
as
discussion.
Bailments.
In
delivers them
the
coutract
to another
of bailment
person
for
the
owner
of
goods
certain definite purpose.
277
Bailments.
The
rightsof
mntnal
implied,of
or
express
of
each
persons
the
is
as
againstall other persons

as
regards the property.
enforce
to
of this rule
reason
of forbearance
ordinary dnty
The
parties has
these
against all other

well-marked
right in
but
the terms,
by
determined
partiesare
the contract
is entitled
Each
rem.
the
when
apparent
the
consider
we
rightsof the bailor and of the bailee.

respective
The
the possession of the
former
has the ownership and
property ; the latter has its custody. Each of these rights,
when
they are separatelyenjoyed,admits and requiresspecial
of the
nature
protection. Subject
rules
such
to
of actions, both
multiplicity
either
of
them,
respect of
in
bailment
the
themselves
indeed
the
of the
terms
the
much
discussed.
degrees of
which
in
the
that
doctrine
be
intended
or
of them.
both
of
take, to
to
him.
But
of
the
persons
what
certain
the
of the
bailments
it, or
In
business.
to
latter
does
or
where
carrier.
been
the
three
of
men's
govern
he
us
the
to formulate
somewhat
in
perplexing
In
case
every
of
presents
not
one
we
the
of the
this
care
about
of the
have
the
bailee
it.
parties
usual
is bound
property delivered
and
the
preca,utionmust
in
keep
good feelingand what
care
and
is to
or
upon
words,
of
extent
does
work
is matter
extent,
made
are
benefit
other
against whom
class
to
to
gratuitous bailments
The
to
have
subject.
carry
in
found
will enable
result
to
is matter
the
have
which
distinction between
differ
of contracts
object for
object may
only, or
the
this
on
property,
This
between
respect of their personal proceedings and
intelligible
way
The
bailee,or
during the
As
this class
we
check
to
prevails; and in such cases

rarelyexpressed at length.
are
of their business
authorities
the
done
wrong
any
contract
contract
and
bailor
property bailed.
I believe
care
management
an
the
implicationsin
Hence
conduct
for
sue
may
the
needed
are
as
bailments
description
be
taken
for value.
where
the bailee
varieties,
exercise the public function
of
two
"^'O
The
Where
the
Combinations
bailee is
of Rights:
the
carrier,
common
law
common
has
thought fit,from considerations of publicpolicy,real or

duties.
imaginary,to impose upon him very onerous
He, in
is held to warrant
that the goods entrusted to him shall
effect,
and securely.This duty was
be carried safely
not regardedas
implied in his contract,but was
imposed upon him by law
the duty that pertainedto the disif it were
charge
as
absolutely,
Recent
has to some
of a publicfunction.
legislation
extent
carriers are now
qualifiedthis rigour;and common
to
allowed,in certain circumstances and within certain limits,
protectthemselves by express contract.
But,subjectto these
the general rule remains that,in the event of any
relaxations,
loss,the
than
of
carrier
common
by proving that
such
some
bailee is not
under
common
whatever
services,
requiresthat
he
shall
may
himself
excuse
the loss
untoward
before described
can
caused
was
in
other way
no
the
by
occurrence
physicalor social disaster as I have

the
the designation
accident.
Where
for his
but is remunerated
carrier,
be the form of the bailment,the law
in the absence
that reasonable
agreement to the contrary
of any
is taken
in the
performance
of the duty he has accepted. This responsibility
means,
have elsewhere
as
we
seen, not that he personallyor any
is to take such care, but generally
other particularperson
that such care
that it is
must
be taken,and that he must
see
taken.
Where
the bailee is not remunerated, his responsibility
In the absence
is much
less grave.
of any special
agreement, he is requiredto keep the property bailed without
see
negligence.
prove
the
that
part
That
that
is,the
loss
of the
was
care
caused
by
gratuitousbailee.
the
sustains
who
person
breach
some
In this
case
loss must
of
duty
on
the burthen
proof that negligence existed rests with the plaintiff.

Accordingly,where a Tasmanian
gentleman* depositedwith
his bankers in Melbourne
for safe keeping a box containing
of
valuable
to
securities,
and the box

the usual way, and
*
was
some
Lewis
V.
which
he
kept in
himself
had
as
he
the strong-room of the bank
of the securities were

McMuUcn,
access
4 W.
W.
" iiC, 1
stolen
(Law).
by
one
quired,
re-
in
of
279
BailmentB.
it was
clerks,
held,and the decision was confirmed*
by the PrivyCouncil,that there was no evidence of negligence
insufficient
fact of the loss was
to go to the jury. The mere
further
to raise any presumption against the bank, and no
evidence of carelessness was
could be produced. Had the
or
deeds been deposited
in such a manner
to give the bank a
as
the bank
lien
them
over
for
the
interest,
other
Another
of the
would
case
Victorian
case
of
an
Bateman,
or
any
applicationf
wealthy squatter,
illustrates a different
to visit his coimtry

artist,
eminent
an
account
been different.
have
principles.Mr. Moffat, a
same
invited IMr.
balance
overdue
an
house
for the purpose of advisingupon its decoration and the

layingout of its grounds. During the visit he proposed to
drive Mr.
Bateman
distance.
for
On
similar purpose
to another
house
at
journeythe king-boltof the carriage

thrown
broke, both
gentlemen were
violentlyout, and
Mr. Bateman
was
seriously
injured. He brought his action
and
obtained a verdict.
But although the Supreme Court
upheld the verdict,the Privy Coimcil } reversed the decision.
It was
pointedout that the case ought not to have been sent
to the jury.
The
of the accident was
mere
occurrence
insufficient to fix upon the defendant any liability.
His duty,
to carry his companion without
as
a gratuitouscarrier,
was
negligence; and no reasonable evidence of a breach of that
carrier of goods
duty was
forthcoming. Tims the common
and the gratuitouscarrier of a person mark
the two opposite
extremes
of the duties that relate to carriage. The intervening
of carriers for hire
space comprisesthe ordinarycases
some
other
than
loads
or
more
onerous
the
carriers who
common
their passengers,
duty than
They are bound

performanceof
their
vehicle horses
and
to
see
skill of the driver.

which
*
OiUin
no
r.
care
McMoUen,
could
but
the
who
mere
do
subjectto a much
absence
of negligence.
have
are
not
care
is taken
in the
regards the qualityof the
as
equipment,and
They
their
warrant
are
that reasonable
work, both
not
as
regardsthe
liable for any
preventedand
no
care
and
latent defect
vigilancecould
L. R. 2 P. C. 317.
t Bateman
c.
MofEat, 5 W.
t MoSat
r. Bateman, L. B. 3 P. C. 115.
W.
4c iB. 140.
-woO
The
have
detected.
Combinations
of Righis:
casualtyoccurs, they are bound

to offer a sufficient explanation
of its cause, and to show that
the prima facie imputationwhich the casualtyof itself suggests
does not reallyattach to them.
^^ hB,Ye uow
icached the last step in a generalNegligence
in
BaSments.
when
But
any
jzatiou of Considerable
in circumstances
Where
extent.
amounting to a punishable offence one person

in every
causes
damage to another person, a common
principle
his liability.
Whether
the
varietyof circumstances measures
damage arises from the defendant's personalconduct, or from
the conduct of his servants
in the course
of their employment,
not
from
or
or
his
the
in which
manner
his business
or
property is administered,
whether
by himself
of another
his
or
of which
duty
is alike.
of his
own
mind, but the

is "voluntas
negligencethis
the
care
property
acceptedthe charge,the nature

material questionis not the state
loss sustained by his neighbour.
The
the law forbids
the rule
towards
of
he has
of his
Where
his want
from
servants
is conducted
certain intentional
spectatur
exitus^*
non
rule is inverted.
of
course
There,
In
Lord
as
action,
of
cases
Baconf
observes," the law doth rather consider the damage of the

party wronged than the malice
That
must
man
use
of him
his
that
without
own
the wrongdoer."
was
harming
his
"
his own
relates to property or to
neighbour, whether
is sufficiently
personalenergy or to any form of social activity,
observe a certain
plain. In other words, he must
amount
of circumspection. This amount
varies according
to circumstances,
and the difficulty
consists in determining
"
that
and
amount
those
generallythat,when
a
greater degree of
in
not
those
usually arise.
business
transactions
undertakingis
any
attention
where,
cases
Dig. XLVllI.
and
of
may
be
said
in itself dangerous,
is needed
care
than
ordinaryprudence,danger does
between
distinction,
too, is made
with
and
Further, the law notices

that are in daily use, and
*
It
circumstances.
8, 14.
the
the
courtesies
various
habits
of the
the occasional
tame
of
animals
of
difficulty
t Max.
rcg. 7.
life.
con-
"ô^
The
the
Combitiationa of
and
property bailed,
for the convenience
in
as
the
motive
other
of
transaction
gratuitousor
it may
commodatum
of the Roman
benefits
alone
restoration
form
all
againstthe
of that
for
responsibility
that which
or
those
burthen
rise.
There
The
who
is another
has
thing lent,is returned
consideration
of sale.
whether
on
thing of
current
its
effect another
account
must
his
gives
misconduct
own
kind
same
all events
a
for
called
the Romans
and
now
there is
where*
bailment
the
not
it is
But
deposits
money
or
omissions
or
advantage
to the lender.
man
beyond
care
from
contract,is not
Thus, where
borrower,
advantage is relieved
the
at
transaction,
in the
be
may
warrant
his
to
the
that which
identical
any
has
no
to which
where
that the
wrongful acts
who
mutuum,
settled that such
loan
is in
principle
own
case,
another
the
gratuitous bailee is relieved from
He
except that
restingupon
transaction,shall
his
of his servants.
He
and
goods entrusted
results from
take the burthen.

any
the
well
The
course
the
the
as
case
loan, the
gratuitous
law,impliesthat the thing lent
world.
which
on
difference
hire.
in due
by
In this
prevails. The
be upon
shall be itself returned

who
the
other treatment
or
safe-keeping
of the bailor.
bailments
the
its
not
liights
:
but
with
tract
con-
bank,
action,
fixed term, the trans-
although it is called a deposit,is clearlya loan.

Neither the depositor
intended that the money
the bank
nor
should be wrapped in a napkin. It was
to the advantage of
and of the other indirectly,
each of them, of the one
directly
of depositbe made
that the money
should during the term
for
productive. For this purpose the most convenient course
all parties
to the
is to transfer the ownership of the money
That
to repayment.
as
bank, subjectto certain obligations
such is the real state of the
of the risk.
not
on
to make
If the money
case
be
depositor. On the
large profitby means
according to the
custom
the nature
apparent from
the
lost,the loss falls on
the
a
is
other
hand, if the bank
of tlie
of bankers
to
loan, it would
share
the
South
Australian
Iiis.Coy.
v.
RandeU, L. R.
were
not
be
profitwith
their customer.
"
bank,
3 P. C. C. 101.
283
Security.
As
that for hire.

ordinaryform of loan is of course
other case
of right in re aliend,either the owner
Tlie
every
property
action for any
of the
maintain
has hired it may

person who
injurydone to his interest. It
the
or
in
an
is,however,
to
partiesthat the main interest in

this contract
belongs. Its principlesare very simple. On
the one
side,the duty of the lender is to givequietpossession
of the thing lent,and to see
that it has no defects likelyto
the
relations of the
mntnal
cause
extraordinaryrisk.
bound
to pay
the
the property, to
hire,to
and
tear, as
the
and
it
to return
as
almost
are
for the purposes
otherwise, and
not
of
good condition,excepting fair

he received it. As
which
regards
in
that in
chattels,these rules
and
manner
is taken
care
is
hirer
side,the
other
that reasonable
see
it in the
use
in the contract
specified
at the appointed time
wear
On
universal.
in the
But
case
of real property the

but
contract
assuming
on
more
before
done
obligationrests in English law not on

tenure
although our law is gradually
; and
satisfactory
form, much yet remains to be
law of landlord and
tenant
is placed on
a
the
rational foundation.
Security.
Property
is often
payment
of money
or
obligation.
This
for the
It is therefore
convenient
and
the wider
give it
in such
to
pledge.
form
particular
obviously exceeds the bounds
contract
to
further
securityfor the
performance of some
as
is called
contract
pledge is usuallyconfined
the
delivered
cases
the
to
regard
of
name
contract
to
it
as
of
a
But
of
the
name
dealing,and
mere
bailment.
separate contract,
security. There
secure
the
is
fulfilment
always
of
an
obligationwhether
pecuniary or other. There is always,

too, the creation of a right in re aliend with regard to some
It
property. Further, this rightis conditional in its nature.
takes
effect when
It
only
when
default
has
been
made
in
the
obligation. Thereupon the reserved

right
into force,but tlie operationof that force is limited.
respect to
comes
and
secures
of
the
all
performance of the obligationand the payment

costs
and
charges incident thereto, but it
284
The
the
subject-matterof
He
may
without
the
debt
property pledged ; but
the
owner
sale but
mortgage
given
to
many
enough
One
settled.
for
The
in
was
ment.
agree-
truth
not
only.
Securityhas a long
legalinstitutions.
history. That historyI do not professto relate.
other
principleshave become
reasonable
to the lender
facility
ultimately two
that
is that
every
the transaction
other is that
to the
the
transaction
the
in
is used
enforcinghis rightsis equallybeneficial
of
each
the
to
matter
not
borrower.
of conveyance
is
merely accessory
varies accordingto
the security
Sometimes
right in rem
the right in rem
obligation. But
circumstances
is
The
of contract.
but
to
the rule
once
securityfor an obligation,
always a mortgage" prevails;and effect will
the
originalintention of the parties,and to
intricate
It is
return
must
mere
that intention
and
to
"
Like
the
that
If it appear
over
nothing more.
the defaulting
has
he
sale
purchase-money, after the

have been fullypaid. It
the
expenses
of words
form
what
is immaterial
be
of
balance
its incidental
and
he
reference
further
of
power
pledge,but
the
any
sell the
debtor
has
creditor
The
farther.
no
goes
of Rights:
Combinations
case.
it is merely the
rightof ownership,sometimes
At a late period in the historyof law a
right to possess.
of any
the conveyance
legal
mere
appropriationwithout
given
is the
interest
These
in certain
was
are
Charge.
the
three forms
In the
found
circumstances
of
mortgage
be suiiicient.
security Mortgage, Pledge, and

"
the
and for the purposes
to
ownership is
of
transferred
securityonly.
In the
ditionally
con-
pledge
the
right to possess is similarlytransferred,whether
The pledgor
actual possessionpasses to the creditor or not.
continue to have the custody and the use of the pledged
may
property, although the legalpossessionof it is vested in the
pledgee. In the charge neither the right of ownership nor
the
the
rightto
property
and
that
possess
nor
the
actual
possessionis
appropriatedto the payment of

the consent
without
appropriation,
is
altered.
the
of
The
obligation;
the creditor,
285
Sale.
revoked.
or
indirectly
directly
be
cannot
and
property, therefore,
sncceeds
him
in the
by transfer,
property subjectto the incumbrance.
or
the
charge
the
property
the
is
charge
is
that
finallysettled.
be
can
to
which
act
some
do for the benefit of the
the
or
lution
by devoownership,holds
other
words,
value
of
In
net
the
When
beneficial interest
right
satisfied before
be
must
the
of
subject-matter
in
"chose
of the
owner
whether
who,
person
every
The
action,"
third party is bound
debtor,notice
to
such
to
third party of
but his consent

is not material.
"Where
charge is requisite,
of the pledgedproperty,
the pledgeehas the actual possession
he must
keep it without negligence,but his responsibility
There
is also impliedin the contract as
does not go further.
againsthim a warranty that he will not use the pledge where
the
it is of such
its
by
nature
that
it will
it will
be
the
for use,
worse
or
be
exposed to any extraordinary

danger. If he fail in his duty in this respect, he will be
liable for a breach of his warranty; but a mere
impropriety
The
of use
is not a ground for a rescission of the contract.
where
use
liable
pledgee is
possessiondoes
the
an
have
may
but
to
caused,but the
not
payment
action for any
thereby vest
conduct
damages which his misimmediate
rightto recover
in the pledgor. Nothing
of the debt is stifficient to maintain
such
demand.
last of these
The
of combined
cases
rights is that of
Sale.
sale.
Some
arises
difficulty
in the treatment
of this
into the matter

of the following
subject,because it ruus
chapter,and forms part of the inquiryregardingthe transfer
of rights. But such transfers take their rise in contract.
It
is therefore fitting and practicalrequirementspoint in the
"
direction
same
the
briefly,
There
sale.
to make
at
once
It
"
nature
is
some
means
discuss
to
the
present place,however
of this agreement.
ambiguity
both
that contract.
in
arises,
in
the
in
actual
the
expressiona
In the former
the latter
case
and
contract
it is
case
the
an
of
contract
agreement
right in
only expectant.
rem
Thus
286
The
of
contract
the status
marriage,as
marriage; but
obligationwhich
of the actual
contract.
of Bights:
have
we
of
merely an
also creates
contract
an
like manner,
to
has
for its
lease
of land
rights and duties

certain rights in rem
But
property.
gives rise
seen,
various
creates
In
Combinations
agreement for
between
in
a
lease is
to
which
parties,and
the
demised
different
to
formation
contract
the
regard
once
produces
marry
objectthe
is
at
thing.
of sale not
merely creates a new

but transfers a pre-existing
A contract
obligation,
right in rem.
to sell,that is a promise to make
of sale,
contract
a
The
does not of itself produce any
such effect.
tendency
indeed is to diminish
far as the nature
of
so
by legislation,
the case
admits, the results of the distinction. The rule of
be
equity that everything which
ought to be done must
in the sale of land the like
regarded as done givespractically
effect to
in the
contract
sale of
important to
Where
some
of sale and
goods
the
understand
old
its
to
contract
distinction
to sell.
and
prevails,
But
it is
operation.
partiesagree the one to buy the other to sell

the
specific
thing for a pricethen actuallyascertained,
two
of sale is said to be executed.
contract
conveyance
whole
contract
in
are
transaction
such
is
circumstances
effected at
appearance
it is
contractual
part is exhausted
conveyance
compositeproceedingour
a
bargain and sale. It
notice, except
the
the
and
contract
simultaneous.
same
rather than
moment.
the
The
In
contract, for the
in
producing the transfer. This

forefathers accuratelydescribed as
requires in this place no further
that
the
property sold
must
be
nothing must remain to be done by the

seller for the purpose
of ascertainingthe exact
price,such
as
completing the thing or weighing measuring or testing
in such circumstances
the bargain is concluded,
it. When
the sale takes immediate
effect;and the ownership of the
property or other interest therein is thereupon transferred.
the same
At
and
moment
means
an
by the same
tion
obligafor the payment of the price is,unless the contrary
and
specific,
that
remark
The
287
Sale.
of the seller
in fevonr
appear, created
intention
againstthe
bnyer.
Where, however, the property is
something remains to be done to it
seU.
promise to
on
was
which
the
When
to sell becomes
the
executed.
actual
an
of the
ownership
complete it
is not
In
sale.
in
But
coat
the
tradesman.
it had
been
Res
burned, the
perit
bear the accidental loss.

of the
latter
such
loss,the buyer
the
case
of
the meantime
unchanged.
merely inchoate
intention
the events
and
The
until it is
partiesthat any
transfer should take place. Consequently,
when
during the
interval the property is innocently
lost,a questionarises as
to the incidence of that loss. Thus, a man
the
buys across
counter
cloth for a coat ; he desires it to be charged to his
and to be sent home.
account
Before the parcelcan be sent,a
fire occurs
in the shop,and the cloth is consumed.
In this
the purchasermust pay for the cloth,although it never
case
into his hands.
But if instead of buying the
even
came
cloth, he had ordered a coat, and if before he accepted
the
the
sale but
words, the promise
other
property remains
of sale is at most
contract
or
occurred,that which
have
promise depended
not
arrived
the time has
executory becomes
the
prospective,
is,it is
That
where
where
it,or
alwnt
or
present but
is said to be executory.
contract
a
is not
the agreement
otherwise
or
specific,
not
loss
domino.
siio
In the former
the
was
tradesman
the
The
fall upon
owner
must
case, at the moment
of the
owner
the
was
would
cloth; in the
of the coat.
owner
In
further
questionsometimes arises. Is the coat

property,or does it merelyembody work done upon property ?
Where
labour or skiU is expended upon
does the
any object,
skin merge
in the thing or does the thing in effect absorb
it ? In economic language,is the product*a commodity or a
cases
service ?
The
question is in
law
idle one.
by no means
an
K the claim be for work and labour,the
needs not
agreement
be in writing. If it be for goods sold and delivered,
writing
is essential.
It is but
*
and
lately,
See Senior's Political
after
Economy,
some
51.
fluctuation of
288
The
Combinations
of Rights:
settled. An old
opinion,that this question*has been finally
lady had occasion to visit her dentist,and, as the result of
him
set of artificial teeth.
the interview,
ordered from
a
Before
the
teeth
accept the teeth
either to
dentist
brought
his action.
died.
Her
to pay
for them
or
defence
The
in
consequentlyought to have been

it was
held
and
prevailed,
sale of goods if it contemplate the
chattel.
that
on
"
relative value
which
it is bestowed
of
cause
contracted
the
to
value
the
a
would
delivery of
Blackburn,
for
Cellini had
another, much
that of the
less
the
none
materials
the test of what
be
referred is that of contracts
rights,not
subsidiary
class belong the contracts
of
harmless
by
contract
againstthe
as
materials,
for the
sale
person
which
which
generate
To
in personam.
indemnity of suretyship
of
contract
hold
to
of
some
indemnityis
another
person
It is
liability.
and is dependent
previousliability
sustained is not merely the event
upon
it. The loss

upon
the contract
which
If the
of
consequences
but
rem
rightsto
the
subsidiaryto
damages.
one
in
conditional
thus
been
of the
" 4. The third class of combined

I havc
Accessorial
and
of art
might exceed
have
is
Justice
case
tention
con-
contract
ultimate
and
This
chattel."
Obligations
this
skill
the
if Benvenuto
that
work
the
the agreement
writing.
that
labour
in any
action,and
of the
contract
of the
can
execute
; and
that
was
Mr.
said
think,
not
the
is the
of
do
clined
de-
executors
goods of the value of "10, and
sale of
for the
was
she
ready
were
is
event
conditioned,but
in
is the
question have
of
mea,sure
occurred, and
if
other source, the

compensation for it be made from some
promisoris not liable. If,in ignorance of the fact that such
compensation has been so made, he pay the money, he may
the amount
from the promisee. Of this kind of contract
recover
notable example is fire and marine insurance.
the most
Such
insurances
contracts
are
"
L"e
t".
to
reimburse
Griffin,1 B. " S. 272.
up
to the
sum
290
77*6
Combinatio7is
another
if that other should
he
agree
to
by
the
may
sustained
in
of
matters
where
the
is
their
loss
the
surety, and
the
this
place
the
between
observe
to
that
for the
occasion
the
arise,the right of
obligation should
where
contribution,except
or
and
creditor
the
sureties,if
several
of
in
enough
dischargeit ;
arise
and
debtor
to
employer against any

employ^. Questions
suretyship between
are
performance
of his
conduct
It
there
fail himself
indemnify an
surety, between
co-sureties.
of Bights:
wrong-doers,
parties are
exists.
There
are
other
some
this class. Such

the constitutum*
of the Roman
interference of
third
an
also be referred to
may
and
stated,
account
judgment joro confesso,
are
which
cases
law.
do not involve the
These
party, but merely give to the promisee
additional
The
remedy beyond that which he alreadypossesses.

remark
called
are
applies generally to what
same
collateral
securities.
some
further
the
usual
amount, has
to eke
not
convenient
all cases,
is
out
insufficient
an
Sometimes
one.
some
further
which
obligations,
or
which
to
attain
any
new
obtain
securities
to
as
But
longer.
more
is available
In
prevails
;
tract
originalcon-
although
these cases,
they are
I have
ex
of little
merely ordinary
certain stagesin a transaction,
either mark
it is convenient
They
are
in order
particular
way
some
practicalobject. They do not appear to add
lightto the theoryof law.
to
use
in
both
" 5. Very different,
Negotiable
and
have
where
original remedy fails.
present purpose.
our
to
in force until the
mentioned
cautelci
for
moment
the
rightsare
no
but
the collateral contract
cause
performed,and
ahundanti
ordinarilyused
remedy,
however, the general rule
these
and
is the term
is taken in some
transaction upon which
security
security,although perhaps to an insufficient
been
the objectis
alreadygiven. Sometimes
from
when
This
in
theoretic
See Mr.
practical
importance
interest,from
is another
last mentioned
in
Hunter's
class of
Roman
the
instances
compositerightsin
Law, 387.
291
NegotiableInatruJwntA.
I
personam.
with
commence
Finally,they
which
have
into
suretyship.
of transfer
peculiarities
acquiredcertain
shall
by
They advance
secondary contracts
of
this
On
characteristic.
marked
constitute their most
characteristic
are
ordinary contract.
an
of indorsement
means
Negotiable Instmhighlycomplex. They

of
great class
familiar doonments
These
ments.
the
mean
enlarge in a subsequent
attempt to explainthe nature of
have
to
chapter. At present I shall

to which
the original
and of the accessorial contract
contract
familiar form
it givesrise. A bill of exchange is the most
of a negotiable
illustrates for our
instrument,and sufficiently
the
purpose
incidents
brieflydescribe
its nature.
to another
money
of the entire
It
class.
that
assumes
he has funds
; that
I shall therefore
one
owes
man
of
in the hands
third
apply these funds to the j)ayof his obligation. He accordingly

ment
givesto his creditor
him to pay at
order upon the third party directing
a written
the creditor or to his
time a specified
to
sum
a
specified
person
order
that
and
or
This
to
the
he wishes
bearer
to
of the
instrument, as
the
case
may
the third
it is
presentedto him,
the responsibility,
party, if he be willing to undertake
accepts, and signs it accordingly. He therebyundertakes to
be.
the
pay
instrument,
bill when
when
it becomes
due
according
its tenor
to
at
placewhich in his acceptance he has specified

; or, if he
have not specified
any place,at his usual placeof business or
So far the case
order
abode.
resembles
that of a delivery
for goods to a bailee,and the acceptance is in fact the
the
bailee's attornment
acceptedmay
to
be delivered
indorsed and
delivered
other
who
person
parties. The
as
it
may
effect of
stands,or,
further
and
or
bailor.
new
the bHl when
so
if it be made
words, an
assignment of
the
originalcontract
other
obligation.
is
delivery
But
payable to bearer,or
if it be made payableto order,to some
be an entire stranger to the original
the mere
deliveryis a sale of the bill
in other
arising from
of any
the
not
The
without
the
the
tion
obligacreation
ment
effect of the indorse-
only to assign the obligationarising

t2
292
The
'from
Comhinations
of Rights:
the
originalcontract, but also to create a contract

his
transferee that
of suretyship by the indorsee
with
Thus
the acceptor will perform his agreement.
every new
is a new
indorsement
conditional contract* for indemnity
against all loss directlyoccasioned
by the disliononr of the
it is in due course
bill when
presentedfor payment to the
acceptor.
The
Negotiabuity.
principalfeature
f^Q^ which
in
constitutes their
their
transfer.
choses
in
This
all defects
is
is
negotiability,
it passes
in
confined
to the
which
the
as
such
so
which
usage,
individual
no
mercantile
has been
are
hereafter
or
there
circumstances
by the
in which
cases
can
not
can
hitherto
by
be satisfied
time
be
treated
Those
similar usage
to
as
the generality
time
to
as
instruments
negotiable.
as
of
recognise.
short of the
entire
It
negotiability.
is an exceptionto this rule,and
at least a practical
negotiability
consent
of the parties.There
create
transferee
new
has
contended
successfully
to that effect made

by the
representation
originaldebtor, and of his having bought on the faith of
he was
that representation,
not liable to any equities
affecting
instrument
not otherwise negotiable. The
an
explanationof
these
by
of
the
mere
has
of persons
body
no
fide
previous
and
Those
may
also from
may
thought that
obtained
be
that
or
community
that in certain
may
regards
treated,the courts,if they

of the
But
now
of law
instruments.
now
bond
the
to
arbitraryaddition
of merchants
general custom
negotiable the law
instruments
be
list of
it shares with
negotiable instruments
to
recognised by law; consequentlyno

made
liarity
pecuis not
title of the
the
creature
the
instrument
qualitywhich
is
peculiarity
It
agreement.
instruments,that in
negotiable
action, but
assignee free from

holders.
this is
for
merely assignable,
all other
of such
reason
cases
transferee
but
itself,
is,that in such
depends
upon
between
not
the
the
*
upon
circumstances
any
qualityin
privityof legal relation

original contractor
gee p"r
Brett L.
J.,3 Q.
B. D.
and
519.
right of the
the
the
instrument
that
the
is established
transferee
BiUs
In other
of Exchawjt and
words, the
is
case
one
BiUs
of Lading,
not
of
~vO
but
negotiability
of
the
is
estoppel.
-^
negotiableinstrnments
Bills of
fiS^Biurof
accessory
^^^^S'
ship of the
obligation. In
the
the
to
right in
this
opposites to documents
In
owner-
right arising from
the
respect these
of title.
rem
The
personam.
follows
paper
right in
instrnments
the
are
the
bill of
the
exchange
obligation. In
the
follows the
ownership of the instnmient
bill of lachug the right to sue
the obligationfollows the
on
The
of the distinction
reason
ownership of the instrument.
of title,as
we
readilybe perceived. The document
may
shall presentlysee, symbolizes and
represents the goods to
which
goods are the principalobjectsin the

transaction ; and the obligation
because
follows the document
it follows the goods, and the document
is in effect the goods.
But
it relates.
The
in the
the right in perso?iam

negotiableinstrument
is merely the
principalobject. The instrument
the
evidence
to
the
it,as
follow
the
passes
with
both
of that
title deeds
ownership.
the
Hence
the
ducit sed
non
has
Savigny
their
ownership of the paper

follows the obligation. Thus
intermediate
that
assume
the
are
to
the
thing; and
carried with
of each
"
case.
It is
They
title
are
Accessorium
principaland
indeed probable,
obligations
;
of the
though
thing could
it the
mere
be
in
are
some
corporales and
res
but
docimient
he
it is
not
which
might be, is
obligation itself. The
the
of
principale." The
form.
holder
obligation,indefinite
party
documents
lead the way.
must
step between
They
porales.
circumstances
material
and
owe
suggested,that negotiableinstruments
small
no
sarily
degree to the fact that they neces-
effect in
have
and
to
rule, though its applicationvaries
same
sequitur suum
the accessory
accessorial
are
the
negotiable instruments
accordingto
as
estate
an
possession,and
governed by the
not
of
appointed
pre-
accessorial
is therefore
right,and
is
instrument
transferred,and
rights that
were
an
sense
res
incor-
difficult to
the
contains
in substance
itself
was
in its transfer
incidental
to
it.
"*"'4
The
But
these
the
rights
latter
was
after
and
not
growth
so
the
the
of
rules
the
The
right.
law
always
and
consistent,
the
accepted
Rifjhts.
the
thing,
of
use
in
rem
them
to
to
these
thing,
former,
said,
was
instruments
in
the
reconcile
of
were
the
of
the
exigencies
jurists.
and
that
by
held
to
long
arose
personam
marks
bears
principles
have
the
the
to
as
and
of
value
accessorial
the
rights
relating
of
exceeded
manifestly
inconsistency
natural
follow
far
so
Combinations
settled
attempts,
of
social
The, AnalysU
XIV.
CHAPTER
The
"
Analysis
It will
more
an
presupposes
carved
out
transfer may
rights if
transfer
creation of
the
be
it
right.
new
of
wider
of
the doctrine
ascertain
to
it from other
distinguish
In the
less closelyresembles.
or
of rights.
diflfersfrom the acquisition
existingright. Acquisitionimplies
the transfer of
Transfer
help Hs
"
subjectswhich
first place then
RIGHTS.
OF
TRANSFER
THE
295
of Traitn/cr.
Subordinate
and
be described
as
we
older
mode
indeed
rights may
right,and in this sense

of acquisition.But this
of part of a pre-existing
transfer
a
substantially
interest as distinguished
from a transfer of the whole of that
interest.
The
imexpired portion of a
grant of the whole
of years is held to be an assignment of the lease ; but
term
the grant of that portion less by one
ment,
day is not an assignis
process
is the
but
the
stances
creation
of
sub-lease.
originalrightis merely
comjx)nent parts, each
of which
such
In
into certain
subdivided
becomes
circimi-
separate legal
did
right is acquired; nothing exists which

object. No new
it may
not
previouslyexist. Only a change, irrespective
in
of the originalgrantor, takes placeby mutual
consent
of the donees
number
In the second
It
is
much
thing.
them
the
Such
property
may
be
prudent
of
of
one
between
difference
varieties
devolution
forms
are
even
at
It
resembles
transfer
alienation,that
man
to
passes
life and
traced
equivalentto alienation.
implies alienation inter
of property after death
great gulf; and
readily
is not
term.
narrower
in
the
right.
place,transfer
devolution
The
vivos.
of the
be
death
sets
different
in each
But
man.
between
the
although the influence of

the
the present
history of
day
to
the
of
both
because
is because
another
is
the
case
the
two
one
other, it
adopt in respect
to
is
each
296
Transferof Mights:
The
subjecta separatetreatment.
Transfer
is not
insolvent vests
in his
is made
The
law
a
a
assigneeas
this
but
it is also
include
every
transmission
of
name
The
is the order
of the
party
some
The
then
the
means
is the
objectto
suit.
mutual
which
that
words, the
Such
in
conditions
owner
or
There
relates.
transfer.
every
the
of the
mand
command
com-
consent
owner.
are
These
the two
an
of
parties.
transferable
are
the antecedent
these
Where
of
the possessor
is the
There
consent.
consent
Such
voluntary assignment
existingtransferable objectby the

that objectto some
other person.
There
to
when
executes
operativepart
of court,or, in other
of the former
sense.
as
transfer,
through its proper officer.

transfers the ownership without
the apparent consent

Transfer
of
order of court
an
an
the order of sequestration
as
State
of itself
or
property of
whole
transfer in the usual
proceedingis merely technical.
transaction
impliesthe
from all
distinguished
thus
of
It
to another.
the form
pursuance
in the
conveyance
vivos:
soon
is not
simulates
sometimes
legalofficialin
some
inter
merely alienation
voluntaryalienation. It does not

of a rightfrom one
livingperson
consent
of both parties. It is
by operationof law.
conveyances
yet a third difference.
is
There
conditions
its actual
whatever
a transfer,
otherwise,
be, becomes
requirements may
possible. Little needs be
qualificat
dishe be subjectto some
said as to the parties. Unless
either general or arisingout of the particidar
present and
are
not
transaction,every
who
person
owns
or
possesses
ferable
trans-
objectmay, according to the quantityof his interest

therein,dispose of it. Subject to the like restrictions,
every
person
transfer.
Nor
obvious.
No
who
can
is the
man
can
make
contract
necessity for
be
accept the
may
mutual
compelled to accept
consent*
from
less
another
rightagainst his will. A transfer does not usually take

and consequently
placeunless it be desired by the transferee,
disputesas to his intention seldom arise. But if every
any
In omnibus
r"but
qwe
dominiiim
Iranffemnl.
coiitra/uiilium.
"
eoticurrat
Dig. XLIV.
opotiet ^ffeclu*IX
7, 56.
ubxtque parte
298
Transfer of Rights:
The
possible,tliat j)roofis found in the actual change of the

possessionof the thing. In the case of mere
rights,where
able
availother means
no
are
deliveryis not physicallypossible,
of the Formal
contract.
except the originalmethod
the transfer is the end;
Thus the delivery
of which
is a means
and the delivery,
from the nature
of the case, is limited to
one
particularclass of transfers,that in .which deliverycan
physicallybe made.
Traditio
the deliveryof a thing for the purpose of
or
and abandonment.
to possession
transfer,bears a close resemblance
Each
of these terms
impliestwo parts,an act and an
"
"
intention.
Possession,as
the
with
intention
is the
appropriation.Abandonment
of
ceasing to detain with
of
act
ceasingto appropriate.
detain with
the
seen, is the act of detention
have
we
Traditio"
"
Doubtless, in the historyof law, "traditio"
possession;and denotes the change

simpledeliverywhich was recognisedas lawful by
distinguished from
which
by
the
be easy
"
to
traditio
two
of
legal contrivance
in
trace
"
"
and
fictitious
details the
minute
but
possessio,"
One
circumstances.
corporalesexclusively,and
incorporales. The other is that
is a dangerous ambiguity. As
its
name
traditio
it
Sometimes
means
the
in the
case
It follows
factum
alone
the purposes
"
offer
Praetor,
Balance
or
Kecovery.
It would
resemblance
between
relate to
explanationof
no
in both
"
and
of these terms
of these
terms
"
possessio
things
such
that, as
was
res
there
composite
in
double
sense.
right ; sometimes
of detention
it
by which
transfer is effected.
possessionso
is insufficient.
"
in
similarly used
was
the transfer of the
means
of
the
by
present I shall notice only
change
deliveryor pliysical
of
effected
accordinglygiven to either of its component
was
"
parts, so
at
is that both
res
and
the
to
change of Quiritary ownership
the
only be effected by the Bronze
could
possess.
belongs
Prt\3torian
as
ceasingto
of
should
person
of
intention
the
is the act
that another
intention
liction
dere-
or
alienatio."
The
also in
animus
It is not
the
tradition,
also is needed
enough
to prove
for
that
the
to
his
parted with
owner
another, and
that
that
that
be attended
transfer
be
three
has
of intention
new
notice
of the
of
exercise
open
form
of
change
formal
must
be
be
must
ownership
his
intent
to
this
by the transferor. There

right by the transferee.
of his
the
at
requisites. There
language the
our
culties
proof that the diffiIn general terms, it
consist.
the present day every transfer
transfer
with
be stated that
perhaps
may
In
It is in
proved.
connected
to
go
was
by ikjustacausa.
must
property should
that
willing to receive it. In

the voluntas domini must
jurists,
other
language of the Roman
the
291)
concerning Things.
pro})erty. It is equallynecessary
intended
he
that
show
Rem
Traw/er of Rights in
7%;
There
the
to
the
right by
declaration
exercise
some
be
must
some
public either by
new
owner
by
or
public registration. Each of these conditions

The
evidence
of the
according to circimistances.
some
varies
of
transferor's
of his
acceptance
Various
intention
difference
points of
have
such
not
real estate
between
direct
the
and
matters
causes
and
alike
beneficial interests.
There
of
and
free
of difference
shall
gifts.
Of
difference
is the exception
Merchant
distinction between
the
results
endeavour
now
rights
is the
the Law
is also the constant
of business
and
difference
There
proof wliich
is the
the
is
There
cases.
There
things
There
chattels.
in all
noted.
relate to
relation.
ordinaryrules
has introduced.
be
transferee's
of the
not
must
rights which
between
to
evidence
the
positionare
new
difference between
which
and
to
of
offer
these
some
accovmt.
" 2. I havc
TheTransfer
r^m
concern-
clsc of the rights of owncrsliip,
ing Things.
by
the
these
"
transieree
of the transferor.
with
Said that transfer
conditions
In
in
the
is easy.
"
case
It
own
of
amounts
of
or
"
his
impliesan
some
exer-
of them,
right Avith the
sent
con-
things the compliance

to what
is
usually
deliveryof possession,that is the placing of the

of the purchaser. Some
property at tlie disi"osal
misai)prehension has probablybeen caused
by the use of this word
called
^00
Tramfer of Bights:
The
"
delivery." It seems
the originalpossessor.
duty not of action but
to
imply
But
action
some
the
of this
duty
of forbearance.
part of
the
on
is
jêrson
is not
He
required
to do any
of effectingdelivery. His
act for the
purpose
duty is simply to permit the transferee to exercise his right.
of the
not
active transmission
an
Delivery,in short,means
consent
or
permission on the part of
property, but a mere
to its removal
its former
by the transferee. We
possessor
the importance that
thus
traditio
understand
or
can
"
"
deliveryhas
the
right
the
It is the
owner.
support of
of
oldest form
as
by
name,
of
occupatio with
case
act
of
was
the
of the
grantor.
"
the
does
Bronze
the
It was,
its nature.
consent
significant
things I cite the

mancipatio,"or,
proceeding by
importing as it
strong hand, indicates
the
form
Its very
the
that of the
"
is
grantee that
the
in
legal transfer
called, the
It
of claiming
public mode
the avowed
acquiescenceof
than
more
view,
of transfer.
most
of the
act
much
this
it is often
Balance.
the
property with
the
over
in the transaction
In
and
distinct
most
in matters
held
always
of the
in
and
seizure
fact,a
parties who
had
might be supposed to have priorclaims. As in the latest

have
fallen back on our
form of conveying real property we
transfer of land
original startingpoint, and make
every
a fresh
grant from the Crown ; so in the archaic
practically
their custom
times a transfer of any of the objectswhich
of
had recognised as property presented itself to the minds
or
the
of that
men
object,the
ownerless
peace
as
to
tale.
own
*
day
as
former
his claim.
Both
the
The
partiesmet
reduction
owner
form
into
possessionof
being induced
of the
in the presence
of
his
to hold
ceremony*
an
tells its
fivefwitnesses
Gaius, I. 119, 121.
t In the
Roman
law
the number
of
witnesses
varied
according
to
the
nature
of
the
stated
In Testaments
they were
as
above, five.
Mancii"ation they were,
of marriage, they were
In marriage
In Confarreatioii, the Quiritariaii form
ten.
seven.
know
five (Gaius, I. 112, 113). We
which
was
a mere
Mancipation, they were
by Coemption,
tlie Testament
the
usual
to
witnesses
the
that
were
five, the Lilirijicnsand the
seven
in Confarrcation
decein
ten
The
Familiao
li'Slibii.'i,"
("' pncsenlibus
Gaius, I. 112)
Emptor.
of the Pamilia
of the
five witnesses
I conceive, the
liridegroom and of tlie bride
were,
in " The
views
stated
I have
Aryan Household,"
resiKjctively. As to the five witnesses
my
l)e sujijwrted by the
ten
in the Confarrcation, a circumstauco
to
views
These
.seem
12S).
tu notice.
in that book
I acuiduntully umittod
which
transaction.
In
Tramfir of Riffh/Jiin
Th"
and
of
Rnn
301
Things.
rtmctrmng
functionarystyledthe Balanoe-hangrer. The
pnr-
thereupon laid hold of the property or its symbol,and

"
his claim
I allege that this property is mine
made
chaser
thus
"
according
to
by
vendor
the
of the
law
with
me
struck
then
the
ingot as
the
with
been
it has
chased
pur-
He
bronze-balance."
and
this bronze
balance
the
Qnirites,and
ingot, and
price. The action

the purchaser. The
his
as
to
gave
the
described
thus
is merely
that of
vendor
exclusively
and, except that he receives the money, has no more
passive,
It is the purthe witnesses.
to do in the proceedingthan
chaser
is
who
of the
presence
his
makes
claim, and
former
exercises
of
right in the
possession.The
thus
estoppedfrom
adverse
his
owner
as
acquiescesin the claim, and is

subsequentlysettingup his former right.
of
In the old English law we
trace
a similar course
can
circumstances
thought, modified,however, by the particular
The transfer of land was
at one
of the time.
periodof our
a
history not a sale between equals. It was
grant by a
superiorto a person who, so far at least as regarded that
his inferior,
and who
bound
was
transaction,was
by the
vendor
of their agreement
terms
but to render
price,
personalservices.
called
by
to pay
from
time
In such
and
the
terms
him
for all
once
to time
certain
transfer there
feoffment,expressingthe
the grantor
But
him
not
conveyance
and
duration
was
certain
continuous
first a grant
of the property
of the
interest.
this
feoffment,although acceptedby the feoffee,

passed
of itself no
estate
estate
at will.
beyond at most
a
mere
For
part
the
not
completionof
less
investiture.
the transaction
there remained
essential,namely, the
This
livery of
deliveryof possession of
the
another
seisin
land
or
which
the actual exercise of his

subjectof the fief was
and
the
new
with
right by the grantee in the presence
It was
the essential act of
acquiescenceof his grantor.
and words
were
requiredonly to explain the act,
conveyance,
like the Fiducia or lex Mancipii* of the old Roman
law, or
was
the
if need were, to limit and

*
direct the estates
S"e Gains, 1. 114, 123.
for which
it
was
302
The
intended
Transfer of BigMs
that tlie seisin should
suggests that this liverywas
Blackstone*
be held.
intended
merely
indeed
to indicate
the
of quietpossession.But he admits that this is merely

delivery
is an
and although Blackstone
a
conjecture;
acknowledged
to the
law and
as
authority both as to the common
law which
in actual
was
operationat the time when he
for
wrote, his reasons, whether
philosophicalor historical,
the
existence
of these
similar
confidence.
gives of
the
staff,the
The
ceremony
old
his
shutting the
the other
of
symbol
and
house
then
ownership done
and with his acquiescence.
In Roman
by
law the transfer of
of transfer
"i?6S
actual
In
and
In less
tradition.
our
the
of the
cases
of
entry
the
transferred)
alone,
was
iês
definite
some
mancipi
nee
publicact
of the grantor
presence
was
latter
law the
common
amounts
to
like process is known

for the
appropriatemethod
is the
Sale is what
I have
effected
method
the
questionarises.
case
The
into the hands
of
reduction
natural
"
transfer of
Bargain and
It
contract.
absolute
absolute
when
consequence
of chattels
made, and the sale is
is
purchaser or
of tlie
sale
agreement, tlie property
disputethe right to
right,the
executed
propertysold
an
of the
of the
Bargain
conditional while the

possession,
with
and the possessionremains
bargain
pursuance
an
that
as
into
unsatisfied
In
In
called
of the
conveyance
property is reduced
the seller.
alreadysaid
is sometimes
price remains
the
certain
diction
graduallyestablished by the Prfetorian jurissupersededthe old mancipation;and in all cases of
it adopted for its evidence of intention the
corporales''^
of possessionof the property or of its symbol.
delivery
Sale,and
without
subsequently
as
personalchattels.
the
he
language, the
technical
command
not
opening it,and admitting
"
of
in
authority,and
present point to
by the grantee in
persons
do
that
transfer
(where
door
law
examples
the
"
feoffee into the house
of the
states
possess.
of his
agents.
This
no
plete.
com-
comes
He
has
exercise of that
is
property into actual i)Ossession,
of the
*
transaction.
II. 811.
It is
by
this
sale,the former
right over
reduction
has
of fraud.
ing
If,notwithstand-
usually been
a fictitious
possession,
in
continue
owner
sequently,
Con-
it.
new
facie evidence
"prima
as
such
of
absence
the
regarded
his
openly exercises
he
that
means
"0"
concemi-nq Thingn.
RenC
in
Traivtferof Bif/htjt
The
and the publicmay

readilybe deceived.
ownership is suggested,
But
Some
explanationis therefore in such cases necessary.
it has been
such
an
explanationmay be given ; and when
In other
given, the unfavorable
presumption is removed.
words, the reduction into possessionof proi)erty in pursuance
of
absolute
an
accepted his
acknowledged
has
owner
has
owner
the usual and
the
the
It forms
the system of
Statute
is
doctrine
have
Act
an
any
of
such
Parliament
and
which
Another
in
declaration
however,
them
in
men
trust
the
no
produce
for an
entirelydifferent
to accomplish that purpose.
of transfer in
our
of land
case
their vendors.
more
frequentlyfound
than
in commercial
state
brieflythe provisionsof
is
be
in
for the grantor,
their
for such
property held for
method
family arrangements
the
sists
con-
required. Practically,
This
transactions.
law
must
for the grantee,
by
of
to
meant
never
have
half
consequence
trust
to
property
and
custodian
not
in
real
some
particularform
care
of
unforeseen
in the
do
the
under
up
centuries
enacted
property in
grown
three
was
by
inquireinto
to
transfer
recognised method
or
proof by
merely local
the unex|)ectedoperation
It
particularstatute.
altogether failed
the grantor,
that he holds
a
which
was
been
essentiallynot
of
an
declaration,which
writing,by
is
last
from
resulted
result,which
purpose,
has
the
that
It is
has
of
means
present piu^se
seisin
the
only
satisfied.
transfer
the
new
former
the
that
are
the
that
be established.
may
system
of
for
English law
should
the
It is the result of
certainly strange
in
claims
that
it is not
That
of Uses.
the
his
conveyancing which
but accidental.
upon
that
j)artof my
no
rights, and
new
conclusion
same
evidence
sale is
best evidence
But
duly completed.
which
of
contract
I may
law
then
which
therefore
and
in
in
this
relate
is
gifts
place
to
the
304
of BigJits
:
Tranfifer
The
transfer of
refuse
take
to
disposedto
by Gift.
of
notice
show
-^
Transfer
without
property
them
S^^^^^
specialfavour.
Complete and irrevocable
of the donor
the
thing is transferred to the donee

possessionof the thing is transferred
the
donee
declaration
complete
when
or
the transfer is made
other
words, giftsrequire a
intention
the
Formal
by
"
of the
an
has
of
"
be
partiesmust
be
in
executed
donee
under
its
or
actual
person
the
instrument
conditions
the
another
to
favour
in
possession
when
; or
in addi-
when
actual
donor
traditio
If these
contract.
the
of trust
when
else
it is not
any
of the
for
law does not
transfers,although
such
|.-Qj^
^Q î^g intention
trust
The
consideration.
a
or
In
seal.
equivalent;
expressed
or
in
the gift
fulfilled,
ownership or other interest according to its

If they be not fulfilled,
the gift remains
revocable
terms.
and
indeed
all
But
at the pleasureof the donor.
all gifts,
transfers,are voidable at the option of the party injured,if
they be intended to defeat or delay creditors present or
the old law of real property, a giftof
prospective. Under
land was
be effected by
practically
impossible. It can now
but probably not by any other method.
of registration,
means
in good faith,if
Where
a
gift of a chattel has been made
will
the
pass
there
have
have
been
been
valid.
support
any
a
But
mistake
in the
of*
Delivery.
so
trust
hithcrto
gg^|g everythinghas
the property has
paid.
he
by deed, the gift

of its way
out
go
Where
fail to do so, but

will not
intends
man
to
succeed
in
supply the place of
delivery.
"""^^"^^
Refusal
not
matter.
giftby delivery,if
creating a trust,the good

the bad
will
sufficient trust
made
giftbe
law
the
if
delivery,or
if the
created,or
will be
to make
actual
an
The
Sometimes
Sometimes
give,or
it
as
the
happens
done
delivered,and
of commerce,
course
smooth.
will not
been
been
it
case
may
that the
the
that
does
that
be will not
buyer will
sides ; that
pricehas
not
been
always
of the
one
and
bargain
both
upon
however,
happens
in
that
assumed
run
parties
accept,delivery.
not
pay
the
price.
306
The
Transsferof Sights:
the carrier is the agent of the

is not
to
accept
realityof
that, if
goods but
tliis distinction
the
goods
after he had
them
the
from
them
that
carrier
is while
the
the
Wliile
accept them.
to
the
to
according
might, notwithstanding
refused
only
agency,
goods
such, the seller has
The
it is considered
order, the
to
carrier
and
carrier's
therefore
remain
however,
them.
carry
apparent when
not
were
received
is
Such
buyer.
buyer
examined
have
agency,
the
in the
transit
hands
tinues,
con-
of the
still his conditional
possession.
the condition
He
has yet time to insist upon
precedentof
But
when
the goods have
into
payment.
actuallycome
the hands
of the buyer or of an
agent of the buyer duly
authorized
their custody for him, the transit
to undertake
end ; the possessionhas been
is at an
changed, and the
his contract.
seller lias no other remedy than an action upon
Accordingly, if during the transit it appear that the buyer
is not able to pay the pricewhen
the goods reach him, the
unpaid seller is restored to the positionin which he stood
He
before the
must
goods left his liands.
satisfythe
demand
of the carrier ; but, subjectto that charge, he is
as
entitled
to
of
control
the
resume
his
goods.
The
same
expired
principleapplieswhen the agreement contemplates an unperiod of credit. I think, however, that the reason
differs from
that in the preceding
in this case
somewhat
We
have already seen
case.
that, where the promise is a
future
act, the
promisee
is entitled
to
the
of
maintenance
performance arrives.
Where
credit is given, the promise is that the priceor the
securitywhich is given for it will be paid on a certain day.
If before that day it appear that the promisor intends not
The promisee
to fulfil his promise,the agreement is broken.
consequentlyavail himself of his former remedy as if
may
been made.
the promise had never
That former remedy consists
that
promise
until
for its
time
the
in the exercise of his vendor's

to
give credit
promisor;and
is
brought
the
case
to
an
returns
right.
end
to the
by
Thus
the
the contract
default
of the
ordinaryconditions
of
The
Tramfer of
307
other Rifjhtsin Rem.
stoppage in transit without any specialagreement. I

notice the subject
more
add, although I sliallpresently
may
goods are representedby symbols, the

to a transfer both of the
transfer of the symbol amounts
possessionand of the ownership. Consequently,the right
of stoppage in transit does not apply to goods in respectof
fully,that
where
of title have
wliich documents
in the
Formal
When
"
of such
symbols.
incorporales'''
Res
Quiritarylaw by
mancipation,or by a recovery in a feigned suit
the Praetor ; and accordingto Praetorian law by the
of Stipulation.
known
contract
by its later name
the distinction between
the soil of Italyand the soil
transferred,
according to
were
before
law*
delivered
and
transfer
The
the transfer of their
" 3. lu the Romau
TheTransfer
indorsed
of business.
ordinarycourse
goods is governedby
Riffhts
been
of the Provinces
treated
abolished,all transactions of this class
was
created by stipulaobligations.They were

tion,
and were
transferred by novation, that is by a new
made
between
the transferee and the original
stipulation
grantor. This process, as its name
implies,was
not, at
least in form, the transfer of an existing
right; but was the
substitution of a new
for
agreement between different parties
old one.
whatever
its other consean
quences
By this expedient,
have been, the complications
that arise from
may
were
transfer
such
were
as
avoided.
rights.
effect in such
We
cases
In
have
is
our
law
there is
therefore to consider
given to
the
true
by
agreement
transfer of
what
between
means
the
and to its results as regardsthe public. In the case

of
parties
effected. These rightsrequire
the transfer is easily
privileges
into operation
until an entry
registration.
They do not come
is made
settingforth certain prescribedparticulars
by the
proper officer in a publicregister.In the same
way in which
they are created they can be transferred. A memorandum
in writingof the transfer signed by the partiesor their
to the registrar
agents givesthe necessary authority
; and he
*
Gains, n.^Hteq.
d2
3(^
The
thereupon makes
the
transfer
Tramfer of Rights:
in his book
entries
the proper
accordingly. Thus
transferee
the
indicating
becomes
the
be ascerthe fact that he is so may

tained
owner
registered
; and
by any person who chooses to search the register.
the issue of a new
This proceedingresembles
grant of land,
is the
the novation
of an
or
obligation. The registration
accepted,as of
the creation of a novated rightby the original
grantor.
I have written of transfers as if the partiesto them were
others.
In practice,
the transferor and the transferee and none
however, matters are often less simple. The property may
be held either in ownershipor in possession
by a third party;
and the subjectof the transfer is then not the whole ownership
it
but the limited, interest,
whatever
with all its incidents,
evidence
may
not
so
much
of
be, of the transferor.
transfer made
This is the
and
of
case
transfer of
rightin re aliend,whether the subjectof the transfer be

rightitself or be the ownership less by that right. Thus
third
party
may
be
excej)t only
trustee,and
the
interest either in whole

and
be the
in
or
use
part
transferor,and
the
Or
transfer.
to
that
the
ship
owner-
beneficial
the
feror
trans-
Or the third
possessionor the
simply be a debtor of
the
he may
intention
the
belong
may
full
the
while
of the
subject-matter
bailee having merely
party may be a
custody of the property.
the
of
right
have
may
may
be
to
transfer
the
obligation.In such cases there are four parties

These
be considered.
whose position
must
the transferor,
are
I have
the third party as
above
described
the transferee,
the first two
him, and the public. As between
parties,
But
is merely one
of contract.
the third party
the case
he has to perform his duties ;
to what
know
must
person
know
and the public must
the person
whose
proprietary
rights they are bound to respect. From the nature of the
be obtained
from
the actual
case, such knowledge cannot
possessionof the property. That test is available only in
of transfer.
the simplest forms
But the rule,of which the
the
deliveryof possessionis,as I have said,only one case
benefits of
an
"
309
7*he Trtavt/erof Rights in Personam.
rule which
requiresthe
undisputedexercise
and
open
of the
be the
whatever
may
right of the transferee,is sufficient,
ever
complexityof the circumstances,for our guidance. "Whatrightsmay arise between the partiesthemselves from
their contract,the transfer is not completeuntil notice of it
notice serves
a
has been given to the third party. Such
double
purpose.
proper
know.
dischargeof
that
It is also the
the
the third
It informs
duty,it is essential that he should

nearest
approach to actual possession
his
of the
nature
party of what, for the
It is so,
admits.
case
because,like
it is the avowed
and formal exercise of the rightof
delivery,
and
is aware
owner
ownership,of which exercise the original
the
in which he acquiesces.In the one
case, as in the other,
of estoppel
principle
applies.The result is the same, although
the methods
necessarily
vary.
I havc
" 4.
The Transfer
is
inptrmMom.
Said that
rightsarisingfrom
an
"
action,"that
able
transferare
obligation,
Choscs
iu
for that
by notice,and I need not repeat the reasons
form
of assignment. Such
however, has
transferability,
been of very slow growth. The
Roman
juristswould not
the
hear of it.
after describing
Obligations,"
says Grains,*
various forms of transfer, in whatever
manner
contracted,
admit of none
of these things." It was
only by a novation,
that is by the substitution of a new
for the former
contract
such object could be effected.
At a later
one, that any
periodan expedientknown as "cessio actionum" was adopted.
and to
The promisee was
allowed to assign his interest,
the assigneeas
in
constitute irrevocably
his agent to sue
"
"
his
name
on
the contract
proceedsof
the
allowed
to
was
name.
The
sue,
EngUsh
the
respectively
the
action.
rule
At
to
a
retain for his
still later
use
conditions,in his
Courts
of Law
and
Choses
"
of
rules.
some
in action may
n.38.
the
date,the assignee
certain
equityhas,with
established.
definitely
own
under
last-mentioned
two
of
and
own
Equity followed
lation,
By recent legismodification,been
now
be
assigned
310
The
Tramfer of Rirjhs:
in writing,after
absolutely,
and
subjectto
There
is
is
all
notice in
the
writing to
debtor,
existingequities.
class of
rightsin
exceptional. This
of which
pei^sonam
class is that
the transfer
of
ments.
negotiableinstrusuch
Where
instrument
is made
an
payable to
it is
bearer,the right to it passes by mere
delivery. Where
made
and delivery.
payable to order,it passes by indorsement
is an order written
Indorsement
by its
upon the instrument
holder
in favour
simply of
said to
be indorsed
is taken
that
made
in the
mentioned
person
instrument
in his
The
of
in favour
There
of any
three
are
first incident is that
is necessary.
case
The
to the person
or
the
through
original
named
in his
be.
may
Consequently,the
bearer,is a party to the
the
incident is that the
transfer of
above
possessionof
ture
signa-
medium
with
of any
the
other
bondjidepossession,
purchaserfor value without notice

is conclusive proof
any defect in the title to the instrument,
ownership. Consequently,as we shall presentlysee, the
that is the
of
such
The
right; and, consequently,
order,or
not
second
and
right; and therefore deals
own
and
obligordirectly,
person.
the
The
own
to the drawer
as
the holder
by
assignment
to bearer
blank
its possessor.
in his
of
in
dorsement
the in-
of the writer.
name
of transfer.
sue
may
promise is
order, or
become
Sometimes
person.
the
order
an
of this form
notice
no
mean
may
holder
the
to
who
incidents
other
some
consists
bill is then
person
of
negotiableinstrument
indicated
convey
to
the
may
in the
assigneea
circumstances
better
title tlian
bond
fide holder of a
is not, like the bond fide holder of
negotiable instrument
other rightsin personam,
that affect
subject to any equities
third
the right. The
incident is the presumption that the
transfer of a negotiable instrument, which
in its originwas
the
assignorhad.
mercantile,
was
presumj)tionmay
upon
In other
made
be
for
words, the
valuable
rebutted,but
consideration.
tlie burtlien
the person who denies the consideration.

has been
the title to the instrument
of
This
proofrests
When,
proved
ever,
howto
be
'The Trawtfer of
Rightsin
the presnmption is shifted; and

defective,
that
prove
then be
he
received
sufficient
nevertheless
replyif
in
concerned
or
rule
as
under
comes
to bad
he has
the
title ; but
only
knowledgerests
be
can
the
law
It will
he
that
was
duct,
miscon-
never
presumes
the proof of
value,and
to prove
shown
must
stances
damaging circummust
show positively
is excepted from the
class which
as
holder
of the
aware
is,the holder
of its title. That

that he
it
the
for value.
instrument
the
311
Personam.
guilty
ujx)n the other side.
Negotiableinstruments are derived from mercantile usage

be
cannot
adopted by law ; consequently,an instrument
it so, or by using in novel
made negotiablemerely by calling
A negotiable
circumstances
the established forms.
ment
instruinstrument which, by the custom
of merchants
means
an
it now
exists or as it may
hereafter exist,is negotiable,
as
and which
is recognised as
it
such by the courts.
Thus
under
has been held* that a debenture
issued by a company
its seal,and puqwrting to be payable to bearer,was
not
An
negotiable. Its words were inconsistent with its form.
instrument
under seal is not assignableby mere
delivery
unless
case
of merchants
contrary usage
of the debentures
Documents
such
no
be shown
and
in the
alleged.
usage was
is biUs of lading and
of
that
their
title,
equivalents,
although in some
respects they bear a close
resemblance
to negotiable
instruments,must be distinguished
from them.
Like negotiableinstruments,
they are contracts ;
their peculiarities
the Law
to
Merchant
to
or
they owe
statutory extensions of that law ; they are transferred by
deliveryand indorsement ; they enable the holder to sue in
his own
right;and they need no notice of assignment. But
the contracts
are
regarded as symbols of the goods to which
they refer; and they are in fact contrivances for transferring
mercantile rights in rem
and not mere
rightsin personam.
They do in effect transfer both the ownership and the
possessionof those goods

the
time
being.
*
Croach
to
It follows
t.
Credit
Fonder
the
holder
of the document
that,when
of
England, L. B.
the
S
docimient
Q. B. 374.
for
has
312
The
been
indorsed
and
Traiv^ferof Rights:
transit is at
the
delivered,
that since the transit is at
stoppage in transit also ceases.

whether
document
of title,
they
subjectto
hands
of the
title* must
prove
exchange
bills to
business
person
Thus, if
his title.
and
who
bought
S 5.
./,n
of the
knowledge of
protectedin
to bear
depends
upon
iiii
ail
that
sell both
to
have
lollows
parties,it
to steal
were
of
the
the
case
the loss in
the
the
consent
tj_'
conditions
discussingcontract we found to be essential to true

should find their placein transfer. Nor is it material
of sale or of gift,
or
the transfer takes the form
the instrument
by which effect is given to it be a
in
which
consent
whether
whether
memorandum
which
will in like
avoids
or
or
renders
voidable
affects
thus
transfer in pursuance
that
the
the
contract
contract
stance
Every circum-
of sale will affect
giftmade
under
of voidable
contracts
it will
is valid
until it has
been
contract
case
other
any
of sale.
contract
of such
In
similar conditions.
remembered
writing
stance
Every circum-
deed.
in
affect
manner
which
be
transfer
Since
of
document
ordinarycourse
any
be
innocent
were
in the
them
of the
in the hands
lading,and
bill of
purchaserwould
of the bill of exchange,but would
the case
of the bill of lading.
The
Avoidance
of Transfers,
greater in the
no
thief
in personam,
or
rem
fide holder for value of
bond
for their full value without
theft,the
mere
in
ordinaryrule; and are

transferee than
they were
The
bill of
be
the
transferor.
and
the
of
are
unpaid vendor's right

But the rightsunder a
end
an
end
an
contract
or
Consequently,every bondjide transfer made prior

to its rescission will be
supported. But in addition to
to all cases
of invalidity
which
these causes
common
are
there are
of consent
some
peculiarrestrictions that affect
for
meant
restrictions are
the validityof transfer.
Such
transfer that only
of creditors. A man
the protection
can
avoided.
which
when
he
he
has,
and
he
cannot
is in fact insolvent.
*
Ourney
v.
be
When
Behrond, 3
E. "
said
to
have
therefore
B. 022.
property
transfer,
314
The
this
obvious
sometimes
that
to which
transferee
the
to
transferor
the
transfer
requireslimitation.
tratli
convey
Transfer of Rights:
right greater
I do
entitled.
was
may
than
refer
not
expressedor implied. In
such circumstances,the agent does not give that which
is not his own
givesthrough the hands
; but his principal
of his agent, and consequentlyit is to the principaland
maxim
not to the agent that our
applies. Nor does the
to
of
cases
agent
sale
to be
cease
less
an
law.
impliedby
he is not
whether
agency,
mere
agent
when
When
agent than
an
he
under
acts
of
power
pledgee sells a forfeited pledge,

the
be if he held from
he would
attorneyfor the purposes of the sale. Nor

of his duty, a
case
where, in the course
other person'sproperty. Such an
publicofficer sells some
power of
do I refer to the
owner
officer may
law.
by
Fictions
fiction be said to be
of this kind
the
that
upon
a
but from
the direct command
command
and
sale rests.
Thus
sheriff sells
its
will
his proceedings*
face,
of the
the
owner
and
not to the
such
of
a
order
an
conveyance
order,the
the order of the court
the
in which
transferor had
on
to
good
faith for valuable
is
upon
Campbell
on
Soles,78.
than
more
and
Both
"
any
tliere are
other is that of
ground
or
owner
some
without
reallyobtains
same
that
merely formal,
But
consideration.
the
substantially
exchange.
rest
of
behalf
is of itself and
The
not
supported;and
only to its price,
One is that of money
give.
court, a Master
of the
conveyance
transferee
substitutes of money.
in
which
already shown
sufficient to effect the transfer.

cases
under
be
entitled
I have
property itself.
in pursuance
other officialexecutes
in
be
property will
where
and
other basis that such
any
the document
where
even
of
It is
of the State.
property is ultimatelyset aside,yet,if it be
invalid upon
mentioned
not upon
officer
the mandate
from
derivinghis authoritynot
law
owner
as
is
It
however, needless.
he really
what
is,an
are,
better to describe the vendor

of the
agent appointedby
an
the
veyance
con-
two
his
the recognised
a
purchase
of these
cases
exigenciesof
31
The Strengtheningof Titles by Tramftr.
of the
money,
by
it, passes
exists,the ownership of coined
it
all countries where
In
coin of the
current
realm
as
call
books
our
coin
where
Even
delivery.
mere
been
has
stolen,if it be received from the thief by another person

holder acquiresa good title. It
in good faith,the innocent
followed because
used to be said that this consequence

could
this foolish
It is needless to discuss
be ear-marked.
not
money
of the exceptionis now

good law. The true cause
universallyacknowledged. Close akin to money in the usage
of modern
are
They owed
society
of merchants ; and
their characteristic feature to the practice
the qualitiesthus acquired have fitted them
to
as
a
serve
substitute for coin. A bonafde holder takes,as we have seen,
such an instrument
exactlyas he takes money, without any
for the circumstances of its acquisition.
From motives
concern
of general convenience,negotiable instruments
pass freely
from hand to hand, the various kinds having indeed certain
but all agreeingin one point,
difierences,
specific
namely, that
the title of the bona fide holder is unimpeachable. This
that the coin
peculiarity
depends upon two conditions ; first,
for
reason
or
the paper
and
second
"
"
as
the
case
be has been
may
that it has been
taken
in
good
presumptionwhich, in the
medium
that the circulating
is
for value.
The
second
condition
taken
faith.
of
case
has
the two
ence.
the
who
must
forms
not
have
been
received
of
expressionthere is
The burthen of proofrests upon
that is,in the present
allegation,
alleges the
allegesthe good
breach of duty.
shown, that
each
bad
faith,and
faith.
The
not
law
It
Camiiig
V.
Bronn,
received
the
or
exact
paper
to
say
Between
the person who
makes
person
case,
upon
the
upon
the
person
never
presupposes
always assumes,
of its subjectswill obey
good faith
clusive
con-
diiFerpractical
very
rmtil
It has been held* that
coin,is
faith.
in bad
sumption
pre-
negative than
positive. In place of saying that the coin

must
have been received in good faith,
it is more
that it
value,
The
been
rather
is
for
means
9 East 5.
the
who
any
contrary is
its commands.
the absence
of notice
316
The
Transfer of Rights:
of any circumstance which ought in fairness to have prevented

the transferee from
taking the property. Bad faith then
be described
may
notice of
never
to
honest.
nor
I have
in which
sense
oppositeof good faith,and
circumstance*
some
neither fair
in the
the
as
give relief. It will

his prejudice. When
property,the
Against an
innocent
described
him, the
the
has
purchaser
court
possessionof
actual
will, if it be possible,support
court
will
discretionary
powers
its
use
never
he
tion
the transac-
renders
which
ing
imply-
as
in
him
possession. It is only when two innocent purchasers

between
be made
when a difference must
into collision,
come
innocent
of two
rights apparentlyequal,and one
persons
tions
bear a loss,that the court will regard other consideramust
than purchasefor value without bad faith.
This rule of the innocent purchaserhas, to a great extent,
supersededthe old doctrine of sale in market overt. It is
sale of
stilllaw in England that,under certain conditions,
a
chattels in a market recognisedby law gives to the buyer a
good title independentlyof the title of his seller. This rule,
of the
local. It is one
of those portions
however, is strictly
the English emigrant does not carry
law which
common
that
with
nor
none
to his
him
neither in the States of America
the
law within
the
created
by
markets
in
meaning
charter
the
countries,so
authoritythe
which
or
as
am
law
common
sufficient.
For
sought in
safer and
the market.
*
That
Rodger
v.
arose
of
recognisedby
The
markets
were
aware,
is that in
reason
market
markets
which
were
The
by prescription.
statutory origin. Such
contemplated.It
the law
in any
made
to revive under
doctrine.
It
that
statutory
probablyfelt
was
rule
is
of these
in its modern
purchaser was
in
deficiency
any
The
English rule.
attempt has been
no
that the rule of tlieinnocent
are
those which
far
any
referred
colonies
not
that
remarkable
of the
law
common
were
is there
countries
of these
markets
colony is the rule in force.
in any
to which
home
new
remedy
form
was
expedientthan tliesale in
of registration.
expedientis the practice
more
modern
Comptoir d'Escompte de Paris, L. K.
2 P. C. S93.
ne
" 7. Registrationis used both in the acquisition
Regis-
The
317
BegUtratum of Trarufent.
rights and iu their transfer. It is convenient

about to
and what I am
to consider these subjectstogether,
far as
be, both to
may
say will consequentlyapply, so
acquisitionand to transfer.
One
There
which
serves.
two
are
registration
purposes
of
Transfers,
is to
furnish
evidence
other
The
transaction.
of the
is
dealingsby giving
either of
notice
formal
of the holder of the right. Under
to
of registration
these two
divisions the various cases
seem
tliemselves.
The
former
division includes the registration
range
afford
to
securityto the public
in
its
of
tion
marriages of births and of deaths ; the registraof different
of deeds; the registration
of a multitude
instance
an
which, as compared with
occupations;and
of other Australian
similar registrations
under
the laws
of
the registration
colonies,well illustrates the difference
The latter division includes the registration
cattle brands.
"
"
of the titles to real proi)ertyand
interests
to
therein,of bills
of
of trade marks,
sale,of shipping,of patents, of copyrights,
and of stocks and
shares, whether
they relate to public
other
or
debts,
companies.
divisions
The
interests
to
or
fundamental
difference
The
between
of
these two
company.
the documents
of
means
to
it.
been
the
of
register
The
which
and
it does
the
two
deeds
relate
not
renders
acquired. Under
systems is shown
with
register of deeds
the
identifying
But
preserves
the
difference between
comparison of
in
to
appears
that
kinds
different
case
right is in the one
and
in the other
is
case
independent of the registration,
is in the
dependent upon it. In other words, registration
latter case
condition precedentto the vestingof the right.
a
In the former case
it is a duty consequent upon
the vesting
of the right,and having a sanction more
less independent
or
of it.
be
the
in
by
registerof shares
suppliesa list of all
a
given estate ; it affords the

estate
and of determining the title
registerthe actual title. It only
to
accessible the
the best
evidence
that
possiblesystem
of
title has
registering
318
The
deeds,searches
abstracts
still involve
be
must
be
must
in
Transfer of Rights:
made, deeds
greater
or
perused,and
of title must
investigation
The
prepared.
less
be
must
time
degree
and
trouble,and
A
consequentlyexpense.
registerof shares, on the other
not
hand, shows
merely the transactions by which changes
selves.
of ownership are
produced but the actual changes themnot only that the grantor has executed
It shows
a
to the grantee certain rights in
deed purporting to convey
certain property, but that these rights are
actuallytaken
of
out
the
and
one
are
vested
in
the
merely preserve in a convenient form

the historyof a title,
but
itself.
Each
method, however,
It does
the materials
for
it establishes
its
has
other.
the
not
structing
con-
title
advantages,and
own
The
of title is
adapted to its own
registration
purpose.
adapted for dealingswith property or for other rightswhich
The
admit
of transfer.
of instruments
applies
registration
for future
where
the objectis solely to
provide means
The registration
of marriagesis for many
evidence.
reasons
highly expedient,but it would be unfortunate if the validity
the
the circumspection
of a marriage were
to depend upon
or
celebrates it. A registration
carelessness of the person who
is
of births
and
of deaths
registerthem
is also desirable
alter
cannot
the
facts.
but
failure to
In such
tration
regis-
cases
duty, and is enforced by pecuniary

penalties. But where proprietaryrights are concerned, the
well be not only sufficient but necessary
officialentries may
is
evidence
an
absolute
of title.
which
the question of registration
subject upon
has been
chieflydiscussed has been the transfer of land.
for this
Experience has abundantly proved the insufficiency
But a sound
of deeds.
tration
system of regispurpose of a register
The
of
have
been
without
title has
made
success.
adopted.
conveyancing.
been
yet been
in England with
In
The
The
obtained.
not
these
colonies
Government
Crown
this
has
efforts
Many
hitherto
object,but
different method
undertaken
grant is replaced on
the
has
duty of
tlie first
of
occasion
called
holder
its
the
with
dealing
property by
title,which
certificate of
On
Parliamentary title.
surrendered, and
certificate is
place. Up
the
to
and
it has
yet been
as
office
stand
can
would
be
from
place
The
and
equivalent of
another
counteracted,and
by taking
proper
each
grant and
as
of
and
was
by
certified
undertake
lost.
cheaply as
the
; but
one
his
then
could
to
the
its administration.
day
were
of land
acre
shares
in
details
land
precise
could
itself.
if each
grant
gas
be
made
easily,
as
scheme
laid before
was
then
and
or
to
in
than
this
ment
Parlia-
Registrar-General
his
readiness
Unfortunately, the
a
Crown
were
company
If
official other
1862
unfavorable,and
in
easilycounteracted,
of any
The
the
transferred
a
is
of "100
difference
be
register.In
Government.
assent
and
specific,
sum
Crown
prepared for Victoria,and

the
disapjiearin
One
the interference
charge of
of the
was
as
of
are
later
prepared,and
were
cases
part removed
registrationthe
subdi%'ision
without
the clerk in
effect
of
ditions.
con-
most
not.
This
of
case
like
the two
country very
new
basis
the
is that land is
sum.
land
registration,
safely,and
bank,
such
a
under
or
acre
it
method
the
the like circumstances
of the country
map
unit
in
the
as
another
tlie true
between
sooner
difference
is in
debentures
or
that
for the
been
will
natural
equivalentof
the
shares
the
have
jicrsonalproperty usually is
that
not
These
It
large population
land
principle,
Grovernment
in
transferability
and
country,
England.
I believe
of
legal.
this
in
in
bear.
to
such
any
which
differences
princii)al
The
merely
whether
the conditions
personal property,
in
communities.
small
in
is
registration
true
it is wrong
strain
the
requiredto
is to ascertain
only
doubted
reasonably be
may
tried
in
method, which
this
But
fairlywell.
worked
has
title,
existing
certificate is issued
new
time
present
registered
its
transfer the
every
instrument
an
to
passes
obviously something quite different

of
"^l^
RfgiMration of 7Vn"*/5T".
Thf
to
stances
circum-
great opportunity
320
The
Succession
Bights:
to
CHAPTER
THE
What
and
SUCCESSION
"
Duties
1. The
presupposes
legal positionof
successors
upon
the proper
nothing
acts
the
he
be
the
world,
material
inevitablyleave
and
that
person
indeed
cannot
objectswhich
the
at
others
survived
inquire in
what
law
abhors
the
the
vengeance
time
have
by
what
take
decide
to
belongedto
death
been, entitled.
of duties
means
But
him
he
it does
equally claim all the

with things,to which
may
of his
to
brought
anything out
of others.
use
forbearances,unconnected
deceased
or
Before
succeed
to
have
we
ascertained,
succession.
Man, who
for the
these
ought
persons
deceased
objectsof
the
follow
important consideration.
what
should
into
All
had
risrhts
to
"
an
determine
such
not
succession
we
must
RIGHTS.
w-e
of it.
TO
questioii of the
Rights
the
XV.
and
was,
We
would
or
if
therefore
must
of
rights the law by

the
terms
of its commands
includes
not
only its commandee
but his legal representatives.
In the first place,
Absolute
are
duties,whether public or private,
strictly
personal.
for
the
of the State,
They are imposed
purposes
and they apply to every subjectof the State.
Consequently,
no
advantage could be gained by their survival. The legal
is already personallyliable to them.
The
representative
is beyond their reach.
dead man
The same
observation
and for the same
reason
appliesto General duties,so far as
they involve a publicand not merely a privateinjury. The
what
the
cases
blood-feud.
of
the
next
agnate could
all sucli debts.
developedState
the
cliildren.
never
It has taken
never
own
liands
agnate ; and it acknowledges,

charges
understand, that death dis-
It is the
clearest
to visit the crimes
It is slow
into its
to
principleof
of the
recognise even
father
the
upon
actions
for
322
The
the executors
claim upon
the other
therefore
the
of
representative
the donee
action has
some
or
been
assault
or
had
promised* to
She
died,and her
against the
But
the
observed
for
marry
and
brought
of
temporal advantage
comfort,still it
to
party as far
the
cannot
be considered
personal estate."
transmissible
To
the death
of
exceptions. Where
has been caused by negligence,in
if he had
person guiltyof such

survives for a limited time
the
such
court
regarded as a
respectspersonal
be
as
of the
increase
an
rule
this
the
the
and
damages
donee
of
there
are
the
right
that
circumstances
rightof action against

the right of action
negligence,
had
have
lived he would
as
been
have
their testatrix.
promise to
be maintained
not
maintained
be
action for
an
"although marriage may
that
legal
A
man
plaintiff.
broke his promise.
the
woman
executors
could
action
duties
to the
might
case
been
for the breach
man
survive
not
nected
con-
General
libel cannot
himself
had
deceased
does
strong the
by executors,however
if the
rights. In
are
of the
action
an
We
of
rightwhen the cause
whether
physical
personalsuffering,
by the deceased person. An action
mental, sustained
for
of
damages
recover
it no
class of duties in matters
this
the transmission
right to
from
Relative duties.
only of
case
restricted to
with
it,so they have
party.
in the
Rights arise
Rights:
to
liable upon
not
are
Succession
for the benefit of certain
near
The right survives to

person.
for the benefit of these relatives;
the personalrepresentatives
deceased
relatives of the
do not sue, the persons

personalrepresentatives
interested may, within a further prescribed
time,
beneficially
take the necessary
proceedings. It has been sometimes
and
said
But
if the
that
it is
this
now
is
right created
new
it is
settled f that
for
merely
the
an
executors.
extension
of
Again, in
originalright of the deceased person.
J where injuryis caused by negligencein mining
Victoria,
the immediate
result be fatal or not,
whether
operations,
limitation
the legalrepresentatives
may, without any special
the
t Griffiths
V.
Chamberlain
Earl of
Dudley,
r.
Williamson,
Q. 13. D.
3(i3.
2 M.
". S.408.
t Act No.
480,
8.
8.
either
time
to
as
damages
other
made
are
the
to
or
from
damages
recover
and
of Realty
Detcent
the
323
of Personalty.
interested,
beneficially
persons
of
owner
the
and
mining plant and
the
chargeableupon
mine
the
property.
But
rights of
proprietary
all the
and
privileges
all his
deceased, all his
the
rights in rem, all his choses in action,

his whole
in a word
estate,
securities,
other
valuable
with all its benefits and all its

personal,
In all subsisting
burthens, descend to his legalrepresentatives.
done
rightsof actions upon contract and for injuries
the executor
to the personalestate
succeeds without
any
specialrestriction. Where the right of action arises upon
an
injuryto the real estate,his powers are limited. In such
whether
real
or
the wrong
cases
months
of the death
bring his
Descent
done
action
have
must
been
committed
of the deceased, and
within
twelve months
the
'"
""
of a deceased
"legal representative"
however, includes several
expression,
of Per-
notable
respectively
is
"
heirs executors
is the person
to
act
and
the
of
in
events
distribution of his
valid Will
of
or
an
terms
which
legalhistory. Its
The
himself
testator
the
This
person.
administrators."
and
appointedby the
in
representative
his
as
absence
must
executor
" 2. I havc for the sake of brevity spoken of the
ot
form
six
of such death.
Realty anU
mark
within
executor
in his "Will
collection the
ment
manageIn
personalassets.
named
executor
full
the
in such
Will, a competent court

appoints an oflBcer called the
administrator,who is charged under the direction of the
with
court
the
person, whether
law
or
Will.
not
his
own
of
of the
care
the
the
to
heir
use
not
to
his ancestor.
the
His
of that of the "herns"

*
provisionsof
the
accordingto
executor-less
different person.
He
succeeded in his own
right and
was
trustee,but
mere
of the deceased
its distribution is to be made
according
But
personal estate
very
personaltybut
name*
or
"
the
x2
the
real
taker,a modified
livingowner
See Curtitis,Greek
to
Etymology,
"
was
for
estate
form
recalls the earliest
I. 246.
324
The
customs
of
part of
our
onr
His
law.
Rights:
historyis the historyof
His
race.
the momentous
Sticcession to
with
contrast
distinction
between
the
the greater
marks
executor
realtyand
personalty.
His presence
necessitates two distinct systems of law in all
of ownership and of succession,
and in many
matters
matters
of
obligation.Step by step,during
the
last
half-century,
have been made upon the old prerogatives
encroachments
of
in
the heir,and his position
is now
far less conspicuouseven
England than it was in the days of our grandfathers.In
Victoria
advance
has
disestablished
literally
been
takes
him
no
survive
even
Yet
more.
The
terror.
we
studiouslyobscure.
It attracted
Few
the press.
to be
now
aware
no
persons
law
was
disendowed.
He
the
ancestral
The
have
not
no
longer
He
property.
either
outside
the
the
on
professionseem
reflect that
by
of
foundation
The
made.
been
even
Fewer
legal revolution.
Notwithstanding
away.
hustings or in
still
few words
than
more
in
half
this removal
foundation,the superstructure has received

consequentialalterations that this great
the
heir has
His
trustee.
notice
of this great
taken
The
mere
appreciateits importance,or
Act*
the
a merely technical
our
made.
placeknows
have done this great thing almost in
made
by which the final change was
cussion.
It was
passed almost without disas
Act
very
been
and
beneficial interest in
does not
is
bolder
of
little care.
reform
result is that
volved
in-
although
I might almost say has rendered

change has facilitated,
of our
tive
substana systematicstatement
practically
possible,
generallaw, that portionof Victorian law which relates
of bewilderingconfusion.
to real property is in a
state
Happily the substantial changes, those in respect of which
differences of opinionmight exist,have been actuallymade.
this
that is
All
now
needed
is
were
to add
*
effort to clear
the ruins of time.
away
singlesustained
to dilate upon
anything to
Act No.
it would
moribund
that immense
427, An Act for amending
the Law
Deceased
be
worse
than useless
learning. Nor
mass
of
liope
learning,
acuteness,
relatingto the Administration
Pei-sons, 1872.
could
if
of the Eitatm of
325
Intestacy.
generations
ingennitywhich, after having for so many
served its purpose, has practically
perishedfor ns and will
probablysoon cease to be studied anywhere. In this country
and in another generation
is now
the principle
established,
will probably be established in England, that
at the most
As
there is no distinction between real and personalestate.
equityhas absorbed law, so personaltyhas absorbed realty.
and
property has
than
800
been held
any
for
of law
system
of that system will not
survivals
years,
But
under
Where
long remain.
Traces of the old system will doubtless
more
appear.
dis-
soon
law of Victoria has ceased
the
substantially
to
rightsas appliedto land

and to chattels ; and so far as succession goes, it recognises
in English conveyancing*the
distinction at all. Even
no
heir is no longer indispensable,
and grants in fee simpleand
make
material
any
fee tail without
distinction of
words
any
It is
scarcelytoo much
that
the
"
term
of art, is not,
known
to
once
heirs,"
in
or
modern
to
of inheritance
the
it
allege,
beyond
of
course
is
sufficient.
now
are
quitesafe
all other
few
to
terms
will
years
predict,
term
be,
not
law.
" 3. It
I think
theory of Bentham, it was

the accepteddoctrine thirtyyears ago, that a testament
certainly
the normal
mode
of determiningthe devolution
was
of property, and
that it was
only in the absence of such
instrument
that the law interfered with
an
specialprovisions.
The law of intestacy
thus placed on the same
was
Intestacy.
footingas
the law
Modus
"
says,
et
knowledge
our
and
modern
conmntio
of
of contracts,
dncunt
where,
person
form, and
now
Yet
See
t See
as
it
"
The
Cooper
Conveyancing
r. Cooper, L.
and
Law
R. 7 E. "
of
L
that
are
vance
ad-
intestacy
tively
compara-
view, historically
sufficient accuracyt
with
certainly
was, expresses
the existingstate of the law.
It is true
is the ordinarymode
societya testament
wrong
Since that time
doubts
Bentham's
old maxim
considerable
made
that testiiments
innovation.
the
as
legem."
legalhistoryhas
competent
no
the ancient
was
was
in
that
of
modern
disposition.
Property Act 1881," 44 "fc45 Vic.

App. 66. Itr Lord Cairns.
c.
41, s. 51.
326
The
It is true
absence
law
a
Will
It is true
be
may
in its absence
it
English countries,
and not otherwise
disposition
such
interferes.
Rights:
to
least in
that, at
of any
Succession
that
often
and
the
is very
is in the
that
the
dispositionadopted by
different from
that which
But
the same
by operationof law.
results
be obtained
by the historical method ; and
may
where
no
practicaladvantage is gained by a different
that the order of our
arrangement, it seems
subject should
be guided by the known
of legalevents.
course
Two
of our
questions meet us at the commencement
inquiryas to intestacy.One relates to the legalestate ; the
other
to the
is made
beneficial interest.
took the real estate without
Victoria
here
but simply
authority,
personal estate went to the
personalty.
were
real estate
in
interested.
These
in the
of
take
now
to
case
the
are
trusts
with
in
are
that
is the
In
in
or
the
rule
and
children,
same
in
are
as
those
not
lawful
is that of
does
contrary.
way
or
eldest
son
settlement
any
that
The
or
the
next
owner
part of his land

he
thinks
fit.
to
In
all the
equal distribution among
position
not
permit any testamentary disIn
the
more
America, Australia,and
combiucd.
chattels
as
Distributions.
of the
of the whole
any
the
of any
the absence
the law
to the
England
succession
exclusive
heir,prevails;but in
disposeby Will
may
methods
beneficially
regarding undevised
rule of primogeniture,
different countries
noteworthy.
person
of
Statute
the
under
rules
land
if
the
is, the heir does
That
personal estate.
holds
are
the
upon
devolve
course
who
in Victoria
are
it would
of
persons
heir,but
beneficial interest in the land; but it descends
any
dealt
France
as
in
present law
the
upon
administrator
for the
trust
the
manner
same
The
not
of events
course
to be dealt with
personal representative
different
any
Under
devolves
in the
by what
and
narrate.
the real estate
the administrator
it
to
the heir
the old law
external
any
by virtue of his heirship. The

for what reasons
administrator,
it is needless
Under
The
English
recent
British
India, these
power
of free
munities,
com-
opposite
bequest
327
Intestacy.
is retained
the
but,failingits exercise,
applies.
distribution
English
some
such
countries
very
simple.
If
personalty,and in
prevailsgovern
both personaland real estate,are
govern
If he
leave
to those
and
who
takes
neither
half and
of kin
are
the
other
may
parents and
wife
nor
The
next
who
may
own
and
kin
so
If the
claim
descendents
the
shares
far
divided
has
his
to
into
of
next
kin.
man's
deceased
the
to
left neither
classes,those
two
relations.
sister has
the
class
former
The
brothers
the
the
children
which
and
property
their
died, their
to the whole
sisters
in
or
any
parent.
deceased
of them
brother
parent if alive
would
If
jjroperty.
survive,
equal shares, subject to
of any
if
children
share of the deceased
survive,he succeeds
and
they divide
or
relates to
as
father
share
ferent
dif-
in
are
of their deceased
deceased
the
remoter
brother
any
rightsof
leave
he
father,his mother, his brothers,and his sisters ;
his
the mother
his
takes
descendents
lineal
the
belonging
as
deceased,the distribution
is, the grandchildren,whatever
be
be described
goes
wife
the
Where
may
leave
Crown.
children, his property goes

of
half
other
If he
scendents
de-
lineal
no
kin, the widow
the
lineal
and
other
or
kin, but
the
any
to
to
can
more.
no
where
any,
the
number,
family, and
includes
kindred
"
be their
nor
the
stirpes that
per
and
widow,
no
of
deceased.
goes
When
degrees of
is made
half
but
whole.
the
to the
lineal
and
of his property
next
half
lineal descendents
linea,l descendents
take
wife and
wife
children
the
to
go
descendents, the widow
leave
one-third
takes
two-thirds
remaining
and
die
man
descendents, the widow

the
in all countries
which
distribution
law
the
where
of
rules
actual
The
equal
rnle of
French
the
sister
or
have
to
taken.
Failingthis first class,or near

kin, the property is divided
in equal shares among
those who are in the nearest
degree of
kindred
to the
deceased.
If
surviving her, the husband

die without leavinga husband
die
woman
takes
the
husband
leavinga
whole.
If
woman
survivingher, her property
is
v38
The
distributable
in the
same
dies intestate without
General
rules of
examples. Let us
leavinga freehold
and
then
girl.
subjectto
the
present law
dower
be treated
would
the
"8,000
as
take each
the present law
would
were
no
Victoria
"6,000.
children
the old
land
"
law,
for her
of the
divided
be
if there
the
"9,000 ;
land,
equally
the old
remainder
nor
anything.
under
would
the
the son, and
under
Neither
the
would
law
If
of
to the
go
be divided
father,would
no
were
widow,
other relatives take
the
children,the widow
receive
now
father,or,
of the
would
the
and
money;
daughter would
there
four
sisters,
take the whole
son
He
widow, the son, and the daughter. Under the

the whole estate,that is the "18,000,
in Victoria,
the
would
the
intestate,
of all his debts.
one-third
to
by
personal property
father,one brother,two
brother,a widow, and two
such circumstances,under
entitled
;
dies
man
"10,000 and
worth
who
man
understood
best
a
In
be
her dower
between
that
suppose
estate
deceased
the wife would

life as
property of
leavinga widow.
this description
are
survivinghim
children of
boy
the
as
way
Bights:
to
"8,000, after the payment
worth
leaves
Succession
into four
survivingbrother and sisters,

and
the orphans. That
in equal shares
between
is,
one
and sisters,
receive "9,000 ; the brother
the widow
would
"2,250 each ; and the orphan nephew and nieces "562 10s.
each.
If there were
no
widow, and the survivingrelations
were
four first-cousins and
cousins
there
like
of the
part to each
parts, one
would
were
no
remoter
Wills.
time
former
second-cousins,the four first-
equal
shares.
If
the six second-cousins

first-cousins,
would
in
divide the
take
manner
six
in
whole
equal
in
amount
shares
to
the
of all
exclusion
relatives.
" 4.
An
imjjortantpracticaldistinction
expressed by
the
terms
Testament
and
was
at
Will.
one
The
of personal property;
di8i)ositiou
The
the latter term
two
terms
are
a
dispositionof land.
accordinglycoupled in our older books of conveyancing as
term
denoted
3o0
The
attain this
to be of
The
conditions
Its contents
testator
alone.
If there
of
known
are
be made
have
instrument
the testator
in such
manner
as
signature to authenticate
signaturemust be attested by
at least have
had
and
in
signing ;
of the
and
who
and
testator
instrument.
Under
the
ultimatelyassumed
must
be in writing. It
his
both
known
to
the
not
death.
It
beyond
or
It must
English law these

followingform :
be signedby
must
"
show
whole
intended
he
that
"
document.
That
have
must
opportunityof seeing,the act

proof thereof must in the presence
an
of each
other
executed
document
no
Each
country
with
formalities
these
to the
of the
extent
the
of the
be
begins
operate,as
which
their powers.
persons
Our
to
the
law
the formalities of the
of
bequest,as
in
to
the
time
under
to
Will,
capacity
which
and
the Will
is
as
in which
manner
at which
these matters
the
to
to the time from
claiming
rules
own
to
Will, as
revoked, as
may
upon
power
the
valid Will
to
usually has its
testator,as
under
donees
and
have
may
capacityof
the
is
sign the
themselves
legalWill ; and effect will be

if they be intelligible,
far as they
so
given to its provisions,
law.
not inconsistent with positive
are
general
Although a modern Will has everywhere the same
for considerable varietyin its details.
there is room
features,
as
other document
sooner.
revoke,it is
witnesses,who
two
the
to
of the testator.
relate to the assets
certain formalities.
with
formalities
of
to be
of his
pleasureuntil the moment
above
duty in the legal representatives
no
or
need
or
readilybe
may
at his
duties which
seen,
Will
modern
It takes effect upon his death and

sufficient proof of his intention to
be
revocable
The
of these instruments
necessitylax.
stated.
the
Rights:
the construction
objectcauses
external
creates
Sticcession to
Will
the events
may
exercise
simple.
It imposes
of restriction.
Every
upon the testator the minimum
of full age and of sound
mind
by his Will duly
may
person
executed
freelydisposefrom his death of all his descendible
rightsin
any
lawfid
way,
and
to any
person
whether
related
331
WiOs,
him
to
rules
law, and precise
point it
latter
Where
admits
is
the testator
exceptions.
additional forms
blind,some
On
of the instrument.
inconsiderable
few
is uncontrolled
principle
limits of the general
the
to the form
as
Its
fit.
of testation within
freedom
the
thinks
he
that
not
or
for the
are
required.For the Wills of soldiers or of

security
Sailors have always been
sailors hardlyany form is needed.
treated by the law, partlyfrom their ordinary
exceptionally
of knowledge of the affairs of life upon shore, and
want
of
of obtainingin the course
partlyfrom the impossibility
their vocation proper
laxation
legal assistance and advice. The reof
purposes
favour
in
basis.
It
Roman
Emperors
of the
legionaries.Probably it
descent from
before
war
from
under
duly met
with
ampler
granted.
Additions
claim
when, with the chances
fellow
for the future government
consents
which
assembled
clansmen
in time
leisure and
solemnities
befitting
more
alterations may
be made
executed in all respectswith the
instrument
the
may
of peace these same

in the special
assembly of all the clans
clansmen
have
time
his
those
arms
of his household
would
the
the
upon
him, the Quirite*upon the sudden proclamation
levy obtained
with him
from
survival
upon a different
the times when
the
I think
rests
lavished their interested favours
uncertain
still remoter
of
be
to
seems
greedy and
of soldiers
or
Will
itself. Such
in
Will
by
an
formalities
same
supplementary instrument is
called a Codicil. The Will and its Codicil are read together,
the Codicil in case
of conflict,
as
expressingthe later wishes
of the testator,prevailing.But a Codicil in this sense
is very
as
different from
document,
the State
the
the "CodiciUi"
of the Roman
which, just at the
to
the old clan
over
customs
time
when
had
law.
the
become
first C"sar
The
authorityof
predominant,
Augustusf gave his sanction,was

in fact the Formless^
secondary instrument,but was
It is from
and
disposition,
-
not
this
from
Augustan
any
Gaius. II. 101.

} Mr. Hunter's
mode
of
latter
not
ment.
Testa-
testamentary
earlier source, that the modern

t Inst. II.
Roman
Law, 614.
25, 2.
333
The
Will is
reallyderived.
its modified
of fortune
the
its younger
upon
Testaments
failed
conditions
Testament
A
and
to
clause
providingthat
Formal
old
came
rival.
Rights:
greater safetyand
Its
superseded tlie
soon
under
Siiccesston to
was
Testament
even
by a strange vicissitude
depend for its validity
habituallyinserted in
if for any
the instrument
reason
regarded as Codicilli.
the
But
the Codicilli thus
old Testaas
prevailedover
"Will has assumed
the first place in
mentum, so the modern
and the once
triumphant Codicilli
testamentary dispositions,
have dwindled
into the merely subsidiaryCodicil.
as
Testament
" 5. Under
Bequests.
between
it should
venience
greater con-
the
the Formal
"Wills but
and
old
be
law
Roman
Formless
the
the
extended
distinction
only
not
to
peculiarpositionof the
Heres
in that law
caused
further
complications. From
these difficulties English law is happily free. The executor
is simply a trustee whose
duty is to carry out the trusts of
the "Will.
the testator
has only to
express
his
intentions
legatee will in due

remains
here
course
be
to
The
legacies.
to
even
said
sufficient
with
receive his share.

the
upon
subjectare indeed more

they belong to the practitioner. I
of illustration
I do
or
not
various
of the
treat
of testators.
of its execution
intentions
But
few
to
propose
the mistakes
the time
with
events
to
may
occur
the
than
shall
follies
abundant, but
only indicate by
to express
facts
both
or
blunders
the
that the Will
assume
rightlymade
regard
Little therefore
leading rules.
of the
I
the
theory of legacies. The
details of the
way
clearness, and
as
at
the testator's
existed.
they then
before and
was
after the Will
his
reasonable
disturb
operation which
may
happen that at the testator's
expectations. Thus it may
his Will and
he had when
he made
death something which
he has specifically
which
beipieathedis not in existence,or
into
comes
has ceased
from
an
to
belong
erroneous
to him.
estimate
It may
hai)pen that, whether
of his fortune
or
from
change
333
Beiptut*.
in
circnmstances,his
legacieshe
has
died,or has
not
assets
insufficient
are
born, or has
been
not
meet
the
that his
legatee has
fulfilled some
condition
happen
It may
given.
fullyto
the assistance of the law is

precetlent.In all these cases
required. The testator's intention is still the governing
but that intention has to be applied to states of
principle,
fact different from those which he contemplated.
legacy is given in generalterms, sometimes

legacy
a specific
thing is given. If the subjectof a specific
be not found, or if only part of it be found, in the testator's
after his death, the legacy is lost either wholly or in
assets
part,as the case may be. In the case of a general legacyno
Sometimes
such
bequest is then made not of a

If
certain portion of the assets.
have his legacyin
assets, the legateemust
questioncan arise.
definite thing but of a
there be sufficient
the terms
the
of the WiU.
The
But
be divided
interests.
In such
legatees?
Their
these
their
the
in
proportionto
circumstances,what
other
none
reduced
they
becomes
legateesdo
specific
legaciesin the first instance
not
;
to
are
of
have
respective
the specific
things,and
in any
contribute,but
and
sum
their
of certain definite
giftsconsist
things and
Therefore
them
among
insufficient,
prove
abate, that is, the
general legateesmust
must
if the assets
the abatement
case.
receive
takes
Thus
each class of legacy has
placeonly upon the balance.
its peculiar
advantage. The general legaciesare not liable
to ademption. The
ment.
legaciesare not liable to abatespecific
is in its nature
Sometimes
a legacy is given which
general,but which is to be paid out of a particularfund.
Such
A
demonstrative
a
legacy is called demonstrative.
in some
legacy combines
degree the advantages of both the
precedingclasses. It is not liable to ademption, but. if the
specifiedfund be not available, it is payable out of the
general assets.
but
is treated
the
fund
On
the assets
as
be
the
be
to
specific
exhausted
other
hand, if
the
fund
ence
be in exist-
the demonstrative
insufficient,
the extent
before
If
prescribedfund.
the
legacy is satisfied,
of the
the
legacy
""J'*
The
unpaid portionis
abatement
Succession
treated
as
to
Rights :
general legacy,and is liable
accordingly.
Where
the
legatee is
in existence
not
at the death
testator,the legacylapses; that is the amount

of the residue of the estate and
if any.
If
deemed
there
have
to
is
sum
be
died
But
intestate
with
where
of the testator
and
to the
goes
has
amount,
the law
legatee
was
is
testator
accordingto
the
part
residuarylegatee,
that
to
as
of the
becomes
residuarylegatee, the
no
accordinglydealt
estates.
issue
to
child
and
the
of intestate
other
or
died
during the life time of the

testator, and has left issue living at the testator's death,
the issue take
the
legacy as if the legatee had died
Where
immediately after the testator.
a
legacy is given
of
but is postponed to a future time or to the occurrence
,
future
but
event, and
before the arrival
where
of the
event, the legateedies,a
Thus, if "5,000
after the
time
of the
death
the
or
testator,
of the
occurrence
difficult questionfrequentlyarises.
be left to
legateepayable upon
marriage
or
if that
of
at the
legatee die unmarried
age
it sink into
of the legacy ?
Does
eighteen, what becomes
the residue,or become
undisposedof property,or does it go to
the legalrejiresentatives
of the legatee? The answer
depends
of the bequest. If an immediate
gift
upon the preciseterms
to the legatee,and the payment only of that gift
made
were
have vested in the legatee,
were
postponed,the giftwould
have passed to his
and upon his death the property would
majority,and
legal representatives.But
the
marriage
or
the
if the
attainment
events, or either of them, would
conditional
giftwere
specified
age,
of the
amount
to
condition
upon
these
cedent
pre-
vestingof the legacy. Consequently,if that

the
his
condition
not
neither
were
legatee nor
fulfilled,
would
take any interest in the legacy; but it
representatives
would either fall into the residue or remain
undisposed of,
for the
according
to the circumstances
I will illustrate these
by
intestacy,
an
example.
rules
Let
of tlie
case.
also,as
us
I have
suppose
that
done
a
those
Will
of
con-
debentures
Grovernment
house
Ballarat
at
out
of his bank
and
to
other
of
life time
shares
follow
as
the
house
these
left
has
of his
Ballarat
at
"1,500, and
In
"4,000.
he
that
after payment
that
"
worth
shares
it is found
debentures,but
freehold
daughter Mary "2,000, i^yable

to his daughter Frances
"2,000 ;
other
On
the death
Government
no
debts
his assets
"2,500, bank
worth
personal property
worth
notliing; his
takes
John
circumstances
the
in
dies
general legatees"3,000. Frances

the testator,leavingthree children.
of the testator
are
his
James
son
his
to
his
to
the testator's
John
liis son
To
followinglegacies:"
tains the
335
of Estate.
Administration
takes the
and has been adeemed.
James
legacy was specific,
shares towards the payment of
house
; Mary takes the bank
her legacy,and for the remaining portionhas a claim on the
to "4,000 ; the
generalassets. These generalassets amount
the balance
of Mary's legacy
are
charges against them
"500 ; legacy to Frances
"2,000 ; other legacies"3,000 ;
therefore
total "5,500.
All these general legateesmust
abate in proportionto their respective
interests; that is,they
in the will "4,000
to receive in the proportions
mentioned
are
instead of "5,500. Frances'
legacy thus reduced will be
"
divided
between
Administra-
her three children.
Evcry
^g
^^"^^-
who
person
Such
executor,
with
upon
or,
Will
the
the
"
either the
a
wide
because
in
the
with
because
is
person
where
the
"
Heres
was
or
the
The
bound
he
Will.
took
to
He
the
Roman
Heir.
or
executor
In
Testament, while
the
rcquircsfor its execution some

charged to give effect to its provisions.
is, according to Englisli law, the
case
so
requires,the administrator
annexed.
difference.
he
Will
But
Heir
"
of the
"
Heir
property
he
was
the
duty
"
English
to the
had
from
of the
devolved
Heres
law
differed from
give effect
the
this
between
Heres
differed
right; secondly,because
law
"
and
there is
the
Heir
legaciescontained
no
the
executor, firstly
deceased
subjectto
whatever
concern
the
in
liis
own
legaciesfor
The
ooO
part and
because
he
and
because
fourthly,
It
he
guide his discretion
in very
be
the
"
in
continue
giftof
this
of
the
modern
The
"
his
"
"
"
but
in
"
Heres
no
subjectto
being
"
its
"
was
by
and
to
property of
Pater
had
or
the
only to
He
was
that
as
the
"
Morte
he
Hence
kind
the
ceeded
suc-
of the
be testate
therefore bound
he received.
time,
stood in
rightsof
and
absolutely,
of
ancestor's
as
part. The
to another
his ancestor
to
not
In other
meet
the
merely
to
words, the
enjoyedits rightsand was

might happen for tlie time
managing director.
of the deceased
'
life
the
could
interest
ownership.
person
not
manus
vested
He
of
Each
ancestor's
to
in
agree
the notion
Familias.
intestate
ancestor
"
Heir
"
the
property of whatever
whoever
liabilities,
in the
of fiction but
way
dominium^
Corporate Household
to be its Pater
Heres
too
of the assets
or
"
due
way
Consequently,no
obligationsof that
Familia
of the
of them
continued
of the
to his duties.
the extent
and
different causes,
was
succeeded
also
Heres
equally abhorrent.
is
part of his property and

Heres
law
"
own
to each
sense
to the whole
to
not
"
Heres
parentis quasi continuatur

exact
placeof the deceased
man.
"
person his ancestor's

his interest not from his father
deceased
Roman
of the
property during that
interest
favour.
tance.
inheri-
of the Comitatus.
point,that
in his ancestor's
this
sake
in
the
originalgrantor. The one system

the pure-blooded clan, the
other
the
them, although from

and
that
assumed,
was
Both
in the
said
of the testator's
refuse
in the administration
implies the custom

system plainlytells
Will
member
"
as
fact,to
from
was
for the
existence,the Heir derived

but
property ; thirdly,
In
Heres
"
the
the
English law the originaltheory of the

from the
Heres
was
distinguished
that,
Household.
while
of
permitted to
not
was
made
was
English Heir
he
when
indeed
may
Testament
whole
personallyand not merely to the

for all the obligations
of the testator;
assets
household
the
the
Rights:
to
liable
was
of the
extent
for
not
Succession
Inst. Ill, 1, 3.
Further, if
the
Pater, that is if
"'^"
"
The
born
great
under
of suits
Westminster
to
had
never
for they in so
constellation,
concerningthem in all the courts of
but
any judgment given for them
judgments given against
many
Eights:
unfortunate
some
number
Succession
fettered inheritances
the freeholds
them.
from
And
those
of the
subjectare thereby
set at libertyaccording to their originalfreedom."
The
since the
process of emancipation has not been stationary
But I must
not further lingerover
the
days of Lord Coke.
substantial
Heir.
shadowy "Heres," and the hardly more
I proceed therefore to the rules that govern
the ExecutorTrustee.
An
The
executor
derives his authority from
the Will
Executor.
,
but
enter
he
upon
cannot
except
certain
his office unless
of the State.
and
This consent
of
matters
gency
emer-
until he obtain
the
is obtained
by the grant
of probateof the Will from a court of competent jurisdiction.
Such a grant in effect declares that the Will
has been duly
executed ; that the executor
seeking probate has been duly
in
appointedand accepts the trust ; and that he is the owner
trust of the estate of the deceased.
Upon the grant of the probate,
the ownership of the several parts of the estate vests
consent
by relation from
He
is allowed
and
no
within
months
enforce
can
of the testator
death
twelve
legatee
the Will
the
that
to collect and
the
or
period,
at any
giftwithout
the executor's
the executor
is to ascertain the amount
to
him,
to realize that
debts.
the hands
without
executor
distinction for the
comes
executor.
clear the estate
time take any
The
first
gift under
duty
of the assets
amount, and to pay all the
Everything that
of the
consent.
the
of any
payment
can
in
such
then
of
coming
testator's
by virtue of his office into
is assets.
All
assets
payment of debts.
No
are
liable
legacy of
payable until all tlie debts have been satisfied.

All unsecured
debts,whether tlieybe by deed or parol,are
is given to the death-bed
payable pari passu ; but priority
any
and
kind
is
funeral
expenses
and
obtainingprobate,
of
the
to wages
testator, to
the
expenses
due for services rendered
of
to
the deceased
by
debts have
been
payable;and
by the
payment
discharged,but
not
of which
some
of all the
debts
surplus,if any, of the

if there be no
or
legatee,
preceding his
death
When
the
servant.
I have
and
such
as
legaciesare
between
indicated.
selves
themAfter
of all the
is
estate
the
sooner,
is determined
their payment
rales
next
domestic
labourer,artisan,or
any
the
months
three
within
339
Executor.
The
payable to
legateeto the
the
legacies,
the residuary
person legally
entitled thereto.
There
the
case
are, of course,
does
not
readilyas I have
equally simple.
since
been
admit
of
assumed.
Nor
But
these
The
latter
was
the nature
wound
up
of
so
the process at all times
the
which
general principles
of real and
the assimilation
personal property have
established.
but to
They apply not only to executors
administrators.
from
provisionswhere
estate
an
being
other
are
as
officers,
I have
said, diflfer
they derive their authoritynot from the

Will but from
the appointment of the court.
They are,
consequently,subjectto stricter supervisionin the exercise
of their discretionary
the
powers than the person in whom
testator
thought fit to repose his personal confidence.
the executor
and the
Subject,however, to this distinction,
administrator
of the property of a
trustees
are
respectively
deceased person ; and the trusts which
they are bound to
fulfil are
tator,
imposed in the one case by the Will of the tesin the other case
of the law.
by the direct provisions
executors
since
t2
340
The
Recognitionof Foreign Rights:
CHAPTER
THE
Limits
RECOGNITION
"
of the
Recognition
of
XVI.
tt
"
Majesty
the
from
allegianceat all times

this duty, Her
Majesty
wide
own
and
to
owes
dominions
subjects,as
in all
"
"
distingmsned
her
gates,
places.
to
owe
In return
for
such
every
only
reciprocal.
are
"
strangers within
mere
in her
RIGHTS.
protection
permanent
her
not
FOREIGN
AlleoîancGand
1.
""""
Her
Foreign
OF
subject protection
all
the
through
but
obligationnecessitates some
tion;
explanabe
and when
the occasion
arises,the protectionmust
granted as against independent States by other agencies
than the judgments of the courts.
Again, in the use of the
is the highway of nations,rules are
sea, which
necessary
for the guidance of Her
Majesty'ssubjectsboth as between
themselves
and as regards their conduct towards
foreigners.
These
administered
rules are
of ordinary
not by the courts
but
of Admiralty especiallyapby Courts
jurisdiction,
pointed
the
for
and followingcustoms
and methods
purpose
to
or
supposed to have originallybeen common,
common,
the whole
family of European nations. Thus in the dealings
States as such the business is transacted
between
through
that arise at sea, whether
diplomatic agents. In matters
as
such
the Queen's subjects,or as between
between
subjects
and
foreigners,the Courts of Admiralty administeringthe
have
customs
old maritime
here
jurisdiction.I mention
So
world.
these
of the
organs
form
They
necessary
to
sightappear
to ordinarylaw.
questionswhere
the
State
no
sion.
merely for the purpose of exclupart of my
present subject. It was
distinguishthem
first
where
an
cause
to resemble
The
the
courts
from
class of
them, but which

are
partiesare
often
within
of action has arisen in
cases
which
in fact
at
belong
invited to deal with

the
a
but
jurisdiction,
foreigncountry
or
ZAmita
in
some
involves
way
is obvious
such.
that in
But
national
of
the
country
foreignlaw
law, and
so
relatingto foreignrights.
is foreignlaw administered
matters
no
341
Recognitionof Foreign Sights.
and
be
may
becomes
pro
is often
tanto
It
as
recognisedby
part of that law.
and to
questiontherefore arises in what circumstances
v/hat extent
this recognitionof foreignlaw takes place. I
must
premise a brief explanationas to the meaning in this
of the word
connexion
Foreign." It is not confined to
poKtical nationality
jurisdiction.The phrase
; it includes
which
best expresses
its meaning is an independentjurisdiction,
The
"
foreigncountry. Doubtless the originof the rule

France and
contemplatedexclusively
sejmrate nationalities.
sharply
Spain and Holland were
foreigncountries,and were
from the dominions
It would once
of our Crown.
distinguished
have seemed an unreasonable
stretch of language to speak of
not
any
i)artof these dominions

In the
them.
over
many
worid,
the
as
foreign to
present day, however, when
communities
self-governing
of
ortlinarygovernment
different from
the government
decided
judicially
colonies
must
nations.
The
merely to
the
autonomous
treated
in
the
any
of which
manner
of
part of the
of
one
of the rest.
same
part of
Queen reigns
the
of this
followingpages, therefore,
communities
independent political
members
other
in every
that for the purposes
be
not
of any
any
them
is
It has been
I write the
foreign
chapter relate
as
but
also to
State.
common
large groups of foreign law which

other States do not usually recognise. No
State concerns
itself with offences against the penal law of another State
or
against its fiscal regulations.No State recognisesany
of
is inconsistent
claim
which
with
the accepted maxims
the Customs
between
Nations,or which tends to produce in
its own
law.
a violation of its own
territory
Arrangements
have indeed been made
civilized
most
by treaties between
There
are
certain
nations
for the surrender
within
their
reasonable
ujx)n certain
territories who
groimds charged
are
with
conditions
of persons
good faith and upon

the perpetrationin the
in
v4"*
The
country which
Recognitionof Foreign Rights.
asks
extradition
of any
serious
non-political
complain if their
oiFence.
Friendly nations, too, will not

subjectsbe fairlypunished by another country for a breach
of its smuggling laws,even
though the allegedoffence may
have
taken
place far beyond the limits of the territorial
waters.
of diplomacy rather
These, however, are matters
than of law.
Probably it may be said that no State will
notice any Absolute
duty created by another State,or any
Relative duty so far as its breach constitutes a crime,otherwise
than at most
It is not foreign
as
a ground for extradition.
duties but foreign rights that this branch
of law regards.
In the case
of the colonial or other transmarine
of
possessions
Her Majesty such matters
are
usually dealt with by Imperial
legislation.It is in this way and for the purposes of their
external
relations
ImperialParliament
that
the
over
all
frequentlyand most
Again, no country recognisesany foreignlaw
immovables, that is of land and of interests in
such
where
the land
situated,whether
is
to form.
or
If
English land,that
If a foreigner
own
therein
other,whatever
in
such
Where
cases
land, he
such
the
as
wider
powers
allow.
The
movable
be
must
abroad
But
the
the courts
executive
no
them
cannot
do
of
one
such
so
order
the
distinction
may
courts
directly,
by
its
has
personal
exists in the
must
go
to the
ated.
the land itself is situ-
of another
must
which
court
power
country cannot
government
subject,
however, a
they
to
country
own
can
owner
officers of the country where
But
to
of his
none
of this rule is apparent.
reason
process
As
fit create
English law permits and
of the
executive
think
property is concerned, the
of immovables.
respecting
English form.
in
if he
may
jurisdiction
over
case
All
Will
executed
the law
the person
enforce its decrees.
land.
case
relate to substance
the matter
make
man
Will
interests
such
in the
by the law of the country
determined
be
must
cases
the
parts of the Queen's dominions

exercised.
beneficially
is most
of
legislativeauthority of
issue directions
country.
this
Although
indirectlyaffect a
be observed.
may
On
"40
Limits of the Recognitionof Forei^jnRighU.
foreignimmovable.
Where
com-t
jm-isdiction
personal
has
foreignland, it may in the exercise of that

to disposeof or deal with
so
compel the owner
jurisdiction
which he may have
his land as to give effect to any obligation
is to be meaof such obligation
sured
incurred ; and the extent
by the law which the court administers and not by the
But this jurisdiction
must
not be exercised if the
lex situs.
to do that which
lex situs render it impossiblefor the owner
the
over
would
the court
otherwise
have
be careful not
must
court
of
owner
make
to
him
ordered
its
ground for determiningthe rightto

of the foreignland.
Thus where
possession
the
and
Penn
Baltimore
Lord
Hardwicke
refused
to
held*
was
refusal
of
had
made
contract
and
the
to
William
ascertain
Pennsylvania and of Maryland, Lord

decreed specific
performance. Where a bankrupt
include in his assets his foreignimmovables, it
that he ought not to be indirectly
coerced by the
his certificate until he complied,although the
boundaries
the
do
personaljurisdiction
the ownership
mere
or
to
of
grant of the certificate was
in the discretion of the court.
Further,no court will recognisethe remedies or the procedure

of a foreigncourt.
seeks its
When
a foreign
plaintiff
aid, it will hear and determine his complaint accordingto
its
methods
own
if need
like
and
be, give
him
such
It will not
procuring redress
He
Rome
he must
which
comes
it would
the redress
own
or
the
to
Rome
as
as
of evidence.
arisen in its
itself about
concern
elsewhere.
rules
relief
of action that had
cause
fare at
by its own
plaintiff
might
Rome, and he must
fares.
take the court
Whether
its powers
It
give for a
jurisdiction.
the methods
have
be content
its
of
obtained
for better
and
will,
or
to
for
practiceas
he finds it. But in matters
of substantive right,as between
under certain conparty and party, English law recognises,
ditions
and accordingto certain rules,the law of the
country
in which
the rightarose
in
which
or
it was
intended to take
effect. The most
importantof these conditions and of these
rules I propose in this chapterto consider.
worse,
*"
Cockerel!
c.
Dickens, 3
Mo.
P. C. C. 133.
"44
The
" 2. In
TheRecog.
nition
Hecognitionof Foreign Rights:

considerinsr
recosrnition of
the
"
of
Foreign
iiffhts
in Rem.
tatioDS.
lu
at the
met
rem
we
The
first is that such
are
considered
owner
questions must
as
whole.
relate to
Questions concerning
by
what
second
property of
is that such
and
not
universitas
relate to
is called
of the
only
limi-
two
must
cases
The
movables
*^
outset
of property, and not to

singular cases
universitas
juris,that is the devolution
the
foreis^n
movables.
im-
to
juris
are
presentlysee, by the law of the

domicil.
Questions concerning immovables
are
governed
by the law of the placewhere the property is situated. But
the rule as to singularmovables,that is movables
not
garded
reas
a
part of a universitas ju7is,is different. "Where
their ownershipis lawfullyacquiredor transferred according
to the law of the placein which
the transaction occurs, such
ownership will be recognisedby English law. In such cases
in
the question is not
the like circumstances
whether
governed, as
our
the
would
courts
in the
shall
we
of that
absence
of
merely
give it
on
the
effect.
coast
of
done
so,
as
Riga
under
English
English law, therefore,he
law
was
the
he
ought
not
to
have
authorized
on
might
of
owners
done.
to act
and
Russian
wrecked
was
with
of
cargo
master, although he
communicate
not
recognise it
to
She
Hull.
to
The
Norway.
taken
contrary, have
the
to
reason
principlesof comity
Thus, a ship* with
sailed from
that
as
right has well accrued under

and the English courts, in the
sufficient
deals
did
view
same
The
country ;
some
the
taken
foreigncountry.
law
cargo,
have
as
the
have
the
By
their
consequently
void.
acting upon the Norwegian law, which
Nevertheless,
in this respect is different from
the course
and justified
ours
he followed,
the master
sold with the proper formalities the
Tlie deals were
subsequentlysent to England, and
cargo.
thereuponthe English owner
brought trover for tliem against
It was
the purchasers under the sale in Norway.
held,and
the judgment has since been ai)proved
and followed,that the
agent for the sale of the deals,and the sale
Cainiuell
r.
Suwull,
5 II. "
N.
TiS.
was
346
The
different.
The
collision with
that
of
pier could
England.
not
in the
It does not
things have occurred in
to be enough that a similar act to that which
is the
seem
subjectof complaint is an offence in the country where
the action is brought. That very act if it were
committed
in England ought to be an
offence.
But
such a proposition
in the case
of an
immovable
assumes
a physical
impossibility.
nature
" 3. The
TheRecog-
law
relating to
Foreign
loreigu
the
"
nition of
obligatiousIS
at
recognition of
"
once
the
most
frequentm
practiceand the most complex of all the cases of

of rights
foreignrights. The right must, as in the cases
in rem, be perfectaccording to its own
law.
It must
also
in Personam,
be not
from
was
law
an
inconsistent with
our
law
agreement of which
the
objector
or
illegal,
in this
which
was
country, or
made
which
that
with
contains
is,it
must
arise
the consideration
intent
any
not
to violate any
material
sion
provi-
tendingto infringein this country the policyof our law.

If it comply with these conditions,
it will be enforced by the
remedies
and accordingto the procedurewhich
courts
our
The last two rules are
use.
ordinarily
sufficiently
plain,but
it is not always easy to determine
the law which
governs a
A
Russian
domiciled
in Germany may
foreign contract.
in France a contract
make
concerning goods in Holland performable in England. In these circumstances
and in others
much
more
complex than these it is necessary to ascertain
the general principle
which controls such transactions.
of
This principleappears
to be that the interpretation
arisingfrom it are
every such contract and the obligations
determined
by the law of the place*where it is intended that
the contract shall be performed. If that placebe stated in
the contract,there is no room
for dispute. If it be not so
stated,the intention of tlie partiesmust be proved; and for
the purpose of facilitating
tliat proofvarious rules have been
established.
In the absence of any expression
to the contrary,
"
Lloyd
II.
Ouibert, L.
R.
Q. B. 115, per Willos J.
Recognitionof Foreign Rights
The
is
place where the contract
place of its performance. Where
the
the contract,each of whom

understood
are
Where
each
there
to
there is
to be the
partiesto
country, they
several
are
different
his
according to
law.
own
carriagefrom
another, and the fulfilment of the
carriage,the place where
therein respectively.
to be done
of
contract
contract
the contract
try
coun-
one
is the whole
is also the
made
was
of
law
placesof performance,the
to the matters
placeprevailsas
Where
each
several
are
there
a
347
Personam,
is assnmed
made
resides in
contract
to
in
performance. In cases of affreightment,where

there is more
than one
place of performance,the law of the
ship prevails. I cite these rules merely as examples, and not
will
Their statement
as
forming a complete enimieration.
if it be accompanied with a few
probably be more
intelligible
illustrations.
"Thus, says Mr. Justice Story,* suppose a
on
negotiablebill of exchange is drawn in Massachusetts
England, and is indorsed in New York, and again by the first
indorser in Pennsylvania and
by the second in Maryland,
and the bill is dishonoured, what damages will the holder be
entitled to ? The law as to damages in these States is different.
place of
In
its
Massachusetts
it is ten
per cent.,and
twenty
What
rule then
is to govern
the lex loci conti-actus.
case
the law
accordingto
and
the
successive
to the law
indorsers
of the
place of
being treated
consequence
a
ujx)n
damages
Mr.
took
of the
as
is that
the
dishonour
than
he
Shand,}
new
The
The
recover
passenger
is that
answer
is liable
drawer
placewhere
and
sylvania
Penn-
fifteen per
Maryland
the bill f
on
in each
the
and
substantive
may
for
bill
a
render
himself
higher
much
from
the drawer."
from
London
to
The
contract.
the
liable
rate
of
of the
ticket
Laws, sect. 314.
t Or rather, where
the principalis payable.
X Peninsvilar and Oriental
Steam
Navigation
See
Westlake, 243.
3 Moo.
v. Shand,
Company
of
Mauritius,
Conflict
bill
was
ticket in the usual way in London

board one
on
and
Peninsular
Oriental Company's steamers.
The
"
cent.
drawn,
liable on
the bill according
are
their indorsement,every indorsement
indorser
of the
can
in
York
New
; in
cent.
per
P. C. N.
S. 290.
348
The
contained
limitation
to the
as
company's liability
passenger's
luggage. This limitation was good accordingto
English law, but was not good accordingto the French law
which prevails
One of Mr. Shand's trunks
at the Mauritius.
For this loss
disappearedbetween Suez and the Mauritius.
he sued the company.
It was
ultimatelyheld by the Privy
entire contract
Council that there was
of carriage,
and that
an
a
the law of
England
of the
must
it.
govern
subject,at St. Thomas, a Danish

West
Indian island,chartered the ship Olivier,
belongingto
M.
Guibert,a Frenchman, for a voyage from St. Marc in
and shipped accordingly
a
Hayti to Liverpool,
cargo at St.
the ship sustained damage from a
Marc.
On her voyage
storm, and put into Fayal, a Portuguese port, for repair.
raised for the repairson a bottomry bond, and
Money was
The bondholder
the ship completed her voyage.
proceeded
in the Court of Admiralty againstthe ship
for his money
insufficient to
The ship and freight
were
freightand cargo.
of the cargo, was
the bond; and the plaintiff,
as
owner
satisfy
compelled to pay the deficiencyand the costs. For this
Mr.
British
Lloyd,*a
he sued the
amount
M.
owner.
Guibert,as he
was
entitled to
and
ship and freight,
thus claimed
to be freed from
liability.But under the
English law a shipownerin such circumstances is personally
The questiontherefore arose,
liable without any limitation.
guese,
by which of these five laws,English,French, Danish, Portuheld by
or
Haytian,was the case governed? It was
do
by
the
Exchequer Chamber
the shipprevails.
said that
I have
foreignrightmust
it
not
were
enforce.
that
so,
Two
in such
that
the
of
the
law, abandoned
French
for the
circumstances
purposes
of
If
perfectaccording to its proper law.

courts
be nothing for our
there would
to
One
is
consequences
although the
the
recognitionthe
be
contract
follow
may
from
be lawful
tliisrule.
both
accordingto
of the place
and
made
place where it was
invalid
action is brought, yet, if it were
the law of the

where
the law
"
Lloyd
V.
(Juil)ert,L. R. 1 q. B. 115.
in the
The
placeof
its
Recogmt'ton of Foreign Rights
349
Personam.
in
the rightwould
performance,
have
no
existence,
The
consequentlyconld not be maintained.
be completeaccording
second is that if a foreignobligation
to its proper law, onr
prohibited
courts, unless it be directly
though they would not
by our law, will enforce it even
made within their own
enforce a similar contract
jurisdiction.
Thus the sale of lotterytickets is forbidden* by the law of
New
York, and is allowed by the law of Kentucky. A
formed in Kentucky for the purpose of conducting
pari;ner8hip
and
the action
in
and
lotteryin that State is lawfnl both in Massachusetts
New
York, and the contract will be enforced accordingly.
partnershipformed
in New
for the purpose of conducting

would
be illegalin both
York
lottery in Kentucky
States,and
action
no
No
country.
respect of
be maintained
maintained
formed
lotterycompany
proposing to operate
maintained
be
could
action
it could
upon
therein.
in
Kentucky
in New
Whether
an
in either
York
in
and
action could
be
York
New
by a Kentucky lotterycomjjany
operatingin Kentucky is a questionwhich depends upon the
of the New
York statute.
If by that statute lotteries
terms
tained.
were
absolutelyforbidden, no such action could be enterif the prohibition
But
not
were
peremptory, and
in
merely declared
although
if the
it could
Some
words
all such
contracts
had
contract
not
have
been
been
needed
void,the action would

made
in
and
lie,
for Massachusetts
enforced.
the
dischargein foreign
made
countries of contracts
elsewhere.
Where
an
obligation
is dischargedby its proper
law, if the dischargeactually
do not
extinguish the obligation and
merely affect the
of procedure to enforce them, the
the course
remedies
or
right is at an end in every coimtry, and foreigncourts cannot
take notice
law
of
incurred
in
the
the
are
of that which
has
country where
no
existence.
affects to
foreigncountry
elsewhere, such
to
as
defence
But
where
discharge obligations
will not
the
be
recognised
incurred
obligationwas
consented
directlyor indirectly
has
plaintiff
*
story'sConflict
of
the
Laws, sect. 2S8
a.
unless
to
the
350
Recognition of Fo7-eignRights:
The
certificate in an
a
proceedings. By Imperial legislation
English bankruptcy is a discharge*of all colonial claims,
but a colonial certificate has no
similar effect in England.
English certificate will not, however, relieve
An
rupt
bank-
the
which before its issue

responsibility
he may
have incurred in the colonyin respectof any offence
committed
by him againstits insolvencylaws.
f from
The
criminal
any
effect of
" 4. The
Recog.
only
Judgments.
the
acquired.
particular case
of
j.
that the
of
law
is
in
ownership of a movable depends

the alleged right was
the place where
in any
court of competent jurisdiction
a
in the lawful exercise of its authority
the rule
upon
rem
foreignjudgment
It is indeed
undisputcd.
Foreign
Where
country pronounces
situated within that country is the

movable
particular
property of a particularperson, there is no doubt that the
favour the judgment has been pronounced
person in whose
has acquiredhis right of ownership in conformitywith the
law of that country. But the effect of a foreignjudgment
has been more
in personam
slowly acknowledged. Before,
tinction.
however, I enter upon the subject,I must
premise a disin which
the judgment of
There
two ways
are
that
outside
an
court
be
may
treated.
be
It may
admitted
as
eundem, and may be acceptedas being in effect

a
judgment of the admitting court itself. Or it may be
of action in which
the judgment appears
regardedas a cause
it
were
ad
evidence
as
that in
of
more
between
use
or
the
less
weight.
superiorcourts
The
former
method
of the different
is
parts
the
superiorcourts
Under
certain simple
colonies.
of the various Australasian
in
the judgment of the sister court is registered
regulations,
its operationis desired;
the court of the country in which
and thereupon it acquiresthe like force and effect that it
would have had if it had been pronounced by the registering
to
extend
court itself. But this peculiarcomity does not
in the
other courts,and their judgments obtain recognition
of the United
"
See Ellis
r.
Kingdom,
and
McHcnrj', L. R. 6 C. P. 228.
also between
t Gill
p.
Barron, L. R. 2 P. C. 167.
The
manner
Reeogmtwn
about
am
describe.
to
section,therefore,the word
somewhat
the
restricted
more
foregoingpages
A
sue
may
course,
upon
he
the
that in which
than
it has in
on
the
judgment.
so
foreignjudgment may
of action,or he
originalcause
obtained
has
sue
do
may
the purposes of this

be taken in a
must
been used.
person* who
either waive it and
For
"Foreign"
sense
351
JvdgmerUx.
of For^gn
where
If he elect to pursue the latter

the judgment has been given
decision,and not pro confessoor upon an award,

judicial
form of contract.
in which
it is regarded as a mere
cases
The judgment also must
be for a sum
certain,payable as a
as
settlement
of the
of action; and
cause
the defendant
be
must
of the country whose

court
subjectto the jurisdiction
nounces
projudgment. Further, the judgment, whether it be or
be not subject
be final,
final until it is reto appeal,must
or
versed
be no valid excuse
why the obligation
; and there must
should not be fulfilled. In these circumstances
the judgment
is conclusive
evidence
fact tliat that amount
as
is due.
to its
Some
and
amount,
of these
as
to the
rules,however,
further
requiresome
explanation. Thus, I have said that

the defendant
be subject to the jurisdiction
of the
must
country in which, not of the court
by which, judgment is
pronounced; because our courts will not inquireinto the
of any foreigncourt.
It is enough that the
competency
is somewhere
in the country.
The relative posijurisdiction
tions
of the
courts
consideration,and
of that
for
country is
the
for their
matter
decision
of
own
foreign and
informed tribunal.
A person is regardedas subject
imperfectly
of a country when
to the jurisdiction
he owes
political
is
resident
allegianceto it,or
therein,or has voluntarily
in dispute as a suitor before its
appeared in the matter
tribunal.
To an action upon such a judgment the following
defences may be ofiered :
The defendant may deny that there
is any valid subsisting
obligation.Or he may allegeas an
for its non-performancethat the judgment was
excuse
tained
obby fraud; or that there was wilful and perverse error
not
"
See Westlake, Private
Internatioiial
Law, C!b. XVII.
352
in
The
tlie court;
Recognition of Foreign Rights :
that
its
proceedings showed
is apparently of the rules
or
breach
of
that
for a fair and
justice,
impartialhearing and examination of the case which English
is prohibited
courts
usuallyobserve; or that the obligation
by
On behalf of a defendant,
law.
a foreign
our
judgment upon
in dispute,if it be final in the country where
the matter
it
to all proceedings
was
pronounced, is a conclusive answer
against the person in whose favour it was
given. But a
has
been
who
refused relief abroad
obtain
in
plaintiff
may
natural
the
which
in
court
the
facts,or
same
he
"
The Theory
of Domicil.
We
case
5, We
tf
cases
01
hithcrto
havc
"
J.
rights
loreign
must
different
relief
different
the
upon
facts,as
the
require.
may
"
relief upon
same
of the
circumstances
sues
examine
1-
considered
the
simple
J.1
whether
in
those
rem
or
in
sonam.
per-
complex cases
which involve the devolution of a foreigner's
property taken
well as its benefits,
its burthens
the
as
or
as
a whole, with
rise of a personalstatus growing out of a contract
in other
now
more
"
words,
the
depend upon
the
to
hand
one
of
law
marriage
principledistinct
from
and
of domicil
law
first to
development
and
next
years
return
to
England
novel
used
Scotchmen
or
from
temporary and
incidental
the other hand.
die
to
not
sion
submis-
This
is of very
the
recent*
extension
of
origin.
principle
India, make
to
in
their
in the Channel
native
or
Islands,
Questions respectingtheir succession
fortunes
country
even
not
on
but
its
owes
Empire,
that
half-century.About
practicebegan to attract
go
It
Indian
our
feature of the last

a
ago
These
rights
on
politicalallegiance
the great increase in locomotion
to
a
of divorce.
of domicil.
is the basis of the law

The
foreignauthorityon
and
is
a
so
spicuous
con-
hundred
attention.
there, and
either
in
the Continent.
uufrequentlyarose;
of domicil
has sprung
in this country
truth
"The
is, my Lords, that the doctrine
up
the
the Judges
until
within a few years
Legislature nor
recently, and that neither
well undoi-stooti,and
it is a very convenient
of it : but
I
doctrine, it is now
thought much
which
this
the
think
it solves
surroundoil."
I'er Lord
ease
was
that
difilculty with
12 01. " F. at p. 29.
Advocate-Uoneral,
v. The
Campbell (1845). Thompson
"
very
"
354
Recognitionof Foreir/nRights:
The
After her husband's
domicll.
France
and
to live in
in Calais
steamer
passenger
left her moorings, Madame
steamer
on
and
health,became
afterwards
soon
died there.
English property,which
invalid
by
refused
in
the
which
died.
she
France.
her
landing have
upon
Had
she died on
domicil.
been
have
domicil
abandoned.
of
her domicil
to be
English,but
would
country
"
been
under
not
of
sole
limitation
maintain
that
in
domicil, or
as
to
hold
is her
new
that
of any
other
would
have
the intent
Lords
two
law
generalapproval.
and
The
it does
not
questioncan
energy
seem
of
his
has
to
new
of
quently
subse-
by Mr. West-
to have
et teq.
and
the House
hardly be
205
Law, 2n:l etl.,
involve
domicil
eminence, and
much
Others
must
expressedin
with
Private International
is sufficient.
government
lords of great
the wliole
that
difference of
some
his former
leave
laws
of the
effects upon
further,and
go
opinion was
maintained*
the evidence
the
to time
must
to
which
precisenature of the required

that the voluntaryfixingof
in a particular
out
country with-
or
purpose
latter
on
the
to
chief residence
or
The
But
would
circumstances
the
facts constitute
authorities
country.
lake.
English
an
quently,
acquired. Consethis case
happened
been
of
distinct purpose
both
himself
submit
to the
been
in
that
domicil
her succession
consider
to
by
have
legal disability.But
any
Some
man's
in
"
eifect.
England, she would
been
origin which
opinion still prevailsas

intent.
have
revived,and
pause
necessary
relation
in
was
domicil
was
English domicil,that
might
but
by its law.
various states
intention
arrived
not
which
have
determined
I shall
of
relatingto
her
and
the sea, her French
choice,would
shore
carried into
instantly acquired
Her
on
probate was
change
to
not
was
will
this
intention
had
been
by English law
consequentlycontinued
If she
will
the
had
taken
was
left
Of
intention
that
domicil
She
valid
was
Her
England.
French
The
of
law
clear,but
was
Raffenel,who
ill that she
so
Before
for London.
in delicate
accordinglyembarked
She
England.
to leave
she determined
death
met
said
with
to
be
The
355
DonuciL
AppRtation of
but the present tendencyof legalopinioncan

finallysettled,
scarcelybe doubted.
The
" 6. "Where
Appu-
cation
leavingproperty in
dies
person
any
of
"
/.
Domicu.
country, it
arises.
Such
property,
in all respects
situated,and
the
tliat
by
as
the
by
in
country
if
But
question
alreadyseen,
is
governed
the
the
the
deceased
law of the
have
still
letters of administration
each
the
as
coimtry of the
is
no
country
will be determined
If
the
jurisdictions,
separate probatesor
two
prevails
; but
case
be
may
is called
domicil
be taken in
must
issued
administration
The probate or
jurisdiction.
the
in the
be domiciled
country of his last domicil.
property within
domicil
movable,
stranger die in any
mere
of the
law
it is
in which
coimtry
the property be
"
no
having personal property there,his succession
by
immovable,
deceased
the
personaltyis situated,there
his
wliich
conflict of laws.
of
law
is otherwise.
case
liave
we
other law.
no
be
property
"
Principal;
the
in
that
in any other country is called the Ancillary. It is

the duty of the ancillaryrepresentatives
to clear the estate;
issued
it is the
when
and
transfer the
then
perform the
distribute the
that
aggregate
by the law
deceased
curious
those
duties
The
were
in due
to which
and
issued
course
of the
other
the
two
sets
*
of
owner
two
shares
in each
of
of
z2
of
line of
of the
which
by
A
representatives
stage
Stat",died.
The
parties
receive.
in the
one
State.
executors
SU"7, Conflict
sets
to
own
clearing,
the
among
the
towns,
in another
of
last domicil
in
of difierent
their
in
ought
respectively
plied dailybetween
York
of the
authority,
principal
representatives.
of collection and
thereto,and
persons
arises.
New
the
to
available assets
conflict of claims
sometimes
which
balance
of the country
entitled
are
law
net
of their
the scope
who
principalrepresentatives,
also
country
the debts within
pay
The
who
to distribute it
representatives
principal
collect the
The ancillaryrepresentatives
the
it is cleared.
assets
and
duty of
coaches*
State of
Probates
questionarose
did the coaches and the
Laws, sect. SSL
3o6
The
horses that
that
such
Recognition of ForeifftiRu/hfs :
in
is
daily transit belong ? The answer
who
property belongs to that legal representative
were
first in pursuance
of the authority under
reduces it into possession.
questionsconnected
The
difficultof solution
most
divorce.
I shall state
rules which
not
a
appear to
always consistent
foreigncountry of
neither of whom
with
cases
in the
any
the
the
been
the
marriage and
leadinggeneral
and
numerous
is of two
in
persons
recognisingcountry, will
other
the ceremony
with
acts
subject. The marriage
strangers, that
two
is domiciled
that
first,
"
the
on
can
from
deducible
be
generallybe recognisedin
:
as
briefly
as
he
that have
domicil
those connected
are
which
country
be
duly
country in which
it is
on
tions
condi-
two
celebrated
according
performed ; second,
that the partiesbe capableof intermarriage. This capacity
exist according to three difi'erentlaws ; first,
must
according
to the law of the recognisingcountry ; second,accordingto
the law of the placeof celebration ; third,according to the
law
unless
of the respectivedomicils of the parties,
their
penal
incapacityunder sucli personallaw arise from some
to the
law
of the
law
or
law
some
in restraint of
marriage generally. Thus,
out
Portugal* two first-cousins may not withthe Papal dispensationintermarry. Such
a
marriage
without
such
consequently be in all
dispensationwould
void in Portugal. Nor would
such a marriage,
circumstances
under
if it
the law of
were
restriction
would
in
duly celebrated
such
another
country where
no
existed,be recognisedby Portuguese law.

a
marriage,in
foreigncountry
it
Nor
miglit
partieshad a Portuguese domicil,

be recognisedin England. The marriage on this assumption
was
a
nullityby the proper law of the parties,and there
never
consequentlywas
any right which the English courts
such a marriage be valid in
could recognise. Nor would
duly celebrated in England
though it were
England, even
guese
according to Englislilaw, if both the parties liad a Portudomicil.
The partieswere
by their proper law inca-
be
celebrated,if
"
both
whatever
such
the
Sottonmyor
r.
Dc
Barms,
3 P. D.
1, 5 P. D. 94.
The
pable of intermarriage
;
domicil
is,the law of their

their
"
where
Bat
capacity.
it is
by
that
the
and
357
Domicil.
Applicationof
English law
of the consins
one
law
their proper
that
"
measures
domiciled
was
in England, and
domiciled
Portugal and the other was
the marriage was
duly celebrated in England, the marriage
be valid in
not
is valid in England, although it would
Portugal. Such an English marriage would doubtless be
not
recognisedin this country or in any country which was
in
subject to the rule
of ecclesiastical law
have
right was
there
is
no
such
marriages
right should
It follows that
to the
law
the
of
of the law
by
which
law the consent

such
may
a
take
of
not
matter
if the
the
Thus, where
the
avowed
consent, and
the
form
some
had
from
the
consent
married
in
But
the
the
In
as
France
French
having
marriage.
r.
is
stances,
circum-
law
of
with
parental
courts
contracted
clared
dein
English courts, notwithstanding
England, would
Simomn
consent
London
to
been
The
father's consent, in France.
marriage
such
London, the French
be void
marriage to
if the
accordingto the
in other countries,
although
the consent
was
required.
from
persons*came
intent of evading the
settled in
way.
celebrated
two
his
result
consent, the
of form.
in the country where
decision,upheld
again,with
But
without
be well
marriage
fraud of their law.

this
necessary
invalid.
capacitybut
were
usual
marriage.
lex loci contractus, it will be valid
prolmblynot
forbidden
be
may
everywhere
placein
of any
or
not
are
and
specified
persons depend upon the terms
such
is required. If by that
consent
of cajmcity,
a matter
a marriage without
be
is
consent
country
necessityfor marriage of the
to the
other
England,
ing
lawfullymarried accordcountry and not married accordingto
this state
of things,
But
country.
one
or
parents
this
Portuguese
recognised in the
be
not
universal law of
of
of this character
though it be, is
Questions as
of
law
persons
another
lamentable
want
of
law
of
two
in
duly created
the
in
reason
country where
why
adopted.
the
which
have
liallac,2 S.
been
"
T. 77.
husband
Tlie
married
wife,who
guiltyof bigamy
358
if
The
she
an
had
of
example
Marriage
form
in
In
history
resident
obtaining
not
recognise
the
commencement
husband
that
is
changing
divorce
girl
justified
his
Thus,
he
She
success.
petition
for
that
it
is
in
force
not
only
in
Ho-a-Mie
v.
Ho-a-Mie,
Vict.
manner
Rep.
for
sue
Victorian
there
and
without
but
presented
and
113.
by
matrimonial
China,
Victoria
the
cannot
to
China,
universally accepted.
"
granted,
was
The
if
he
the
Victoria
to
divorce
The
divorce.*
to
at
but
such
Victoria
to
him
followed
returned
then
in
will
domiciled
right
of
courts
or
unless
be
him,
her
her, returned
left
She
again.
the
married
Chinaman
subsequently
married
in
remedy
be
courts
in
from
of
her
deprive
the
pronounced.
act
apart
suit
having
court
husband
her
not
not
these
is
otherwise
or
living
in
domicil
other
or
domicil.
wife,
his
of
that
is
have
facilitating
parties
the
decree
the
which
wife
the
suit
the
and
foreign
the
domiciled
of
hand,
by
the
not
purpose
other
decreed
of
in
the
the
On
if
travellers,
or
for
divorce
desert
she
visitors
as
of
or
or
causes
practice
their
country,
Royal
weddings.
commencement
the
in
residence
country
of
the
the
matrimonial
follow
find
we
solemnity
of
Green
other
that
in
capacity
matter
Gretna
and
at
divorce.
as
old
those
not
such
up
domicil
the
domiciled
therein,
the
of
unless
be
parties
taken
and
courts
jurisdiction
consent
of
matter
divorce
of
matters
as
of
and
Act,
the
English
in
consent
law
English
In
example.
his
followed
Rights.
of Foreign
Recognition
but
and
would
ceive
con-
be
Work
J7ê Legal
XVn.
CHAPTER
OF
CODIFICATION
THE
" 1. We
TheLejnJ
have
of
moment
that
the
regard
the
Common
Law.
to
or
is
when
If
should
the
contain
relates,without
by
that
re-written
and
in
law
whole
the
consider.
The
it is
conditions
code.
Such
a
and
the
from
it could
certain
that
of
for the
requiresa
system
the
so
it
change would
advantage of
the
be
conditions
or
of
to
political
into law
construction
certain
its
called
passing
need
we
the
sets
bill
of
successful
lation,
development of legis-
intentional
applicationof logicalmethod,
legal composition. I do not refer
of
of
qualifications
mean
indeed
may
means
concur
be
single Act of Parliament

the subject to which
on
not
what
is the
success
certain
is
consequence
means
any
actually prepared, three
must
the
either
cases
that
practicability
its present
Apart
conditions,that
when
It is
good.
but
change
different
change in its substance, and
material
any
unmixed
an
by
many
plainlyexpressedin ordinarylanguage, such

be
These
statutes.
times
been
fragmentary,voluminous, difficult to find,

foimd, and altogetherbeyond the reach of
non-professional
persons.
revised
never
circumstances,as the exigency of

Uttle
law
uncertain
different
at
required,with
other
each
enacted
in different
and
persons
to
been
have
statutes
partly of
and
formulated
authoritatively
have
rules which
partly of customary
Codification,
is composed
law
the
that
seen
LAW.
THE
'
Work
to
359
0/ Codification,
law
the
actual
should
framers
have
of the code; but
attained
reasonable
be capable
and that the public should
degree of permanence,
of appreciatingthe advantages in their statutes
of orderiy
and of perspicuouswriting. On each of these
arrangement
conditions
I shall offer
few
remarks.
36a
The
Codificationof
Questions of form
of the work
what
continues
rules
it is
of
out
are
the
Lata
.
place while
undetermined.
prudent
the
When
substance
men
ful
doubt-
are
adopt,they give little heed

to niceties of arrangement.
is it possiblewhile
Nor
the
law is seriously
unsettled to adapt it to a permanent
form.
While, therefore,the actual principlesof the law are
shifting,or while any large part of it is in a state of
at best be merely
transition,
attempt at a code can
any
fication
provisional. For this reason, Bentham's
projectsof codicarried,but
form.
In
it has
law.
of
treatment
Commission
law.
way
materials
detail and
Acts
was
of
to the
Bill
to
laboured
These
consolidate
to
owe
we
that
has
the
the
even
superseded by
much
been
connected
the
law
the
been
code.
done
in
accumulated
they
as
Commission
Blackburn
the
of
Mr.
Justice
of
English
presided. It
may
last
give
to
this Bill
see
twenty
by clearingfrom
England
rubbish
of
seem,
indictable
relatingto
exertions
Within
now
about
are
present generation
true
years
many
the Criminal
at
Acts
Stephen and to the labours of the

Judges, over which, in 1878, Lord
be
For
1861, insufficient
great advance.
offences,which
may
in
not
necessary.
Commission
after
The
marked
in
have
the most
penal law, where the changes were
labours of a generationof reformers were
needed
the
of
substance
uniformity of opinion upon
Even
at
later period a great preparatory
a
secure
that
been
reforms
the
urgent, the
to
of his
Most
premature.
were
to
years
the
tutes
sta-
centuries,by consolidating,
scattered but cognate Acts,

opportunityoffered,numerous
and sometimes
mon
even
by reducing portionsboth of the Comas
law
and
of the
statutes
chapters of a code.
the judgments
years
have
been
so
framed
treatment
of the whole
had
law
to
respectively
It
of
as
is
some
to
into
also
deal.
the
form
of
isolated
noteworthy that of
of tlie best
sn2)plyan
of tlio materials
upon
the
English Judges
almost
for
subjectswith
late
complete
formal
which
liminary
pre-
statement
they have
362
The
but the
the
the Law:
Codification
of
extirpationof
distinction
the
greater compactness of the

and
greater symmetry
I may
add,
Victorian
as
system, with
Roman
its
clearness,are
mainly imputable."
advantage in dealing with the
further
thoroughlycure,
can
Statutes,that since the time of the consolidation
to which
I have
referred there
has, until the present
year,
been but little new
Most of our recent Acts,too,

legislation.
refer either to companies of some
kind or to municipalities,
to the disposition
of Crown
matters
or
lands, all of them
which
under
the class of
come
specialconditions,"and
which
consequently do not find a place in a general code.
But this advantage is not altogetherunmixed.
The omission
"
to
bring
law
our
the
to
up
standard
of the latest
English
to the codifier serious embarrassment

causes
legislation
frequently
useless trouble and
under penaltyof much
the
; and
the assistance of Parliament
of speedy alterations,
certainty
needed reforms.
must
be sought to accelerate some
much
The
"
Logical
^Vôrk
codc of
"A
2.
laws, says Bentham,* is like
of
forcst
vast
Codification,
known."
"Every
notion
law
or
to
subjectought
same
of
more
attempt,
aggregate of the
the
; the
the
it is
Austin,t
says
precededby
leading distinctions and
degree of precisionand justnesswith
cing
embra-
perspicuous
On
divisions.
which
it is
digest the
to
commentary
compose
to be
divided,the better
these
are
the
ceived
con-
of the
predetermined the merit and success
attempt will mainly depend. Errors or defects in the detail
are
readily extirped or supplied. Errors in the general
and
design infect
need
The
Its
the entire
of the
system and
classification of the
is proved by
difficulty
the work
are
stillremains
the
absolutelyincurable."
law
is thus
apparent.
fact that after many
attempts
It is not
to form
to be done.
enough
diate
ready groups as may suffice for the immeThe
needs of the practitioner.
problem is to obtain
such a systematicarrangement of the law as will admit of
Classifito the publicin a reasonable form.
its presentation
such
rough
and
"
III. 157.
t II. 985 and
1130,
cation
is not
which
A
parts, bnt
to show
classification
nnderstood
conditions.
cover
the
whole
parts
mnst
not
is it must
cross
turn
or
upon
be
attention
the
places
organizedwhole.
well
certain
is it mnst
is its
distinct,that
be
may
fixed
differences
minor
therefore,it
this i)urjx)se,
existence
adequate, that
It mnst
of
means
be natural, that
overlap. It mnst
the most
important features of the
that
so
things classified,
leading and not upon the
For
be
It mnst
and
with
comply
mnst
subject.
relation
great and
merely the
not
their mntnal
hold in
they respectively
complete
but
of convenience
matter
It is necessary
knowledge.
of certain
only a
363
Classification,
Austin's
".
rest
must
upon
the
upon
subject.
in the
ultimate
some
fact,some
principlewhich determines other phenomena and

is not
determined
Such
the rules which
are
by them.
modern
these
logic prescribesfor classification. Unless
rules be duly observed, all other laboiu* in the direction of
codification is
the
The
skilful draftsman
most
without
merely wasted.
the
aid
"
of the
do
can
learned
most
nothing
artium."
ars
lawyer and
in this
I shall
matter
state
very
residts of the applicationto law of this

brieflythe mere
department of logic, as they bear both on the systems
followed
I have
by other writers and that upon which
myself worked.
found
the
that
method
the
time
search
been
If I have
still
method,
true
be
failures
greatlyinterest
in
position
to
which
the
readers.
my
estimate
the value
of
have
which
It does
of the
somc
at
not
for
projects
different times been
Rights
In
is the
comply
other
with
words,
basis
largebody
a
must
classification of law
proposed. A classification
be imperfect.
necessarily
it fails to
it takes
in
condition
the
cover
whole
quacy.
of ade-
ground.
regards rights,there
perfectas
of law of which
secondary incident
the
fundamental
the
if the classification be
only
of the
will not
now
have
of
sufficiency
experience,the story of
for it has cost

are
to
as
the
and
We
which
if
trouble
cation.
is
fortunate
of the
and
Austin's
Even
more
actual
proved by
Classifi-
of
so
no
commands,
notice.
and
Rights
belong
to
are
a
364
The
of
Codification
particularvarietyof
form
theoretical
Rights are
criticisms
recent
insufficient
an
adds
experience
of classification is
scheme
Austin's
that
classification of law.
test of
the
objection
They consequentlycan
duties.
basis for the
true
the Law
his
upon
never
To
this
its confirmation.
proof
conclusive
refer to any
But
he himself
I do not
basis.
arrangement.
principlesfind no place for

has to
He
criminal law.
interpolate a descriptionof
ought to be
primary absolute duties,which, as he* says
his
narrow
system
placed somewhere," but for which
is obviouslyfatal to
affords no
Such
omission
room.
an
admits
he
that
can
upon
his
"
"
"
his scheme.
The
Division
is still
casc
when
worse
to
come
we
the
"Rights of Persons"
the
of our
Civilians misinterpreted
older t lawyers. The
sighted
language of the Roman
lawyers. Hale, | singularlyclearin some
degree misled by the
though he was, was
language of the Civilians,and Blackstone improved upon
"Rights of TMngs"
institutea.
Hale's
These
mistake.
of their
of words
and
the
the
lawyers found
eminent
day discussions
on
Jus
in the
and
rerum
on
books
text-
Jus
as
They translated these words literally
they
they wrote about the rights of thingsand the
personarum.
thought, and
rightsof
and
They forgotunder the powerfulinfluence

that rightscan
exist only in persons ; and that consequently
the expression
"rights of persons"is tautologous,
Their
expression"rights of things" is absurd.
persons.
They thought that Jus meant

in realityit means
law.
They misconceived
a
right when
here is,in the language
the force of the genitivecase, which
mistranslation
of the
was
grammarians,
"jus personarum"
"jus
rerum"
in
our
of the
the
law, as
sense
not
the
of the term
} See
law
meaning
I shall
"jus rerum"
subjectivebut
the
means
means
they mistook
Roman
threefold.
is
objective.Hence
relatingto i)ersons, and

relatingto things. Further,
of
law
the
word
proceedto show,
a
tiling. Thus
"
res
the
res^
does
In
not
I. ;{74.
us
mean
ordinaryversion
curious instance of the maximum
"
I. 68.
t See Austin,
Austin's ttibute to Hale'a (;reatmerit
the
juriat, I. 70.
of
There
mistranslation.
is
words
the
of
365
of the Institutes.
Diviaion
three
are
rendered, and
wrongly
Each
words.
in two
errors
their
is
relation
misconceived.
of
Institutes
"The
contemptiblemethod
things to actions." The
from
no
I contend
But
terms, it
the
not
knew
that
word
but with
used
that, in
was
it
opinionthus
this method
whether
consider
the
I do
be
be
or
method.
Roman
now
Gibbon
The
jurists
Roman
usual
of the
sense
is concerned.
the
uses
They
never
"
the
to
propose
contemptible.
not
in the
things
that law
persons
not
in which
sense
with
not
was
things and from

expressedhas deeply
to
persons
historyof law.
affected the whole
Gibbon,* proceed by
Justinian, says
but always wrote

De
expression Jus rerum"
What
rebus"
of
they meant
by res was the subject-matter
law.
ea
^^Matefiajuri subjectcC In qudjus versatur
qu/B tanquammateria ei sunt
qu^ jure nostro afficiuntur''''
of the phrases in which
suchf are some
proposita
they
When
characterize the term.
they had occasion to write of
a
thing in the ordinarysense, they called it J not res but
"
"
"
"
"
"
^^
"
"
"
In this
corpus.
'"^
of the
sense
Res
term
the
res
famous
sions
expres-
Incorporales'^"â qu^ in jure consistunt^"

readilyintelligible.Consequently the expression"Z)e
are
"
rebus''"'means
discussion
objectsof commands, both

expression^\juspersonarum"
to Special Conditions.
But
law
of
title
"
early Rome
with
have
called
secondary.
us
means
the law
law
is
and
territorial,
territorial but
not
was
and
primary
our
what
upon
the
The
relating
the
personal. The
"
De
was
jure personarum
consequently a discussion
the law applied,
commandees, or the persons to whom
upon
matter
a
" of primary importance to the Roman
lawyers,
although in
When
modern
times
Gdius,||and
libro de
jure
after
Chapter
"
"Mra
corpora
PeeuHke
Peeunke
quam
} See
"
44.
The
to
into
insignificance.
Justinian,wrote
exposuimus, modo
convey
"
videamus
meaning which
Superiore
may
de
be
t See Austin, II. 955.
nomine
iura
him
personarum
rebus," they intended

"
it lias dwindled
non
tolum
solum
numtrata
numeraia
continentitr."
LXNl.
eontinmlur.""T"ig.
Dig^.LXM.
Aryan
"
Hoosehold." 342.
ted
ptettnia sed
pteunia
222.
See
c
omnet
rtt
al
also
Inst.
tain toli
II. 4.
| II. 1,
mum
mobilet
el tarn
366
Godificntion of the Law
The
paraphrasedin
former
book
applies;
such
some
shall
we
law's commands"
proceedto
now
secondary objectsto which
of
schcmc
Anothcr
Bentham's
'"^
tioT'
advocates
Bentham*
classifies law
by duties
not
and
acts
In the
"
consider
to whom
law
om*
objectsof
the
and
forbearances
is,acts and
that
"
"
following:
the
as
treated of the persons
have
we
terms
those
relate.
forbearances
classification
which
one
"
finds its basis in offfences. It
"
sanctions.
by rights but by
or
notion of law as
is, it regards the fundamental
duty but a breach of duty. The obvious objectionto
That
a
is that the classification rests
scheme
itself but
handmaid
indeed
It
historical
partlyof
result
the
law
law, of
the
means
minal
in courts of crithat is administered
description,
of the offence,
jurisdiction.It includes a description
the punishment for such offence,and of the procedure
"
of the
describe
duty, as
of the
Pleas
offence without
an
it is
duty of which
have alreadyhad
But
occasion to
which
is
only
those
classifying
Pubii-
Privatum,
is
Publicum"
conditional
antecedents
pendently
observe,exists inde-
even
committed.
can
evil,
never
which
upon
Further, the
though
Thus
form
no
offence
sanction,
basis for
it is conditioned.
The
last basis of classification that I shall notice
the
division
and
regards modern
Austin.
been
ever
sion,
expres-
it is
breach.
of the offence;and continues
respect of it has
correct
impossible
at least by implication,
referring,
Crown."
the
to
Jus
scientific
for any
thereon; that is,according to the older and
in
places the
principal
sional
partly of profes-
and
causes
present the criminal
At
purpose.
whatever
to
command
the
convenience,is altogether useless
of
it.
this
classification coincides
This
accessory.
the
not
ordinary division of legalproceedingsinto

has been
criminal.
But such a division,which
with
civil and
the
the
upon
on
It makes
mistress.
the
above
depend
not
something dependent on
upon
the
"Jus
by
lawyers of "Jus
This division has, as
Roman
the
Privatum."
rejectedby Hale, Blackstone,and

stated at some
length the grounds of
law, been
Austinf has
*
III. 100.
t Lect. xliv.
Departments of
Tkrtt
and
objections;
his
critic
acquiesced in
should
the
His view
to
appears
depend
objectsof
immediate
law
J that the
propositions
of
creation and protection
the
as
are
equivalent;
of
basis
person
of
the selection of either of the two
classification is
and
preference
;
that
that
inherence,"that is,in other words, that
has
"
"
right
that I have in the
with the views
is consistent
pages endeavoured
discuss any of them
maintain, and
to
here.
But
as
in support of this division to "the
I need
mander
com-
propositions
preceding
irrecusable
therefore
not
has
api)eal
an
of these
None
obedience.
to
"
calls
he
be what
can
personal
of
matter
mere
State
the
of
creation
the
legalrights; that the creation of rights and

duties
division.
old
the
that
the
upon
are
it not
subjectwere
revived
writerf of repute has
recent
to
circumstances
these
In
argument.
adverted
have
not
petent
writers,includingso comJohn
classification as
Mill,* have
other
most
upon
his
""d7
Law.
been made
"
authorityof the
I may venture
to add that I have elsewhere ||
jurists,"
attemptedto trace the meaning and the historyof the terms
Roman
"
"
Jus Publicum
and
"
Jus
Privatum."
my
contention in
that
placebe correct, the difierence is one which belongs to

ing
tlie infancyof law; and
although it necessarilyheld a leadtext-books,it has no claim to any
place in the Roman
such positionin modern
analytical
jurisprudence.
Three
Of law.
was
From
De-
wliat
I havc
already said, the principle of
classification that I propose

indeed
on
this
present stage of my
account
that
inquirythe
follows
I
as
of
deferred
have
It
course.
to
the
of classification.
discussion
complete definition belongs strictlyto the end of an

to
inquiry,and not to the beginning. A like rule seems
hold as to arrangement.
At all events
I preferredthat in
diflicult and importanta case
the classification should be
so
the outcome
of the discussion and not its guide. The proofof
my
classification is found
in all that I have
already said.
be alleged that the whole

cannot, therefore,
of deductions
*
Dissertations
from
certain
premises more
or
system
less
It
consists
arbitrarily
and Discussions, III. 255.

t Prof. Holland's
Jurisprudence, 91 (2nd ed.).
t See Jb. pp. 00, 66, 95.
|i " The
} lb. p. 94.
Aryan Household," c. XV.
368
The,
assumed.
The
State.
sake
own
or, to
use
either substantive
apply either
State,or
Substantive
Law
Lmo
is the
arranged
general
issued
are
mands
com-
either for
giving effect to other

That is,they are
either principal
or
sorial
accesBentham's
familiar expression,
they are
or
adjective. The substantive commands
only of
some
the
commands
of
purpose
all persons
to
to
These
for the
or
priorcommands.
be
to
matter
of the
their
Codificationof
who
under
are
such
the
control of the'
In other
persons.
words,
the
is either
generalor special.Thus there are

three leading divisions or departments of law
Substantive
General
Law, Substantive
SpecialLaw, and AdjectiveLaw,
otherwise
call the last two, the Law
relating
or, as we
may
to Special Conditions
classes of persons, and
the Law
or
of Procedure.
It is of the first of these great departments,
"
and
only of
problem is to find
ground of division.
this
largest portion of
Law.
State.
of different
are
absolute
or
relative.
particular.The
kinds.
Relative
rightswhich
General
Law
duties.Particular
and
the
rights which
each
suitable
of
the
These
do
they
either
the
not
other than
either
are
general
or
duties
partiesof
of
as
person
are
the
comprises
imposed, they
Relative
their
imply, and the

making
practically
own
law, form
legal business.
itself into
another
Thus
Absolute
stantive
Sub-
duties,
fore,
duties,and Rights. Duties,theresome
the basis of this classification.

connote
some
duties
divides
severally duties.
is
duty
probably the largest part
General
Law
According
power which the State allows to

for themselves
by their contracts
and
of law
; and
general commands
create
the
whom
on
person
General
relate,to the interest of
do
relate,or
write
now
department
the
commands
These
duties
the
for
first,that
Substautivc
The
Substantive
the
of these
Since
other,a division based
duties
duties and
upon
duties
imply, are
commands
necessarily
subject. Duty, too, is a phenomenon wliich

other juml phenomena, and is not governed by them.
governs
It precedessanctions.
It includes rights. Thus it complies
covers
tlie wliole
370
The
of the
cation
Coclijt
of licensed
publicans. To
of absolute
duties which
Law
this class also
belongsthat
of universal
is not
of
but
branch
special
application.Such, for example, is the law which relates to

and other populous places. Many duties are imposed
towns
residents of particularlocalities,
are
or
upon
persons who
which
who resort to particular
duties do not conlocalities,
cern
their fellow-subjects
in other
parts of the country."
Such
duties,consequently,
requirea separate treatment, and
find their natural
place among
the other
of
cases
exceptional
legislation.
Law
The
i^^Qt
Procedure.
of Procedure
^^pQjj i]^q j^^^

existence
the
and
constitution,
after such
courts
great body of
which
cases
of such
powers
of Conditions
have
which
and
method
the
presumptions of proof,and
their
the
discretion,
incidence
are
It is not
or
conditions
evidence, the
does
courts
of the costs
of
given,and
always easy
the
belong
not
belong
to tliat branch
styledPolitical.
of the court
the
in
transacted,
and
the
rejection
exercise
give or withhold redress,the

the form
in which
litigation,
ments
judgprocess by which they are enforced.
whetlier
procedure,but
this
or
and
sues
limitation
as
the
Roman
and
which
which
the law
and
the
Set-off is a matter
is election under
it appears,
Crown
Thus
is sued.
of
given
is
law
Will.
So
of
manner
in
which
the law
in tlie courts
differeut rule of limitation
every
been
the law of Insolvency
are
of
prevails.It
the
relatingto
prescription
distinguishedfrom
is
hiAvyerscalled it usucajîon,
be noticed
the
procedure. So,
regulates the mode

In like
does
merely
actions,as
will not
of
may
to matters
of fact that besets
as
ordinarydifficulty
division. On some
disputedpoints,however, there have
decisions.
judicial
But
there arises
is
admission
which,
upon
to determine
to
and
in
regulatesthe manner
prepared for hearing,
are
business
the
the
of
be
may
law, which
commenced
in which
courts
It poses
presupthe creation,
called into existence
been
technical
are
of Justice
borders
extent
some
Special Conditious.
of Courts
of the Law
^f
to
mere
cedure,
pro-
country in
is
chieflyin
Lavo
3/1
of Procedure,
foreignrightsthat the distinction is of practical

imjx)rtance.Snch rightswill nsnaUy be enforced,bnt those
who apply to a conrt for aid must
be content
to accept the
procedureand the remedies of that court accordingto the
rules which govern it in its dailycourse.
It is hardlypossibleto obtain in any system of legal
arrangement absolute precision.The various jmrts of the
law so shade into each other that a sharp Hne cannot
always
be drawn.
where a sufficient line has been obtained,
Even
border cases
which, in a greater or less
occur, respecting
degree,doubt must exist. Moreover,in an organicstructure,
relation to
almost
jxirt has
every
than
more
connexion, and
one
its
Further, the
place may thus vary with the stand-jx)int.
demand
convenience
sometimes
cessions,
conexigenciesof practical
and logicalexactitude must
give place to utility.
This
last element
whole
of the
conditions
of
disturbance
law, both
and
the
felt when
is most
substantive
law
and
the
the law
of
of
is not simultaneously
procedure,
codified. This difficulty,
however, will naturallydisappear
when the whole work of codification is complete,and in the
of time most
rtdes will ultimatelyfall into their
course
be
proper places. But in a first and a partialand it may
said a provisional
both intentional
inconsistencies,
attempt some
and
the
law
Austin,* reads and reflects

juris
perceivethat
must
inevitable.
are
unintentional,
logicalrigour.
The
can
an
it cannot
members
or
and
be
carpus
constructed
with
parts of the
their
ment
arrange-
common
matter
pletely.
organic whole, they can hardly be opposed comIn other words, the arrangement of a corpus juris
only be
contain
of
the arrangement
on
being extremely numerous,

being
"Whoever, says
so
matter
constructed
which
that
none
of its members
logicallybelongs
to
another.
shall
1
of the various divisions were

conceived and
principles
and if the necessary
expressedclearly,
departurefrom the
marked
the
principleswere
consi)icuously,
arrangement
the approach to logicalcompleteness and
would
make
the
"
1.67.
2a2
37""
The
which
correctness
will
matter
The
the
law
efiêct the
Acts
the
drawn
were
; and
reluctant
deeds
well advanced
prescribethe
to
contained
matter
of Parliament
and
present reignwas
Its definition of such
whole
deeds
its stubborn
thoiightfit
legal sentence.
accomplish."
to
3. Until
"
Codification,
is all that
permit ns
Literary
the Law
Codificationof
in
in the
with
character
sentence
of
in
was
single instrument.
in preparing
used
manner
the intent of
preventing
the possibility
of interpolation,
written continuouslyin one
interminable
without
sentence, without
division,
any
any
and
without
nary
ordicontrivance
in
which
punctuation,
by
any
compositionsaid is given to the wearied attention. As
a
concession
the weaker
to
Parliament
were,
brethren,the
usually numbered,
were
the
Statute
its numeration
of
sometimes
any
an
incredible
Statutes,the
each
length.
line has
an
law
of
It contains
words
8vo
does
I do
styleof
much
not
as
economize
them,*
over
comma
tlie brain
in
13 words.
of
so
due
to the
the
length of
money
the
charges for copying per folio.

and law.
between
connexion
prolixity
in reference to the grim formula
Sus.
"
Act
No.
147,
section
extending
page and a half

of its readers.
power
Draftsmen
draft,and
s.
40.
could
There
by
the Victorian
of remuneration.
their
not
and
undertake
mode
the
wash-charger in
for
fully to account
legal composition. It certainlywas to
not
Queen's
having escaped
82 lines of print,
which
without
the
probably in the
be entirelydisregarded,
it is found
professesto describe the nature

sentence
consistingof nearly 1,100
of
themselves,too,were
One
of about
average
the
Thus,
kind, is still extant
in which
Act
in
presume
inaccurate.
clauses
The
of the consolidators.
the hands
and
of its
the worst
means
often
important
hopelesspuzzle.
of Acts
copiespublishedby
were
Book, is,unless
not
but in
documents
original
printer. These numbers
Bill of Rights, the most
clauses
this
paid by
be made
no
terrible
extent
some
were
is
royal
out
of
necessary
Lawyers, as Bentliam
remarked,can
per coV
JiuUs
3/3
of Legal ComposUum,
when
it suits them to
quiteas conciselyas other men
do so.
Apart, however, from any deliberate purpose, a professional
under
founded
these influences ; and
style was
not
in the most
conservative of professions
that style was
easilylaid aside. Whatever the cause may have been, the fact
if his
remained.
Mortal man
could not write even
tolerably
be longerthan those of a German
must
sentences
philosopher,
and if his fees depended directly
his verbosity. In the
upon
earlypart of this reign,an Act of Parliament providedthat
in the taxation of costs regard should be had in determining
the fees for the preparation
of deeds to the difiictilty
of the
and not to the length of the iustrimient.
In 1850,
case
write
another
directed
Act*
that
divided into
and
sections,
words be
introductory
any
know
residt of these
with
far the
how
not
Acts
of Parliament
Acts
that
each
deemed
change
section should
substantive
due
be
may
but it is certain
of Parliament
has
Acts
readable.
shown
without
the direct
that after their
remarkable
be
enactment.
to
generationof draftsmen, the
new
should
ment,
enact-
of Acts
form
alteration.
These
They are divided into sections of

reasonable length. Vain
avoided.
are
repetitions
carefully
and
Various contrivances both of the author
of the printer
in common
are
use, and greatlyfacilitate the comprehension
of complicatedenactments.
On the whole, the form and the
styleof the best EngKsh Acts now leave Uttle to be desired.
Rales
now
are
'"
of
Legal
poaition.
The
words
of
law,
says
Bentham.t
Com-
be
.,,,.,
Weighed
given;
Under
contain
neither
matter
other
creates
i-
like diamonds.
for every
v,
To
word
every
ought
to be
^
effect must
idea
adequateexpressionmust be found.
the grave risk of possible
failure,
therefore,
a law must
exactlyas many words as are requiredfor its purpose,
fewer.
On the one
more
nor
side,when the subjectis complex, brevity is not
wit but folly. On the
side, in all circimistances,every superfluousword
additional risk in the interpretation.
Under
such
an
conditions
ornament
is
inadmissible.
legalcomposition is perspicuity.Of
*
13 "
11 Vict.
c.
21, s. 2.
The
that
t m.
one
kind
a09.
merit
of
in
writing
374
of
Codification
The
the Law:
Quintilian'sremark*
is
that
be understood.
of
good writer
may
being misunderstood.
either
He
be
must
rules will make
No
enough
incapable
good writer,
subject.Yet there are some

minor observances which in legalcompositiontend to secure
the necessary clearness and to smooth
difficulties.
some
practical
They were firstpointedout, so far as I know, by the
late Mr. Goode in his pamphlet On Legislative
Expression,"
and I may i)erhap8be permittedto add my personaltestimony
that in a tolerably
extensive experienceI have never
known
them to fail. A legalsentence
usuallyconsists of a
and a Predicate.
These parts
a Subject,
Case,a Condition,
ought alwaysto follow the order in which I have placedthem.
If there be neither case
the matter is simple.
nor
condition,
on
law
It is not
true.
especially
or
on
any
other
"
If there be
than
more
one
case
or
than
more
condition,
one
parts should be introduced in that part of the

is appropriatedto their class. They may
which
the additional
sentence
conveniently
begin the case with the
equivalentterm ; the condition with
"
mood
and
attention.
and
the tense
The
"where"
the word
of the verb in each of these

should
case
"
or
if."
some
The
parts deserve
cative,
always be expressedin the indi-
In both
mood.
conjunctive
present tense,and not the future,should,for a
shall presently
state,be employed. The subject
the condition in the
divisions the
that I
reason
word
person, since it is to persons that duties

rightspertain; and should be followed by the word
should
and
always be
permissionby may,"
with or without the negativeas circumstances
require. Our
to the use
Act contains a general provision
as
Interpretation
should be made for
of genderand number, and a like provision
the inclusion,
where need be,of a man's legalrepresentatives.
These simpleexpedients
secure
very considerable advantages.
Provisoes,not tlie least irritating
part of i\\Q old method, are
almost entirely
avoided,and tlie sentences are framed on the
of the Period,the most
economicf form of writing,
principle
"
BO
shall,"or
far,at least,as
*
Hon
"
if it be desired to express
the
lit iiilelliiiere
possit scd
t Seo Mr.
llcrbort
tic
attention of the reader

oinnino
SiHJiicer" Ou
is concerned.
Inst. VIII. 2.
iiiUUiijefeciii-andtim.
lion
jioffil
Thilosophy ot Style," Jissaya I. 228.
"
the
375
of Codxfioatwn,
LegislativeWork
Tht
shall,"which in our language

ambignity of the word
and command, disappears; and in the
both fntnrity
expresses
the present t"nse
of the case and of the condition,
description
"
The
well be substituted
may
to
be
at
mentioned
clauses I have
The
speaking.
moment
every
future,as the law is supposed
for the
the continued
removes
general
of the
use
is caused
interruption
ever-recurring
by the
of pronouns
with different genders and
numbers, and
use
heirs executors
by the ceaseless but exasperatingre-iteration of
which
weariness
and assigns." The
administrators
similar repetitions
these and
produce arises from the same
thought which
to consecutive
"
cause
as
that
which,
even
comparativelyineffective
of the sentence.
On
because
served
imder
the
Few
experiment would
compositionof the
The
"
Legiaia-
the
structure
non-perioilic
loose
this
point care
old
system
to indicate and
loose sentence.
circumstances,renders
the
have
readilycredit
habitual
wc
the
observance
fully
care-
tendency towards the

not actuallytried the
influence
legal
upon
of these rules.
that the work
assumc
be
now
the
who
should
too
needed,
especially
of punctuation
absence
is
to check
so
persons
4. If
or
rules of the Period
The
followed.
in favorable
as
I have
de-
scribed it has been
sufliciently
performed,and that
tolerable draft-code has been prepared,a further and not
a
less important problem arises for solution.
By what means
codificatkm.
is the code to obtain

in great
The
work
to
measure
effort in the way
the force of law ?

this
It is I think
that
difficulty
of codification
has
been
owing
little practical
so
made
in England.
indeed
belongs to Government, and does not come

within the sphere of privateenterprise. In any
scientific
the inquirerpublisheshis results.
If they be
investigation
sound, they are accepted by competent students ; and their
author
finds his
in fame.
Few
But
reward, if not
in
the
barristers who
would
undertake
case
in
on
substantial
of codification
anxious
were
their
own
for their
accoimt
form,
at least
it is otherwise.
professional
position
the formation
of
The
oiO
code.
The
Codification
of
is that the work
reason
is worthless.
However
acquires the force
It is not
law.
of
It is not
is
do not
In the eyes of the
therefore to be
lishers
Pub-
shunned.
of great cost and
books
covet
law
workmanship, it
of law useless to the profession.
text-book.
It has a dangerous
book, and
law
it become
be its
solicitors abhor.
theory,which
publicit
unless
perfectmay
is mitil it
savour
the Lato
of
sale.
no
No
no
can
learning,
skill,
prevent this result. Nothing
will give value to any draft-code except the authorityof the
Queen in Parliament.
Hence, again, the question meets
is that authorityto be obtained ?
How
us
care,
no
"
ought
be
to
overwhelmed
hour
proposed by Ministers.
by the ceaseless labours
until
and
they are
pressure, such pressure at least

be expected,for the public has
as
measure
from
them
upon
such
task.
the
out,
with-
Strong
regard,cannot
Ministers
to look
since learned
long
are
strugglesof
and
pressure comes
likelyto undertake
Ministers
But
some
not
Such
present themselves.
obstacles here
Two
legalevils as hardshipsin the ordinary nature of things

which
only submit as patientlyas they may.
they must
upon
to
But
could be set in
if Ministers
even
be got
the
through Parliament
consideration
In what
from
of
condition
Committee
could
How
nigh insuperableremains.
well
motion, another obstacle
is
and
that
useful law
moderation
would
one
is
no
*
what
may
it is far easier to conceive

than
the
and
so
has
to
construct
the
attracted much
parably
is incomlegislation
be styledthe ethical,
justlywhat would be
law
same
design of the lawgiver."

probably with greater truth
that the
two
guarantee for
II. 371.
t of his critics observes

admitted
for
containingthousands of clauses
such delicate workmanship emerge
difficultthan
accomplish
measure
Bill
more
could time be found
When
which
passage of Austin*
attention,that " the technical part of
There
such
tliat
"
that
With
the
it will
it may
greater
most
tinguishe
dis-
readilybe
that the
diifcrent,
are
qualifications
the other,and that the talent which
t J. S.
Mill,Dissertations
and
Discussions, III. 251.
378
facilities.
far
In
from
In
Parliament
by
Codificatron
oj
new
country
is
inconsiderable,
communities.
there
The
has
The
Ministry.
any
perhaps in favorable
be
beginning must
that
the
time
for action
assistance
arrived.
last
century about
that
something
the
should
to be
eternal.
its final solution

If
the
best
new
proof of
fact it answered
various
for such
in
Council
amend
that the time
said
during
time
was
the
ought
it
essential,but
indeed
was
It
code.
the
far that
so
questionhad advanced
could only be obtained
ment.
by actual experistarted,
theory,the theory of duties,were
The
its merits
would
it
in very
designed. By
was
conditions
necessary
ingly,
length fulfilled. Accord-
introduced
Bill
Substantive
that
show
to
how, the
at
was
"
be
for which
not
Bill
entitled
the General
too
controversy upon
it matters
1879,
seemed
It
passed,and
The
the
expected,but
be
be done.
undertaking were
an
might
been
the purpose
means,
initiated
be
Government
without.
had
But
Enough had
advantages of
classification of the law

not
from
would
of
circumstances
older
confidence.
code
in
than
ConsolidatingActs,
encouraging
for discussion
had
inertia, although
vis
of the
that
made
formidable
less
an
little likelihood
was
Laiv
the
the enactment
shown
the
into
declare
to
Law
the
tive
Legisla-
consolidate
relatingto
and
certain duties
of the
intended as a mere
People." This Bill, which was
experiment,did not include the duties relatingto property
did not proceed beyond its second
and
reading. In the
following session it was revised and completed, and in this
not
state was
passed by the LegislativeCouncil, but was
In 1881 a similar
considered
in the LegislativeAssembly.
Bill dealing with
read a second time in
Obligationswas
further
not
the Legislative
Council, but was
intentionally
advanced.
favour
end
These
both
of that
by
attempts
Parliament
year
expenses
of
the
and
Parliament,
Premier, Sir Bryan
received
were
the
by
on
public;
tlio motion
O'Loglden, granted
necessary
revision
of
considerable
with
and
the
of tlie then
"2,000
these
at
Bills
for
and
the
of
others
that
preparation. The
additions
Victoria
the
was
mutual
checks
and
This
is
Law
of Procedure.
and
perhaps
of
does
Law
Jime, 1882,
but
labours
of
their work
is
The
asked
will be
Parliament
for
made
were
when
tributed
dis-
was
in the
Austin
classes
to
present
Nor
groups
state
under
is those
laws
consists in various
it presupposes.
the
It treats
Nor
which
is it immediatelyconcerned
those
Acts
those
branches
of
description
which
affect
the Law
but
none
of
ticular
par-
less
private- For
exceptionaland
modifications
of the Greneral
whether
is
the law
aU
all matters
does it include
of persons,
of
include
concerningthe
requireseparate discussion,
of the law are
hardly yet
omits
matters
each of these classes the law

and
peculiar,
professto
is in force in Victoria.
and
These
codification.
which
of
Law
work
The
arrangements
not
that
or
Conditions,that
Law
Draft-
their recommendations.
Draft-Code
which
secretaries.
as
in
was
bined,
com-
t assisted
eight barristers,
of
probable that
Substantive
ripefor
them, and
Substantive
draft
yet ended
not
either of Victoria
only of
to
then
were
generaJ consultations.
these re\T[sers have
complete, it
give effect to
hands
them, and
among
Bills
General
This
result.
placed for revision in the

by two other Ijarristers
law
made
were
3/9
Victoria.
in
containing the whole
Code*
of
Proposed
were
various
Code
The
more
publicor
or
even
in those
subjectswith
does the Draft-Code
include
the
which
made
are
Imj"erialParliament
expressly applicable to the colony. Over such Acts the
Colonial Legislaturehas no control,and it consequentlyhas
But subjectto the necesno
authorityto consolidate them.
sary
exception of
professesto
which
states
"
For
include
actually
the
those
all the
concerns
rules
Imperial Acts,
of
the Analysis of Contents
law, whether
every
person
the
present draft-code
common
in
the
the
legal interpretation,
or
statute,
country.
maxims
It
that
of this Draft-Code, see

infi-a pa^
385.
Appendix
follow :" Mr.
J. Warrington
gentlemen
are
as
Rogers, Q.C.,
Mftssrs.
H. P. Walker, T. P. Webb,
J. B. Gregorj-, H.
B. Higgins, S. St. .John
Topp, W. E.
The
Johnston, and T. P. Mclnemey.
secretaries
Messrs.
J. C. Anderson
and
K. H.
are
to the pressure
Campbell.
Owing
of other
Messrs.
professional engagements,
Higgins,
succeeded
Topp, and Johnston
resigned, and were
by Messrs. G. H. Neighbour, E. B. Hanulton,
t The
and
names
the secretary,
of
Mr.
these
Anderson.
380
The.
observed
are
partiesto
in
the
the Law
of
Codification
of
the
law, and
classes of duties
and
of
administration
the
several
declares the various duties which
the State
rights.
these duties
are
assignsthe consequences,
criminal
due
civil,
or
It
to each
such
indicates the tribunal which
and
nature
the
have
accrued
It thus appears
far
they
as
Duties
It
the
states
it enumerates
practiceobligations
of
great incidents
witliin other
Transfer
in which
obtain
jurisdictions
recognition.
courts
our
the
in
tion.
jurisdic-
Relative
it notices the circumstances
and
Succession,
rightsthat
has
case
rightswhich
which
It also describes
of
and
such
of contracts,and
combinations
whether
and it incidentally
respectiveconsequences.
the consequences
various
assume.
in
their
and
connote
in every
forth the various
It sets
circumstances
breach
which
in
various
It
all its
imposes on
the
subjects. It specifies
broken.
the
that the
within
come
and
offences
of summary
the
late Lord
Chief
includes,so
present Draft-Code
its scope, both
offences
indictable
jurisdiction.In this respect it

beyond the proposedEnglish Code of Indictable
goes much
Offences.
I do not mean
to discuss the comparativemerits
of these arrangements.
It is gratifying,
however, to cite in
favour of the course
that I have adopted the authorityof
Justice
Cockburn.
the
Attorney-General of England
(IndictableOffences)Bill he thus
that
the
certain
the
all
as
for
reason
in
sections
the
various
when
dealingwith
offences
whatever
as
offences its
the
constitutes
properlyfind
if it sets
are
its
omission
to
Code
Criminal
is obvious
sections
{i.e.
repealedby
not
from
conviction
the code of
and
herein,
radical defect which
operationis
subject of
an
must
indictment
to
but
such
surely
against the penal law should

code whicli can
only be; complete
law in its
by the House
limited
offence
placein
forth that
Ordered
Acts
letter
completeness of the work, namely, that
the
necessarilymar
the
of these
criminal
is to be found
to me,
seems
his*
writes, " It
retention
proposedBill)is the intended

offences punishableon
summary
it
on
In
of Comnions
entirety. The
to be
printed, Juno
offence
16, 1870, p. 0.
being
The
the mode
established,
the offender may
have
the
the
penal law
such
of them
entire
an
but
occupy
little additional
cause
as
being,
it would
specified,
important
circnmstances,
they necessarilymust
comparativelysmall space,
to
under
say
it is intended
to make
to
whole.
unbroken
and
to
departments
as
trouble,
as
have
to those who
its subordinate
in
them
offences
The
.
It is all
before
law
different
proceeded against,and the punishment

be awarded,
the degree of gnilt,may
be
be set forth.
administer
381
Victoria.
of
which, nnder
in
which, according to
should
Code
Propowd
be,
and
what
stances
circum-
the
subjectof
subject,and what in such

of
shall be the method
the measure
of proceeding and
case
The
of the law applicableto the
statement
punishment.
offence would
the code be
then be complete. Why
should
proceeding shall
summary
limited
'indictable
to
be
so
offences'?
code of the
is wanted
What
is
solidation
con-
law
relatingto crimes, no matter

what may
be the method
of proceeding applicableto them.
Larceny is not the less larceny,assault is not the less assault,
juries
inmalicious injuriesto property are
the less malicious
not
or
"
law
all these offences
because
dealt with
set
under
by
The
code
reasonable
care
will in the
as
But
no
of law
who
the
of
and
shall be
would
the
no
the whole
That
fitly
different
desired,the whole
probable that
at all events
or
every
would
code
with
it contains
which
that
any
of the law.
tude
magni-
of such
of the authorities
man
simple. It consists merely in

in not
or
seeking an unattainable
dangerous in the highest degree
have
work
exact,
insure
allege that
is
reformers
under
rnles
be
cases
industrycan
to
It is
existing state
recorded.
venture
but
in
of the
great majorityof
care
law
danger
the statement
as
be
they may
procedure,and
is that of omission.
nearly exact
the criminal
less within
by another."
principalsource
a
as
of
mode
of circumstances
the
none
set of circumstances
one
one
are
admit.
proposition
indeed
contains
be
not
rash
only
Fortunatelythe remedy
not
attempting too much
perfection. It would be
to
repeal,as
Common
Law.
some
It is
zealous
enough
382
The
far
provide that, so
to
founded
deemed
to be
the Code
unaltered.
In this way,
been
that
made,
extent
Code.
is
where
be
can
had
will continue
shall remain
that
to the
old
omission
an
law; and to
before
they were
as
be
exists ; and
now
Law
it is found
are
the
Law, and that

largestpart of the Common
part which is in the most frequentuse, will have received
authoritative declaration,
and acquireda statutoryform.
an
With
each successive revision of the Code the outstanding
portionswill graduallydecrease in number and in importance,
until they are finally
Thus
the old Common
absorbed.
Law
But
it
as
the Common
silent,
recourse
matters
provisionsof the Code

Law, these provisionsshall
declaration of that law
that,where
has
the Law
the
as
Common
the
on
Codification
of
the
will meet
have
its
run
disuse.
its natural
it is
no
In the words
studied.
its honourable
It
course.
When
and
began in custom
longer needed, it
of its own
maxim,
end.
it will end
will be
"
It will
no
Cessante
in
longer
rati one
Lex."
cessat
The Revision
of a Code.
"
^^^
6. In
great change unreasonable
cvcry
fears
Unreasonable
rife.
alike
are
hopes
In
the
either groundless,
that the fears are
present case, I assume
or
that,if they be well founded,the evils are outweighedby
acknowledgedadvantages. But I may say a word of caution

to the hopes. It cannot be expectedthat any code should
as
free from error, or that it should supersedethe
be entirely
need of professional
advice,or that when completedit should
last without
and
reference,
change for
has
its defects
and
They
be
can
ever.
discovered
Further, its defects
be
never
are
negative; and attention

wliile
tliat is positive,
the
in
Doubtless
will be from
time to time
"
Naliira
Do
hnmani
Aug. Sci.
inlellectiu
v.
4.
such
known
reallya book
books.
by
mere
of
Its merits
inspection.
only by actual and continued use.

and its merits are
mostly
positive,
always* fastens upon the small part
overlooked.
Bacon,
is
code
of
qualities
all the
can
large part tliat is negative is

will exist,and
every code errors
brought into
notice.
et actUis quam
qfflrttMtivis
mactit"if(cilur
But
so
long
negativiset privativU,
"
The
ReviMoH
of
383
Cwle.
and
they are comparativelyfew and comparativelyslight,
so
long as they can readilybe corrected by amending Acts,
class of
this particular
there is no reason
to complain that
work
is subject to the ordinary imperfectionsof human
as
labour.
Not
conceivable
that in any
less vain is it to suppose
societycould dispensewith the services of

a legalprofession.Apart from
any question of the orderly
conduct of business,
law must
always involve the application
of general rules to complicated states of facts,and such an
is a work
of skill. A good code will not get rid
application
of the
state
of
law
lawyers, but it will enable
them
advise
to
their clients
with
genuine confidence. There is no greater error than the

popular belief that lawyers are interested in an obscure and
est
ambiguous state of the law. It is their duty and their interto ascertain îth
their clients' legal position.
accuracy
Wlmtever
and
enables
despatch is
A
increase
diminish
them
exchange,just as
But
of
cost
with
increased
accuracy
to
production always
increased
an
sale of
the
so
to their clients and
gain both
clear
diminished
it.
do
to
always
cost
legal advice
and
selves.
them-
tends
to
tends
to
assistance
does not
materiallydiffer from other modes of industry.

The vainest of all such hopes is that a code when
it has
been completed will remain
j)ermanentlywithout need of
quently
change. Law is an expressionof natiouEil life,and conseit can
the nation ceases
to change only when
cease
to live.
An
absolutelyfaultless code would after sixty or
seventy years
which
and
present
it bore when
to
were
enacted.
it was
in
remain
different appearance
very
that
state
If
law
our
without
from
that
codified,
were
farther
ment,
amend-
it would
probably never
revert, not certainlyfor
But
centuries,to anything Kke its present disorder.
change and consequentlysome
tendency to confusion
many
some
are
from
the
of
nature
course,
to
the
therefore,is
needful
changes
with
the
least detriment
to
things unavoidable.
make
the
the
arrangements
utmost
symmetry
The
for
despatch
of
the
true
effecting
and
Code.
with
It is
384
The
probable
will,
the
has
formed
into
all
upon
law
of
wider
the
for
means
perhaps
be
but
would
safe
be
If
arrangements
of
the
even
to
made
Code
some
it is not
easy
purpose
could
the
under
could
should
be
be
assigned
acting under
to
what
be
further
desired.
."""""
safe
or
duty,
some
better
the
of
not
be
it
reports
revision.
special
care
judge,
individual
of
section
could
as
decennial
direction
which
might
annual
the
the
convenient
changes
but
of
and
which
by
the
Act
that
requires,
such
least
to
of
rapidity
of
at
Court
report annually
corresponding
such
made
officer
see
the
in
are
pages
This
These
influence
upon
to
occasion
as
Judges.
the
administration
furnish
with
reckon
to
in
revision
Supreme
the
of notice.
Code.
the
in
always
the
imposed
suggestion,
changes
necessary
desired
the
of
operation
with
would
Act,
English
the
of
these
required
are
deserving
that
than
while
Judges
on
connected
consider
they
is much
merely
not
matters
that
the
law,
of
Council
the
which,
Council, and
Governor
the
Act,
become
Law,
instrument
be
country,
Judicature
press,
are
to
the
the
of
convenient
most
this
in
least
at
Under
the
that
Codification
the
machinery
or
judges,
for
the
386
Appendix.
Ac^
"
divisions
I.
Part
Division
as
"
follow
Subdivisions.
2.
Subdivisions.
(a)
"
Divisions
Written
of
all written
of distance
and
Evidence
of intention;
and
(/) Repugnancy; (g) Form
other
Division
4.
Division
5.
Division
G.
Part
Division
"
"
"
II.
for
Rules
"
Statutes
"
1.
"
"
upon
(i) Glossary.
written
instruments
of
interpretation
contracts.
Special rules
for the
of
interpretation
wills.
Maxims
of the Law.
Duties
and
Matters
of
"
Rights
of
thereto.
liability.
of
and
procurement
(c)Vicarious
liability;
of
liability;
liability.
of
justification.
(a) Legal
"
Parties
the
and
(a) Attempt, abetment,

of
Matters
Subdivisions.
tracts;
con-
citation of Statutes;
for the
Descent
2.
and
Statutes
Special rules
offences; (b) Community
Division
and
Statutes.
than
Subdivisions.
(d)
Remedial
(i)
impei'ativeStatutes;
of
interpretation
the
(c) Implications;
of Statutes.
interpretation
for the
(/")Implicationsin
instruments.
of time.
(d) Enabling Statutes; (e) Operation of
3.
Sub-
Instruments.
(b) Intention
preventive Statutes; (c)Permissive
Division
and
"
Special rules
"
in Parts
(a) Words
"
(d) Computation
Division
arranged
of
interpretation
for the
Rules
1.
is
Interpretation
The
"
Act
This
4.
Arrange-
the
powers;
(b)
(c) Self-defence; (d)
Defence
and
commands
peace;
servation
Preof
property.
Division
3.
"
Matters
Subdivisions.
and
Division
4.
"
"
excuse.
(a)
Defective
(b) Mistake,
intelligence;
"
in
rem.
(a)
Nature
rights; (c) Vicarious
of
exercise
rights; (b) Community
of
rights; ("/)Descent
of
of
rights.
Division
5.
"
sent,
con-
accident; (c) Triviality;(d) Coverture.
Rights
Subdivisions.
of
Consensual
obligations.
Appendix,
III.
Part
Division
1.
Division
2.
Self-regardingduties.
"
Houseliold
"
Subdivisions.
{d)
Division
Duties.
Pkivatb
Âbsolute
"
oOi
duties.
(a) Management
"
(b) Marriage
(c)Births
Maintenance.
3.
Duties
"
Subdivisions.
concerning occupations.
O^l^servance
(a)
"
Medical
occupations; (c)
newspapers
(c)
of
Sunday;
(6)
Licensed
and
profession; (d) Printing
Factoiies
and
mines
(/) Pecuniary
transactions.
Division
4.
concerning importationand
Duties
"
Subdivisions.
(a)
"
Influx
of
exportation.
(6) Imports
criminals;
and
exports.
Division
5.
Duties
towards
the
Division
6.
Duties
towards
and
"
"
Subdivisions.
(a)
"
slaughteringof
animals
tion
and
The
tarae
Aborigines.
concerning lower
of
treatment
animals
(c)
registrationof dogs
capture
of
game
The
(e)
The
{b)
diseases
The
(/)
animals;
The
(rf)The
animals.
of
tame
presei-va-
preservation
and
capture of fish.
Part
Division
1.
Division
2.
Division
3.
Division
i.
"
"
"
"
IV.
Duties.
Duties
of
Duties
concerning publicservants.
Duties
concerning elections.
Duties
concerning
Subdivisions.
of
of
Public
Absolute
"
"
allegiance.
(a)
The
the
administration
conduct
justice; (c) Abuses
justice; (e)
Arrest
of
justice; (i)
justice.
The
justice; (rf)The
Jurors
{/)
of
of
(g)
tating
faciliofficers
Witnesses
(h)
Prisoners.
Division
5.
"
Duties
Subdivisions.
assemblies
Division
0.
"
and
(a)
"
Duties
Subdivisions.
concerning the publicpeace.
"
gaming;
(c)
Breaches
Riots
of
(d)
the
Unlawful
peace
Public
{b)
Unlawful
oaths.
concerning public decency
(a)
and
good
order.
decency; (b) Disorderly houses
(c) Vagrancv; (d) Dangerous

2b2
persons.
388
Appendix.
Division
7.
Duties
"
Subdivisions.
concerning the public convenience
(c) UseofjSre;
Division
8.
Duties
"
Subdivisions.
Division
9.
Public
(a) Coins
"
Subdivisions.
(d)
nuisances
health.
(b) Weights
the
concerning
(a) Customs;
"
safety.
of veliicles ;
(b) Use
concerning coins, weights, and
Duties
"
Common
(a)
"
and
and
measures.
and
revenue
measures.
protection.
its
(6) Excise;
(c)
Post
office;'
(d) Stamps.
Part
Division
V.
Duties
1.
"
Subdivisions.
duties
(a)
tending
Duties
2.
the
Duties
of others.
person
life
relatingto
loss
to
Duties.
of
life
(d)
Duties
Subdivisions.
the
of
relating
Duties
of
Breaches
to
duties
security;
relatingto
the
dead.
the
relating to
feelingsof
(a) Defamation; (b)
"
(b)
Breaches
(c)
relating to chastity;(f)
Duties
"
General
bodily harm
to
dispositionof
Division
Relative
relatingto
"
tending
(e)
"
others.
Insults
threats
and
(c)
Blasphemy.
Division
Duties
3.
"
Subdivisions.
and
Division
(a)
"
outdoor
4.
Duties
"
breaches
duty
of
(c)
Duties
family of
the
property of others.
property
duty in taking property
against Crown
Domestic
Home.
towards
against property
others.
family; (b)
the
The
damaging property
in offences
offences
(a)
of
in
relatingto
"
the
Members
servants
Subdivisions.
of
relatingto
(c) Criminal
(r/)Summary
(f)
Criminal
breaches
jurisdiction
in
jurisdiction
(e) Summary
property
(b)
Restitution
of stolen
property.
Division
5.
Division
G.
"
"
Duties
relatingto
the
industry of
Duties
relating to
the
privilegesof
Offices
and
Subdivisions,
Patents
(c)
Division
7.
Division
8.
"
"
(a)
"
(d)
Trade
Duties
relatingto
Duties
of
Subdivisions."
franchises
others.
others.
{b) Copyright
marks.
the
obligationsof
others.
veracitytowards
(a) Fraud ; {b) Personation
(d) Preparationsfor forgery;(e) Criminal
others.
(c) Forgery
breach
of trust.
389
Appendix.
Division
9.
"
Subdivisions.
Use
(a)
"
and
Conduct
diligencetowards
of
Duties
VI.
Division
1.
Punishable
Division
2.
Punishments.
"
Subdivisions.
infliction of
Division
3.
"
1.
Division
2.
"
"
VII.
Collective
"
rightsof ownership.
Investitive
1.
"
(c)
VIII.
and
3.
"
of
(b) Right
of
(d) Right
"
land
grants
The
to
and
use
disposition;
(6) Conditional
estates.
to
land
land
Accession
;
scription
(Jb) Pre-
("/)Accession
of
(jg)Private
movables
to
grants.
ownership.
of
Land.
in fee.
to
surface
(rf)Rights
fences.
of
dereliction
Ownership
of land
minerals
Ownership
Settled
and
(e)
(cr)Rights
"
Boundaries
Division
ownership.
facts of
Ownership
to
"
land
(/) Crown
(c) Rights
2.
of
Accession
to
Subdivisions.
Division
abuser
facts
Divestitive
Part
Division
possess
(a) Occupancy
"
movables
"
of
to
(c) Expectant ownership.
movables
5.
Ownership.
of
(a) Temporary ownership
"
Division
ments.
punish-
Qualified rightsof ownership.
Subdivisions.
of
of
remission
The
(6)
of exclusion.
ownership
4.
punishments
(c) The
Rights
(a) Right
"
Subdivisions.
Division
of
Singular rightsof ownership.
(e) Right
"
kinds
The
"
enjoy ; ("?)Right
3.
spection.
circum-
for wrongs.
Remedies
Subdivisions.
Division
Personal
(c)
(b)
Sanctions.
"
punishments;
Part
Division
business
property
offences.
(a)
"
of
management
of
control
Part
"
and
others.
for life.
(6) Rights
to wild
to water
animals
{e)
390
Appendix.
Division
4,
Non-possessory rightsin
"
Subdivisions.
Highways
Division
5.
land
by
Duties
"
Profits
(a)
"
the
prendre
(c?)Highways
and
rights
of another.
land
;
Licences
(b)
(c)Annuities.
by water;
attached
to
(c)
the
ownership
of
particulartenements.
Subdivisions.
the
(a)
"
Easements
{b) Covenants
that
run
with
land.
IX.
Part
Rights
"
Rem
in
than
other
of
those
Ownership.
Division
1.
"
Privileges.
Subdivisions.
(a) Copyright
"
in
designs ; {b) Copyright
(d) Patents; (e) Offices;
literature; (c) Copyright in art;

Trade
(/)
Division
2.
"
marks
(")
"
(c)
X.
Creation
Duties
Succession
Part
Goodwill.
Fiduciary rights.
Subdivisions.
(e)
(g)
in
of
of
trusts
trustees
trustees
Obligations
"
of
(b)
(rf)Powers
(/) Vesting
Duties
or
and
Beneficial
of
terests
in-
trustees
orders.
Rights
in
Personam.
Division
1.
"
The
Subdivisions.
formation
of contracts.
(a) Proposal
"
and
acceptance
{b)
Form
(c)
Consideration.
Division
2.
"
The
Subdivisions.
avoidance
of .agreements.
(a) Mistake;
"
(b) Illegality;(c)
Method
of
avoidance.
Division
3.
"
The
rescission
Subdivisions.
fraud
(a) Incapacity; {b) Misrepresentationand
"
(c)
of contracts.
Duress
and
undue
iufluoucoj{d)
Method
rescission.
Division
4.
Division
5.
Division
6.
"
"
"
Contracts
of
Contingent
The
imperfect obligation.
conditional
enforcement
and
of contracts.
collateral
contracts.
of
""i
Appendix.
Division
The
7.
"
dischargeof
contracts.
(a) Discharge by agreement ; (b) Discharge

by performance ; (c) Discharge by breach ; (rf)Discharge
of performance ; (c) Discharge by operaby impossibility
tion
Subdivisions.
"
of law.
Division
8.
Non-consensual
"
Pabt
XI.
obligations.
Arising
Obligations
"
Particular
from
Contracts.
Division
Contract
1.
"
Subdivisions.
of
(a)
"
marriage.
Parties
(c) Celebration
marry;
to
marriage ; (6) Contract

Dissolution
marriage; (d)
of
to
of
marriage.
Division
2.
Contract
"
Subdivisions.
Division
3.
Subdivisions.
to
Division
(a)
"
of
Attorney; (g)
of
Factors
and
4.
Contract
Subdivisions.
(d)
Division
5.
Division
6.
"
of
(a)
of
The
"
Commission
"
7.
"
Contract
8.
"
The
of
mortgage
chattels
The
(")
(J) Shipmastors.
dissolution
chattels
(d) Tenancy
and
(b) The
of
mutual
partnership;
(b)
from
Terms
year
of years
to
year
(c)
tenant.
Sale
of chattels
of
upon
{g)
The
of land.
(b) Sale
security.
(a) Securities
"
(e) Charges
of sale.
Contract
Subdivisions,
of
landlord
(a)
"
Hire
will
at
Brokers
(A)
partnershipaffairs.
of hire.
Subdivisions.
Division
of
up
Contract
Obligationsof
Division
(c)
of bailment.
(c) Tenancy
principal
by agents; (/)
Contracts
Uabilityof partners
Contract
(a)
agent;
partnership.
partners
"
of
Duties
Auctioneers
agents
The
winding
Subdivisions.
service.
of
revocation
principal
; (c)
to
agent
Powers
(b) Personal
and
("f)Sub-agency; (c)
agent;
relation
labour
and
(a) Appointment
"
Duties
"
Work
of agency.
Contract
"
(b)
of service.
chattels
chattels
;
;
(6)
(rf)The
as
securities.
pledge
{/) Priority in
of
registration
registration of station
Laud
bills of
security; (c)
chattels
of
securities
sale
(h)
upon
The
392
Appendix.
Division
9.
Contract
"
Subdivisions.
(a)
"
10.
Contract
"
Subdivisions.
Division
11.
carriage.
Of
goods by
againstloss.
(a)
"
Promissory
Bills
of
XII.
"
Transfer
The
Division
1.
Alienation.
Division
2.
Transfer
of land.
Division
3.
Transfer
of chattels.
Subdivisions.
transfers
Division
4.
Division
5.
Division
6.
Division
7.
"
"
"
"
of other
Transfer
of
rightsin
Transfer
of
Transfer
of documents
Division
1.
"
XIII.
The
rightsin
rem.
personam.
of title.
Succession
to
Rights.
Intestacy.
Subdivisions.
(c)
"
Insufficient
(6)
transfers.
(c) Defeasible
Transfer
Part
(c)
Rights.
of
(a) Sufficient transfers
"
{b) Cheques;
exchange;
notes.
Part
"
of
(a) Indemnity; (b)Insurance; (c) Guarantee,
"
Subdivisions.
"
and
Negotiable instruments.
"
"
{b) Of goods
sea;
land.
by
passengers
Division
of
"
Lineal
(a) General
provisions; (6) Widows'
descendentsj
{d) Ascending
and
share
collateral
relatives.
Division
2.
"
Wills.
Subdivisions.
Wills
Division
3.
"
"
(b)
(a) The
Wills
execution
of soldiers and
and
the
of
revocation
of mariners.
Bequests.
Subdivisions.
"
(a)
Void
bequests ; (b) Vested
and
onerous
quests
contingent bequests ; (c) Conditional and directorybe{(l) Specific and demonstrative
bequests; (e)
;
Bequests
of
Exoneration
of death.
certain
;
things and
(g) Election
to
(A)
certain
Gifts
in
persons
(f)
contemplation
OvO
Index.
INDEX.
doctrine
Abandonment,
Aborigines,duties
of, 221.
towards,
60.
See Duiy.
duties, why overlooked, 58.
doctrine
of
land
224
to
of,
Accession,
land, ib. ; of movables
;
Absolute
of movables
to
Accessories, before
to
land,
225
movables, 227.
the
fact,
121
Accident, a ground of excuse,

with
mischance, ib.
after
the fact, 122.
139; meaning
of, 140; sometimes
synonymous
of, 161.
objects of conrmiands, 91.
Administrator
appointed by court, 323 ; positionof, 339.
Admiralty, judge is bound
by Orders in Council, 41 ; judgments of in cases
of fraud, 120.
of, 273 ; marriage does not create, 274.
Agency, contract
Agreement, an e\-idence of law, 45 ; the basis of church law, 47 ; void, 248 ;
mistake
in, 251 ; void differs from voidable contract,
in, ib. ; illegality
Action, personal,160; limitation
Acta
the
253.
Attempt,
goes
beyond intent, 93;
definition of, 118; to
pick empty pockets,
119.
Austin,
his
on
sovereignty,16
on
absolute
on
duties, 57 ; his
of attempt,
analysis of intent, 103; his definition

"Actio
maxim
personalis," 160; his
179; system of classification

ethical part of legislation,
376.
of
Australia, nature
Bailment,
contract
squatting
criticism
by, 363;
tuo"
on
of
use
object, 94
118; his criticism

maxim
on
"Sicutere
technical
the
and
the
in, 219.
tenure
of,277; objectsin,278; implicationsin,278; negligence
in, 280.
Bargain
and
Beneficial
sale, what, 302.

interests, what, 212;
historyof, 213.
See
Legacies.
Bequests.
BiU
of exchange, nature
of, 252, 291 ;
293 ; effect of indorsement
of, 310.
of
in
152.
votes
impeachment,
Bishops,
Capture, when
how
contrasted
with
bill of
lading,
complete, 188.
Care, duties of, 101.

278 ; duty of gratuitous,279.
Carrier, duty of common,
in action, what,
Chose
202 ; transferred
by notice, 309
Roman
in English, ib.
law, ib. ; how
how
effective
in
Church
government, if non-established, 47.

Circumspection, duty of, 108, 179; three classes of, 281.
Classification,logical conditions
of, 363 ; systems of legal,ib.
method
et aeq. ; proposed
of, 367.
Clergy, lênefit of, 88.

Codicil,what,
331 ; its difference
Codification, legal work

372 ;
382.
of, 359;
work
of, 375
legislative
from
Roman
logical work
;
proposed
codicilli,332.
of, 362; literary work
in
of,
Victoria, 377 ; re\-ision in,
396
Index,
Collusion, 115.
Colonies, collision of law in with Imperial law, 52.
Command,
as
a social force,1 ; analysis of, 4; elements
of, 5
; differs
from
custom,
correlates
of, 53
objects of, 93 ; given only to men, 93 ;

134; produces two
of, 133; implies power,
sanction
Compensation,
in, 5; law
objects of, 90
of, 117
construction
sets
of
Consideration,
ground
of excuse,
; in
of
138; conditions
contracts,
lawful, ib.;
139.
place
252.
illegal,
Conspiracy,what,
Contraband,
; collision
of, 81.
of, 111;
nature
simulated,
ary
second-
relations,154.
Composition, rules of legal,373.

255
Conditions, inequality of, 2 ; differ from representations,
ib. ; law of special,57, 369.
Condominion, what, 208.
Conduct, expedients for the control of, 1.
States, 36.
Congress not the organ of sovereignty in United
Consent,
species
of in contract, 246 ; test of
realityof, 247
doctrine
of
93.
seizure
of, 164.
49, 239 ; implied,68 ; quasi,ib. ; relation of to generallaw,
69 ; punishment for breach
of, 83 ; nullity in, 86 ; right to benefit of,
178; two elements
of, 240; must
of, 239; permanent elements
express
and formless, ib. ;
value, 243 ; variable elements
of, 244 ; formal
money
native,
consensual, 245 ; voidable, 248, 253 ; conditional, collateral,and alter-
Contract, what,
255
conditionals
differ from
contingent, 255
discharge of,
258.
Contribution.
Negligence.
See
Conversion, analysis of, 204.

Creditors, frauds upon, 313.
Crimes
154; incidents of,155; differ from
misdemeanours,
distinguishedfrom
torts, 156.
Custom,
how
different
contrasted
with
from
law,
adopted by law, 39, 49;
; when
law, 8, 31
40 ; relation
of, 82.
Damages, measure
inflicted,79.
Death, in what cases
Debt, punishment for failure to pay,
Deceit, law of, 112.
83.
49.
Delegated legislation,
Delivery,meaning of, 300 ; use of, ib. ; refusal of, 305.
of, 188; when it becomes
Detention,what, 187; establishment
Diligence,duty of, 179; exceptionsto rules of, 183.
what, 89.
Directory enactments,
Document
and
of title,nature
Domicil, theory of, 352;
of
i6.
possession,
of, 312.
effect
nature
how
of to contract, 47.
intention
in succession, ib. ; in marriage, 356

of the, 184.
Donkey, the case
; in
in, 354; applicationof, 355;

divorce, 358.
Dos, modern
equivalent of, 193.
Drunkemiess, how far unlawful, 58,
secondary,
lute,
legal,66 ; absodifference
57; self -regarding,58; absolute
public,60; genenal,61;
absolute
and general,62; general alwiiysnegative, 62; sanction
between
in general, ib.; particular,
in absolute, 64 ; sanction
66; first principles
Duty,
relation
ib. ; result
of
of
and
command
of breach
legal, 69
all, 185;
to
not
descent
368.
classification,
of,
54
; conflict
transferalne,
of
sanction, 53
to
absolute
158
and
of, 55
of
of
primary
; division
all to
some
general, 320;
and
of
and
the
of
some
basis
of
to
legal
397
Index.
Easements,
of, 210; rules of, 211

positive rights in
nature
from
distinguishetl
Roman
re,
ib. ;
prescriptivetitle to, 234 ; how extinguished,ib.

made
exercises
once
Hection, who
right of, 257 ; when
Embezzlement,
of towards
from
is
licences, 212
final,258.
of, 204.
nature
transfer
public,269 ; cannot
; LiabilityAct, 272.
administration
of, 335.
of towards
Employer, duty
respecting,ib.;
maxims
and
duty, ib. ; duty
such
270
servants,
Estate, meaning of, 202 ;

Evasions, examples of, 119.
Evidence, nullity in pre-appointed,87 ; in actions for negligence,102,
of jural,48.
Evolution, course
of property, 194; instances
of, 195; d^;ree8
Exclusion, rightof characteristic
of, 196 ; restriction of, 207.
of, 137.
Excuse, principles
and duties of, 338.
of the will,332 ; power
Executor, who, 323 ; a trustee
for, 123.
Felony, substitute
unknown
of
Finding
property,
Fonte^ juri^,what, 31.
Forbearance,
what,
220.
different from
90 ; how
omission, ib. ;
the
objects of law,
91.
Foreign judgments
350;
in rem,
in personani,
ib.; defences
to
actions
npon,
351.
Foreign rights,limits
in
rem,
344
of
recognitionof, 340;
Forfeiture, abolition
of in
contrasted
with
Fraud,
legal and
moral,
Future
estates, nature
not
acknowledged, 341;
felony, 81.
formless
Formal
where
346.
; in personam,
114
of, 215
contracts,
upon
;
244, 245.
creditors,313.
peculiar to English law, 216;
depend
on
seisin, ib.
irrevocable, 304 ; of real property, ib. ; of personalproperty, ib.
faith, meaning of, 315.
Goodwill, an assignable right,175.
of, ib.; repeal of, 231.
Grants, Crown, ^9 ; form of, 230 ; construction
Gift, when
GSood
Groom,
larceny by,
205.
Heedlessness, analysis of, 104 : duty that contrasts

with, 108.
abolition
323
of
in English
in
324
Victoria,
Heir, et"Tnology of,
;
; disused
ib.
of
ib.
337
feudal,
conveyancing,
; position
; history of,
Heres, how different from heir, 3.35 ; how from executor, ib. ; positionof,336;
in his favour, 337.
changes made
duties
Household,
concerning, 58.
two
Hlegalityin contract, 251 ; in consideration,252.

Imputation, meaning of, 1 18.
of, 264, 289.
Indenmity, contract
Influence, undue, 254.
of action by, 64.
Informer, nature
Innocent
purchaser, protection of, 316.
and fire,265 ; life,ib., 289.
Insurance, marine
when
Intent, mere,
penal, 92 ; analysis of, 104.
International
law, public, 40 ; private, 41.
Intestacy, law of, 325; two questions in, 326; distribution
Judges, duty of, 44 ;

Jurisprudence, basis
of
70.
justice,
of
rules
of
of court
by, 89.
2 ; subject-matterof, 4
scientific,
property in,327.
; not
the
science
398
Jus
Index.
in
and
rem
in personam,
166 ; includes
by right only, ib. ; publicum
et
both duty and

privatum, 366.
right,167
lated
; trans-
Justice, its relation to law, 70.

Justices,jurisdictionof, 155.
what, 133.
Justification,
Knowledge,
qualifyingcommand,
as
109.
Laches, definition of, 104.

far one
Land, meaning of, 179 ; how
may
differs
from
190;
personalty,319.
Law,
essential
34 ;
equivocal meaning
objections to theory
habit
; definition
of, 5
difference
oi,
one's own,
use
of, 6
; differs
from
other
State
of, ib. ; differs from

of, 31 ;
10; source
of obedience
to, 33
.39; maritime, what, 40;
merchant,
ib. ; authorized
possessionof,
custom,
8, 33,
commands, 9 ;
not
repealed by disuse, 32;
knowledge of, 34 ; customary,
of the
sources
180
what,
foreign,40;
40, 49;
exposition of, 42
need
of
certainty in,
rules
of, 45 ; factors in, 70 ; nothing in springs entirely from

of, 363 et seq. ; three
71; classification
departments
euthanasia
of common,
382.
ib. ; demonstrative,
Legacies,general,333 ; specific,
of
theory
Legislation,
delegated,49 ; in colonies,51
and Imperial, 52 ; rule againstretrospective,
74
national,
inter43 ;
nience,
conve-
of, 367;
ib. ;
vested, 334.
harmony of Colonial
;
; technical
and
ethical
parts of, 376.
legallyrestricted,25
be
Legislaturecannot
relation
Liability,
; how
controlled,26.
practically
community of, 124;
of, 54, 154;
of to
duty, 53; meaning

of vicarious,127.
vicarious, 125 ; conditions
liable
for
masters
Libel,
servants, 129.
of
Liberty, nature
political,28.
ib.
Licences, what,
; their characteristics,
criminal
Limitation
does
not
to
(see Action) ;
apply
for
283.
282
Loan, gratuitous,
hire,
;
212
Market,
sale in restricted
overt
of, 267
Marriage, contract
ib.,267
mous,
Master.
See
Mines,
estate
; its
England,
to
Mistake
in differs from
that
in
surface, 163
from
polyga
of to agency,
275.
hi, ib.
; water
felonies,123; what,
154; distinguished
crimes, ib.
ground
of excuse,
137 ; in contracts, 248.
Money paid in mistake, 67 ; ownership of passes

Motive, what, 105 ; differs from intent, ib.
but a sale,283.
not
a loan
Mutuum,
National
distinct
Servant.
Mischance, nature
of, 102.
Misdemeanours, distinguishedfrom
from
316.
of, 268 ; Christian

the law, 268 ; relation
; status
place in
162.
cases,
standard
of
honour,
by delivery, 315.
30.
Nations, comity of, 41.

Nature, so-called law of, 8.
Negligence, proof
in actions
for, 102
contributory, 183;
with, 108;
analysisof, 105
where
death
right of action, 322.

characteristic
of, 292.
Negotiability,
Negotiable instruments, complexity of, 292
of, ib. ; intermediate
characteristics
porales, ib.
seal, 311
holders
three
incidents
distinguishedfrom
of, 315.
in
what
between
transfer
documents
duty
is caused
and
are
res
of, 310
that
by,
what
corporaks
;
must
not
contrasts
of
descent
not, 293
and
be
incorunder
of title,ib.; title of bond
fide
399
Index.
Nomenclature,
jural,202.
Notice, why required in transfer of rights,309.

Novation, what, 307 ; differs from transfer, ib.
Nullity,sanction of, 8o ; in contracts, 86 ; in pre-appointedevidence, 87.
90; secondary, 94; unconditional, 96; limited, 97 et seq.;
of mind, 103; limited
by joint states of mind. 111.
Obligation(see Contract); includes duties from contracts, 46; characteristic
and non-consensual,
ib. ; enumeraof, 65, 239 ; originof, ib. ; consensual
tion
of non-consensual, 66; delictal,67; consensual, 68; how
differs
far arising from
fi-om "obligatio,"167; how
tive,
agreement, 241; alternaof contractual, 258 ; merger
257 ; maintenance
of, 259 ; exoneration
accessorial
from, 260 ; combinations
of, 266 ; with
rights as to
Object,of command,
limited
by
persons,
of, 321.
state
ib. ;
as
to
things,277
accessorial
; with
289
obligations,
descent
title by, 218 ; survivals

of, 219.
Occupations, duties concerning, 59.
155 ; not a basis for a code, 366.
Offences, classification of, 154 ; summary,
Option. See Election.
of, 206; separate exercise of rights of,
Ownership, analysis of, 186; modes
207; limited, ib.; plural,208.
Occupancy,
Parliament, pri^"ilege
of, 165.
Partnership, change in law of by House
in, ib.
reciprocal agency
Payment, default of in contract, .305.
Peril,
acts
done
at
one's, 100,
of
Lords,
45 ; contract
of, 276
181.
Perpetuities, contrary to legalpolicy, 193 ; present rules as to, ib.

Pleas of the Crown,
meaning of, 366.
of sale in cases
of, 193 ; contract
Pledge, power
of, 285 ; warranty in, ib.
Possession, what, 187 ; proof of, 188 ; intent
of, 190 ;
in, 189 ; division
derivation
of, 194 ; differs from
right to possess, 196, and from right
of possession, ib.; ambiguity in, 197; differs from
seisin, 198; why
232 ; quasi,
adverse, transmutes
ownership, 223 ; implies tangibility,
what, ib. ; delivery of, 299.
of actio ]*ersonaUi",160.
Poate, Mr., his emendation
Power, command
implies, 134; exercise of statutory, 136.
Precinct, 98 ; survival of law of, 169.
Prescription,title by,
233.
Private
Act, effect of, 10.

Procedure, law of, 370.
Profits d prendre, what, 211.
Property, prior to the State, 21
of, 101, 163, 180 ; real and personal,

; use
qualified or special, 191 ; ambiguity of, 200 ; nomenclature
of,
202 ; what
things may be, 202 ; offences against, 203 ; expectancies in,
216 ; implies tangibility,
232 ; abolition of distinction
between
real and
personal, 361.
Prudence, with what
contrasted, 108.
167
Punishment,
forms
of, 79, SO.
meaning of Roman
prefix, 66, 233; contracts, what, ib., 68;
equivalent to "constructive," 171; possession,its relation to possession,
233 ; title by, 234.
Quasi,
Rashness, analysis of, 104; duty that

Recklessness, analysis of, 105.
Registration, of privileges,307 ;
ib.; of land in Victoria, 319.
of
contrasts
with,
transfers,317
; of
108.
deeds
and
of
titles,
400
Index.
from
Release
agreement,
how
made,
260.
Representation,what, 113; rule as to false,ib. ; distinguishedfrom condiof non-proprietaryrights,307; purposes

tion, 255; registration
of, 316;
divisions
two
of, 319
; of
land, ib.
Res
incorporalis, 171, 177, 201, 238; nullius, 218; differences between

corporalisand incorporalis,237 ; meaning of in Ex)man
law, 365.
Retrospective legislation,74.
Right, meaning of,
141
; differs
from
right,143
between
; confusion
legal
and
moral, ib. ; sometimes

means
duty, 144 ; analysis of a, 145 ; differs
from
of donee
of, ib.; donee of a, 148; vocation
146; desirability
power,
of to liberty,150; compared with
to defend, 149; relation
liberty and
of a, 158; collision
151; examples of burthensome,
152; incidents
power,
of, 162; to possess, 187; to the use, 191 ; to the produce, ib.; to waste,
192; to alien, ib.; to exclude, 194; of possession, 196.
ib.;
Rights, division of, 166; meaning of,in rem, ib.;mea,nmgoi, in personam,
division
of, in rem,
168;
167; where
secondary object is a person,
where
171 ; where
no
176; where
a right in rem,
a
right in persoiam,
secondary object,179; of ownership, 186 et seq.;in re, 209; acquisition
of, in re, 232 ; loss of, in re, 234 ; natural, what, 235 ; acquisition
of
of, 263 ; transfer
of, 295 ;
non-proprietary,236 ; combinations
registrationof, 307, 318; descent of, 322; of thmgs and of persons,
364.
Rules,
nature
Sale, contract
of, in law,
of, 286;
45.
executed, 287; executory, ib.; transfer
of
ship
owner-
in, 288.
Sanction
53;
does
imply reward,
not
differs
in
position of,
in
absolute
law, 73;
and
and
in
choice
relation
of
to
of, 75;
for
and
command
to
duty,
definition
of, 72;
duties, 79; for
general duties, 64;

absolute
of contract,
80 ; for particular duties, 82 ; penal for breach
be a basis for
in, 88 ; cannot
nullity,85 ; opposite errors
generalduties,
83 ; of
366.
legalclassification,
Secondary object of command,
94.
285 ; three
of, 284 ; two principles
m,
Security,contract
Seisin,meaning of, 198 ; rules of, 199; livery of, 199, 301
forms
;
of, ib.
complexity of,
b.
analogy of to sacra, 216; effect of on future estates, 217.

Servant, master's liabilityfor, 126, 128; not liable for master, 132.
of, enforcement
of, 84, 268; implicationsin, 271.
Service, contract
Settled
estates, what, 216.
and political,
23.
of archaic
Society, contrast
XII.
Sodales, by-laws of under
Tables, 47.
Solicitation,what, 93.
Sovereignty, Austin upon, 16; organ of, 17, 24, 36.
Special property, 191.
what, 228.
Specificatio,
it legislates,
19; recent
State, what, 17, 33; jurisdictionof, ib. ; for whom
of
omnipotence
origin of, 20; services of to society, 21, 23; meanuig
of, 28 ; its theory of punishment,
of, 24 ; protection against, 28 ; function
79.
77 ; punishes offences agauist itself,
Status, relation of to contract, 48 ; law of, 56.
ultra vires, 36 ; English courts will not go behind, 37, 38 ;
Statute, whether
in
irregularity passing a, ib.
Stream, pollution of, 163.
Subject and object, confusion of in jurisprudence,94.
Subjects, who are, 18.
Substantive
law contrasted
with adjective,368 ; divisions of, ib.
Suretyship,contract of, 290; contribution in, 291.

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THE

from other Commands

Jurisdiction of the State

Services of the State

" 1. Primary Objects of Command

Secondary Object is a Person

{") Marriage; {h) Service; (c) Agency;

" 1. Rights in Rem

" 1. Rights arisingfrom

(a) Indenmity; (6) Suretyship; (c) Collateral Securities.

But, even where

imperfectas its premises are

that the attempt

susceptibleof separate treatment,

purely scientific part of Jurisprudence.

basis for the

consequently essential to human

old age, between

party is likelyto affect the well-being

obey a command, in the true sense

is,a direction from

there exists between

of the stronger. Even

either tbe wisdom

accept the present state of the law

led to its issue.

pliysiologyof law, and not with

given and received

for his future conduct.

implies two partiesat least.

term, however, has

that the commander

evil,the idle threat

of that evil and

will,in proportionto his belief

have, abilityto give to his menace

disobedience, the threatened

notification of that desire

by it,and his consequent duty to

the party who

assumption that of these two partiesthe

fulfilsall the conditions

is the evil which

belief that that

words, law is the intimation

subjectsconcerning their conduct,

by other organs. This is what is meant

orders its members

themselves,and for the

league forbids tenants to pay their

order to his servant, and

namely, that they are

It is not the command

of the State is different from

It is not the command

have in their time

completely than those domestic

penalty than fine or imprisonment. Such

but those to which

against the law,

indefinite degrrees less well

the idea of custom

when, to the vague and indefinite sense of popularapprobation