THE LAW OF PROCEDURE.
§ 172. =Substantive Law and the Law of Procedure.=
It is no easy task to state with precision the exact nature of the
distinction between substantive law and the law of procedure, and it
will conduce to clearness if we first consider a plausible but erroneous
explanation. In view of the fact that the administration of justice in
its typical form consists in the application of remedies to the
violations of rights, it may be suggested that substantive law is that
which defines the _rights_, while procedural law determines the
_remedies_. This application, however, of the distinction between _jus_
and _remedium_ is inadmissible. For in the first place there are many
rights which belong to the sphere of procedure; for example, a right of
appeal, a right to give evidence on one’s own behalf, a right to
interrogate the other party, and so on. In the second place, rules
defining the remedy may be as much a part of the substantive law as are
those which define the right itself. No one would call the abolition of
capital punishment, for instance, a change in the law of criminal
procedure. The substantive part of the criminal law deals not with
crimes alone, but with punishments also. So in the civil law, the rules
as to the measure of damages pertain to the substantive law, no less
than those declaring what damage is actionable; and rules determining
the classes of agreements which will be specifically enforced are as
clearly substantive as are those determining the agreements which will
be enforced at all. To define procedure as concerned not with rights,
but with remedies, is to confound the remedy with the process by which
it is made available.
What, then, is the true nature of the distinction? The law of procedure
may be defined as that branch of the law which governs the process of
litigation. It is the law of actions—_jus quod ad actiones
pertinet_—using the term action in a wide sense to include all legal
proceedings, civil or criminal. All the residue is substantive law, and
relates not to the process of litigation, but to its purposes and
subject-matter. Substantive law is concerned with the ends which the
administration of justice seeks; procedural law deals with the means and
instruments by which those ends are to be attained. The latter regulates
the conduct and relations of courts and litigants in respect of the
litigation itself; the former determines their conduct and relations in
respect of the matters litigated. Procedural law is concerned with
affairs inside the courts of justice; substantive law deals with matters
in the world outside.
A glance at the actual contents of the law of procedure will enable us
to judge of the accuracy of this explanation. Whether I have a right to
recover certain property is a question of substantive law, for the
determination and the protection of such rights are among the ends of
the administration of justice; but in what courts and within what time I
must institute proceedings are questions of procedural law, for they
relate merely to the modes in which the courts fulfil their functions.
What facts constitute a wrong is determined by the substantive law; what
facts constitute proof of a wrong is a question of procedure. For the
first relates to the subject-matter of litigation, the second to the
process merely. Whether an offence is punishable by fine or by
imprisonment is a question of substantive law, for the existence and
measure of criminal liability are matters pertaining to the end and
purpose of the administration of justice. But whether an offence is
punishable summarily or only on indictment is a question of procedure.
Finally it may be observed that, whereas the abolition of capital
punishment would be an alteration of the substantive law, the abolition
of imprisonment for debt was merely an alteration in the law of
procedure. For punishment is one of the ends of the administration of
justice, while imprisonment for debt was merely an instrument for
enforcing payment.
So far as the administration of justice is concerned with the
application of remedies to violated rights, we may say that the
substantive law defines the remedy and the right, while the law of
procedure defines the modes and conditions of the application of the one
to the other.
Although the distinction between substantive law and procedure is
sharply drawn in theory, there are many rules of procedure which in
their practical operation are wholly or substantially equivalent to
rules of substantive law. In such cases the difference between these two
branches of the law is one of form rather than of substance. A rule
belonging to one department may by a change of form pass over into the
other without materially affecting the practical issue. In legal history
such transitions are frequent, and in legal theory they are not without
interest and importance.
Of these equivalent procedural and substantive principles there are at
least three classes sufficiently important to call for notice here.
1. An exclusive evidential fact is practically equivalent to a
constituent element in the title of the right to be proved. The rule of
evidence that a contract can be proved only by a writing corresponds to
a rule of substantive law that a contract is void unless reduced to
writing. In the former case the writing is the exclusive evidence of
title; in the latter case it is part of the title itself. In the former
case the right exists but is imperfect, failing in its remedy through
defect of proof. In the latter case it fails to come into existence at
all. But for most purposes this distinction is one of form rather than
of substance.
2. A conclusive evidential fact is equivalent to, and tends to take the
place of, the fact proved by it. All conclusive presumptions pertain in
form to procedure, but in effect to the substantive law. That a child
under the age of seven years is incapable of criminal intention is a
rule of evidence, but differs only in form from the substantive rule
that no child under that age is punishable for a crime. That the acts of
a servant done about his master’s business are done with his master’s
authority is a conclusive presumption of law, and pertains to procedure;
but it is the forerunner and equivalent of our modern substantive law of
employer’s liability. A bond (that is to say, an admission of
indebtedness under seal) was originally operative as being conclusive
proof of the existence of the debt so acknowledged; but it is now itself
creative of a debt; for it has passed from the domain of procedure into
that of substantive law.
3. The limitation of actions is the procedural equivalent of the
prescription of rights. The former is the operation of time in severing
the bond between right and remedy; the latter is the operation of time
in destroying the right. The former leaves an imperfect right
subsisting; the latter leaves no right at all. But save in this respect
their practical effect is the same, although their form is different.
The normal elements of judicial procedure are five in number, namely
Summons, Pleading, Proof, Judgment, and Execution. The object of the
first is to secure for all parties interested an opportunity of
presenting themselves before the court and making their case heard.
Pleading formulates for the use of the court and of the parties those
questions of fact or law which are in issue. Proof is the process by
which the parties supply the court with the _data_ necessary for the
decision of those questions. Judgment is this decision itself, while
execution, the last step in the proceeding, is the use of physical force
in the maintenance of the judgment, when voluntary submission is
withheld. Of these five elements of judicial procedure one only, namely
proof, is of sufficient theoretical interest to repay such abstract
consideration as is here in place. The residue of this chapter,
therefore, will be devoted to an analysis of the essential nature of the
law of evidence.
§ 173. =Evidence.=
One fact is evidence of another when it tends in any degree to render
the existence of that other probable. The quality by virtue of which it
has such an effect may be called its _probative force_, and evidence may
therefore be defined as any fact which possesses such force. Probative
force may be of any degree of intensity. When it is great enough to form
a rational basis for the inference that the fact so evidenced really
exists, the evidence possessing it is said to constitute _proof_.
It is convenient to be able to distinguish shortly between the fact
which is evidence, and the fact of which it is evidence. The former may
be termed the _evidential fact_, the latter the _principal fact_. Where,
as is often the case, there is a chain of evidence, A. being evidence of
B., B. of C., C. of D. and so on, each intermediate fact is evidential
in respect of all that follow it and principal in respect of all that
precede it.
1. Evidence is of various kinds, being in the first place either
_judicial_ or _extrajudicial_. Judicial evidence is that which is
produced to the court; it comprises all evidential facts that are
actually brought to the personal knowledge and observation of the
tribunals. Extrajudicial evidence is that which does not come directly
under judicial cognizance, but nevertheless constitutes an intermediate
link between judicial evidence and the fact requiring proof. Judicial
evidence includes all testimony given by witnesses in court, all
documents produced to and read by the court, and all things personally
examined by the court for the purposes of proof. Extrajudicial evidence
includes all evidential facts which are known to the court only by way
of inference from some form of judicial evidence. Testimony is
extrajudicial, when it is judicially known only through the relation of
a witness who heard it. A confession of guilt, for example, is judicial
evidence if made to the court itself, but extrajudicial if made
elsewhere and proved to the court by some form of judicial evidence.
Similarly a document is judicial evidence if produced, extrajudicial if
known to the court only through a copy, or through the report of a
witness who has read it. So the _locus in quo_ or the material
subject-matter of a suit becomes judicial evidence, when personally
viewed by the court, but is extrajudicial when described by witnesses.
It is plain that in every process of proof some form of judicial
evidence is an essential element. Extrajudicial evidence may or may not
exist. When it is present, it forms an intermediate link or a series of
intermediate links in a chain of proof, the terminal links of which are
the principal fact at one end and the judicial evidence at the other.
Judicial evidence requires production merely; extrajudicial evidence
stands itself in need of proof.
2. In the second place evidence is either _personal_ or _real_. Personal
evidence is otherwise termed _testimony_. It includes all kinds of
statements regarded as possessed of probative force in respect of the
facts stated. This is by far the most important form of evidence. There
are few processes of proof that do not contain it—few facts that are
capable of being proved in courts of justice otherwise than by the
testimony of those who know them. Testimony is either oral or written,
and either judicial or extrajudicial. There is a tendency to restrict
the term to the judicial variety, but there is no good reason for this
limitation. It is better to include under the head of testimony or
personal evidence all statements, verbal or written, judicial or
extrajudicial, so far as they are possessed of probative force. Real
evidence, on the other hand, includes all the residue of evidential
facts. Anything which is believed for any other reason than that some
one has said so, is believed on real evidence. This, too, is either
judicial or extrajudicial, though here also there is a tendency to
restrict the term to the former use.
3. Evidence is either _primary_ or _secondary_. Other things being
equal, the longer any chain of evidence the less its probative force,
for with each successive inference the risk of error grows. In the
interests of truth, therefore, it is expedient to shorten the process,
to cut out as many as possible of the intermediate links of
extrajudicial evidence, and to make evidence assume the judicial form at
the earliest practicable point. Hence the importance of the distinction
between primary and secondary evidence. Primary evidence is evidence
viewed in comparison with any available and less immediate instrument of
proof. Secondary evidence is that which is compared with any available
and more immediate instrument of proof. Primary evidence of the contents
of a written document is the production in court of the document itself;
secondary evidence is the production of a copy or of oral testimony as
to the contents of the original. Primary evidence that A. assaulted B.
is the judicial testimony of C. that he saw the assault; secondary
evidence is the judicial testimony of D. that C. told him that he saw
the assault. That secondary evidence should not be used when primary
evidence is available is, in its general form, a mere counsel of
prudence; but in particular cases, the most important of which are those
just used as illustrations, this counsel has hardened into an obligatory
rule of law. Subject to certain exceptions, the courts will receive no
evidence of a written document save the document itself, and will listen
to no hearsay testimony.
4. Evidence is either _direct_ or _circumstantial_. This is a
distinction important in popular opinion rather than in legal theory.
Direct evidence is testimony relating immediately to the principal fact.
All other evidence is circumstantial. In the former case the only
inference required is one from testimony to the truth of it. In the
latter the inference is of a different nature, and is generally not
single but composed of successive steps. The testimony of A. that he saw
B. commit the offence charged, or the confession of B. that he is
guilty, constitutes direct evidence. If we believe the truth of the
testimony or confession, the matter is concluded, and no further process
of proof or inference is required. On the other hand, the testimony of
A. that B. was seen by him leaving the place where the offence was
committed, and having the instrument of the offence in his possession,
is merely circumstantial evidence; for even if we believe this
testimony, it does not follow without a further inference, and therefore
a further risk of error, that B. is guilty. Direct evidence is commonly
considered to excel the other in probative force. This, however, is not
necessarily the case, for witnesses lie, and facts do not.
Circumstantial evidence of innocence may well prevail over direct
evidence of guilt; and circumstantial evidence of guilt may be
indefinitely stronger than direct evidence of innocence.
§ 174. =The Valuation of Evidence.=
The law of evidence comprises two parts. The first of these consists of
rules for the measurement or determination of the _probative force_ of
evidence. The second consists of rules determining the modes and
conditions of the _production_ of evidence. The first deals with the
effect of evidence when produced, the second with the manner in which it
is to be produced. The first is concerned with evidence in all its
forms, whether judicial or extrajudicial; the second is concerned with
judicial evidence alone. The two departments are intimately connected,
for it is impossible to formulate rules for the production of evidence
without reference and relation to the effect of it when produced.
Nevertheless the two are distinct in theory, and for the most part
distinguishable in practice. We shall deal with them in their order.
In judicial proceedings, as elsewhere, the accurate measurement of the
evidential value of facts is a condition of the discovery of truth.
Except in the administration of justice, however, this task is left to
common sense and personal discretion. Rules and maxims, when recognised
at all, are recognised as proper for the _guidance_ of individual
judgment, not for the _exclusion_ of it. But in this, as in every other
part of judicial procedure, law has been generated, and, in so far as it
extends, has made the estimation of probative force or the weighing of
evidence a matter of inflexible rules excluding judicial discretion.
These rules constitute the first and most characteristic portion of the
law of evidence. They may be conveniently divided into five classes,
declaring respectively that certain facts amount to:—
1. Conclusive proof—in other words, raise a conclusive presumption;
2. Presumptive proof—in other words, raise a conditional or rebuttable
presumption;
3. Insufficient evidence—that is to say, do not amount to proof, and
raise no presumption, conclusive or conditional;
4. Exclusive evidence—that is to say, are the only facts which in
respect of the matter in issue possess any probative force at all;
5. No evidence—that is to say, are destitute of evidential value.
I. _Conclusive presumptions._—By conclusive proof is meant a fact
possessing probative force of such strength as not to admit of effective
contradiction. In other words, this fact amounts to proof irrespective
of the existence or non-existence of any other facts whatsoever which
may possess probative force in the contrary direction. By a conclusive
presumption is meant the acceptance or recognition of a fact by the law
as conclusive proof.
Presumptive or conditional proof, on the other hand, is a fact which
amounts to proof, only so long as there exists no other fact amounting
to disproof. It is a provisional proof, valid until overthrown by
contrary proof. A conditional or rebuttable presumption is the
acceptance of a fact by the law as conditional proof.[476]
One of the most singular features in early systems of procedure is the
extent to which the process of proof is dominated by conclusive
presumptions. The chief part of the early law of evidence consists of
rules determining the species of proof which is necessary and sufficient
in different cases, and allotting the benefit or burden of such proof
between the parties. He who would establish his case must maintain it,
for example, by success in that judicial battle the issue of which was
held to be the judgment of Heaven (_judicium Dei_); or he must go
unscathed through the ordeal, and so make manifest his truth or
innocence; or he must procure twelve men to swear in set form that they
believe his testimony to be true; or it may be sufficient if he himself
makes solemn oath that his cause is just. If he succeeds in performing
the conditions so laid upon him, he will have judgment; if he fails even
in the slightest point, he is defeated. His task is to satisfy the
requirements of the law, not to convince the court of the truth of his
case. What the court thinks of the matter is nothing to the point. The
whole procedure seems designed to take away from the tribunals the
responsibility of investigating the truth, and to cast this burden upon
providence or fate. Only gradually and reluctantly did our law attain to
the conclusion that there is no such royal road in the administration of
justice, that the heavens are silent, that the battle goes to the
strong, that oaths are naught, and that there is no just substitute for
the laborious investigation of the truth of things at the mouths of
parties and witnesses.
The days are long since past in which conclusive presumptions played any
great part in the administration of justice. They have not, however,
altogether lost their early importance. They are, indeed, almost
necessarily more or less false, for it is seldom possible in the
subject-matter of judicial procedure to lay down with truth a general
principle that any one thing is conclusive proof of the existence of any
other. Nevertheless such principles may be just and useful even though
not wholly true. We have already seen how they are often merely the
procedural equivalents of substantive rules which may have independent
validity. They have also been of use in developing and modifying by way
of legal fictions the narrow and perverted principles of the early law.
As an illustration of their employment in modern law we may cite the
maxim _Res judicata pro veritate accipitur_. A judgment is conclusive
evidence as between the parties, and sometimes as against all the world,
of the matters adjudicated upon. The courts of justice may make
mistakes, but no one will be heard to say so. For their function is to
terminate disputes, and their decisions must be accepted as final and
beyond question.
II. _Conditional presumptions._—The second class of rules for the
determination of probative force are those which establish rebuttable
presumptions. For example, a person shown not to have been heard of for
seven years by those who would naturally have heard of him if he had
been alive, is presumed to be dead. So also a negotiable instrument is
presumed to have been given for value. So also a person accused of any
offence is presumed to be innocent.
Many of these presumptions are based on no real estimate of
probabilities, but are established for the purpose of placing the burden
of proof upon the party who is best able to bear it, or who may most
justly be made to bear it. Persons accused of crime are probably guilty,
but the presumption of their innocence is in most cases and with certain
limitations clearly expedient.
III. _Insufficient evidence._—In the third place the law contains rules
declaring that certain evidence is insufficient, that its probative
force falls short of that required for proof, and that it is therefore
not permissible for the courts to act upon it. An example is the rule
that in certain kinds of treason the testimony of one witness is
insufficient—almost the sole recognition by English law of the general
principle, familiar in legal history, that two witnesses are necessary
for proof.
IV. _Exclusive evidence._—In the fourth place there is an important
class of rules declaring certain facts to be exclusive evidence, none
other being admissible. The execution of a document which requires
attestation can be proved in no other way than by the testimony of an
attesting witness, unless owing to death or some other circumstance his
testimony is unavailable. A written contract can be proved in no other
way than by the production of the writing itself, whenever its
production is possible. Certain kinds of contracts, such as one for the
sale of land, cannot be proved except by writing, no verbal testimony
being of virtue enough in the law to establish the existence of them.
It is only in respect of very special kinds of contracts that written
evidence can wisely be demanded by the law. In the case of all ordinary
mercantile agreements such a requirement does more harm than good; and
the law would do well in accepting the principle that a man’s word is as
good as his bond. The Statute of Frauds, by which most of these rules of
exclusive evidence have been established, is an instrument for the
encouragement of frauds rather than for the suppression of them. How
much longer is it to remain in force as a potent instrument for the
perversion of English law? Its repeal would sweep away at one stroke the
immense accumulation of irrational technicality and complexity that has
grown in the course of centuries from this evil root.
V. _Facts which are not evidence._—Fifthly and lastly there are rules
declaring that certain facts are not evidence, that is to say, are
destitute of any probative force at all. Such facts are not to be
produced to the court, and if produced no weight is to be attributed to
them, for no accumulation of them can amount to proof. For example,
hearsay is no evidence, the bond of connexion between it and the
principal fact so reported at second hand being in the eye of the law
too slight for any reliance to be justly placed upon it. Similarly the
general bad character of an accused person is no evidence that he is
guilty of any particular offence charged against him; although his good
character is evidence of his innocence.
These rules of exclusion or irrelevancy assume two distinct forms,
characteristic respectively of the earlier and later periods in the
development of the law. At the present day they are almost wholly rules
for the exclusion of _evidence_; in earlier times they were rules for
the exclusion of _witnesses_. The law imposed testimonial incapacity
upon certain classes of persons on the ground of their antecedent
incredibility. No party to a suit, no person possessing any pecuniary
interest in the event of it, no person convicted of any infamous
offence, was a competent witness. His testimony was deemed destitute of
evidential value on account of the suspicious nature of its source. The
law has now learned that it is not in this fashion that the truth is to
be sought for and found. It has now more confidence in individual
judgment and less in general rules. It no longer condemns witnesses
unheard, but receives the testimony of all, placing the old grounds of
exclusion at their proper level as reasons for suspicion but not for
antecedent rejection. Whether rules for the exclusion of evidence are
not in general exposed to the same objections that have already
prevailed against the roles for the exclusion of witnesses is a question
which we shall presently consider.
§ 175. =The Production of Evidence.=
The second part of the law of evidence consists of rules regulating its
production. It deals with the process of adducing evidence, and not with
the effect of it when adduced. It comprises every rule relating to
evidence, except those which amount to legal determinations of probative
force. It is concerned for example with the manner in which witnesses
are to be examined and cross-examined, not with the weight to be
attributed to their testimony. In particular it includes several
important rules of exclusion based on grounds independent of any
estimate of the probative force of the evidence so excluded.
Considerations of expense, delay, vexation, and the public interest
require much evidence to be excluded which is of undoubted evidential
value. A witness may be able to testify to much that is relevant and
important in respect of the matters in issue, and nevertheless may not
be compelled or even permitted to give such testimony. A public
official, for example, cannot be compelled to give evidence as to
affairs of state, nor is a legal adviser permitted or compellable to
disclose communications made to him by or on behalf of his client.
The most curious and interesting of all these rules of exclusion is the
maxim, _Nemo tenetur se ipsum accusare_. No man, not even the accused
himself, can be compelled to answer any question the answer to which may
tend to prove him guilty of a crime. No one can be used as the unwilling
instrument of his own conviction. He may confess, if he so pleases, and
his confession will be received against him; but if tainted by any form
of physical or moral compulsion, it will be rejected. The favour with
which this rule has been received is probably due to the recoil of
English law from the barbarities of the old Continental system of
torture and inquisitorial process. Even as contrasted with the modern
Continental procedure, in which the examination of the accused seems to
English eyes too prominent and too hostile, the rule of English law is
not without merits. It confers upon a criminal trial an aspect of
dignity, humanity, and impartiality, which the contrasted inquisitorial
process is too apt to lack. Nevertheless it seems impossible to resist
Bentham’s conclusion that the rule is destitute of any rational
foundation, and that the compulsory examination of the accused is an
essential feature of sound criminal procedure. Even its defenders admit
that the English rule is extremely favourable to the guilty, and in a
proceeding the aim of which is to convict the guilty, this would seem to
be a sufficient condemnation. The innocent have nothing to fear from
compulsory examination, and everything to gain; the guilty have nothing
to gain, and everything to fear. A criminal trial is not to be
adequately conceived as a fight between the accused and his accuser; and
there is no place in it for maxims whose sole foundation is a supposed
duty of generous dealing with adversaries. Subject always to the
important qualification that a good _prima facie_ case must first be
established by the prosecutor, every man should be compellable to answer
with his own lips the charges that are made against him.[477]
A matter deserving notice in connexion with this part of the law of
evidence is the importance still attached to the ceremony of the oath.
One of the great difficulties involved in the process of proof is that
of distinguishing between true testimony and false. By what test is the
lying witness to be detected, and by what means is corrupt testimony to
be prevented? Three methods commended themselves to the wisdom of our
ancestors. These were the judicial combat, the ordeal, and the oath. The
first two of these have long since been abandoned as ineffective, but
the third is still retained as a characteristic feature of judicial
procedure, though we may assume with some confidence that its rejection
will come in due time, and will in no way injure the cause of truth and
justice.
Trial by battle, so soon as it acquired a theory at all, became in
reality a form of ordeal. In common with the ordeal commonly so called,
it is the _judicium Dei_; it is an appeal to the God of battles to make
manifest the right by giving the victory to him whose testimony is true.
Successful might is the divinely appointed test of right. So in the
ordeal, the party or witness whose testimony is impeached calls upon
Heaven to bear witness to his truth by saving him harmless from the
fire. The theory of the oath is generically the same. “An oath,” says
Hobbes,[478] “is a form of speech added to a promise; by which he that
promiseth, signifieth that unless he perform, he renounceth the mercy of
his God, or calleth to him for vengeance on himself. Such was the
heathen form, Let Jupiter kill me else, as I kill this beast. So is our
form, I shall do thus and thus, so help me God.” The definition is
correct save that it is restricted to promissory, instead of including
also declaratory oaths. A man may swear not only that he will speak the
truth, but that certain statements are the truth.
The idea of the oath, therefore, is that his testimony is true who is
prepared to imprecate divine vengeance on his own head in case of
falsehood. Yet it needs but little experience of courts of justice to
discover how ineffective is any such check on false witness and how
little likely is the retention of it to increase respect either for
religion or for the administration of justice. The true preventive of
false testimony is an efficient law for its punishment as a crime.
Punishment falling swiftly and certainly upon offending witnesses would
purge the courts of an evil which the cumbrous inefficiency of the
present law of perjury has done much to encourage, and which all the
oaths in the world will do nothing to abate.[479]
§ 176. =Criticism of the Law of Evidence.=
We have in a former chapter considered the advantages and disadvantages
of that substitution of predetermined principles for judicial discretion
which constitutes the essential feature of the administration of justice
according to law. In no portion of our legal system is this question of
more immediate importance than in the law of evidence. Here, if
anywhere, the demerits of law are at a maximum, and those of the
opposing system at a minimum. General rules for the predetermination of
probative force are of necessity more or less false. It is impossible to
say with truth and _a priori_ what evidence is or is not sufficient for
proof. It is not true that hearsay is absolutely destitute of evidential
value; it is not true that a contract for the sale of land cannot be
satisfactorily proved by oral testimony; it is not true that the
contents of a document cannot be well proved by a copy of it. To elevate
these maxims and such as these from their proper position as counsels
for warning and guidance, to the level of rigid and peremptory rules, is
to be inevitably led astray by them. Like all general principles they
are obtained by way of abstraction and elimination of elements which may
be, in particular instances, of the first importance. To apply such
abstract principles to concrete cases without making the needful
allowance for the special circumstances of these cases is as wise as to
apply the laws of motion without allowing for the disturbing influence
of friction.
No unprejudiced observer can be blind to the excessive credit and
importance attached in judicial procedure to the _minutiae_ of the law
of evidence. This is one of the last refuges of legal formalism. Nowhere
is the contrast more striking between the law’s confidence in itself and
its distrust of the judicial intelligence. The fault is to be remedied
not by the abolition of all rules for the measurement of evidential
value, but by their reduction from the position of rigid and peremptory
to that of flexible and conditional rules.[480] Most of them have their
source in good sense and practical experience, and they are profitable
for the guidance of individual discretion, though mischievous as
substitutes for it. The cases are few in which we can rightly place such
rules upon the higher level. In general, courts of justice should be
allowed full liberty to reject as irrelevant, superfluous, or vexatious,
whatever evidence they will, and to accept at such valuation as they
please whatever evidence seems good to them. We must learn to think less
highly of the wisdom of the law, and less meanly of the understanding
and honour of its administrators, and we may anticipate with confidence
that in this department at least of judicial practice the change will be
in the interests of truth and justice.
SUMMARY.
Law { Substantive—relating to the subject-matter of litigation.
{ Procedural—relating to the process of litigation.
The occasional equivalence of substantive and procedural rules.
Procedure. Its elements: Summons, Pleading, Proof, Judgment, and
Execution.
The Law of Evidence.
Evidence and proof defined.
Judicial and Extrajudicial.
Kinds of Evidence Personal and Real.
Primary and Secondary.
Direct and Circumstantial.
Divisions of the Law of Evidence.
I. Rules determining probative force.
1. Conclusive proof.
2. Conditional proof.
3. Insufficient evidence.
4. Exclusive evidence.
5. No evidence.
II. Rules determining the production of evidence.
Nemo tenetur se ipsum accusare.
Oaths.
Criticism of the law of evidence.
APPENDICES
I. THE NAMES OF THE LAW.
II. THE THEORY OF SOVEREIGNTY.
III. THE MAXIMS OF THE LAW.
IV. THE DIVISIONS OF THE LAW.
V. THE LITERATURE OF JURISPRUDENCE.
APPENDIX I.
THE NAMES OF THE LAW.
The purpose of the following pages is to consider, in respect of their
origin and relations, the various names and titles which have been borne
by the law in different languages. This seems an inquiry fit to be
undertaken in the hope that judicial terms may be found to throw some
light upon the juridical ideas of which they are the manifestation. A
comparison of diverse usages of speech may serve to correct misleading
associations, or to suggest relations that may be easily overlooked by
any one confining his attention to a single language.
The first fact which an examination of juridical nomenclature reveals,
is that all names for law are divisible into two classes, and that
almost every language possesses one or more specimens of each. To the
first class belong such terms as _jus_, _droit_, _recht_, _diritto_,
_equity_. To the second belong _lex_, _loi_, _gesetz_, _legge_, _law_,
and many others. It is a striking peculiarity of the English language
that it does not possess any _generic_ term falling within the first of
these groups; for equity, in the technical juridical sense, means only a
special department of civil law, not the whole of it, and therefore is
not co-extensive with _jus_, _droit_, and the other foreign terms with
which it is classed. Since, therefore, we have in English no pair of
contrasted terms adequate for the expression of the distinction between
these two groups of names, we are constrained to have recourse to a
foreign language, and we shall employ for this purpose the terms _jus_
and _lex_, using each as typical of and representing all other terms
which belong to the same group as itself.
What, then, are the points of difference between _jus_ and _lex_; what
is the importance and the significance of the distinction between the
two classes of terms? In the first place _jus_ has an ethical as well as
a juridical application, while _lex_ is purely juridical. _Jus_ means
not only law but also right. _Lex_ means law and not also right. Thus
our own _equity_ has clearly the double meaning; it means either the
rules of natural justice, or that special department of the civil law
which was developed and administered in the Court of Chancery. The
English _law_, on the other hand, has a purely juridical application;
justice in itself, and as such, has no claim to the name of _law_. So
also with _droit_ as opposed to _loi_, with _recht_ as opposed to
_gesetz_, with _diritto_ as opposed to _legge_.
If we inquire after the cause of this duplication of terms we find it in
the double aspect of the complete juridical conception of law. Law
arises from the union of justice and force, of right and might. It is
justice recognised and established by authority. It is right realised
through power. Since, therefore, it has two sides and aspects, it may be
looked at from two different points of view, and we may expect to find,
as we find in fact, that it acquires two different names. _Jus_ is law
looked at from the point of view of right and justice; _lex_ is law
looked at from the point of view of authority and force. _Jus_ is the
rule of right which becomes law by its authoritative establishment;
_lex_ is the authority by virtue of which the rule of right becomes law.
Law is _jus_ in respect of its _contents_, namely the rule of right; it
is _lex_ in respect of its _source_, namely, its recognition and
enforcement by the state. We see, then, how it is that so many words for
law mean justice also; since justice is the content or subject-matter of
law, and from this subject-matter law derives its title. We understand
also how it is that so many words for law do not also mean justice; law
has another side and aspect from which it appears, not as justice
realised and established, but as the instrument through which its
realisation and establishment are effected.
_A priori_ we may presume that in the case of those terms which possess
a double application, both ethical and legal, the ethical is
historically prior, and the legal later and derivative. We may assume
that justice comes to mean law, not that law comes to mean justice. This
is the logical order, and is presumably the historical order also. As a
matter of fact this presumption is, as we shall see, correct in the case
of all modern terms possessing the double signification. In the case of
_recht_, _droit_, _diritto_, _equity_, the ethical sense is undoubtedly
primary, and the legal secondary. In respect of the corresponding Greek
and Latin terms (_jus_, δίκαιον) the data would seem insufficient for
any confident conclusion. The reverse order of development is perfectly
possible; there is no reason why lawful should not come to mean in a
secondary sense rightful, though a transition in the opposite direction
is more common and more natural. The significant fact is the union of
the two meanings in the same word, not the order of development.
A second distinction between _jus_ and _lex_ is that the former is
usually _abstract_, the second _concrete_.[481] The English term law
indeed combines both these uses in itself. In its abstract application
we speak of the law of England, criminal law, courts of law. In its
concrete sense, we say that Parliament has enacted or repealed a law. In
foreign languages, on the other hand, this union of the two
significations is unusual. _Jus_, _droit_, _recht_ mean law in the
abstract, not in the concrete. _Lex_, _loi_, _gesetz_ signify, at least
primarily and normally, a legal enactment, or a rule established by way
of enactment, not law in the abstract. This, however, is not invariably
the case. _Lex_, _loi_, and some other terms belonging to the same group
have undoubtedly acquired a secondary and abstract signification in
addition to their primary and concrete one. In medieval usage the law of
the land is _lex terrae_, and the law of England is _lex et consuetudo
Angliae_. So in modern French _loi_ is often merely an equivalent for
_droit_. We cannot therefore regard the second distinction between _jus_
and _lex_ as essential. It is closely connected with the first, but,
though natural and normal, it is not invariable. The characteristic
difference between English and foreign usage is not that our _law_
combines the abstract and concrete significations (for so also do
certain Continental terms), but that the English language contains no
generic term which combines ethical and legal meanings as do _jus_,
_droit_, and _recht_.
RECHT, DROIT, DIRITTO.—These three terms are all closely connected with
each other and with the English _right_. The French and Italian words
are derivatives of the Latin _directus_ and _rectus_, these being
cognate with _recht_ and _right_. We may with some confidence assume the
following order of development among the various ideas represented by
this group of expressions:—
1. The original meaning was in all probability _physical straightness_.
This use is still retained in our _right_ angle and _direct_. The root
is RAG, to stretch or straighten. The group of connected terms ruler,
_rex_, _rajah_, regulate, and others, would seem to be independently
derived from the same root, but not to be in the same line of
development as right and its synonyms. The ruler or regulator is he who
keeps things straight or keeps order, not he who establishes the right.
Nor is the right that which is established by a ruler.
2. In a second and derivative sense the terms are used metaphorically to
indicate moral approval—ethical rightness, not physical. Moral
disapproval is similarly expressed by the metaphorical expressions wrong
and tort, that is to say, crooked or twisted. These are metaphors that
still commend themselves; for the honest man is still the straight and
upright man, and the ways of wickedness are still crooked. In this
sense, therefore, _recht_, _droit_, and _diritto_ signify justice and
right.
3. The first application being physical and the second ethical, the
third is juridical. The transition from the second to the third is easy.
Law is justice as recognised and protected by the state. The rules of
law are the rules of right, as authoritatively established and enforced
by tribunals appointed to that end. What more natural, therefore, than
for the ethical terms to acquire derivatively a juridical application?
At this point, however, our modern English _right_ has parted company
with its Continental relatives. It has remained physical and ethical,
being excluded from the juridical sphere by the superior convenience of
the English _law_.
4. The fourth and last use of the terms we are considering may be
regarded as derivative of both the second and third. It is that in which
we speak of _rights_, namely, claims, powers, or other advantages
conferred or recognised by the rule of right or the rule of law. That a
debtor should pay his debt to his creditor is not merely right, it is
_the_ right of the creditor. Right is _his_ right for whose benefit it
exists. So, also, wrong is _the_ wrong of him who is injured by it. The
Germans distinguish this use of the term by the expression _subjectives
Recht_ (right as vested in a subject) as opposed to _objectives Recht_,
namely, the rule of justice or of law as it exists objectively. The
English _right_ has been extended to cover legal as well as ethical
_claims_, though it has, as we have seen, been confined to ethical
_rules_.
A.S. RIHT.—It is worthy of notice that the Anglo-Saxon _riht_, the
progenitor of our modern _right_, possessed like its Continental
relatives the legal in addition to the ethical meaning. The common law
is _folc-riht_.[482] The divine law is _godes riht_.[483] A plaintiff
claims property as “his by _folc-riht_,”[484] even as a Roman would have
claimed it as being _dominus ex jure Quiritium_. The usage, however, did
not prosper. It had to face the formidable and ultimately successful
rivalry of the English (originally Danish) _law_, and even
Norman-French, on its introduction into England, fell under the same
influence. For a time, indeed, in the earlier books we find both _droit_
and _ley_ as competing synonyms,[485] but the issue was never doubtful.
The archaism of “common right” as a synonym for “common law” is the sole
relic left in England of a usage universal in Continental languages.
EQUITY.—The English term equity has pursued the same course of
development as the German _recht_ and the French _droit_.
1. Its primitive meaning, if we trace the word back to its Latin source,
_aequum_, is physical equality or evenness, just as physical
straightness is the earliest meaning of right and its analogues.
2. Its secondary sense is ethical. Just as rightness is straightness, so
equity is equality. In each case there is an easy and obvious
metaphorical transition from the physical to the moral idea. Equity
therefore is justice.
3. In a third and later stage of its development the word takes on a
juridical significance. It comes to mean a particular portion of the
civil law—that part, namely, which was developed by and administered in
the Court of Chancery. Like _recht_ and _droit_ it passed from the sense
of justice in itself to that of the rules in accordance with which
justice is administered.
4. Fourthly and lastly we have to notice a legal and technical use of
the term equity, as meaning any claim or advantage recognised or
conferred by a rule of equity, just as a right signifies any claim or
advantage derived from a rule of right. An equity is an equitable, as
opposed to a legal right. “When the equities are equal,” so runs the
maxim of Chancery, “the law prevails.” So a debt is assignable “subject
to equities.”
JUS.—We have to distinguish in the case of _jus_ the same three uses
that have already been noticed in the case of _recht_, _droit_, and
equity.
1. Right or Justice. “_Id quod semper aequum ac bonum est jus dicitur_,”
says Paulus.[486] From _jus_ in this sense are derived _justitia_ and
_justum_.
2. Law. This is the most usual application of the term, the juridical
sense having a much greater predominance over the ethical in the case of
_jus_, than in that of its modern representatives _recht_ and _droit_.
_Jus_, in its ethical signification, is distinguished as _jus naturale_,
and in its legal sense as _jus civile_. It is often contrasted with
_fas_, the one being human and the other divine law. _Jus_, however, is
also used in a wider sense to include both of these—_jus divinum et
humanum_.
3. A right, moral or legal: _jus suum cuique tribuere_.[487]
The origin and primary signification of _jus_ are uncertain. It is
generally agreed, however, that the old derivation from _jussum_ and
_jubere_ is not merely incorrect, but an actual reversal of the true
order of terms and ideas. _Jussum_ is a derivative of _jus_. _Jubere_
is, in its proper and original sense, to declare, hold, or establish
anything as _jus_. It was the recognised expression for the legislative
action of the Roman people. _Legem jubere_ is to give to a statute
(_lex_) the force of law (_jus_). Only in a secondary and derivative
sense is _jubere_ equivalent to _imperare_.
The most probable opinion is that _jus_ is derived from the Aryan root
YU, to join together (a root which appears also in _jugem_, _jungo_, and
in the English _yoke_). It has been suggested accordingly that _jus_ in
its original sense means that which is fitting, applicable, or suitable.
If this is so, there is a striking correspondence between the history of
the Latin term and that of the modern words already considered by us,
the primary sense in all cases being physical, the ethical sense being a
metaphorical derivative of this, and the legal application coming last.
The transition from the physical to the ethical sense in the case of the
English _fit_ and _fitting_ is instructive in this connexion. Another
suggestion, however, is that _jus_ means primarily that which is
_binding_—the bond of moral and subsequently of legal obligation. But no
definite conclusion on this matter is possible.[488]
Δίκη. τό δίκαιον.—The Greek term which most nearly corresponds to the
Latin _jus_ is δίκη. These words cannot, however, be regarded as
synonymous. The juridical use of _jus_ is much more direct and
predominant than the corresponding use of δίκη. Indeed, we may say of
the Greek term that it possesses juridical implications, rather than
applications. Its chief uses are the following, the connexion between
them being obvious: (1) custom, usage, way; (2) right, justice; (3) law,
or at least legal right; (4) judgment; (5) a lawsuit; (6) a penalty; (7)
a court of law. The primary sense is said to be that first mentioned,
viz. custom. The transition is easy from the idea of the customary to
that of the right, and from the idea of the right to that of the lawful.
In the case of the Latin _mos_ we may trace an imperfect and tentative
development in the same direction.[489] Professor Clark, on the other
hand, prefers to regard judgment as the earliest meaning of δίκη, the
other ethical and legal applications being derivatives from this, and
δίκη in the sense of custom being an independent formation from the
original root.[490] Such an order of development seems difficult and
unnatural. Analogy and the connexion of ideas seem to render more
probable the order previously suggested, viz. custom, right, law, and
finally the remaining legal uses.[491]
Θέμις Θέμιστες.—As δίκη corresponds to _jus_, so θέμις apparently
corresponds to _fas_. While _fas_, however, preserved its original
signification as that which is right by divine ordinance, and never
acquired any secondary legal applications or implications, the Greek
term proved more flexible, and consequently has to be reckoned with in
the present connection. The matter is one of very considerable
difficulty, and no certain conclusions seem possible, but the following
order of development would seem to commend itself as the most probable:—
1. Θέμις, divine ordinance, the will of the gods. The term is derived
from the Aryan root DHA, to set, place, appoint, or establish, which
appears also in θεσμός, a statute or ordinance.[492] This latter term,
however, included _human_ enactments, while θέμις was never so used. The
Greek term is cognate with _thesis_ and _theme_, and with our English
_doom_, a word whose early legal uses we shall consider later.
2. Θέμις, right. The transition is easy from that which is decreed and
willed by the gods, to that which it is right for mortal men to do.
3. Θέμιστες, the rules of right, whether moral or legal, so far as any
such distinction was recognised in that early stage of thought to which
these linguistic usages belong.
4. Θέμιστες, judgments, judicial declarations of the rules of right and
law.[493]
LEX.—So far we have dealt solely with those words which belong to the
class of _jus_, namely, those which possess a double signification,
ethical and legal. We proceed now to the consideration of the second
class, represented by _lex_. And first of _lex_ itself. The following
are its various uses given in what is probably the historical order of
their establishment.
1. Proposals, terms, conditions, offers made by one party and accepted
by another.[494] Thus, _ea lege ut_,[495] on condition that; _dicta tibi
est lex_,[495] you know the conditions; _his legibus_,[495] on these
conditions. So _legis pacis_[495] are the terms and conditions of peace:
_pax data Philippo in has leges est_.[495] Similarly in law, _leges
locationis_ are the terms and conditions agreed upon between lender and
borrower. So we have the legal expressions _lex mancipii_, _lex
commissoria_, and others.
2. A statute enacted by the _populus Romanus_ in the _comitia
centuriata_ on the proposal of a magistrate. This would seem to be a
specialised application of _lex_ in the first-mentioned sense. Such a
statute is conceived rather as an agreement than as a command. It is a
proposal made by the consuls and accepted by the Roman people. It is
therefore _lex_, even as a proposal of peace made and accepted between
the victor and the vanquished is _lex_. “_Lex_,” says Justinian, “_est
quod populus Romanus senatorio magistratu interrogante, veluti consule,
constituebat_.”[496]
3. Any statute howsoever made—whether by way of authoritative
imposition, or by way of agreement with a self-governing people.
4. Any rule of action imposed or observed, e.g. _lex loquendi_, _lex
sermonis_. This is simply an analogical extension similar to that which
is familiar in respect of the corresponding terms in modern languages,
_law_, _loi_, _gesetz_.
5. Law in the abstract sense. _Lex_, so used, cannot be regarded as
classical Latin, although in certain instances, as in Cicero’s
references to _lex naturae_, we find what seems a very close
approximation to it. In medieval Latin, however, the abstract
signification is quite common, as in the phrases _lex Romana_, _lex
terrae_, _lex communis_, _lex et consuetudo_.[497] _Lex_ has become
equivalent to jus in its legal applications. This use is still retained
in certain technical expressions of private international law, such as
_lex fori_, _lex domicilii_, and others.
It is possible that we have here an explanation of the very curious fact
that so celebrated and important a word as _jus_ failed to maintain
itself in the Romance languages. Of the two terms _jus_ and _lex_,
bequeathed to later times by the Latin language, one was accepted (_loi_
= _lex_) and the other rejected and supplanted by a modern substitute
(_droit_, _diritto_). Why was this? May it not have been owing to that
post-classical use of _lex_ in the abstract sense, whereby it became
synonymous and co-extensive with _jus_? If _lex Romana_ was _jus
civile_, why should the growing languages of modern Europe cumber
themselves with both terms? The survivor of the two rivals was _lex_. At
a later stage the natural evolution of thought and speech conferred
juridical uses on the ethical terms _droit_ and _diritto_ and the
ancient duality of legal nomenclature was restored.
6. Judgment. This, like the last and like the three following uses, is a
medieval addition to the meanings of _lex_. We have already seen the
transition from law to judgment in the case of _jus_, δίκη, and θέμις.
_Legem facere_ is to obey or fulfil the requirements of a judgment.
_Legem vadiare_, the English wager of law, is to give security for such
obedience and fulfilment.[498]
7. The penalty, proof, or other matter imposed or required by a
judgment: _lex ignea_, the ordeal of fire; _lex duelli_, trial by
battle.[499]
8. Legal rights, regarded collectively as constituting a man’s legal
standing or status. _Legem amittere_ (in English, to lose one’s law) was
in early English law an event analogous to the _capitis deminutio_ and
_infamia_ of the Romans. It was a loss of legal status, a partial
deprivation of legal rights and capacities.[500]
Νόμος.—As δίκη corresponds to _jus_ and θέμις to _fas_, so νόμος is the
Greek equivalent of _lex_. We have to distinguish two uses of the term,
one earlier and general, the other later and specialised.
1. Νόμος is used in a very wide sense to include any human institution,
anything established or received among men, whether by way of custom,
opinion, convention, law or otherwise. It was contrasted, at least in
the language of the philosophers, with φύσις, or nature. That which is
natural is το φυσικόν; that which is artificial, owing its origin to the
art and invention of mankind, is τὸ νομικόν. It is often said that the
earliest meaning of νόμος is custom. The original conception, however,
seems to include not merely that which is established by long usage, but
that which is established, received, ordained, or appointed in whatever
fashion. Νόμος is _institutum_, rather than _consuetudo_.
Νόμος in a later, secondary, and specialised application, means a
statute, ordinance, or law. So prominent among human institutions are
the laws by which men are governed, so greatly with increasing political
development do the spheres and influence of legislation extend
themselves, that the νόμοι became in a special and pre-eminent sense the
laws of the state. Νόμος was a word unknown to Homer, but it became in
later times the leading juridical term of the Greek language. The Greeks
spoke and wrote of the laws (νόμοι), while the Romans, perhaps with a
truer legal insight, concerned themselves with the law (_jus_). When,
like Cicero, they write _de legibus_, it is in imitation of Greek usage.
LAW.—Law is by no means the earliest legal term acquired by the English
language. Curiously enough, indeed, it would seem not even to be
indigenous, but to be one of those additions to Anglo-Saxon speech which
are due to the Danish invasions and settlements. Of the earlier terms
the commonest, and the most significant for our present purpose, is
_dom_, the ancestor of our modern _doom_.[501] A _dom_ or _doom_ is
either (1) a law, ordinance, or statute, or (2) a judgment. It does not
seem possible to attribute with any confidence historical priority to
either of these senses. In modern English the idea of judgment has
completely prevailed over and excluded that of ordinance, but we find no
such predominance of either meaning in Anglo-Saxon usage. The word has
its source in the Aryan root DHA, to place, set, establish, appoint, and
it is therefore equally applicable to the decree of the judge and to
that of the lawgiver. In the laws of King Alfred we find the term in
both its senses. “These are the dooms which Almighty God himself spake
unto Moses and commanded him to keep.”[502] “Judge then not one doom to
the rich and another to the poor.”[503] In the following passage of the
laws of Edgar the laws of the Danes are plainly equivalent to the dooms
of the English: “I will that secular right stand among the Danes with as
good laws as they best may choose. But with the English let that stand
which I and my Witan have added to the dooms of my forefathers.”[504]
Doom is plainly cognate to θέμις. The religious implication, however,
which, in the Greek term, is general and essential, is, in the English
term, special and accidental. In modern English doom is, like θέμις, the
will, decree and judgment of Heaven—fate or destiny; but the Anglo-Saxon
_dom_ included the ordinances and judgments of mortal men, no less than
those of the gods. Θέμις, therefore, acquired the sense of human law
only derivatively through the sense of right, and so belongs to the
class of _jus_, not of _lex_; while doom, like θεσμός, acquired
juridical applications directly, and so stands besides lex and νόμος.
_Dom_, together with all the other Anglo-Saxon legal terms, including,
strangely enough, _right_ itself, was rapidly superseded by _lagu_,
which is the modern _law_. The new term makes its appearance in the
tenth century, and the passage cited above from the laws of King Edgar
is one of the earliest instances of its use. _Lagu_ and law are derived
from the root LAGH, to lay, settle, or place. Law is that which is laid
down. There is a considerable conflict of opinion as to whether it is
identical in origin with the Latin _lex_ (_leg-_). Schmidt and others
decide in the affirmative,[505] and the probabilities of the case seem
to favour this opinion. The resemblance between law and _lex_ seems too
close to be accidental. If this is so, the origin of _lex_ is to be
found in the Latin _lego_, not in its later sense of reading, but in its
original sense of laying down or setting (as in the derivative
_lectus_), which is also the primary signification of the Greek λέγῳ,
the German _legen_, and the English _lay_.[506] If this is so, then law
and _lex_ are alike that which is laid down, just as _Gesetz_ is that
which is set (_setzen_). This interpretation is quite consistent with
the original possession by _lex_ of a wider meaning than statute, as
already explained. We still speak of laying down terms, conditions, and
propositions, no less than of laying down commands, rules, and laws.
_Lex_, however, is otherwise and variously derived from or connected
with, _ligare_, to bind,[507] _legere_, to read,[508] and λέγειν, to say
or speak.[509]
It is true indeed that by several good authorities it is held that the
original meaning of _lagu_ and law is that which lies, not that which
has been laid or settled—that which is customary, not that which is
established by authority.[510] The root LAGH, however, must contain both
the transitive and intransitive senses, and I do not know what evidence
there is for the exclusion of the former from the signification of the
derivative _law_. Moreover, there seems no ground for attributing to
_lagu_ the meaning of custom. It seems from the first to have meant the
product of authority, not that of use and wont. It is _statutum_, not
_consuetudo_. As soon as we meet with it, it is equivalent to _dom_. The
analogy also of _lex_, _gesetz_, _dom_, θεσμός, and other similar terms
is in favour of the interpretation here preferred.[511]
APPENDIX II.
THE THEORY OF SOVEREIGNTY.
In discussing the theory of the state, we noticed the distinction
between sovereign and subordinate power.[512] The former is that which,
within its own sphere, is absolute and uncontrolled, while the latter is
that which is subject to the control of some power superior and external
to itself. We have now to consider in relation to this distinction a
celebrated doctrine which we may term Hobbes’s theory of sovereignty. It
was not, indeed, originated by the English philosopher, but is due
rather to the celebrated French publicist Bodin, from whom it first
received definite recognition as a central element of political
doctrine. In the writings of Hobbes, however, it assumes greater
prominence and receives more vigorous and clear-cut expression, and it
is to his advocacy and to that of his modern followers that its
reception in England must be chiefly attributed.
The theory in question may be reduced to three fundamental
propositions:—
1. That sovereign power is essential in every state;
2. That sovereign power is indivisible;
3. That sovereign power is unlimited and illimitable.
The first of these propositions must be accepted as correct, but the
second and third would seem to have no solid foundation. The matter,
however, is one of very considerable obscurity and complexity, and
demands careful consideration.
1. _Sovereignty essential._ It seems clear that every political society
involves the presence of supreme power. For otherwise all power would be
subordinate, and this supposition involves the absurdity of a series of
superiors and inferiors _ad infinitum_. Yet although this is so, there
is nothing to prevent the sovereignty which is thus essential from being
wholly or partly _external_ to the state. It is, indeed, only in the
case of those states which are both independent and fully sovereign that
the sovereignty is wholly internal, no part of it being held or
exercised _ab extra_ by any other authority. When a state is dependent,
that is to say, merely a separately organised portion of a larger body
politic, the sovereign power is vested wholly or in part in the larger
unity, and not in the dependency itself. Similarly when a state, though
independent, is only semi-sovereign, its autonomy is impaired through
the possession and exercise of a partial sovereignty by the superior
state. In all cases, therefore, sovereign power is necessarily present
somewhere, but it is not in all cases to be found in its entirety within
the borders of the state itself.
2. _Indivisible sovereignty._—Every state, it is said, necessarily
involves not merely sovereignty, but a _sovereign_, that is to say, one
person or one body of persons in whom the totality of sovereign power is
vested. Such power, it is said, cannot be shared between two or more
persons. It is not denied that the single supreme body may be composite,
as the English Parliament is. But it is alleged that whenever there are
in this way two or more bodies of persons in whom sovereign power is
vested, they necessarily possess it as joint tenants of the whole, and
cannot possess it as tenants in severalty of different parts. The whole
sovereignty may be in A., or the whole of it in B., or the whole of it
in A. and B. jointly, but it is impossible that part of it should be in
A. and the residue in B.
We may test this doctrine by applying it to the British constitution. We
shall find that this constitution in no way conforms to the principles
of Hobbes on this point, but is on the contrary a clear instance of
divided sovereignty. The _legislative_ sovereignty resides in the Crown
and the two Houses of Parliament, but the _executive_ sovereignty
resides in the Crown by itself, the Houses of Parliament having no share
in it. It will be understood that we are here dealing exclusively with
the law or legal theory of the constitution. The practice is doubtless
different; for in practice the House of Commons has obtained complete
control over the executive government. In practice the ministers are the
servants of the legislature and responsible to it. In law they are the
servants of the Crown, through whom the Crown exercises that sovereign
executive power which is vested in it by law, independently of the
legislature altogether.
In law, then, the executive power of the Crown is sovereign, being
absolute and uncontrolled within its own sphere. This sphere is not
indeed unlimited. There are many things which the Crown cannot do; it
cannot pass laws or impose taxes. But what it can do it does with
sovereign power. By no other authority in the state can its powers be
limited, or the exercise of them controlled, or the operation of them
annulled. It may be objected by the advocates of the theory in question
that the executive is under the control of the legislature, and that the
sum total of sovereign power is therefore vested in the latter, and is
not divided between it and the executive. The reply is that the Crown is
not merely itself a part of the legislature, but a part without whose
consent the legislature cannot exercise any fragment of its own power.
No law passed by the two Houses of Parliament is operative unless the
Crown consents to it. How, then, can the legislature control the
executive? Can a man be subject to himself? A power over a person, which
cannot be exercised without that person’s consent, is no power over him
at all. A person is subordinate to a body of which he is himself a
member, only if that body has power to act notwithstanding his dissent.
A dissenting minority, for example, may be subordinate to the whole
assembly. But this is not the position of the Crown.
The English constitution, therefore, recognises a sovereign executive,
no less than a sovereign legislature. Each is supreme within its own
sphere; and the two authorities are kept from conflict by the fact that
the executive is one member of the composite legislature. The supreme
legislative power is possessed jointly by the Crown and the two Houses
of Parliament, but the supreme executive power is held in severalty by
the Crown. When there is no Parliament, that is to say, in the interval
between the dissolution of one Parliament and the election of another,
the supreme legislative power is non-existent, but the supreme executive
power is retained unimpaired by the Crown.[513]
This is not all, however, for, until the passing of the Parliament Act,
1911, the British constitution recognised a supreme judicature, as well
as a supreme legislature and executive. The House of Lords in its
judicial capacity as a court of final appeal was sovereign. Its
judgments were subject to no further appeal, and its acts were subject
to no control. What it declared for law no other authority known to the
constitution could dispute. Without its own consent its judicial powers
could not be impaired or controlled, nor could their operation be
annulled. The consent of this sovereign judicature was no less essential
to legislation, than was the consent of the sovereign executive. The
House of Lords, therefore, held in severalty the supreme judicial power,
while it shared the supreme legislative power with the Crown and the
House of Commons.[514]
3. _Illimitable sovereignty._ Sovereign power is declared by the theory
in question to be not merely essential and indivisible, but also
illimitable. Not only is it uncontrolled within its own province, but
that province is infinite in extent. “It appeareth plainly to my
understanding,” says Hobbes,[515] “both from reason and Scripture, that
the sovereign power, whether placed in one man, as in monarchy, or in
one assembly of men, as in popular and aristocratical commonwealths, is
as great as possibly men can be imagined to make it.... And whosoever,
thinking sovereign power too great, will seek to make it less, must
subject himself to the power that can limit it; that is to say, to a
greater.” So Austin:[516] “It follows from the essential difference of a
positive law and from the nature of sovereignty and independent
political society, that the power of a monarch properly so called, or
the power of a sovereign number in its collegiate and sovereign
capacity, is incapable of legal limitation.... Supreme power limited by
positive law is a flat contradiction in terms.”
This argument confounds the limitation of power with the subordination
of it. That sovereignty cannot within its own sphere be subject to any
control is self-evident, for it follows from the very definition of this
species of power. But that this sphere is necessarily universal is a
totally different proposition, and one which cannot be supported. It
does not follow that if a man is free from the constraint of any one
stronger than himself, his physical power is therefore infinite.
In considering this matter we must distinguish between power in fact and
power in law. For here as elsewhere that which is true in law may not be
true in fact, and _vice versa_. A _de facto_ limitation of sovereign
power may not be also a _de jure_ limitation of it, and conversely the
legal theory of the constitution may recognise limitations which are
non-existent in fact.[517]
That sovereign power may be, and indeed necessarily is, limited _de
facto_ is sufficiently clear. Great as is the power of the government of
a modern and civilised state, there are many things which it not merely
ought not to do, but cannot do. They are in the strictest sense of the
term beyond its _de facto_ competence. For the power of a sovereign
depends on and is measured by two things: first the physical force which
he has at his command, and which is the essential instrument of his
government; and second, the disposition of the members of the body
politic to submit to the exercise of this force against themselves.
Neither of these two things is unlimited in extent, therefore the _de
facto_ sovereignty which is based upon them is not unlimited either.
This is clearly recognised by Bentham.[518] “In this mode of
limitation,” he says, “I see not what there is that need surprise us. By
what is it that any degree of power (meaning political power) is
established? It is neither more nor less ... than a habit of and a
disposition to obedience.... This disposition it is as easy, or I am
much mistaken, to conceive as being absent with regard to one sort of
acts, as present with regard to another. For a body, then, which is in
other respects supreme, to be conceived as being with respect to a
certain sort of acts limited, all that is necessary is that this sort of
acts be in its description distinguishable from every other.... These
bounds the supreme body in question has marked out to its authority: of
such a demarcation, then, what is the effect? Either none at all, or
this: that the disposition to obedience confines itself within these
bounds. Beyond them the disposition is stopped from extending; beyond
them the subject is no more prepared to obey the governing body of his
own state than that of any other. What difficulty, I say, there should
be in conceiving a state of things to subsist, in which the supreme
authority is thus limited—what greater difficulty in conceiving it with
this limitation, than without any, I cannot see. The two states are, I
must confess, to me alike conceivable: whether alike expedient, alike
conducive to the happiness of the people, is another question.”
The follower of Hobbes may admit the _de facto_, but deny the _de jure_
limitation of sovereign power. He may contend that even if there are
many things which the sovereign has no power to do in fact, there is and
can be nothing whatever which he has no power to do in law. The law, he
may say, can recognise no limitations in that sovereign power from which
the law itself proceeds.
In reply to this it is to be observed that the law is merely the theory
of things as received and operative within courts of justice. It is the
reflection and image of the outer world seen and accepted as authentic
by the tribunals of the state. This being so, whatever is possible in
fact is possible in law, and more also. Whatsoever limitations of
sovereign power may exist in fact may be reflected in and recognised by
the law. To allow that _de facto_ limitations are possible is to allow
the possibility of corresponding limitations _de jure_. If the courts of
justice habitually act upon the principle that certain functions or
forms of activity do not, according to the constitution, pertain to any
organ in the body politic, and therefore lie outside the scope of
sovereign power as recognised by the constitution, then that principle
is by virtue of its judicial application a true principle of law, and
sovereign power is limited in law no less than in fact.
The contrary view is based on that unduly narrow view of the nature of
law which identifies it with the command of the sovereign issued to his
subjects. In this view, law and legal obligation are co-extensive, and
the legal limitation of supreme power appears to involve the subjection
of the possessor of it to legal obligations in respect to the exercise
of it. This, of course, conflicts with the very definition of sovereign
power, and is clearly impossible.[519] That sovereign power may be
legally controlled within its own province is a self-contradictory
proposition; that its province may have legally appointed bounds is a
distinct and valid principle.
There is one application of the doctrine of illimitable sovereignty
which is of sufficient importance and interest to deserve special
notice. Among the chief functions of sovereign power is legislation. It
follows from the theory in question, that in every political society
there necessarily exists some single authority possessed of unlimited
legislative power. This power is, indeed, alleged to be the infallible
test of sovereignty. In seeking for that sovereign who, according to the
doctrine of Hobbes, is to be found somewhere in every body politic, all
that is necessary is to discover the person who possesses the power of
making and repealing all laws without exception. He and he alone is the
sovereign of the state, for he necessarily has power over all, and in
all, and is subject to none.
As to this it is to be observed, that the extent of legislative power
depends on and is measured by the recognition accorded to it by the
tribunals of the state. Any enactment which the law courts decline to
recognise and apply is by that very fact _not law_, and lies beyond the
legal competence of the body whose enactment it is. And this is so,
whether the enactment proceeds from a borough council or from the
supreme legislature. As the law of England actually stands, there are no
legal limitations on the legislative power of the Imperial Parliament.
No statute passed by it can be rejected as _ultra vires_ by any court of
law. This legal rule of legislative omnipotence may be wise or it may
not; but it is difficult to see by what process of reasoning the jurist
can demonstrate that it is theoretically necessary.
At no very remote period it was considered to be the law of England,
that a statute made by Parliament was void if contrary to reason and the
law of God.[520] The rule has now been abandoned by the courts, but it
seems sufficiently obvious that its recognition involves no theoretical
absurdity or impossibility, however inexpedient it may be. Yet it
clearly involves the limitation of the power of the legislature by a
rule of law. To take another example, the most striking illustration of
the legislative omnipotence of the English Parliament is its admitted
power of extending the term for which an existing House of Commons has
been elected. Delegates appointed by the people for a fixed time have
the legal power of extending the period of their own delegated
authority. It is difficult to see any theoretical objection to a rule of
the opposite import. Why should not the courts of law recognise and
apply the principle that an existing Parliament is sovereign only during
the limited time for which it was originally appointed, and is destitute
of any power of extending that time? And in such a case would not the
authority of the supreme legislature be limited by a rule of law?
The exercise of legislative power is admittedly subject to legal
_conditions_; why not, then, to legal _limitations_? If the law can
regulate the _manner_ of the exercise of legislative power, why not also
its _matter_? As the law stands, Parliament may repeal a statute in the
same session and in the same manner in which it was passed. What, then,
would be the effect of a statute providing that no statute should be
repealed save by an absolute majority in both Houses? Would it not
create good law, and so prevent either itself or any other statute from
being repealed save in manner so provided? What if it is provided
further, that no statute shall be repealed until after ten years from
the date of its enactment? Is such a statutory provision void? And if
valid, will it not be applied by the law courts, so that any attempt to
repeal either it or any other statute less than ten years old will be
disregarded, as beyond the competence of Parliament? And if a statute
can be made unrepealable for ten years, how is it _legally impossible_
that it should be made unrepealable for ever? Such a rule may be very
unwise, but by what argument are we to prove that it involves a logical
absurdity?
In respect of its legislative omnipotence the English Parliament is
almost unique in modern times. Most modern constitutions impose more or
less stringent limitations upon the powers of the legislature In the
United States of America neither Congress nor any State Legislature
possesses unrestricted powers. They cannot alter the constitutions by
which they have been established, and those constitutions expressly
withdraw certain matters from their jurisdiction. Where, then, is the
sovereignty vested? The reply made is that these constitutions contain
provisions for their alteration by some other authority than the
ordinary legislature, and that the missing legislative power is
therefore to be found in that body to which the right of altering the
constitution has been thus entrusted. In the United States the
sovereignty, it is said, is vested not in Congress, but in a majority of
three-fourths of the State Legislatures; this composite body has
absolute power to alter the constitution, and is therefore unbound by
any of the provisions of it, and is so possessed of unlimited
legislative power.
Now, whenever the constitution has thus entrusted absolute powers of
amendment to some authority other than the ordinary legislature, this is
a perfectly valid reply. But what shall we say of a constitution which,
while it prohibits alteration by the ordinary legislature, provides no
other method of effecting constitutional amendments? There is no logical
impossibility in such a constitution, yet it would be clearly
unalterable in law. That it would be amended in defiance of the law
cannot be doubted, for a constitution which will not bend will sooner or
later break. But all questions as to civil and supreme power are
questions as to what is possible within, not without, the limits of the
constitution. If there is no constitution which meets with due
observance, there is no body politic, and the theory of political
government is deprived of any subject-matter to which it can apply. The
necessary _datum_ of all problems relating to sovereignty is the
existence and observance of a definite scheme of organised structure and
operation, and it is with this _datum_ and presupposition that we must
discuss the question of the extent of legislative power.
Even where a constitution is not wholly, it may be partly unchangeable
in law. Certain portions of it may on their original establishment be
declared permanent and fundamental, beyond the reach even of the
authority to which in other respects the amendment of the constitution
is entrusted. Article V. of the Constitution of the United States of
America provides that no State shall be deprived of its equal suffrage
in the Senate without its own consent. Having regard to this provision,
what body is there in the United States which has vested in it unlimited
legislative power? The same Article provides that certain portions of
the Constitution shall be unalterable until the year 1808. What became
of sovereign power in the meantime?[521]
APPENDIX III.
THE MAXIMS OF THE LAW.
Legal maxims are the proverbs of the law. They have the same merits and
defects as other proverbs, being brief and pithy statements of partial
truths. They express general principles without the necessary
qualifications and exceptions, and they are therefore much too absolute
to be taken as trustworthy guides to the law. Yet they are not without
their uses. False and misleading when literally read, these established
formulae provide useful means for the expression of leading doctrines of
the law in a form which is at the same time brief and intelligible. They
constitute a species of legal shorthand, useful to the lawyer, but
dangerous to any one else; for they can be read only in the light of
expert knowledge of that law of which they are the elliptical
expression.
The language of legal maxims is almost invariably Latin, for they are
commonly derived from the civil law, either literally or by adaptation,
and most of those which are not to be found in the Roman sources are the
invention of medieval jurists. The following is a list of the more
familiar and important of them, together with brief comments and
references.
1. ACTUS NON FACIT REUM NISI MENS SIT REA.
Leges Henrici Primi, V. 28. (Thorpe’s Ancient Laws and Institutes of
England, I. 511.) Coke’s Third Institute, f. 6.
The act alone does not make the doer of it guilty, unless it is done
with a guilty mind. Material without formal wrongdoing is not a ground
of liability. The presence either of wrongful intent or of culpable
negligence is a necessary condition of responsibility. See §§ 127, 132,
145.
2. ADVERSUS EXTRANEOS VITIOSA POSSESSIO PRODESSE SOLET.
D. 41. 2. 53.
Prior possession is a good title of ownership against all who cannot
show a better. In the civil law, however, from which this maxim is
derived, it has a more special application, and relates to the
conditions of possessory remedies. See § 161.
3. APICES JURIS NON SUNT JURA.
10 Co. Rep. 126. _Cf._ D. 17. 1. 29. 4: Non congruit de apicibus juris
disputare.
Legal principles must not be carried to their most extreme consequences,
regardless of equity and good sense. A principle valid within certain
limits becomes false when applied beyond these limits. The law must
avoid the falsehood of extremes. See § 10.
4. CESSANTE RATIONE LEGIS CESSAT LEX IPSA.
In the application of this maxim we must distinguish between common and
statute law.
(1) _Common law._ A legal principle must be read in the light of the
reason for which it was established. It must not be carried further than
this reason warrants, and if the _ratio legis_ wholly fails, the law
will fail also.
(2) _Statute law._ To statute law the maxim has only a limited
application, for such law depends upon the authority of the _litera
legis_. It is only when the letter of the law is imperfect, that
recourse may be had to the reason of it as a guide to its due
interpretation. The maxim in question, therefore, is valid only as a
rule of restrictive interpretation. The complementary rule of extensive
interpretation is, Ubi eadem ratio ibi idem jus. See Vangerow, I. sect.
25.
5. =Cogitationis poenam nemo patitur.=
D. 48. 19. 18.
The thoughts and intents of men are not punishable. The law takes notice
only of the overt and external act. In exceptional cases, however, the
opposite maxim is applicable: Voluntas reputatur pro facto—The law takes
the will for the deed. See § 137.
6. COMMUNIS ERROR FACIT JUS.
Coke’s Fourth Inst. f. 240. _Cf._ D. 33. 10. 3. 5: Error jus facit.
A precedent, even though erroneous, will make valid law, if its
authority has been so widely accepted and relied on that its reversal
has become inexpedient in the interests of justice. See § 65.
7. CUIUS EST SOLUM EIUS EST USQUE AD COELUM.
Co. Litt. 4 a. 9 Co. Rep. 54. See § 155.
8. DE MINIMIS NON CURAT LEX.
Cro. Eliz. 353. _Cf._ the medieval maxim of the Civilians: Minima non
curat praetor. Dernburg, Pandekten, I. § 140. n. 5.
The law takes no account of trifles. This is a maxim which relates to
the ideal, rather than to the actual law. The tendency to attribute
undue importance to mere matters of form—the failure to distinguish
adequately between the material and the immaterial—is a characteristic
defect of legal systems. See § 10.
9. EX NUDO PACTO NON ORITUR ACTIO.
_Cf._ D. 2. 14. 7. 4: Nuda pactio obligationem non parit. C. 4. 65. 27:
Ex nudo pacto ... actionem jure nostro nasci non potuisse.
In English law this maxim expresses the necessity of a legal
consideration for the validity of a contract. _Nudum pactum_ is _pactum
sine causa promittendi_. In the civil law, however, the maxim means, on
the contrary, that an agreement, to become binding, must fall within one
of the recognised classes of legally valid contracts. There was no
general principle that an agreement, as such, had the force of law. See
§ 124.
10. EX TURPI CAUSA NON ORITUR ACTIO.
_Cf._ D. 47. 2. 12. 1: Nemo de improbitate sua consequitur actionem.
An agreement contrary to law or morals can give rise to no right of
action in any party to it, either for the enforcement of it, or for the
recovery of property parted with in pursuance of it. _Cf._ the maxim: In
pari delicto potior est conditio defendentis. See § 124.
11. IGNORANTIA FACTI EXCUSAT, IGNORANTIA JURIS NON EXCUSAT.
_Cf._ D. 22. 6. 9. pr. Regula est juris quidem ignorantiam cuique
nocere, facti vero ignorantiam non nocere. See §§ 146. 147.
12. IMPOSSIBILIUM NULLA OBLIGATIO EST.
D. 50. 17. 185.
Otherwise: Lex non cogit ad impossibilia. Impossibility is an excuse for
the non-performance of an obligation—a rule of limited application.
13. IN JURE NON REMOTA CAUSA SED PROXIMA SPECTATUR.
Bacon’s Maxims of the Law, 1.
A man is not liable for all the consequences of his acts, but only for
those which are natural and probable—that is to say, those which he
foresaw or ought to have foreseen.
14. IN PARI CAUSA POTIOR EST CONDITIO POSSIDENTIS.
_Cf._ D. 50. 17. 128. pr.: In pari causa possessor potior haberi debet.
Also D. 20. 1. 10. D. 6. 2. 9. 4.
Possession and ownership—fact and right—enjoyment and title—are presumed
by the law to be coincident. Every man may therefore keep what he has
got, until and unless some one else can prove that he himself has a
better title to it. See § 107.
15. IN PARI DELICTO POTIOR EST CONDITIO DEFENDENTIS.
_Cf._ D. 50. 17. 154: Cum par delictum est duorum, semper oneratur
petitor.
Identical in effect with the maxim: Ex turpi causa non oritur actio.
16. INTER ARMA LEGES SILENT.
Cicero, Pro Milone, IV. 10.
This maxim has a double application: (1) As between the state and its
external enemies, the laws are absolutely silent. No alien enemy has any
claim to the protection of the laws or of the courts of justice. He is
destitute of any legal standing before the law, and the government may
do as it pleases with him and his. (2) Even as regards the rights of
subjects and citizens, the law may be put to silence by _necessity_ in
times of civil disturbance. Necessitas non habet legem. Extrajudicial
force may lawfully supersede the ordinary process and course of law,
whenever it is needed for the protection of the state and the public
order against illegal violence. See § 36.
17. INVITO BENEFICIUM NON DATUR.
D. 50. 17. 69.
The law confers upon a man no rights or benefits which he does not
desire. Whoever waives, abandons, or disclaims a right will lose it. See
§ 122.
18. JURIS PRAECEPTA SUNT HAEC: HONESTE VIVERE, ALTERUM NON LAEDERE, SUUM
CUIQUE TRIBUERE.
D. 1. 1. 10. 1. Just. Inst. 1. 1. 3.
“These are the precepts of the law: to live honestly, to hurt no one,
and to give to every man his own.” Attempts have been sometimes made to
exhibit these three _praecepta juris_ as based on a logical division of
the sphere of legal obligation into three parts. This, however, is not
the case. They are simply different modes of expressing the same thing,
and each of them is wide enough to cover the whole field of legal duty.
The third of them, indeed, is simply a variant of the received
definition of justice itself: Justitia est constans et perpetua voluntas
jus suum cuique tribuendi. D. 1. 1. 10 pr. Just. Inst. 1. 1. 1.
19. JUS PUBLICUM PRIVATORUM PACTIS MUTARI NON POTEST.
D. 2. 14. 38. _Cf._ D. 50. 17. 45. 1.
By _jus publicum_ is meant that portion of the law in which the public
interests are concerned, and which, therefore, is of absolute authority
and not liable to be superseded by conventional law made by the
agreement of private persons. _Cf._ the maxim: Modus et conventio
vincunt legem. See § 124.
20. MODUS ET CONVENTIO VINCUNT LEGEM.
2 Co. Rep. 73.
The common law may in great measure be excluded by conventional law.
Agreement is a source of law between the parties to it. See §§ 11. 122.
21. NECESSITAS NON HABET LEGEM.
_Cf._ Bacon’s Maxims of the Law, 5: Necessitas inducit privilegium. A
recognition of the _jus necessitatis_. See § 139.
22. NEMINEM OPORTET LEGIBUS ESSE SAPIENTIOREM.
Bacon, De Augmentis, Lib. 8. Aph. 58. _Cf._ Aristotle, Rhetoric, I. 15.
12.
It is not permitted to be wiser than the laws. In the words of Hobbes
(Leviathan, ch. 29), “the law is the public conscience,” and every
citizen owes to it an undivided allegiance, not to be limited by any
private views of justice or expediency. See § 9.
23. NEMO PLUS JURIS AD ALIUM TRANSFERRE POTEST, QUAM IPSE HABERET.
D. 50. 17. 54.
The title of an assignee can be no better than that of his assignor.
_Cf._ the maxim: Nemo dat qui non habet. See § 163.
24. NEMO TENETUR SE IPSUM ACCUSARE.
The law compels no man to be his own accuser or to give any testimony
against himself—a principle now limited to the criminal law. See § 175.
25. NEMO DAT QUI NON HABET.
No man can give a better title than that which he himself has. See §
163.
26. NON OMNE QUOD LICET HONESTUM EST.
D. 50. 15. 144. pr.
All things that are lawful are not honourable. The law is constrained by
the necessary imperfections of its methods to confer many rights and
allow many liberties which a just and honourable man will not claim or
exercise.
27. NULLUS VIDETUR DOLO FACERE, QUI SUO JURE UTITUR.
D. 50. 17. 55.
A malicious or improper motive cannot make wrongful in law an act which
would be rightful apart from such motive. The rule, however, is subject
to important limitations. See § 136.
28. QUI FACIT PER ALIUM, FACIT PER SE.
Co. Litt. 258a.
He who does a thing by the instrumentality of another is considered as
if he had acted in his own person.
29. QUI PRIOR EST TEMPORE POTIOR EST JURE.
_Cf._ C. 8. 17. 3: Sicut prior est tempore, ita potior jure.
Where two rights or titles conflict, the earlier prevails, unless there
is some special reason for preferring the later. See § 85.
30. QUOD FIERI NON DEBET, FACTUM VALET.
5 Co. Rep. 38.
A thing which ought not to have been done may nevertheless be perfectly
valid when it _is_ done. The penalty of nullity is not invariably
imposed upon illegal acts. For example, a marriage may be irregularly
celebrated, and yet valid; and a precedent may be contrary to
established law, and yet authoritative for the future. See § 66.
31. RES JUDICATA PRO VERITATE ACCIPITUR.
D. 1. 5. 25.
A judicial decision is conclusive evidence _inter partes_ of the matter
decided. See § 67.
32. RESPONDEAT SUPERIOR.
Coke’s Fourth Inst. 114.
Every master must answer for the defaults of his servant as for his own.
See § 149.
33. SIC UTERE TUO UT ALIENUM NON LAEDAS.
9 Co. Rep. 59.
Every man must so use his own property as not to harm that of another.
This is the necessary qualification of the maxim that every man may do
as he will with his own. See § 154.
34. SUMMUM JUS SUMMA INJURIA.
Cicero, De Off. I. 10. 33.
The rigour of the law, untempered by equity, is not justice but the
denial of it. See §§ 10. 13.
35. SUPERFICIES SOLO CEDIT.
Gaius 2. 73.
Whatever is attached to the land forms part of it. _Cf._ Just. Inst. 2.
1. 29: Omne quod inaedificatur solo cedit. See § 155.
36. UBI EADEM RATIO, IBI IDEM JUS.
This is the complement of the maxim, Cessante ratione legis, cessat lex
ipsa. A rule of the common law should be extended to all cases to which
the same _ratio_ applies, and in the case of imperfect statute law
extensive interpretation based on the _ratio legis_ is permissible. See
Vangerow, I. sect. 25.
37. UBI JUS IBI REMEDIUM.
_Cf._ the maxim of the Civilians: Ubi jus non deest nee actio deese
debet. Puchta II. sect. 208. n.b.
Whenever there is a right, there should also be an action for its
enforcement. That is to say, the substantive law should determine the
scope of the law of procedure, and not _vice versa_. Legal procedure
should be sufficiently elastic and comprehensive to afford the requisite
means for the protection of all rights which the substantive law sees
fit to recognise. In early systems this is far from being the case. We
there find remedies and forms of action determining rights, rather than
rights determining remedies. The maxim of primitive law is rather, Ubi
remedium ibi jus.
38. VIGILANTIBUS NON DORMIENTIBUS JURA SUBVENIUNT.
_Cf._ D. 42. 8. 24: Jus civile vigilantibus scriptum est.
The law is provided for those who wake, not for those who slumber and
sleep. He who neglects his rights will lose them. It is on this
principle that the law of prescription is founded. See § 162.
39. VOLENTI NON FIT INJURIA.
_Cf._ D. 47. 10. 1. 5: Nulla injuria est, quae in volentem fiat.
No man who consents to a thing will be suffered thereafter to complain
of it as an injury. He cannot waive his right and then complain of its
infringement.
APPENDIX IV.
THE DIVISIONS OF THE LAW.
English law possesses no received and authentic scheme of orderly
arrangement. Exponents of this system have commonly shown themselves too
little careful of appropriate division and classification, and too
tolerant of chaos. Yet we must guard ourselves against the opposite
extreme, for theoretical jurists have sometimes fallen into the contrary
error of attaching undue importance to the element of form. They have
esteemed too highly both the possibility and the utility of ordering the
world of law in accordance with the straitest principles of logical
development. It has been said by a philosopher concerning human
institutions in general, and therefore concerning the law and its
arrangement, that they exist for the uses of mankind, and not in order
that the angels in heaven may delight themselves with the view of their
perfections. In the classification of legal principles the requirements
of practical convenience must prevail over those of abstract theory. The
claims of logic must give way in great measure to those of established
nomenclature and familiar usage; and the accidents of historical
development must often be suffered to withstand the rules of scientific
order. Among the various points of view of which most branches of the
law admit, there are few, if any, which may be wisely adopted throughout
their whole extent, and among the various alternative principles of
classification, expedience allows of no rigidly exclusive and consistent
choice. There are few distinctions, however important in their leading
applications, which may not rightly, as they fade towards the boundary
line, be replaced by others which there possess a deeper significance.
We may rest content, therefore, if, within the limits imposed by the
needful conformity to received speech and usage, each portion of the law
is dealt with in such of its aspects as best reveals its most important
characters and relations, and in such order as is most consistent with
lucid and concise exposition.
1. _The Introductory Portion of the Law._
The first portion of the _corpus juris_ is of an introductory nature,
consisting of all those rules which by virtue of their preliminary
character or of the generality of their application cannot be
appropriately relegated to any special department. This introduction may
be divided into four parts. The first of them is concerned with the
sources of law. It comprises all those rules in accordance with which
new law obtains recognition and the older law is modified or abrogated.
It is here, for example, that we must look for the legal doctrine as to
the operation of precedent, custom, and legislation. The second part of
the Introduction deals with the interpretation of law. Here we shall
find the rules in accordance with which the language of the law is to be
construed, and also the definitions of those terms which are fitly dealt
with here, because common to several departments of the law. In the
third place the Introduction comprises the principles of private
international law—the principles, that is to say, which determine the
occasional exclusion of English law from English courts of justice, and
the recognition and enforcement therein of some foreign system which
possesses for some reason a better claim to govern the case in hand.
Fourthly and lastly, it is necessary to treat as introductory a number
of miscellaneous rules which are of so general an application as not to
be appropriately dealt with in any special department of the legal
system.
2. _Private and Public Law._
After the Introduction comes the body of Private Law as opposed to that
of Public Law. By general consent this Roman distinction between _jus
privatum_ and _jus publicum_ is accepted as the most fundamental
division of the _corpus juris_. Public law comprises the rules which
specially relate to the structure, powers, rights, and activities of the
state. Private law includes all the residue of legal principles. It
comprises all those rules which specially concern the subjects of the
state in their relations to each other, together with those rules which
are common to the state and its subjects. In many of its actions and
relations the state stands on the same level as its subjects, and
submits itself to the ordinary principles of private law. It owns land
and chattels, makes contracts, employs agents and servants, and enters
into various forms of commercial undertaking; and in respect of all
these matters it differs little in its juridical position from its own
subjects. Public law, therefore, is not the _whole_ of the law that is
applicable to the state and to its relations with its subjects, but only
those parts of it which are different from the private law concerning
the subjects of the state and their relations to each other. For this
reason private law precedes public in the order of exposition. The
latter presupposes a knowledge of the former.
The two divisions of public law are constitutional and administrative
law. It is impossible, however, to draw any rigid fine between these
two, for they differ merely in the degree of importance pertaining to
their subject-matters. Constitutional law deals with the structure,
powers, and functions of the supreme power in the state, together with
those of all the more important of the subordinate departments of
government. Administrative law, on the other hand, is concerned with the
multitudinous forms and instruments in and through which the lower
ranges of governmental activity manifest themselves.
3. _Civil and Criminal Law._
Within the domain of private law the division which calls for primary
recognition is that between civil and criminal law. Civil law is that
which is concerned with the enforcement of rights, while criminal law is
concerned with the punishment of wrongs. We have examined and rejected
the opinion that crimes are essentially offences against the state or
the community at large, while civil wrongs are committed against private
persons. According to the acceptance or rejection of this opinion,
criminal law pertains either to public or to private law. Our
classification of it as private is unaffected by the fact that certain
crimes, such as treason and sedition, are offences against the state. As
already explained, logical consistency in the division of the law is
attainable only if we are prepared to disregard the requirements of
practical convenience. Greater weight is wisely attributed to the fact
that treason and robbery are both crimes, than to the fact that the one
is an offence against the state and the other an offence against an
individual.
Just as the law which is common to both state and subject is considered
under the head of private law alone, so the law which is common to
crimes and to civil injuries is dealt with under the head of civil law
alone. It is obvious that there is a great body of legal principles
common to the two departments. The law as to theft involves the whole
law as to the acquisition of property in chattels, and the law of bigamy
involves a considerable portion of the law of marriage. The arrangement
sanctioned by usage and convenience is, therefore, to expound first the
civil law in its entirety, and thereafter, under the title of criminal
law, such portions of the law of crime as are not already comprehended
in the former department.
4. _Substantive Law and the Law of Procedure._
Civil and criminal law are each divisible into two branches, namely
substantive law and the law of procedure, a distinction the nature of
which has already been sufficiently considered.
5. _Divisions of the Substantive Civil Law._
The substantive civil law may be conveniently divided, by reference to
the nature of the rights with which it is concerned, into three great
branches, namely the law of property, the law of obligations, and the
law of status. The first deals with proprietary rights _in rem_, the
second with proprietary rights _in personam_, and the third with
personal as opposed to proprietary rights.
6. _The Law of Property._
Although the distinction between the law of property and that of
obligations is a fundamental one, which must be recognised in any
orderly scheme of classification, there is a great part of the
substantive civil law which is common to both of these branches of it.
Thus the law of inheritance or succession concerns all kinds of
proprietary rights whether _in rem_ or _in personam_. So also with the
law of trusts and that of securities. In general the most convenient
method of dealing with these common elements is to consider them once
for all in the law of property, thus confining the law of obligations to
those rules which are peculiar to obligations: just as the elements
common to civil and criminal law are dealt with in the civil law, and
those common to private and public law in private law.
The law of property is divisible into the following chief branches: (1)
the law of corporeal property, namely the ownership of land and
chattels; (2) the law of immaterial objects of property, such as
patents, trade-marks, and copyrights; (3) the law of encumbrances or
_jura in re aliena_, such as tenancies, servitudes, trusts, and
securities; (4) the law of testamentary and intestate succession.
7. _The Law of Obligations._
The law of obligations comprises the law of contracts, the law of torts,
and the law of those miscellaneous obligations which are neither
contractual nor delictal. It may be convenient to consider under the
same head the law of insolvency, inasmuch as the essential significance
of insolvency is to be found in its operation as a method of discharging
debts and liabilities. Alternatively, however, this branch of law may be
included in the law of property, inasmuch as it deals with one mode of
divesting proprietary rights in general. In the law of obligations is
also to be classed the law of companies, this being essentially a
development of the law of the contract of partnership. Under the head of
companies are to be comprised all forms of _contractual_ incorporation,
all other bodies corporate pertaining either to public law or to special
departments of private law with which they are exclusively concerned.
The _general_ doctrine as to corporations is to be found in the
introductory department of the law.
8. _The Law of Status._
The law of status is divisible into two branches dealing respectively
with domestic and extra-domestic status. The first of these is the law
of family relations, and deals with the nature, acquisition, and loss of
all those personal rights, duties, liabilities, and disabilities which
are involved in domestic relationship. It falls into three divisions,
concerned respectively with marriage, parentage, and guardianship. The
second branch of the law of status is concerned with all the personal
rights, duties, liabilities, and disabilities, which are external to the
law of the family. It deals, for example, with the personal status of
minors (in relation to others than their parents), of married women (in
relation to others than their husbands and children), of lunatics,
aliens, convicts, and any other classes of persons whose personal
condition is sufficiently characteristic to call for separate
consideration.[522]
There is one class of personal rights which ought in logical strictness
to be dealt with in the law of status, but is commonly and more
conveniently considered elsewhere—those rights, namely, which are called
_natural_, because they belong to all men from their birth, instead of
being subsequently acquired: for example, the rights of life, liberty,
reputation, and freedom from bodily harm. These are personal rights and
not proprietary; they constitute part of a man’s status, not part of his
estate; yet we seldom find them set forth in the law of status.[523] The
reason is that such rights, being natural and not acquired, call for no
consideration, except in respect of their _violation_. They are
adequately dealt with, therefore, under the head of civil and criminal
wrongs. The exposition of the law of libel, for example, which is
contained in the law of torts, involves already the proposition that a
man has a right to his reputation; and there is no occasion, therefore,
for a bald statement to that effect in the later law of status.
SUMMARY.
THE DIVISIONS OF THE LAW.
{ A. Sources of the Law.
{ B. Interpretation and Definitions.
I. Introduction. { C. Private International Law.
{ D. Miscellaneous Introductory Principles.
{ 1. Corporeal { Land.
{ Property { Chattels.
{ 2. Immaterial { Patents
{ Property { Trade-marks,
{ { &c.
{ Property { { Leases.
{ { { Servitudes.
{ { 3. Encumbrances { Trusts.
{ { { Securities,
{ { { &c.
{ { { Testamentary.
{ { 4. Succession { Intestate.
{
{ { 1. Contracts { General Part.
{ { { Special Part.
{ Substantive { Obligations { 2. Torts { General Part,
{ { { { Special Part.
{ { { 3. Miscellaneous Obligations.
{ { { 4. Insolvency.
{ { { 5. Companies.
{ {
{ { { Marriage.
{ { { Parentage.
{ Civil { { { Domestic { Guardianship.
{ Law { { { Status
{ { { { { Infants.
{ { { Status { { Married
{ { { Extra-domestic { women.
{ { { Status { Lunatics.
II. Private { { { Aliens.
Law { { { Convicts, &c.
{ { { Practice.
{ { Procedure { Evidence.
{
{ { General Part.
{ { Substantive {
{ Criminal { { Special Part.
{ Law { Procedure.
{ Constitutional Law.
III. Public Law { Administrative Law.
APPENDIX V.
THE LITERATURE OF JURISPRUDENCE.
The following list is intended to serve partly by way of explanation of
the references contained in the text and notes, and partly as a guide to
the literature of the subject. Nothing, however, is here attempted save
a selection of the more important works which bear with more or less
directness upon the abstract theory of the law. Many of them are
primarily ethical or political, rather than legal, and of those which
are strictly legal, many are devoted to some special branch of law
rather than to general theory. But all of them are relevant, in whole or
in part, to the subject-matter of this work. The editions mentioned are
those to which the references in the text and notes relate, and are not
invariably the latest.
_Ahrens._—Cours de Droit Naturel, ou de Philosophie du Droit. 8th ed.
1892, Paris. (A good example of the modern Continental literature of
Natural Law.)
_Amos._—The Science of Jurisprudence, 1872. The Science of Law, 6th
ed. 1885.
_Anson, Sir W. R._—Principles of the English Law of Contract. 13th ed.
1912.
_Aquinas, St. Thomas._—Tractatus de Legibus and Tractatus de Justitia
et Jure, included in his Summa Theologiae.
(The scholastic philosophy of the Middle Ages included within its
scope the more abstract portions of juridical science, and the
legal and ethical doctrines of the schoolmen found their most
authoritative expression in the above-mentioned work of Aquinas in
the thirteenth century.)
_Arndts._—Juristische Encyklopädie und Methodologie. 9th ed.
Stuttgart, 1895. Lehrbuch der Pandekten. 14th ed. Stuttgart, 1889.
_Austin._—Lectures on Jurisprudence or the Philosophy of Positive Law.
5th ed. 1885.
Abridgement by Campbell for the use of Students. 9th ed. 1895.
The Austinian Theory of Law, by Professor W. J. Brown. An edition of
the more essential portions of Austin’s work, with notes and
excursus by the editor. 1906.
(Almost unknown, and entirely unhonoured on the Continent, Austin’s
work has had immense influence in England, and he is the founder
of a distinct school of juridical speculation.)
_Baudry-Lacantinerie._—Traité Théorique et Pratique de Droit Civil.
Paris, 1895—.
(A series of commentaries on French law by various writers.)
_Beccaria._—Dei Delitti e delle Pene. (Crimes and Punishments.) 1764.
Engl. transl. by Farrer, 1880.
_Bentham._—The Principles of Morals and Legislation. Clarendon Press
ed. 1879.
Theory of Legislation. Translated from the French of Dumont, by
Hildreth. 8th ed. 1894.
A Fragment on Government. Ed. by Montague, 1891. Oxford.
Collected Works. Edited by Bowring, 11 vols., 1843.
_Bierling._—Juristische Prinzipienlehre. 1894.
_Birkmeyer._—Encyklopädie der Rechtswissenschaft. 1901, Berlin.
_Blackstone, Sir William._—Commentaries on the Laws of England. 4
vols. 1765–1769.
_Bluntschli._—Allgemeine Staatslehre. (Engl. transl. The Theory of the
State, 2nd ed. 1895, Oxford.)
_Bodin._—De la République, 1576. Latin version, De Republica, 1586.
(A work of great influence and celebrity in its day. Bodin may be
regarded as one of the founders of the political science of modern
times.)
_Bracton_.—De Legibus Angliae.
(One of the earliest of English legal treatises, dating from the
reign of Henry III. Printed in 1569. Edited, with translation, by
Twiss, in the Rolls Series, but in a manner very discreditable to
English scholarship.)
_Brown._—The Austinian Theory of Law. 1906.
_Bruns._—Das Recht des Besitzes in Mittelalter und in der Gegenwart.
Tübingen, 1848.
_Bryce._—Studies in History and Jurisprudence. 1901, Oxford, 2 vols.
_Burlamaqui._—Principes du Droit de la Nature et des Gens. 1766.
Edited by Dupin, 1820, Paris, 5 vols.
_C._—The Code of the Emperor Justinian.
(A collection of the statute law of the Roman Empire, made by order
of Justinian, A.D. 534, and forming one portion of the Corpus
Juris Civilis.)
_Clark, E. C._—Practical Jurisprudence; a Comment on Austin.
Cambridge, 1883.
Analysis of Criminal Liability. Cambridge, 1880.
_Co. Litt._—Coke’s Commentary upon Littleton.
_Cosack._—Lehrbuch des deutschen bürgerlichen Rechts. 2 vols. Jena,
1901.
_D._—The Digest or Pandects of the Emperor Justinian.
(A compilation of extracts from the writings of the chief Roman
lawyers, made by order of Justinian, A.D. 533, as part of the
Corpus Juris Civilis.)
_Dernburg._—Pandekten. 3 vols. 6th ed. 1900, Berlin.
(This is one of the best examples of the German works on
Pandektenrecht, that is to say, the modern Roman law which was in
force as the common law of Germany until superseded by the recent
Codes.)
Das bürgerliche Recht des Deutschen Reichs. 3 vols. 1901.
_Franck._—Réformateurs et Publicistes de l’Europe. 3 vols. 1864, 1881,
1893, Paris.
Philosophie du Droit Civil. Paris, 1886.
Philosophie du Droit Pénal. Paris, 4th ed. 1893.
_French Codes._—Codes et Lois Usuelles; edited by Roger and Sorel.
Paris.
_Fustel de Coulanges._—La Cité Antique. Paris, 15th ed. 1895.
_Gaius._—Institutiones.
(An institutional compendium of Roman law by a jurist of the second
century of the Christian era. It is of great value as the chief
source of our knowledge of the earlier law of Rome.)
_Gareis._—Rechts-Encyklopädie. 2nd ed. 1900, Giessen. English
translation by Kocourek, Introduction to the Science of Law. Boston,
1911.
_German Civil Code._—Das bürgerliche Gesetzbuch.
(A codification of the civil law of the German Empire, which came
into force in 1900. French trans. by Grasserie, Code Civil
Allemand, Paris, 1901.)
_German Criminal Code._—Das Strafgesetzbuch für das Deutsche Reich,
1872. Annotated edition by Oppenhoff, 1896, Berlin.
_Gierke._—Deutsches Privatrecht. 2 vols. 1895–1905. Leipzig.
(The First Book or General Part of this work contains an admirable
exposition of the first principles of legal theory.)
_Girard._—Manuel Elémentaire de Droit Romain. 2nd ed. 1898, Paris.
_Goadby._—Introduction to the Study of the Law. 1910.
_Graham._—English Political Philosophy. 1899.
_Gray, J. C._—The Nature and Sources of the Law. New York, 1909.
_Green, T. H._—Lectures on the Principles of Political Obligation.
(Collected Works, vol. ii. 3rd ed. 1893.)
_Grotius._—De Jure Belli ac Pacis, 1625. Edited, with English
translation, by Whewell. Cambridge, 3 vols.
(Grotius confines his attention for the most part to international
law, of which he was one of the founders. This work, however, is
not without importance with respect to the theory of civil law
also.)
_Hearn._—The Theory of Legal Duties and Rights. 1883, Melbourne.
_Heron._—Introduction to the History of Jurisprudence, 1860.
_Hobbes._—Leviathan; or the Matter, Form, and Power of a Commonwealth,
Ecclesiastical and Civil. 1651. (English Works, edited by
Molesworth, vol. iii. Published separately, Cambridge University
Press, 1904.)
De Cive. 1642. (Latin Works, edited by Molesworth. Vol. ii.)
_Holdsworth._—History of English Law. 3 vols. 1903–1909.
_Holland._—Elements of Jurisprudence. 11th ed. 1910, Oxford.
_Holmes, O. W._—The Common Law. 1887.
_Holtzendorff._—Encyklopädie der Rechtswissenschaft. 6th ed. 1904,
Berlin.
_Hooker._—Ecclesiastical Polity. Book I. 1594. (Works in 3 vols. 1888,
Oxford.)
(Remarkable as the first adequate presentation in the English
language of the abstract theory of law. Hooker’s doctrine is
essentially that of the scholastic philosophy.)
_Hunter._—A Systematic and Historical Exposition of Roman Law; with an
historical Introduction by A. F. Murison. 4th ed. 1904.
_Ihering._—Geist des römischen Rechts. 3 vols. 5th ed. 1891, Leipzig.
French translation by Meulenaere, L’Esprit du Droit Romain, 4 vols.
1877.
Der Zweck im Recht. 2 vols. 3rd ed. 1893, Leipzig. French
translation by Meulenaere, L’Evolution du Droit. 1901.
Grund des Besitzesschutzes. 2nd ed. 1869, Jena.
Der Besitzwille. 1889, Jena.
_Inst. Just._—The Institutes of the Emperor Justinian.
(A text-book of Roman law for the use of students, compiled by order
of Justinian, A.D. 533, and forming part of the Corpus Juris
Civilis.)
_Italian Civil Code._—French trans. by Prudhomme. Paris, 1896.
_Italian Penal Code._—French trans. by Turrel. Paris, 1890.
_Janet._—Histoire de la Science Politique. 2 vols. 3rd ed. 1887,
Paris.
_Jellinek._—Allgemeine Staatslehre. 1900. Berlin. (The first volume of
Das Recht des modernen Staates.)
_Kant._—Rechtslehre. 1796. English translation by Hastie, Kant’s
Philosophy of Law, 1887.
(With Kant, jurisprudence fell for the first time into the hands of
the metaphysicians, and this union of law and metaphysics has
since characterised a considerable portion of German juridical
literature.)
_Kenny._—Outlines of Criminal Law, 4th ed. 1909.
_Korkunov._—The General Theory of Law. Translated from the Russian by
W. G. Hastings. Boston, 1909.
_L.Q.R._—Law Quarterly Review. London, 1885–.
_L.R._—The Law Reports, from 1865 onwards.
Q.B. or K.B.—Reports of cases decided in the Court of Queen’s Bench
or the Queen’s (or King’s) Bench Division of the High Court of
Justice. Thus L.R. 10 Q.B. 27, is the 10th volume of the Queen’s
Bench Law Reports; and (1900) 1 Q.B. 27, is the first volume of
the Queen’s Bench Reports for the year 1900.
Ch. D.—Reports of cases in the Chancery Division of the High Court
of Justice.
A.C.—Appeal Cases, _i.e._, reports of cases in the House of Lords
and Privy Council.
C.P. or C.P.D.—Reports of cases in the Court of Common Pleas, or the
Common Pleas Division of the High Court.
Ex. or Ex.D.—Reports of cases in the Court of Exchequer, or the
Exchequer Division of the High Court.
_Lea._—Superstition and Force. 4th ed. Philadelphia, 1892.
_Lee._—Historical Jurisprudence; an Introduction to the Systematic
Study of the Development of Law. 1900.
_Lightwood._—A Treatise on Possession of Land. 1894.
The Nature of Positive Law. 1883.
_Lindley, Lord._—An Introduction to the Study of Jurisprudence. 1855.
(A translation, with copious notes, of the General Part of Thibaut’s
Pandektenrecht.)
_Locke._—Two Treatises on Civil Government. 1690.
_Lorimer._—The Institutes of Law; a Treatise of the Principles of
Jurisprudence as determined by Nature. 2nd ed. 1880.
_Maine, Sir Henry._—Ancient Law. 1861; edited with introduction and
notes by Sir F. Pollock. 1906.
The Early History of Institutions. 1875. Early
Law and Custom. 1883.
(Sir Henry Maine is a leading representative in England of the
scientific treatment of legal conceptions in respect of their
origin and historical development.)
_Markby, Sir W._—Elements of Law. 6th ed. 1905, Oxford.
_Merkel._—Lehrbuch des Deutschen Strafrechts. 1889, Stuttgart.
_Merriam._—History of the Theory of Sovereignty since Rousseau. New
York, 1899.
_Miller._—The Data of Jurisprudence. Edinburgh. 1903.
_Montesquieu._—L’Esprit des Lois. 1748.
_Moyle, J. B._—Imperatoris Justiniani Institutionum Libri Quattuor;
with Introductions, Commentary, and Excursus. Oxford, 5th ed. 1913.
_Muirhead._—Historical Introduction to the Private Law of Rome. 2nd
ed. 1899.
_Pollock, Sir F._—First Book of Jurisprudence. 2nd ed. 1904.
Essays in Jurisprudence and Ethics. 1882.
Introduction to the History of the Science of Politics. 1897.
_Pollock and Wright._—Possession in the Common Law. 1888.
_Pollock and Maitland._—The History of English Law before the Time of
Edward I. 2 vols. Cambridge, 1895. 2nd ed. 1898.
_Pothier._—Works, 10 vols. ed. by Bugnet. 3rd ed. 1890, Paris.
(Pothier, _ob._ 1772, is one of the most celebrated of French
lawyers. His admirably lucid and methodical expositions of
Roman-French law are the source of great part of the Codes
prepared in France at the beginning of the 19th century and still
in force there.)
_Puchta._—Cursus der Institutionen. 10th ed. 1893, 2 vols. Leipzig.
(A treatise of Roman law. Puchta, _ob._ 1846, was one of the leading
representatives of the Historical School of German Jurisprudence,
and the introductory portion of this work is of importance as
setting forth the abstract theory of law as understood by that
school. This portion is translated by Hastie, Outlines of the
Science of Jurisprudence, 1887, Edinburgh.)
_Pufendorf._—De Jure Naturae et Gentium. 1672. English trans. by
Kennet, 1729:—The Law of Nature and Nations.
(This is one of the earliest and most celebrated examples of a form
of literature which was once of considerable repute and
importance, but has now all but disappeared, namely, Natural
Jurisprudence, or the Theory of Natural Law and Justice.)
_Pulszky._—The Theory of Law and Civil Society. 1888, London.
_Rattigan, Sir W. H._—The Science of Jurisprudence. 3rd ed. 1909.
_Regelsberger._—Pandekten. Vol. i. 1903.
_Rehm._—Allgemeine Staatslehre. 1899, Freiburg.
_Ritchie._—Natural Rights; a Criticism of some Political and Ethical
Conceptions. 1895.
_Rousseau._—Du Contrat Social; ou Principes du Droit Politique. 1762.
_Saleilles._—De la Déclaration de Volonté. 1901.
De la Possession des Meubles. 1907. De la Personnalité
Juridique. 1910.
_Savigny._—System des heutigen römischen Rechts. 1840–1849. French
translation by Guenoux, Traité de Droit Romain. 8 vols.
Das Obligationenrecht. 1851–1853. French translation by Gérardin and
Jozon, Le Droit des Obligations. 2 vols. 2nd ed. 1873.
Das Recht des Besitzes. 1803. English translation by Perry, Von
Savigny’s Treatise on Possession. 1848.
_Schmidt._—Allgemeine Staatslehre. 1901, Leipzig.
_Select Essays in Anglo-American Legal History._—By various authors.
Edited by a Committee of the Association of American Law Schools. 3
vols. 1907–1909.
_Sidgwick, H._—Elements of Politics. 2nd ed. 1897.
_Spencer, Herbert._—Principles of Sociology. Vol. ii. Part V.
Political Institutions. 3rd ed. 1893.
Principles of Ethics. Vol. ii. Part IV.
Justice. 1893.
_Spinoza._—Tractatus Politicus. 1677, posthumous.
(Works edited by Van Vloten and Land. 3 vols. English translation by
Elwes. 2nd ed. 1889.)
_Stephen, Sir J. F._—History of the Criminal Law of England. 3 vols.
1883.
General View of the Criminal Law. 2nd ed.
1890.
_Street._—Foundations of Legal Liability. 3 vols. 1906, New York.
_Suarez._—De Legibus et de Deo Legislatore. 1613.
(Suarez was a Spanish Jesuit of the sixteenth century. In this work
he sums up, with the greatest completeness and elaboration, the
scholastic doctrine of the law.)
_Tarde._—Les Transformations du Droit. 2nd ed. 1894. Paris.
La Philosophie Pénale. 5th ed. 1900. Paris.
_Terry._—Leading Principles of Anglo-American Law. 1884, Philadelphia.
(A treatise of Theoretical Jurisprudence.)
_Thomasius, C._—Institutionum Jurisprudentiae Divinae Libri Tres.
1687.
Fundamenta Juris Naturae et Gentium. 1705.
(Thomasius is chiefly noteworthy as the originator of that
distinction between natural jurisprudence, or the science of
justice strictly so called, and ethics or the science of virtue,
which was subsequently adopted by Kant, and through his influence
became a characteristic feature of Continental doctrine.)
_Vangerow._—Lehrbuch der Pandekten. 3 vols. 7th ed. 1876, Leipzig.
_Windscheid._—Lehrbuch des Pandektenrechts. 3 vols. 8th ed. 1900.
Frankfurt.
(Windscheid was one of the most distinguished of the German
exponents of modern Roman law, and this work is an admirable
example of the scientific study of a legal system.)
_Woolsey._—Political Science or the State. 2 vols. 1877.
_Y.B._—The Year Books, viz., the early Law Reports from the reign of
Edward I. to that of Henry VIII. The Year Books of Edward I. and
some others are published with a translation in the Rolls Series;
others by the Selden Society. The rest are to be found in a black
letter folio edition of 1678.
INDEX
Abrath _v._ North Eastern Ry. Co., 289.
Accessory rights, distinguished from principal, 216;
examples of, 216;
rights both accessory and dominant, 217.
Accident, distinguished from mistake, 371;
culpable and inevitable, 372;
defence of, 372;
absolute liability for, 372.
Actio furti, 86, _n._
Actio in rem and in personam, 207.
Actio personalis moritur cum persona, 376, 377.
Acts, their generic nature, 323;
positive and negative, 323;
internal and external, 323;
intentional and unintentional, 324;
their circumstances and consequences, 325;
place of, 330;
time of, 330
Acts in the law, 301–304;
unilateral and bilateral, 302;
two classes of unilateral, 303.
_See_ Agreements.
Acts of the law, 302.
Acts of Parliament, public and private, 30;
said formerly to be void if unreasonable, 146.
_See_ Legislation, Statute law.
Actus non facit reum, &c., 322, 474.
_See_ Mens rea.
Administration of justice, necessity of, 11, 65–67;
logically prior to the law, 12;
possible without law, 13;
origin of, 67–70;
civil and criminal, 70–75;
specific and sanctional enforcement of rights, 85;
penal and remedial proceedings, 88;
secondary functions of courts of law, 89–91;
an essential function of the state, 93;
compared with war or the extrajudicial use of force, 94–98;
element of force usually latent in, 97;
not the substitution of arbitration for force, 97.
Aequitas sequitur legem, 34.
Agere non valenti non currit praescriptio, 412 _n._
Agreements, a source of law, 31, 54, 124;
constitutive and abrogative power of, 124, 307;
nature of, 303;
different uses of the term, 303;
unilateral and bilateral, 304 _n._;
importance of, as a vestitive fact, 305;
grounds of operation of, 305;
compared with legislation, 306;
classes of, 307–309;
void and voidable, 309;
unenforceable, 310 _n._;
formal and informal, 310;
illegal, 311;
effect of error on, 312;
effect of coercion on, 313;
want of consideration for, 313–317;
a title to property, 412–416.
Ahrens, his Cours de Droit Naturel, 2;
on proprietary rights, 208 _n._;
his definition of property, 387.
Alfred, laws of King, on private war, 69, _n._;
on accidental homicide, 373.
Alienative facts, 300.
Aliens, members of the state if resident in its territory, 100;
disabilities of, 101.
Allegiance, nature of, 105;
permanent and temporary, 105.
_See_ Citizenship.
Allen _v._ Flood, 192, 341, 342.
Analogy, a source of judicial principles, 175.
Ancona _v._ Rogers, 253.
Animals, possess no legal personality, 273;
have no legal rights, 274;
effect of trusts for, 274;
punishment of, in early law, 273, 373;
liability of owner of, 273, 372.
Animus possidendi, essential to possession, 242;
its nature, 242;
need not be rightful, 242;
must be exclusive, 242;
need not be a claim of ownership, 243;
need not be on one’s own behalf, 243;
need not be specific, 243.
Anson, Sir W., his definition of contract, 303 _n._
Apices juris, 474.
Appeals of felony, abolition of, 69, _n._
Aquinas, his distinction between jus naturale and jus positivum, 3
_n._;
on equity, 36;
on the lex aeterna, 42;
on agreement as a title of right, 306;
his Tractatus de Legibus, 487.
Arbitration, international, dependent on the development of
international law, 22.
Aristotle, on being wiser than the laws, 22, 478;
on the arbitrium judicis, 26;
on law and equity, 36;
on the law of nature, 45.
Armory _v._ Delamirie, 249, 270, 408.
Arndts, on Juridical Encyklopaedia, 7;
on customary law, 155.
Asher _v._ Whitlock, 270, 408.
Ashford _v._ Thornton, 69.
Assignment. _See_ Transfer.
Assumpsit, 435.
Attempts, criminal, their nature, 343;
distinguished from preparation, 343;
by impossible means, 345.
Att.-Gen. _v._ Dean of Windsor, 165.
Att.-Gen. _v._ Dimond, 394.
Attornment, 258.
Austin, on general jurisprudence, 6;
his definition of law, 47;
his use of the term legislation, 127;
his theory of customary law, 156;
on illimitable sovereignty, 469;
his influence on English thought, 488.
Autonomous law, the product of autonomous legislation, 130;
its relation to conventional law, 131.
Azo, on equity, 37.
Backhouse _v._ Bonomi, 331.
Bacon, Sir F., on being wiser than the laws, 23, _n._;
on the arbitrium judicis, 26.
Barnet _v._ Brandao, 29.
Battle, trial by, its origin, 69;
its duration in English law, 69, _n._;
a mode of authenticating testimony, 451.
Baudry-Lacantinerie, on proprietary rights, 208, _n._;
on ownership, 224, _n._;
on corporeal and incorporeal possession, 264, _n._;
on movable and immovable property, 392, _n._
Beamish _v._ Beamish, 165.
Beardman _v._ Wilson, 399.
Beati possidentes, 265.
Bechuanaland Exploration Co. _v._ London Trading Bank, 150.
Beneficial ownership. _See_ Trust.