on natural rights, 182;
his use of the term property, 387;
on compulsory examination of accused persons, 450, _n._;
on the limitations of sovereign power, 470.
Bill of Rights, 109.
Bills of Exchange, formerly governed by law merchant, 29.
Black _v._ Christchurch Finance Co., 372.
Blackstone, his definition of law, 40;
on civil and criminal wrongs, 73;
on written and unwritten law, 128;
on the supremacy of the Imperial Parliament, 129;
on customary law, 144;
his use of the term property, 385;
on implied contracts, 433.
Bodin, his theory of sovereignty, 467;
his treatise De Republica, 488.
Bona vacantia, 418.
Bracton, on equity, 37.
Bridges _v._ Hawkesworth, 248, 249, 270.
Bromage _v._ Prosser, 341.
Brown _v._ Burdett, 419.
Brown, W. Jethro, on customary law, 156, _n._;
on sovereignty, 473, _n._
Bruns, his theory of possession, 263, _n._, 264, _n._
Bryant _v._ Foot, 150.
Bryce, on the sources of law, 49, _n._;
on sovereignty, 473.
Burlamaqui, on natural law, 8.
By-laws, a form of special law, 30;
void if unreasonable, 146.
Cain _v._ Moon, 257.
Calvin’s case, 278, 295.
Canon law, a form of positive law, 3, _n._;
on immemorial custom and prescription, 150–152;
on the distinction between jus commune and consuetudines, 151.
Cartwright _v._ Green, 248.
Castro _v._ R., 163.
Cessante ratione legis, &c., 475.
Chancery, precedents in, 162.
_See_ Equity.
Charge, a form of lien, contrasted with mortgage, 406.
Chattel, meanings of the term, 395.
Chisholm _v._ Doulton, 367, 374.
Chose in action, a kind of incorporeal thing, 226;
nature of, 423;
history of the term, 423.
Christian Thomasius, on law of nature, 46, 494.
Cicero, on subjection to the law as the means of freedom, 22;
on jus and aequitas, 30, 39, _n._;
on the law of nature, 45.
Citizens’ Life Assurance _v._ Brown, 289.
Citizenship, one form of state-membership, 99;
distinction between citizens and subjects, 100, _n._;
distinction between citizens and aliens, 100;
privileges and liabilities of citizens, 101;
diminishing importance of, 101;
modes of acquiring, 101;
relation between citizenship and nationality, 103.
Civil law, the subject-matter of civil jurisprudence, 1;
the term partly superseded by positive law, 3;
different meanings of the term, 3, _n._, 483.
_See_ Law.
Civil wrongs. _See_ Wrongs, Liability.
Clark, _In re_, 394.
Cochrane _v._ Moore, 413.
Code of Justinian, 488.
Codification, 136.
Cogitationis poenam nemo patitur, 345, 475.
Coke, on customary law, 152, _n._;
on the distinction between custom and prescription, 157;
on the personality of unborn children, 277;
on corporations aggregate and sole, 281;
on the ownership of the space above the surface of land, 390.
Colonial Bank _v._ Whinney, 286, 424.
Commissioners of Stamps _v._ Hope, 394.
Common law, opposed to special law, 33;
different uses of the term, 33, 57;
opposed to equity, 34–38;
history of the term, 33.
_See_ jus commune.
Communis error facit jus, 166, 168, 475.
Compensation, one of the objects of civil justice, 85, 86.
_See_ Penal redress.
Compossessio, 256.
Conditions precedent and subsequent, 234.
_See_ Contingent ownership.
Conservatism of the law, 24.
Consideration, required in simple contracts, 313;
its nature, 313;
valuable, 314;
not valuable, 315;
rational grounds of the doctrine, 316;
compared with the causa of Roman and French law, 316.
Consolidated Co. _v._ Curtis, 370.
Constitution of the state, 105–110;
nature of, 105;
rigid and flexible constitutions, 107;
law and practice of, 107;
extra-legal origin of, 108;
possibility of legally unchangeable, 473.
Constitutional law, nature of, 106;
its relation to constitutional fact, 107–110.
Constitutum possessorium, 257.
Constructive delivery, 257.
Constructive intention, 361.
Constructive possession, 237.
Contingent ownership, 232;
distinguished from vested, 232;
distinguished from contingent existence of the right owned, 233;
distinguished from spes acquisitionis, 233;
distinguished from determinable ownership, 234.
Contracts. _See_ Agreements.
Conventional law, created by agreement, 31, 54, 120, 124;
reasons for allowance of, 121, 122.
Co-ownership, 226.
Coppin _v._ Coppin, 278.
Copyright, its subject-matter, 189;
nature and kinds of, 396.
Cornford _v._ Carlton Bank, 288, 289.
Corporation of Bradford _v._ Pickles, 342.
Corporations, nature of, 281, _ff._;
aggregate and sole, 287;
fictitious nature of, 282;
may survive their members, 283, 293;
realistic theory of, 284;
act through agents, 285;
exist on behalf of beneficiaries, 285;
membership of, 286;
may be members of other corporations, 287;
authority of agents of, 287;
liability of, 287–289;
purposes of incorporation, 289–293;
creation and extinction of, 293;
foreign, recognised by English law, 294, _n._;
the state not a corporation aggregate, 294–298;
the king a corporation sole, 295.
Corporeal possession, 239.
Corporeal property, 221, 225, 386, 396, _n._
Corporeal things, 225, 396, _n._
Corpus possessionis, essential to possession, 241;
its nature, 244–251.
Correality, _See_ Solidary obligations.
Coughlin _v._ Gillison, 355.
Court of Appeal, absolutely bound by its own decisions, 165.
Cowan _v._ O’Connor, 331.
Crimes. _See_ Wrongs. Liability.
Crouch _v._ Crédit Foncier, 150.
Crown of England, claims against, heard in courts of law, 90;
not a legal person, 296;
the supreme executive, 468.
Cujus est solum, ejus est usque ad coelum, 390, 475.
Culpa, lata, and levis, 358.
Cundy _v._ Lindsay, 312.
Custody distinguished from possession, 237.
Custom, local, a source of special law, 29;
mercantile, a source of special law, 29;
grounds of the operation of, 120–122, 144–146;
its relation to prescription, 124, 157;
all unenacted law deemed customary in earlier English theory, 129,
144;
importance of, gradually diminishing, 143;
its continued recognition, 144;
historical relation between law and custom, 144–145;
general and particular customs, 148;
invalid if unreasonable, 146;
invalid if contrary to statute law, 147;
unless general must be immemorial, 148
(_see_ Time immemorial);
mercantile need not be immemorial, 148, 150 _n._;
unless immemorial, must conform to the common law, 152;
reasons for gradual disappearance of, as a source of law, 153;
conventional customs, 153;
theories of the operation of custom, 154–157;
has no legal validity apart from the will of the state, 155;
a material not a formal source of law, 156;
Austin’s theory of, 156;
the relation of custom to prescription, 157;
local and personal customs, 157.
Customary law, 55.
_See_ Custom.
Damages, measure of 383.
Damnum sine injuria, 329.
Danubian Sugar Factories _v._ Commissioners of Inland Revenue 394.
Darley Main Colliery Co. _v._ Mitchell. 331.
De Falbe, _In re_, 392.
De minimis non curat lex, 25, 475.
De mortuis nil nisi bonum, 276.
Dead bodies, not subjects of ownership, 275;
indignities offered to, a criminal offence, 276.
Dean, _In re_, 274, 276.
Decisions, judicial. _See_ Precedents.
Delivery of possession, actual and constructive, 257;
traditio brevi manu, 257;
constitutum possessorium, 257;
attornment, 258;
a mode of transferring ownership, 406.
Deodans, 373.
Dependent states, 111–113.
Dernburg, on proprietary rights, 208, _n._;
on possession, 245, _n._;
his Pandekten, 489.
Derry _v._ Peek, 354.
Detention, distinguished from possession, 237.
Determinable ownership, distinguished from contingent, 234.
Dicta, judicial, their nature and authority, 163, 174.
Digest of Justinian, 489.
Dike, dikaion, meanings and derivation of the terms, 461.
Diligence, archaic use of the term to mean care, 349, _n._
Diogenes Laertius, anecdote of Solon, 81, _n._
Disability, defined, and distinguished from liability and duty, 194.
Divestitive facts, their nature and kinds, 300, 301.
Dolus, meaning of the term, 341;
its relation to culpa lata, 359.
Dominant rights. _See_ Encumbrances.
Dominium, its significance in Roman law, 207.
Doom, early legal uses of the term, 464.
Doorman _v._ Jenkins, 359.
Droit, distinguished from loi, 10;
ethical and juridical significations of, 52;
different uses of term, 465;
derivation of term, 459.
Droit de suite, 416, _n._
Duress, 313.
Dutch West India Co. _v._ Van Moses, 294.
Duties, defined, 180;
moral and legal, 180;
of imperfect obligation, 180, 197, 198;
correlation of rights and duties, 184;
alleged distinction between absolute and relative duties, 184;
distinguished from liabilities and disabilities, 194;
personal and proprietary, 209.
Easements. _See_ Servitudes.
Edelstein _v._ Schuler, 29, 150.
Edie _v._ East India Co., 29, 153.
Edmundson _v._ Render, 331.
Electricity, deemed a chattel in law, 395, _n._
Ellis _v._ Loftus Iron Co., 273, 372, 391.
Elmore _v._ Stone, 254, 255, 258.
Elwes _v._ Brigg Gas Co., 249, 250.
Emphyteusis, 400, _n._
Employer’s liability, 374–376.
Enacted law, distinguished from unenacted, 128.
_See_ Statute law.
Encumbrances, 212–216;
distinguished from ownership, 221;
termed jura in re aliena by the civilians, 212;
distinguished from the natural limits of rights, 213;
are concurrent with the property encumbered, 214;
not necessarily rights in rem, 215;
classes of, 216;
often accessory to other rights, 217;
always incorporeal property, 223.
Encyclopædia, juridicial, a branch of German legal literature, 7.
Equitable rights, distinguished from legal, 217;
distinction not abolished by the Judicature Act, 217;
present importance of distinction, 218;
destroyed by conflict with legal rights, 218, 415.
Equitable ownership, 231;
distinguished from legal, 231;
distinguished from equitable rights, 231;
distinguished from beneficial ownership, 231.
Equity, different meanings of the term, 34–38, 460;
origin of jurisdiction of Chancery, 34, 37;
fusion of law and equity by Judicature Act, 35;
equity in the courts of common law, 36;
compared with jus praetorium, 38.
Equity of a statute, 39, _n._
Equity of redemption, 403.
Error, effect of, on agreements, 312;
essential and unessential, 312.
Estate, distinguished from status or personal condition, 208, 209.
_See_ Proprietary rights.
Evidence, nature of, 440;
judicial and extrajudicial, 441;
personal and real, 442;
primary and secondary, 442;
direct and circumstantial, 443;
valuation of, 444–449;
conclusive, 439, 445;
presumptive, 446;
insufficient, 447;
exclusive, 439, 447;
inadmissible, 448;
of accused persons, 449;
policy of law of evidence considered, 27, 452.
Ex facto oritur jus, 172, 409.
Ex nudo pacto non oritur actio, 314, 476.
Ex turpi causa non oritur actio, 476.
Exall _v._ Partridge, 433.
Executors, 417.
_See_ Inheritance.
Expedit reipublicae ut sit finis litium, 170.
Expiation, as the end of punishment, 83.
Extinctive facts, 300.
Fact, distinguished from law, 15–18.
Fas, distinguished from jus, 461.
Fay _v._ Prentice, 391.
Federal states, their nature, 115;
distinguished from unitary states, 115;
distinguished from imperial states, 115.
Fiducia, 405.
Filburn _v._ Aquarium Co., 372.
Finding, as a title of right, 248–250.
Fixtures, 391.
Flexibility of the law, advantages of, 27.
Flitcroft’s case, 282.
Fookes _v._ Beer, 167.
Forbearance, distinguished from omission, 324.
Foreign law, recognition of, in English courts, 30;
a form of special law, 30;
no judicial notice of, 31.
Formalism of the law, 25.
Foster _v._ Dodd, 276.
Fraud, in law and in fact, 18;
meanings of the term, 341;
distinguished from force and malice, 341;
its relation to gross negligence, 359–361.
Freeman _v._ Pope, 366.
French law, on time of memory, 152;
precedents in, 159, _n._;
on possession, 264, _n._;
on requirement of cause in a contract, 316;
possession vaut titre, 416;
jurisprudence, 8.
Gaius, on natural law, 46;
his Institutiones, 489.
Gautret _v._ Egerton, 355.
George and Richard, The, 277.
German law, as to immemorial prescription, 152;
as to precedents, 159, _n._;
as to mediate possession, 252, _n._;
as to malicious exercise of rights, 342, _n._;
as to criminal attempts, 344;
as to the jus necessitatis, 349, _n._
Gierke, on the nature of corporations, 285, _n._
Glanville, on equity, 37, _n._
Good-will, a form of immaterial property, 397.
Goodwin _v._ Robarts, 150, 152.
Gorgier _v._ Mieville, 150.
Grant, distinguished from assignment, 308.
Grant _v._ Easton, 432, 433.
Great Eastern Ry. Co. _v._ Turner, 282.
Green _v._ London General Omnibus Co., 289.
Greenwell _v._ Low Beechburn Colliery, 332.
Grill _v._ General Iron Screw Collier Co., 349, 359.
Grotius, De Jure Belli, 490.
Haig _v._ West, 254.
Hale, on customary law, 143;
on precedents, 161;
on subjects and aliens, 100, _n._
Hall _v._ Duke of Norfolk, 331.
Hallett, _In re_, 162, 173.
Hammack _v._ White, 357.
Heineccius, on natural law, 8.
Hereditas jacens, 186, 275.
Hill, _Ex parte_, 340.
Hinton _v._ Dibbin, 359.
Hoare _v._ Osborne, 276.
Hobbes, his definition of law, 48;
men and arms make the force of the laws, 49;
on the law of nature and nations, 59;
bellum omnium contra omnes, 65;
on the swords of war and justice, 94;
on the jus necessitatis, 347;
his use of the term property, 386;
his definition of an oath, 451;
his theory of sovereignty, 467;
as to limitations of sovereignty. 469.
Holmes, on the sources of judicial principles, 176;
his definition of an act, 320;
his definition of intention, 335, _n._
Hooker, on laws as the voices of right reason, 19;
his definition of law, 40, 43;
on the law of nature, 43, 46;
on the impartiality of the law, 22;
his Ecclesiastical Polity, 490.
House of Lords, absolutely bound by its own decisions, 164;
formerly a supreme judicature, 469.
Hypotheca, 405.
Ignorantia juris neminem excusat, 368, 476.
Ihering, on the imperative theory of law, 54;
his definition of a right, 182;
on possession, 247, _n._, 264, 264, _n._, 266, _n._;
on Savigny’s theory of possession, 259, _n._
Illegality, a ground of invalidity of agreements, 311.
Immaterial property, 189, 395–397.
Immovables, their nature, 390–392;
rights classed as, 392, 393.
Immunities, distinguished from rights, liberties, and powers, 194, _n._
Imperative theory of law, 47–54;
historical argument against, 49;
answer to this argument, 49–51;
defects of imperative theory, 51–54;
no recognition of idea of justice, 51;
no recognition of non-imperative rules, 52.
Imperfect rights, 184, 197–199;
their nature, 197;
imperfect nature of rights against the state, 199–201;
may serve as a defence, 199;
sufficient to support security, 199;
may become perfect, 199.
Imperial states, 115.
Imperitia culpae adnumeratur, 353.
Impossibilium nulla obligatio est, 476.
Inadvertence, not identical with negligence, 349, 361–363.
Incorporeal ownership and property, 221–224, 387.
Incorporeal possession, 239, 261–264.
_See_ Possession.
Incorporeal things, 225;
classed as movable or immovable, 392;
local situation of, 393.
Informality, a ground of invalidity in agreements, 310.
Inheritance, 416–419;
heritable and uninheritable rights, 416;
the representatives of a deceased person, 417;
the beneficiaries of a deceased person, 417;
testamentary and intestate succession, 418;
limits of testamentary power, 418.
Injury. _See_ Wrongs, Liability.
Inland Revenue Commissioners _v._ Muller & Co.’s Margarine, 331, 393,
394.
Innominate obligations, 435.
Intention, nature of, 324, 335–338;
distinguished from expectation, 336;
extends to means and necessary concomitants of the end desired, 337;
immediate and ulterior, 338;
distinguished from motive, 338;
actual and constructive, 360.
Inter arma leges silent, 96, 477.
International law, 56–64;
its influence in maintaining peace, 22;
has its source in international agreement, 57;
definition of, 57;
conventional and customary law of nations, 57;
common and particular law of nations, 58;
different views as to nature of, 58;
viewed as a form of national law, 59, 60;
viewed as a form of customary law, 60, 61;
viewed as a form of imperative law, 61–64;
distinguished from international morality, 63;
private international law, 31, 482.
Interpretation of contracts, 141, _n._
Interpretation of enacted law, 137–142;
grammatical and logical, 138;
litera legis and sententia legis, 138;
when logical interpretation allowable, 139;
strict and equitable interpretation, 139;
extensive and restrictive interpretation, 139.
Intestacy, ownership of property of intestate, 186, 275.
_See_ Inheritance.
Investitive facts, 300.
Invito beneficium non datur, 305, 477.
Italian Civil Code definition of possession, 264, _n._
Jefferys _v._ Boosey, 100.
Jewish law, lex talionis, 83;
as to the offences of beasts, 273, 373;
as to vicarious liability, 374.
Joint obligations. _See_ Solidary obligations.
Judicial notice, nature of, 28;
test of distinction between common and special law, 28, 32.
Judicium Dei, 69, 445, 451.
Juris praecepta, 477.
Jurisprudence, 1–8;
the science of law in general, 1;
civil, the science of civil law, 3;
systematic, 3;
historical, 3;
critical, 3;
theoretical, 4–7;
foreign, compared with English, 7, 8.
Juristic law, produced by professional opinion, 120.
Jury, questions of fact to be answered by, 17, 176.
Jus, distinguished from lex, 10, 132, 457;
ethical and legal meanings of, 52, 457;
different senses of, 460;
derivation of, 461;
disappearance of term from modern languages, 463.
Jus ad rem, 206.
Jus accrescendi, 227, 416.
Jus civile, 3, _n._, 39.
Jus commune, history of the term, 33;
different meanings of the term, 33, 34;
in Roman law, 33, _n._;
in the Canon law, 33;
adopted by the English from Canon law, 33;
in the sense of natural law, 44.
Jus edicendi, the legislative power of the Roman praetor, 134.
Jus gentium, 44, 46.
Jus in re aliena, 212–216.
_See_ Encumbrances.
Jus in re propria, 212–216.
_See_ Ownership.
Jus in rem and in personam, significance of the terms, 202–207;
origin of the terms, 207.
_See_ Real rights.
Jus naturale. _See_ Natural law.
Jus necessitatis. _See_ Necessity.
Jus positivum. _See_ Positive law.
Jus possessionis, 241, _n._
Jus possidendi, 241, _n._
Jus praetorium, 38, 134.
Jus publicum, 311, 482.
Jus scriptum and jus non scriptum, 44, 129.
Jus singulare. 33, _n._
Jus strictum, opposed to aequitas, 35.
Jus tertii, defence of, 269, 408.
Justice, natural and positive, 43, 44;
an essential element in the idea of law, 51.
_See_ Administration of justice and Natural law.
Justinian, on law of nature, 46.
Kant, on retributive punishment, 82;
his Rechtslehre, 491.
Kettlewell _v._ Watson, 349, 360.
King, the source of justice, 37, 294;
a corporation sole, 295.
King’s peace, 70, _n._
King _v._ Smith, 312.
Land, nature of, in law, 390–392;
ownership of, 389.
Lavy _v._ L.C.C., 165.
Law, definition of, 9;
abstract and concrete senses of the term, 9;
relation of, to the administration of justice, 12–14;
law and fact, 15–18;
advantages of fixed rules of law, 19–22;
defects of the law, 23–27;
contrasted with equity, 34–39;
imperative theory of, 48–54;
includes rules governing the secondary functions of courts of
justice, 91;
sources of (_see_ Sources of the law);
origin of the term, 464.
Law, merchant. _See_ Mercantile Custom.
Law of nations. _See_ International law.
Law of nature. _See_ Natural law.
Lawrence _v._ Hitch, 150.
Law reports, mode of citation of, 491.
Leases, nature of, 216, 397–400;
subject-matter of, 398;
may be perpetual, 399.
Leask _v._ Scott, 163.
Legal ownership, distinguished from equitable, 231.
Legal rights, distinguished from equitable, 217.
Legislation, its efficiency as an instrument of legal reform, 25;
private legislation a source of special law, 30;
nature of, 127;
various senses of the term, 127, 128;
direct and indirect, 128;
supreme and subordinate, 129;
colonial, 129;
executive, 130;
judicial, 130;
municipal, 130;
autonomous, 130;
not necessarily the act of the state, 130;
late development of the conception of, 132;
merits and defects of statute law, 133–136;
codification, 136;
interpretation of statute law, 137–142;
subordinate legislation sometimes invalid if unreasonable, 146;
legal limitations of the power of the legislature, 471–473.
Le Lievre _v._ Gould, 354, 360.
Lex, distinguished from jus, 10, 132, 457;
different meanings of term, 462;
derivation of, 465.
Lex aeterna, 42.
Lex posterior derogat priori, 148.
Lex talionis, 82.
Liability, civil and criminal, 70, 319;
penal and remedial, 88, 321;
distinction between penal and criminal liability, 89;
distinguished from duty and disability, 194;
remedial, theory of, 320;
penal, theory of, 321;
absolute, 332, 366–368;
vicarious, 374–377;
employer’s, 375;
survival of, 376;
measure of criminal, 377
(_see_ Punishment);
measure of civil, 382.
Libel, on dead person, 276.
Liberties, classed as rights in a wide sense, 190;
distinguished from rights in strict sense, 190;
distinguished from powers, 193.
Licence, revocation, of, 193, _n._
Lien, distinguished from mortgage, 402;
classes of, 406.
Lightly _v._ Clouston, 434.
Lilley, on expiation as the purpose of punishment, 83.
Limitation of actions, at common law, 149, _n._;
by the Statute of Westminster, 49, _n._
_See_ Prescription.
Limited liability, of shareholders, 292.
Littleton on customary law, 152, _n._
Locke, on the necessity of fixed principles of law, 21;
his classification of laws, 48, _n._;
on the state of nature, 68;
his use of the term property, 386.
London and Midland Bank _v._ Mitchell, 199.
London Street Tramways Co. _v._ L.C.C., 165.
Lorimer, his Institutes of Law, 2.
Low _v._ Routledge, 100.
Macarthy _v._ Young, 355.
Magna Carta, the prohibition of extrajudicial force, 96, _n._
Maine, Sir H. S., his influence on English jurisprudence, 492.
Maitland, on corporations sole, 282, _n._;
on the nature of corporations, 285, _n._
Malice, meanings of the term, 340;
when a ground of liability, 342–346, 478.
Marais, Ex parte, 96.
Marvin _v._ Wallace, 254, 258.
Maxims, legal, their nature and uses, 474;
list of, 474–480.
Mediate possession, 252–256.
Mens rea, a condition of penal liability, 322, 332;
its two forms, intention and negligence, 322, 332;
exceptions to requirement of, 332, 366.
Mercantile custom, a source of special law, 29;
judicial notice of, when once proved, 29;
possesses no abrogative power, 124;
need not be immemorial, 150, _n._
Mercer, _Ex parte_, 360.
Merger, nature of, 279.
Merkel, on negligence, 250, _n._, 252, _n._
Merry _v._ Green, 244, 248.
Metropolitan Ry. Co. _v._ Jackson, 357.
Middleton _v._ Pollock, 304.
Midland Ry. Co. _v._ Wright, 392.
Mills _v._ Jennings, 165.
Mistake, effect of, on agreements, 312.
Mistake of fact, a defence in criminal law, 370;
no defence in civil law, 370;
origin of the rule, 370;
distinguished from accident, 371.
Mistake of law, no defence, 368;
reasons for the rule, 368.
Modus et conventio vincunt legem, 31, 124, 307, 311, 477.
Mogul, SS. _v._ McGregor, 341.
Monti _v._ Barnes, 391, 392.
Moral law, 43, 48, _n._
_See_ Natural law.
Morris _v._ Robinson, 427.
Mortgage, distinguished from liens, 402;
not necessarily a transfer of the property, 402;
involves equity of redemption, 403;
what may be mortgaged, 404;
complexity of, as compared with liens, 405.
Moses _v._ Macferlan, 433.
Motives, nature of, 338;
distinguished from intention, 338;
concurrent, 339;
relevance of, in law, 341.
Moult _v._ Halliday, 29.
Muller and Co’s Margarine _v._ Inland Revenue Commissioners, 331, 393,
394.
Musgrove _v._ Toy, 192.
Nasciturus pro jam nato habetur, 277.
Nation, its relation to the state, 103.
Nationality, its relation to citizenship, 103.
Natural law, the subject-matter of natural jurisprudence, 1, 7;
opposed to positive law, 3. _n._, 44;
in the sense of physical law, 41;
in the sense of moral law, 43–47;
synonyms of, 44;
various definitions of, 45, 46;
relation of, to jus gentium, 46, 47;
relation of, to international law, 59.
Natural rights, 182;
denial of, by Bentham and others, 182.
Nature, state of, transition from, to civil state, 68.
Necessitas non habet legem, 347, 478.
Necessity, a ground of justification, 347;
limited recognition of, by English law, 348.
Negligence, subjective and objective uses of the term, 349;
opposed to intention, 349, 351;
not necessarily inadvertent, 349, 362;
consists essentially in indifference, 350;
defined, 350;
Merkel’s definition of, 350, _n._;
a sufficient ground of liability, 351;
simple and wilful, 351;
want of skill is negligence, 353;
culpable only when carefulness is a legal duty, 354;
the standard of care, 355–358;
in law and in fact, 357;
no degrees of negligence in English law, 358;
equivalence of gross negligence and intention, 359;
negligence and constructive intent, 360;
negligence distinguished from inadvertence, 362;
objective theory of negligence, 363.
Negotiable instruments, 29, 415.
Nemo plus juris, &c., 414, 478.
Nemo tenetur se ipsum accusare, 449, 478.
Newby _v._ Van Oppen, 294.
Nomos, different uses of the term, 464.
Non dat qui non habet, 415, 478.
Northey Stone Co. _v._ Gidney, 331.
Noxal actions, 373.
Oath, form of judicial, 13;
nature of 451;
utility of, 451.
Object of a right, its nature, 185;
different uses of the term, 185;
an essential element in every right, 187;
classes of objects, 187–190;
sometimes identified with the right by metonymy, 222–224.
Obligatio, significance of the term in Roman law, 207, 422.
Obligations, law of, 422, 484;
obligations defined, 422;
solidary, 424
(_see_ Solidary obligations);
contractual, 427
(_see_ Agreements);
delictal, 428;
quasi-contractual, 432
(_see_ Quasi-contract);
innominate, 435.
Occupatio, 407.
Omission, meaning of the term, 323.
Opinio necessitatis, one of the requisites of a valid custom, 147.
Ordeal, theory of, 450.
Osborne _v._ Rowlett, 173.
Ownership, no rights without owners, 186;
rights owned by incertae personae, 186;
defined, 220;
contrasted with possession, 220, 264–267;
contrasted with encumbrances, 221;
kinds of, 221;
corporeal and incorporeal, 221;
corporeal ownership a figure of speech, 222;
the right of ownership and the ownership of rights, 224;
defined by Sir F. Pollock, 224. _n._;
co-ownership, 226;
trust and beneficial ownership, 227;
direct ownership, 228, _n._;
legal and equitable, 231;
vested and contingent, 232.
Ownership of material things, 221, 387–390.
Ownership of immaterial things, 395–397.
Pandektenrecht, nature of, 7.
Parker _v._ Alder, 374.
Parliament, Imperial, its supreme authority, 129, 472.
Parsons, _In re_, 163.
Patent rights, 189, 396.
Penal actions, nature of, 86;
pertain to civil justice, 86.
Penal proceedings, distinguished from remedial, 88.
Penal redress, 87, 88;
not justified except as punishment of defendant, 366;
merits and defects of the system, 383.
_See_ Liability.
Penalty. _See_ Punishment.
Perry _v._ Clissold, 408.
Personal property, distinguished from real, 394;
origin of the distinction, 394.
Personal rights, ambiguity of the term, 208, _n._;
as opposed to real rights—_See_ Real rights;
as opposed to proprietary rights—_See_ Proprietary rights.
Persons, the subjects of rights and duties, 185;
rights of unborn, 186, 277;
the objects of rights, 189;
not capable of being owned, 190;
nature of, 272;
natural and legal, 273;
animals are not persons, 273;
dead men are not persons, 275;
double personality, 278, 417;
legal persons the product of personification, 279;
kinds of legal persons, 280.
_See_ Corporations.
Persons, law of, 211.
Petitions of right, their nature, 90;
a secondary function of courts of law, 90.
Petitorium opposed to possessorium, 267.
Phillips _v._ Homfray, 434.
Philo Judaeus, on law of nature, 46.
Physical law, 41.
Pickard _v._ Smith, 372.
Plato, on the offences of animals, 373;
on vicarious liability, 374.
Pledge _v._ Carr, 165.
Pluckwell _v._ Wilson, 358.
Plures eandem rem possidere non possunt, 256.
Pollock, Sir F., on the sources of law, 49, _n._;
his definition of ownership, 224, _n._;
on acts in the law, 302, _n._;
his use of the terms contract and agreement, 303, _n._
Pollock and Wright, on possession, 245, 246.
Positive law, origin of the term, 3, _n._;
improperly used to signify civil law exclusively, 3, _n._
Possession, distinguished from ownership, 224, 264–267;
difficulty of the conception, 236;
consequences of, 236;
possession in fact and law, 237;
constructive, 237;
possession and detention, 237;
possession and seisin, 238;
corporeal and incorporeal, 239;
a matter of fact, not of right, 240;
corporeal possession defined, 241;
its two elements, animus and corpus, 241;
animus possidendi (_q.v._), 242;
corpus possessionis, 244–251;
possession of land not necessarily that of chattels thereon, 247;
mediate and immediate possession, 252–256;
concurrent possession, 256;
acquisition of possession, 256–258;
Savigny’s theory of, 258–261;
incorporeal, 261–264;
generic nature of possession, 264;
possession and ownership, 264–267;
possessory remedies, 267–270;
possessory titles, 407;
possession a title of ownership, 407;
delivery of, required for transfer of property, 413;
modes of delivery, 257, 258;
constructive delivery, 257.
Possessorium, opposed to petitorium, 267.
Possessory ownership, 407.
Possessory remedies, nature of, 267;
origin of, 267;
reasons for, 268;
rejection of, by English law, 269.
Pothier, his definition of a contract, 303, _n._;
his works, 492.
Power, political, 110;
legislative, judicial, and executive, 110;
sovereign and subordinate, 111.
_See_ Sovereignty.
Powers, classed as rights in wide sense, 192;
distinguished from rights in strict sense, 192;
distinguished from liberties, 193.
Practical law, 56.
Precedents, reasons for their operation as a source of law, 121, 170;
possess no abrogative power, 123, 168;
their relation to codified law, 136;
not originally regarded as a source of law, 143;
their importance in English law, 159;
declaratory and original, 160;
declaratory theory of, 161;
their operation in Chancery, 162;
authoritative and persuasive, 163;
classes of persuasive precedents, 163;
absolute and conditional authority of precedents, 164;
disregard of, when justified, 165;
effect of lapse of time on, 167;
distinction between overruling and refusing to follow, 168;
retrospective operation of the overruling of, 166, 169;
transform questions of fact into questions of law, 171;
rationes decidendi, 173;
the sources of judicial principles, 174;
respective functions of judges and juries with reference to, 176.
Prescription, its relation to immemorial custom, 124, 157;
periods of, in Roman law, 151;
in Canon law, 151;
in English law, 152;
in Continental law, 152;
operation of, in case of mediate possession, 254, 255;
origin of term, 408, _n._;
nature of, 408;
positive and negative, 408;
rational basis of, 410;
what rights subject to, 411;
perfect and imperfect, 412.
Presumptio juris, 445, _n._
Presumptions, conclusive, 445;
rebuttable, 446.
Primary rights, opposed to sanctioning, 84.
Principal rights, distinguished from accessory, 216.
Principle, contrasted with authority, 173.
Private war, its gradual exclusion by public justice, 69, 70.
Privy Council decisions of, not authoritative in England, 163.
Probative force, 440.
_See_ Evidence.
Procedure, distinguished from substantive law, 437;
occasional equivalence of procedural and substantive rules, 439.
Proceedings, civil and criminal, 70–75;
specific and sanctional enforcement of rights, 84;
forms of sanctional enforcement, 85–87;
a table of legal proceedings, 88;
penal and remedial, 88;
secondary functions of courts of law, 89–91;
petitions of right, 90;
declarations of right, 90;
judicial administration of property, 91;
secondary functions included in civil justice, 91.
Professional opinion, as a source of law, 120, 121.
Proof, nature of, 441;
conclusive and presumptive, 445–447;
modes of, in early law, 450.
Property, material, 387–390;
immaterial, 395–397;
corporeal and incorporeal, 221–224, 386;
different meanings of the term, 385–387, 491;
movable and immovable, 390–393;
real and personal, 394.
Proprietary rights, distinguished from personal, 207–212;
constitute a person’s property or estate, 208;
may be either real or personal, 208;
subject-matter of the law of things, 211;
not necessarily transferable, 210.
Protectorates, 113.
Puchta, his theory of customary law, 154;
his Institutionen, 492.
Pufendorf, his treatise on Natural Law, 2, 492;
his relation to modern English jurisprudence, 8;
his definition of law, 47.
Pugh _v._ Golden Valley Ry. Co., 167.
Punishment, purposes of, 75–84;
deterrent, 75;
preventive, 75;
reformative, 76–80;
retributive, 80–84;
expiative, 83;
measure of, 377–382.
Quasi-contracts, 432–435;
their nature, 432;
instances of, 433, 434;
reasons for recognition of, 434.
Quasi possessio, 239.
Questions of fact, distinguished from questions of law, 15–18;
examples of, 15;
mixed questions of law and fact, 16;
answered by jury, 17;
but sometimes by the judge, 17, 177;
transformation of, into questions of law by judicial decision, 18,
_n._, 171–173;
sometimes treated fictitiously as questions of law, 178.
Questions of law, distinguished from questions of fact, 15–18;
examples of, 15;
wrongly regarded as including all questions answered by judges
instead of juries, 18, _n._
Qui prior est tempore potior est jure, 218, 269, 479.
Quod fieri non debet factum valet, 169, 479.
R. _v._ Armstrong, 330.
R. _v._ Birmingham and Gloucester Ry. Co., 288.
R. _v._ Brown, 345.
R. _v._ Collins, 345.
R. _v._ Coombes, 330.
R. _v._ Dudley, 348.
R. _v._ Edwards, 167.
R. _v._ Ellis, 331.
R. _v._ Great North of England Ry. Co., 288.
R. _v._ Harvey, 360.
R. _v._ Joliffe, 150.
R. _v._ Keyn, 57, 330.
R. _v._ Labouchere, 276.
R. _v._ Moore, 248.
R. _v._ Mucklow, 243, 249.
R. _v._ Price, 276.
R. _v._ Prince, 367, 370.
R. _v._ Raynes, 276.
R. _v._ Ring, 345.
R. _v._ Roberts, 345.
R. _v._ Senior, 277.
R. _v._ Stewart, 276.
R. _v._ Tolson, 367.
R. _v._ West, 277.
Raffles _v._ Wichelhaus, 312.
Rationes decidendi, their nature, 173;
their sources, 174.
Real property, distinguished from personal, 394;
personal, 394;
origin of the distinction, 394.
Real rights, 202–207;
distinguished from personal, 202–207;
always negative, 203;
distinction between real and personal rights not strictly exhaustive,
205;
significance of the terms real and personal, 205;
origin of terms in rem and in personam, 207;
significance of term jus ad rem, 206.
Recht, different meanings of the term, 459;
derivation of, 459;
subjective and objective, 460.
Redress. _See_ Penal Redress.
Reformation, one of the ends of punishment, 76–80.
Release, 308, 309.
Remedial proceedings distinguished from penal, 88.
Remedies, legal. _See_ Proceedings.
Remoteness of damage, 476.
Reputation, the object of a right 188;
of the dead, 276.
Res, meaning of the term in Roman law, 211;
corporalis and incorporalis, 225, 226.
Res judicata pro veritate accipitur, 121, 171, 446, 479.
Respondeat superior, 375, 479.
Responsibility. _See_ Liability.
Retribution, one of the purposes of punishment, 80;
Kant’s opinion as to, 82.
Revenge, its transformation into criminal justice, 81, 83.
Reynolds _v._ Ashby, 392.
Richer _v._ Voyer, 257.
Ridsdale _v._ Clifton, 167.
Rights, enforcement of, the object of civil justice, 70, 84;
primary and sanctioning, 84;
specific and sanctional enforcement of, 85–87;
defined, 181–185;
of animals, 181, _n._;
natural and legal, 182;
denial of natural rights by Bentham, 182;
correlation of rights and duties, 184;
alleged distinction between relative and absolute duties, 184;
elements of legal rights, 185;
the subjects of, 186;
the contents of, 185;
the objects of, 187;
the titles of, 185, 299;
rights over one’s own person, 187;
right of reputation, 188;
rights in respect of domestic relations, 188;
rights in respect of other rights, 188;
rights over immaterial property, 189;
wide and narrow use of the term right, 190;
rights in wide sense defined, 190;
rights distinguished from liberties, powers, and immunities, 190–194;
perfect and imperfect rights, 184, 197–199;
rights against the state, 199;
positive and negative rights, 201;
real and personal, 202–207;
in rem and in personam, 202–207;
ad rem, 206;
proprietary and personal, 207–212;
rights of ownership and encumbrances, 212–216;
dominant and servient, 212;
principal and accessory, 216;
legal and equitable, 217;
local situation of, 393;
in re propria and in re aliena, 212.
Rigidity of the law, 23.
Rigor juris, opposed to aequitas, 35.
Roman law, jus civile, 3, _n._;
jus commune, 33, _n._;
jus singulare, 33, _n._;
aequitas and strictum jus, 36;
jus praetorium, 38;
actio furti, 86, _n._;
professional opinion as a source of, 121;
jus scriptum and non scriptum, 129;
relation between custom and enacted law, 147;
dominium, 207;
obligatio, 207, 422;
actio in rem, 207;
res corporales and incorporates, 226, _n._;
traditio brevi manu, 257;
constitutum possessorium, 257;
malicious exercise of rights, 342, _n._;
noxal actions, 373;
emphyteusis, 400, _n._;
traditio as a title to property, 413;
culpa and dolus, 359.
Rylands _v._ Fletcher, 372.
Sadler _v._ Great Western Ry. Co., 427.
Saga of Burnt Njal, 70.
Salomon _v._ Salomon & Co., 282.
Sanctional enforcement of rights, 84–87.
Sanctioning rights, 84, 85.
Sanctions, nature and kinds of, 11.
Savigny, his system of modern Roman law, 8;
on the relation between enacted and customary law, 148;
his theory of customary law, 154;
his theory of possession, 258–261.
Scaramanga _v._ Stamp, 163.
Scientific law, 41.
Scottish law, on the relation between enacted and customary law, 148,
_n._
Securities, 402–406;
nature of, 216, 402;
mortgages and liens, 403.
_See_ Mortgage.
Seisin, its nature and importance in early law, 238.
Semi-sovereign states, 113.
Sententia legis, contrasted with litera legis, 138.
_See_ Interpretation.
Servient rights, 212.
_See_ Encumbrances.
Servitudes, nature of, 216, 400;
distinguished from leases, 400;
public and private, 401;
appurtenant and in gross, 401;
easements, 402, _n._
Shares in companies, nature of, 286, _n._
Sharp _v._ Jackson, 304.
Sheddon _v._ Goodrich, 167.
Sheil, _Ex parte_, 199.
Sic utere tuo ut alienum non laedas, 214, 479.
Simpson _v._ Wells, 150.
Sloman _v._ Government of New Zealand, 296.
Smelting Co. of Australia _v._ Commissioners of Inland Revenue, 394.
Smith _v._ Baker, 434.
Smith _v._ Hughes, 313.
Smith _v._ Keal, 167.
Solidary obligations, 424–427;
their nature, 424;
their kinds, 425–427.
Solon, on making men just, 81, _n._
Sources of the law, formal and material, 117;
legal and historical, 117–120;
list of legal sources, 120;
grounds of the authority of these sources, 120–123;
constitutive and abrogative operation of, 123, 124;
sources of law and sources of rights, 124;
ultimate legal principles without legal sources, 125;
literary sources of the law, 120, _n._
South Staffordshire Water Co. _v._ Sharman, 249.
Sovereignty, nature of, 111, 467–473;
essential in a state, 467;
divisibility of, 468, 469;
limitations of, 469–473.
Space, ownership of, 390, 395, _n._
Special law, contrasted with common law, 28;
kinds of, 29–32;
local customs, 29;
mercantile customs, 29;
private legislation, 30;
foreign law, 30;
conventional law, 31.
Specific enforcement of rights, 85;
the general rule, 320;
not always possible, 321;
not always expedient, 321.
Spencer, H., on the essential functions of the state, 94, _n._;
on the gradual differentiation of these functions, 98, _n._;
on natural rights, 182.
Spinoza, on the rule of reason and of force, 11.
Starey _v._ Graham, 192.
State, its will the sole source of law, 49, 117, 155;
its nature, 93–98;
defined, 99;
its essential functions, war and the administration of justice,
93–98;
generic identity of these two functions, 94;
their specific difference, 95;
secondary differences, 96–98;
secondary functions of the state, 98;
its territory, 99;
non-territorial states, 99;
membership of the state, 99;
citizens and aliens, 100;
personal and territorial idea of the state, 102;
its constitution, 105–110;
its government, 110;
independent and dependent states, 111–114;
different meanings of the term state, 113, _n._;
fully sovereign and semi-sovereign states, 113;
unitary and composite states, 114;
imperial and federal states, 115;
rights against the state, 199;
legal personality of the state, 294–298.
Status distinguished from estate, 208–212;
different uses of the term, 210;
subject-matter of the law of persons, 211;
the law of, 484.
Statute law, the typical form of law in modern times, 132;
compared with case-law, their relative merits and defects, 133–136;
interpretation of, 137–142.
_See_ Interpretation.
Statutes referred to: Interpretation Act, 30;
Judicature Act, 34, 217, 231;
Statute of Marlborough, 70;
Westminster I., 149;
Prescription Act, 158;
Magna Carta, 96;
Sale of Goods Act, 258;
Lord Campbell’s Act, 277;
Statute of Uses, 413;
Factors Act, 416;
Statute of Frauds, 447;
Parliament Act, 469.
Stephen, Sir J. F., his definition of criminal attempts, 344.
Suarez, his distinction between lex positiva and lex naturalis, 3,
_n._;
on opinio necessitatis in customary law, 147, _n._;
on time immemorial, 152;
his treatise De Legibus, 493.
Subject of a right, different uses of the term, 185;
no rights without subjects, 186.
Subjects. _See_ Citizenship.
Substantive law, distinguished from procedure, 437.
Subtilty of law and lawyers, 26.
Succession, 416.
_See_ Inheritance.
Summum jus opposed to aequitas, 35.
Summum jus summa injuria, 24, 36, 479.
Suretyship, 402, _n._
Suzerainty, 113.
Sydney _v._ The Commonwealth, 298.
Taylor, Jeremy, on the uncertainty of natural justice, 21;
on men and wolves, 65.
Taylor, _Ex parte_, 340.
Territory, of a state, 99.
Terry, analysis of rights, 194, _n._
Text-books, authority of, 164, _n._
Tharsis Sulphur Co. _v._ Loftus, 355.
Themis, meanings and derivation of the term, 462.
Things, different senses of the term, 225;
material and immaterial, 225, 387;
corporeal and incorporeal, 225, 387;
law of, 211;
in action and in possession, 423.
Things, law of, 211.
Thomasius, on the law of nature, 46;
his distinction between jurisprudence and ethics, 494.
Thompson _v._ London County Council, 427.
Tillett _v._ Ward, 357.
Time immemorial, a requisite of particular customs, 148–152;
rule derived from canon, through civil law, 149, 150;
original meaning of rule, 149;
how affected by Statute of Westminster, 149;
reason for requirement of immemorial antiquity in custom, 150.
Titles, their nature, 185, 299;
original and derivative, 299, 301;
origin of term, 300, _n._
Torts, their nature, 428–432;
waiver of, 434.
Trade-marks, a form of immaterial property, 397.
Traditio brevi manu, 257.
Transfer of rights, 299, 300, 301, 414.
Trial by battle. _See_ Battle.
Trusts, a kind of encumbrance, 216;
their nature, 227–231;
their purposes, 228, 291;
distinguished from contracts, 229;
distinguished from agency, 230;
how created and destroyed, 230;
distinguished from the relation between legal and equitable
ownership, 232;
not recognised at common law, 232;
for animals, 274;
for maintenance of tombs, 276.
Turquand, _Ex parte_, 29.
Ubi eadem ratio, ibi idem jus, 479.
Ubi jus ibi remedium, 198, 480.
Ultimate rules of law, without legal sources, 125.
Unitary states, 114.
United States _v._ Davis, 330.
Universitas, use of the term in Roman law, 283, _n._
Unus homo plures personas sustinet, 278.
Vaughan, _In re_, 276.
Vera, Cruz, The, 165.
Vested ownership, 232–235.
Vestitive facts, 299–301.
Vigilantibus non dormientibus, jura subveniunt, 411, 480.
Volenti non fit injuria, 480.
Waiver of torts, 434.
Walker _v._ Great Northern Ry. Co., 277.
Wallis, _In re_, 167.
Wandsworth Board of Works _v._ United Telegraph Co., 391.
War, an essential function of the state, 93–98;
compared with the administration of justice, 93–98;
not governed by law, 96;
private, 70, _n._
Ward _v._ National Bank, 426.
West Rand Co. _v._ Rex, 57.
Williams _v._ Howarth, 296.
Williams _v._ Williams, 275, 276.
Wilson _v._ Brett, 359.
Windscheid, on the relation between enacted and customary law, 148;
his theory of customary law, 155;
on the nature of rights, 182;
on proprietary rights, 208, _n._;
on ownership, 224, _n._;
on the possession of rights, 266, _n._;
his Pandektenrecht, 494.
Winter _v._ Winter, 257.
Witnesses, exclusion of, in early law, 27, 448
Wood _v._ Leadbitter, 193.
Woolsey, on retribution as the essential end of punishment, 82, _n._
Written and unwritten law, 128.
Wrongs, civil and criminal, 71;
private and public, 72;
these distinctions not equivalent, 73;
historical relation between public wrongs and crimes, 74;
definition of, 179;
moral and legal, 179.
_See_ Liability.
Year books, 494.
-----
Footnote 1:
See on this subject Reid’s Philosophical Works, Essay on the Active
Powers, V. 3. (Of systems of natural jurisprudence.) Also Dugald
Stewart’s Works, VII. 256 (Hamilton’s ed.).
Footnote 2:
The term civil law, though once in common use to indicate the law of
the land, has been partly superseded in recent times by the improper
substitute, _positive_ law. _Jus positivum_ was a title invented by
medieval jurists to denote law made or established (_positum_) by
human authority, as opposed to that _jus naturale_ which was uncreated
and immutable. It is from this contrast that the term derives all its
point and significance. It is not permissible, therefore, to confine
positive law to the law of the land. All is positive which is not
natural. International and canon law, for example, are kinds of _jus
positivum_ no less than the civil law itself. See Aquinas, Summa, 2.
2. q. 57 (De Jure) art. 2. Utrum jus convenienter dividatur in jus
naturale et jus positivum. See also Suarez, De Legibus, I. 3. 13:
(Lex) positiva dicta est, quasi addita naturali legi.
The term civil law possesses several other meanings, which are not
likely, however, to create any confusion. It often means the law of
Rome (_corpus juris civilis_) as opposed more especially to the canon
law (_corpus juris canonici_), these being the two great systems by
which, in the Middle Ages, State and Church were respectively
governed. At other times it is used to signify not the whole law of
the land, but only the residue of it after deducting some particular
portion having a special title of its own. Thus civil is opposed to
criminal law, to ecclesiastical law, to military law, and so on.
The term civil law is derived from the _jus civile_ of the Romans.
Quod quisque populus ipse sibi jus constituit, id ipsius proprium
civitatis est vocaturque jus civile, quasi jus proprium ipsius
civitatis. Just. Inst. I. 2. 1.
Footnote 3:
It will be understood that this list is not intended as an exhaustive
statement of the proper contents of a work of abstract jurisprudence,
but merely as illustrative of the kinds of matters with which this
branch of legal learning justly concerns itself.
Footnote 4:
Austin, p. 1077.
Footnote 5:
Arndts, Juristische Encyklopädie und Methodologie, p. 5. 9th ed. 1895.
See also Puchta’s Encyklopädie, being the introductory portion of his
Cursus der Institutionen, translated by Hastie (Outlines of
Jurisprudence, 1887). The term general jurisprudence (allgemeine
Rechtslehre) is occasionally applied to this form of literature. See
Holtzendorff’s Encyklopädie der Rechtswissenschaft, 5th ed. 1890.
(Elemente der allgemeinen Rechtslehre, by Merkel.)
Footnote 6:
_Jurisprudentia universalis_ or _generalis_ was originally merely a
synonym for _jurisprudentia naturalis_.
Footnote 7:
The term jurisprudence is used by French lawyers as the equivalent of
that which English lawyers call case-law—the development of the law by
judicial decisions. “Jurisprudence—la manière dont un tribunal juge
habituellement telle ou telle question” (Littré). Jurisprudence in
this sense is contrasted with doctrine, _i.e._, extrajudicial legal
literature.
Footnote 8:
On the distinction between law in the concrete and law in the abstract
senses, see Pollock’s Jurisprudence, pp. 15–19, and Bentham’s
Principles, p. 324, n. (Works I. 148 n.)
Footnote 9:
Tractatus Politicus, I. 5.
Footnote 10:
The term sanction is derived from Roman law. The _sanctio_ was
originally that part of a statute which established a penalty, or made
other provision in respect of the disregard of its injunctions. D. 48.
19. 41. By an easy transition it has come to mean the penalty itself.
Footnote 11:
It is to be noted, therefore, that the distinction between law and
fact depends not on the person by whom, but on the manner in which,
the matter is determined. Yet, although this is so, an illogical and
careless usage of speech sometimes classes as questions of law all
those which are for the decision of judges, irrespective of the
existence or non-existence of legal principles for their
determination.
It is worth notice that questions of fact, left to the determination
of judges, tend to be transformed into questions of law, by the
operation of judicial precedent. In the hands of judges decisions of
fact beget principles of law, while the decisions of juries have no
such law-creating efficacy. This is a matter which we shall consider
at length in connection with the theory of precedent.
The distinction between law and fact, with special reference to trial
by jury, is very fully considered by Thayer in his Preliminary
Treatise on the Law of Evidence, pp. 183–262. See also Terry’s Leading
Principles of Anglo-American Law, pp. 53–62.
Footnote 12:
Ductor Dubitantium (Works XII. 209. Heber’s ed.).
Footnote 13:
Treatise of Government, II. 11. 136.
Footnote 14:
Pro Cluentio, 53. 146.
Footnote 15:
Ecclesiastical Polity, I. 10. 7.
Footnote 16:
Rhetoric, I. 15. See also Bacon, De Augmentis, Lib. 8, Aph. 58:
Neminem oportere legibus esse sapientiorem.
Footnote 17:
Bacon, De Augmentis, Lib. 8, Aph. 46; Aristotle’s Rhetoric, I. 1.
Footnote 18:
_Edie_ v. _East India Co._, 2 Burr 1226; _Barnet_ v. _Brandao_, 6 M. &
G. at p. 665; _Moult_ v. _Halliday_, (1898) 1 Q. B. 125; _Ex parte
Turquand_, 14 Q. B. D. 636; _Edelstein_ v. _Schuler_, (1902) 2 K. B.
144.
Footnote 19:
By the Interpretation Act, 1889, s. 9, it is provided that “Every Act
passed after the year 1850 ... shall be a public Act, and shall be
judicially noticed as such, unless the contrary is expressly provided
by the Act.”
Footnote 20:
As to equity, see the next section.
Footnote 21:
The term _jus commune_ is found in the civil law also, but in senses
unconnected with that which here concerns us. It sometimes signifies
_jus naturale_ as opposed to _jus civile_ (D. 1. 1. 6. pr.), while at
other times it is contrasted with _jus singulare_, that is to say,
anomalous rules of law inconsistent with general legal principles, but
established _utilitatis causa_ to serve some special need or occasion.
D. 28. 6. 15. D. 1. 3. 16.
Footnote 22:
Y. B. 20 & 21 Ed. I. 329. See Pollock and Maitland’s History of
English Law, I. 155.
Footnote 23:
Y. B. 21 & 22 Ed. I. 213.
Footnote 24:
Y. B. 21 & 22 Ed. I. 458.
Footnote 25:
Y. B. 21 & 22 Ed. I. 55.
Footnote 26:
Bracton, 48 b.
Footnote 27:
Nic. Ethics V. 10. 3. The Greeks knew equity under the name epieikeia.
Footnote 28:
Rhet. I. 13. 19.
Footnote 29:
De Officiis I. 10. 33. See also Pro Caecina 23. 65: Ex aequo et bono,
non ex callido versutoque jure rem judicari oportere. De Oratore I.
56. 240: Multa pro aequitate contra jus dicere. De Officiis III. 16.
67.
Footnote 30:
In omnibus quidem, maxime tamen in jure, aequitas spectanda est. D.
50. 17. 90. Placuit in omnibus rebus praecipuam esse justitiae
aequitatisque, quam stricti juris rationem. C. 3. 1. 8. Haec aequitas
suggerit, etsi jure deficiamur. D. 39. 3. 2. 5. A constitution of
Constantine inserted in Justinian’s Code, however, prohibits all
inferior courts from substituting equity for strict law, and claims
for the emperor alone the right of thus departing from the rigour of
the jus scriptum: Inter aequitatem jusque interpositam
interpretationem nobis solis et oportet et licet inspicere. C. 1. 14.
1.
Footnote 31:
Summa Theologiae 2. 2. q. 120. art. 1. De epieikeia seu aequitate:—In
his ergo et similibus casibus malum est sequi legem positam; bonum
autem est praetermissis verbis legis, sequi id quod poscit justitiae
ratio et communis utilitas. Et ad hoc ordinatur epieikeia, quae apud
nos dicitur aequitas.
Footnote 32:
Pollock and Maitland, History of English Law, I. 168; Glanville VII.
1.: Aliquando tamen super hoc ultimo casu in curia domini Regis de
consilio curiao ita ex aequitate consideratum est. Bracton in
discussing the various meanings of jus says (f. 3. a.):—Quandoque pro
rigore juris, ut cum dividitur inter jus et aequitatem. Following Azo,
who follows Cicero (Topica IV. 23), he says:—Aequitas autem est rerum
convenientia, quae in paribus causis paria desiderat jura (f. 3. a).
See also f. 12. b. and f. 23. b. Aequitas tamen sibi locum vindicat in
hac parte. See also Y. B. 30 and 31 Ed. I. 121:—Et hoc plus de rigore
quam de aequitate.
Footnote 33:
Cited in Spence’s Equitable Jurisdiction of the Court of Chancery, I.
408, note (_a_).
Footnote 34:
D. 1. 1. 7. 1.
Footnote 35:
A special application by English lawyers of the term equity in its
original sense, as opposed to _strictum jus_ is to be seen in the
phrase, _the equity of a statute_. By this is meant the spirit of a
law as opposed to its letter. A matter is said to fall within the
equity of a statute, when it is covered by the reason of the statute,
although through defective draftsmanship it is not within its actual
terms. “Valeat aequitas,” says Cicero, “quae paribus in causis paria
jura desiderat.” Topica IV. 23.
Footnote 36:
Ecc. Pol. I. 3. 1.
Footnote 37:
Comm. I. 38.
Footnote 38:
Proverbs, 8. 29.
Footnote 39:
Job, 28. 26.
Footnote 40:
Summa, 1. 2. q. 91. art. 1.
Footnote 41:
Summa, 1. 2. q. 93. art. 1.
Footnote 42:
Natural law, _lex naturae_, is either (1) the law of _human_ nature,
_i.e._, the moral law, or (2) the law of nature in the sense of the
universe, _i.e._, physical law.
Footnote 43:
Ecc. Pol. I. 3. 2.
Footnote 44:
Ecc. Pol. I. 16. 8.
Footnote 45:
Rhet. I. 10.
Footnote 46:
Rhet. I. 13.
Footnote 47:
De Rep. III. 22. 23.
Footnote 48:
Works, III. 516 (Bohn’s Ecc. Library). On the Virtuous being also
Free.
Footnote 49:
Institutes, I. 1.
Footnote 50:
Institutes, I. 2. 11.
Footnote 51:
Ecc. Pol. I. 1. 10. 1.
Footnote 52:
Inst. Jurisp. Div. I. 2. 97.
Footnote 53:
See Nettleship, Contributions to Latin Lexicography, _sub. voc. jus
gentium_; Burle, Essai historique sur le développement de la notion du
droit naturel dans l’antiquité grecque; Phillipson, The International
Law and Custom of Ancient Greece and Rome, vol. I. ch. 3; Bryce,
Studies in History and Jurisprudence, I. pp. 112–171; Pollock, Journ.
Compar. Legisl. 1900, p. 418; 1901, p. 204; Clark, Practical
Jurisprudence, ch. 13.
Footnote 54:
De Officio Hominis et Civis, I. 2. 2.
Footnote 55:
I. 96.
Footnote 56:
“The moral law is the declaration of the will of God to mankind,
directing and binding every one to ... obedience thereunto ... in
performance of all those duties of holiness and righteousness which he
oweth to God and man: promising life upon the fulfilling, and
threatening death upon the breach of it.” Larger Catechism of the
Westminster Assembly of Divines, Quest. 93.
Footnote 57:
“The laws that men generally refer their actions to, to judge of their
rectitude or obliquity, seem to me to be these three: 1. The divine
law; 2. The civil law; 3. The law of opinion or reputation, if I may
so call it. By the relation they bear to the first of these, men judge
whether their actions are sins or duties; by the second, whether they
be criminal or innocent; and by the third, whether they be virtues or
vices.” Locke on the Human Understanding, Bk. II. ch. 28, § 7.
Footnote 58:
Eng. Wks. II. 185.
Footnote 59:
Principles of Morals and Legislation, p. 330 (Cl. Press ed.), Works,
I. 151.
Footnote 60:
I. 86.
Footnote 61:
Leviathan, ch. 46.
Footnote 62:
See, for example, Bryce’s Studies in History and Jurisprudence, vol.
ii. pp. 44 and 249: “Broadly speaking, there are in every community
two authorities which can make law: the State, _i.e._, the ruling and
directing power, whatever it may be, in which the government of the
community resides, and the People, that is, the whole body of the
community, regarded not as incorporated in the state, but as being
merely so many persons who have commercial and social relations with
one another.... Law cannot be always and everywhere the creation of
the state, because instances can be adduced where law existed in a
community before there was any state.” See also Pollock’s First Book
of Jurisprudence, p. 24: “That imperative character of law, which in
our modern experience is its constant attribute, is found to be
wanting in societies which it would be rash to call barbarous, and
false to call lawless.... Not only law, but law with a good deal of
formality, has existed before the State had any adequate means of
compelling its observance, and indeed before there was any regular
process of enforcement at all.” See also Maine’s Early History of
Institutions, Lect. 12, p. 364, and Lect. 13, p. 380; Walker’s Science
of International Law, pp. 11–21.
Footnote 63:
Commentaries, I. 44.
Footnote 64:
See, for example, Bentham’s Principles, p. 330 (Works I. 151);
Ihering, Zweck im Recht, I. p. 334 (3rd ed.).
Footnote 65:
That part of the civil law which has its source in agreement is itself
called conventional law. See _ante_, § 11, and _post_, § 46. This use
of the term must be distinguished from that which is here adopted.
Conventional law in the present sense is not a part of the civil law,
but a different _kind_ of law.
Footnote 66:
Notice that the term customary law is ambiguous in the same manner as
the term conventional law. It means either (1) the kind of law
described in the text, or (2) that part of the civil law which has its
source in custom. See § 56.
Footnote 67:
They are the expression of what Kant and other moralists have termed
hypothetical imperatives, as opposed to the categorical imperative of
the moral law.
Footnote 68:
L. Q. R. XII. p. 313. Adopted by Lord Alverstone, C. J., in _West Rand
Gold Mining Co._ v. _Rex_, (1905) 2 K. B. at p. 407.
Footnote 69:
_Reg._ v. _Keyn_, 2 Ex. D. p. 63.
Footnote 70:
_Reg._ v. _Keyn_, 2 Ex. D. p. 131.
Footnote 71:
_Reg._ v. _Keyn_, 2 Ex. D. p. 202.
Footnote 72:
De Corpore Politico, Eng. Wks. IV. 228.
Footnote 73:
Fundamenta Juris Nat. et Gent. I. 5. 67.
Footnote 74:
De Jure Nat. et Gent. II. 3. 23.
Footnote 75:
Principes du droit de la nature et des gens, vol. iv. p. 16, ed. 1820.
Footnote 76:
It is maintained by such writers as Hall, Rivier, Bluntschli, Nys,
Sidgwick, Westlake, Walker, Lawrence, and Oppenheim.
Footnote 77:
“The sole source of (international) law,” says Dr. Walker in his
History of International Law, vol. i. p. 21, “is actual observance.”
This law, he adds, p. 31, is “the embodiment of state practice.” It is
not easy to make a list of the genuine adherents of this opinion,
because so many writers introduce vagueness and uncertainty into their
exposition by speaking of international _consent_ as well as of
international practice as a source of law; and they fail to make it
clear whether such practice is operative _per se_, or only as evidence
of underlying consent. Moreover, the word consent is itself used
ambiguously and vaguely, and it is often difficult to know whether it
means international agreement, or international opinion, or the
harmonious practice of states.
Footnote 78:
I. p. 187.
Footnote 79:
See Westlake, International Law, p. 7; Chapters on the Prls. of Int.
Law, p. 2; Hall, Int. Law, p. 1; Sidgwick, Elements of Politics, Ch.
17. pp. 274 _sqq._ 1st ed.; Oppenheim, International Law, I. § 5.
Footnote 80:
Jeremy Taylor’s Works, XIII. 306, Heber’s ed.
Footnote 81:
Hobbes’ Leviathan, ch. 13: “Hereby it is manifest that during the time
men live without a common power to keep them all in awe, they are in
that condition which is called war; and such a war as is of every man
against every man.... Whatsoever therefore is consequent to a time of
war, where every man is enemy to every man, the same is consequent to
the time wherein men live without other security than what their own
strength and their own invention shall furnish them withal. In such
condition there is no place for industry ... no arts, no letters, no
society, and, which is worst of all, continual fear and danger of
violent death; and the life of man, solitary, poor, nasty, brutish,
and short.”
Footnote 82:
Treatise on Government, II. ch. 2.
Footnote 83:
In the year 1818 in a private prosecution for murder (an appeal of
murder) the accused demanded to be tried by battle, and the claim was
allowed by the Court of King’s Bench. The prosecutor was not prepared
to face the risks of this mode of litigation, and the accused was
discharged: _Ashford_ v. _Thornton_, 1 Barn. & Ald. 405. This case led
to the abolition of appeals of felony and of trial by battle by the
statute 59 Geo. III. c. 46.
Footnote 84:
Laws of King Alfred, 42. (Thorpe’s Ancient Laws and Institutes of
England, I. 91): “We also command that he who knows his foe to be at
home fight not before he demand justice of him. If he have such power
that he can beset his foe and besiege him, let him keep him within for
seven days, and attack him not, if he will remain within.... But if he
have not sufficient power to besiege him, let him ride to the
ealdorman, and beg aid of him. If he will not aid him, let him ride to
the king before he fights.”
Footnote 85:
As late as the closing years of Henry III. it was found necessary to
resort to special statutory enactments against a lawless recurrence to
the older system. The statute of Marlborough (52 Hen. III. c. 1)
recites that “At the time of a commotion late stirred up within this
realm, and also since, many great men and divers other have disdained
to accept justice from the King and his Court, like as they ought and
were wont in time of the King’s noble progenitors, and also in his
time, but took great revenges and distresses of their neighbours and
of others, until they had amends and fines at their own pleasure.” The
statute thereupon provides that “All persons, as well of high as of
low estate, shall receive justice in the King’s Court, and none from
henceforth shall take any such revenge or distress of his own
authority without award of our Court.” Long after the strength of the
law of England had succeeded in suppressing the practice, the right of
private war continued to be recognised and regulated by law in the
more feebly governed states of the Continent. An interesting account
of the matter is given by M. Nys in his Origines du Droit
International (1894), ch. 5. A reminiscence of the older doctrine and
practice may be seen to this day in England in that “peace of our Lord
the King” which every criminal is formally charged in his indictment
with having broken. The King of England made good at an early date his
monopoly of war, and all private war or violence was and is a
violation of his peace. As to the King’s peace, see Sir F. Pollock’s
Oxford Lectures, pp. 65–90; Select Essays in Anglo-American Legal
History, II. pp. 403–417. An interesting picture of the relations
between law and private force in the primitive community of Iceland is
to be found in the Saga of Burnt Njal (Dasent’s translation).
Footnote 86:
Commentaries, III. 2.
Footnote 87:
Austin’s theory of the distinction is somewhat different from
Blackstone’s, for he makes the distinction between public and private
wrongs, and therefore between criminal and civil wrongs, turn not on
the public or private nature of the right violated, but solely on the
public or private nature of the proceeding taken in respect of its
violation. “Where the wrong,” he says (p. 502), “is a civil injury,
the sanction is enforced at the discretion of the party whose right
has been violated. Where the wrong is a crime, the sanction is
enforced at the discretion of the sovereign.” This theory, however, is
exposed to the same objections as those which may be made to
Blackstone’s, and it need not be separately considered.
Footnote 88:
Numbers, xxxv. 31.
Footnote 89:
Diogenes Laertius tells us that when Solon was asked how men might
most effectually be restrained from committing injustice, he answered:
“If those who are not injured feel as much indignation as those who
are.”
Footnote 90:
Kant’s Rechtslehre (Hastie’s trans. p. 195). The like opinion is
expressed in Woolsey’s Political Science, I. p. 334: “The theory that
in punishing an evildoer the state renders to him his deserts, is the
only one that seems to have a solid foundation.... It is fit and right
that evil, physical or mental, suffering or shame, should be incurred
by the wrongdoer.” See also Fry, Studies by the Way (The Theory of
Punishment), pp. 43–71.
Footnote 91:
Deuteronomy, xix. 21.
Footnote 92:
Lilley, Right and Wrong, p. 128.
Footnote 93:
It is worth notice that an action may be purely penal even though the
penalty is payable to the person injured. It is enough in such a case
that the receipt of the penalty should not be reckoned as or towards
the compensation of the recipient. A good example of this is the Roman
_actio furti_ by which the owner of stolen goods could recover twice
their value from the thief by way of penalty, without prejudice
nevertheless to a further action for the recovery of the goods
themselves or their value.
Footnote 94:
I. Samuel, viii. 20.
Footnote 95:
English Works, II. 76: “Both swords, therefore, as well this of war as
that of justice, ... essentially do belong to the chief command.”
Footnote 96:
“The primary function of the state,” says Herbert Spencer (Principles
of Ethics II. 204. 208. 214) “or of that agency in which the powers of
the state are centralised, is the function of directing the combined
actions of the incorporated individuals in war. The first duty of the
ruling agency is national defence. What we may consider as measures to
maintain inter-tribal justice, are more imperative, and come earlier,
than measures to maintain justice among individuals.... Once
established, this secondary function of the state goes on developing;
and becomes a function next in importance to the function of
protecting against external enemies.... With the progress of
civilisation the administration of justice continues to extend and to
become more efficient.... Between these essential functions and all
other functions there is a division, which, though it cannot in all
cases be drawn with precision, is yet broadly marked.”
Footnote 97:
It is to be noted that the term war is commonly applied only to the
more extreme forms of extrajudicial force. Rioting would not be termed
civil war, although the difference between them is merely one of
degree. Nor would the punitive expedition of an armed cruiser against
a village in the South Sea Islands be dignified with the name of war,
though it differs only in degree from the blockade or bombardment of
the ports of a civilised state. To be perfectly accurate, therefore,
we should oppose the administration of justice not to war, but to the
extrajudicial use of force, counting war as the most important species
of the latter. War, however, so greatly overshadows in importance all
other forms of such force, that it is more convenient to take it as
representing the genus, and to disregard the others.
Footnote 98:
The prohibition of the use of extrajudicial force by the King against
his subjects is one of the main provisions of Magna Carta (sec. 39):
“No free man shall be taken or imprisoned or disseized or outlawed or
exiled or anyways destroyed, nor will we go against him, nor will we
send against him, save by the lawful judgment of his peers, or by the
law of the land.” It is submitted that, subject only to the _jus
necessitatis_, this is still the law of England, notwithstanding the
doctrine of military absolutism laid down by Lord Halsbury, in the
name of the Privy Council, in the case of _Ex parte Marais_, (1902) A.
C, 109.
Footnote 99:
On the original identity and gradual differentiation of the two
functions of the state, see Spencer’s Sociology, II. pp. 493 _sqq._
“The sword of justice,” he says at p. 494, “is a phrase sufficiently
indicating the truth that action against the public enemy and action
against the private enemy are in the last resort the same.”
Footnote 100:
Speaking generally, we may say that the terms subject and citizen are
synonymous. Subjects and citizens are alike those whose relation to
the state is personal and not merely territorial, permanent and not
merely temporary. This equivalence, however, is not absolute. For in
the first place, the term subject is commonly limited to monarchical
forms of government, while the term citizen is more specially
applicable in the case of republics. A British subject becomes by
naturalisation a citizen of the United States of America or of France.
In the second place, the term citizen brings into prominence the
rights and privileges of the status, rather than its correlative
obligations, while the reverse is the case with the term subject.
Finally it is to be noticed that the term subject is capable of a
different and wider application, in which it includes all members of
the body politic, whether they are citizens (_i.e._ subjects _stricto
sensu_) or resident aliens. All such persons are subjects, as being
subject to the power of the state and to its jurisdiction, and as
owing to it, at least temporarily, fidelity and obedience. Thus it has
been said that: “Every alien coming into a British colony becomes
temporarily a subject of the Crown—bound by, subject to, and entitled
to the benefit of the laws which affect all British subjects.” _Low_
v. _Routledge_, 1 Ch. App. at p. 47. See also _Jeffreys_ v. _Boosey_,
4 H. L. C. 815. So in Hale’s Pleas of the Crown, I. 542, it is said:
“Though the statute speaks of the king’s subjects, it extends to
aliens, ... for though they are not the king’s natural born subjects,
they are the king’s subjects when in England by a local allegiance.”
Footnote 101:
The possession of political rights is so characteristic and important
a feature of citizenship, that some may be tempted to regard it as the
essence of the matter. This, however, is not so. Women have no
political rights, yet a wife is as much a British subject as her
husband is. The distinction between subject and alien may exist under
a despotic government, neither class possessing any political rights
at all.
Footnote 102:
British nationality is acquired in the following ways:—
(a) By birth in British dominions.
(b) By descent from a father or a father’s father born in British
dominions.
(c) By the marriage of an alien woman to a British subject.
(d) By naturalisation.
(e) By continued residence in a territory after it has been conquered
or otherwise acquired by the British Crown.
Footnote 103:
On this transition from the national to the territorial idea of the
state, see Maine, Early History of Institutions, pp. 72–76. As to the
history of the conception and law of citizenship, see Salmond on
Citizenship and Allegiance, L. Q. R. xvii. 270, and xviii. 49.
Footnote 104:
Although states are established for the protection of their members,
it is not necessary that this protection should be absolutely limited
to members. In exceptional cases and to a limited extent the state
will use its powers for the defence and benefit of outsiders. War way
be waged on behalf of an oppressed nation, and the state may
intervene, in the interests of justice, in a quarrel not its own. Nor
will it necessarily refuse to administer justice in its courts even to
non-resident aliens. But such external protection is exceptional and
accidental, and does not pertain to the essence of government. A state
is established, not for the defence of all mankind, and not for the
maintenance of right throughout all the earth, but solely for the
security of its own members, and the administration of its own
territory. A state which absolutely refused its protection to all
outsiders would none the less adequately fulfil the essential purposes
of a political society.
Footnote 105:
The conception of sovereignty is made by many writers the central
point in their theory of the state. They lay down certain fundamental
propositions with respect to the nature of this power: namely, (1)
that its existence is essential in every state; (2) that it is
indivisible, and incapable of being shared between two or more
different authorities; and (3) that it is necessarily absolute and
unlimited in law, that is to say, its sphere of action is legally
indeterminate. A discussion of this difficult and important branch of
political theory will be found in an Appendix.
Footnote 106:
In international law, therefore, the word state commonly means an
independent state. This is a convenient place in which to call
attention to the variety of allied meanings possessed by the term
state. They are the following:
(a) A political society dependent or independent.
(b) An independent political society.
(c) The government of a political society.
(d) The territory of a political society.
Except where the context shows that it is not so, we shall use the
term in the first of these senses.
Footnote 107:
A composite state may be of a mixed nature, being partly imperial and
partly federal. A federal state may have dependencies, over which it
exercises an imperial government—the foreign conquests, for example,
of the United States of America. So an imperial state may have
dependencies, which are themselves federal states. The Commonwealth of
Australia is a federal union which is a dependency under imperial
government.
Footnote 108:
D. 50. 17. 207.
Footnote 109:
In addition to the formal, historical, and legal sources of the law,
it is necessary to note and distinguish what may be termed its
literary sources, though this is a Continental, rather than an English
use of the term source. The literary sources are the sources of our
knowledge of the law, or rather the original and authoritative sources
of such knowledge, as opposed to later commentary or literature. The
sources of Roman law are in this sense the compilations of the Emperor
Justinian, as contrasted with the works of commentators. So the
sources of English law are the statute-book, the reports, and the
older and authoritative text-books, such as Littleton. The literature,
as opposed to the sources of our law, comprises all modern text-books
and commentaries.
Footnote 110:
In the succeeding chapters we shall consider more particularly three
of the legal sources which have been already mentioned, namely
legislation, custom, and precedent. Professional opinion as a source
of law pertains to the Roman, rather than to the English system, and
does not call for special examination here. For an account of it see
Bryce, Studies in History and Jurisprudence, II. pp. 255–269.
Agreement will be considered later, in its aspect as a title of
rights, instead of here as a source of law.
Footnote 111:
Austin, p. 538.
Footnote 112:
Austin, p. 531.
Footnote 113:
Constat autem jus nostrum aut ex scripto aut ex non scripto.... Ex non
scripto jus venit, quod usus comprobavit. Just. Inst. 1. 2. 3.; 1. 2.
9.
“The municipal law of England may with sufficient propriety be divided
into two kinds: the lex non scripta, the unwritten or common law; and
the lex scripta, the written or statute law.” Blackstone, I. 63.
Footnote 114:
Blackstone, I. 161.
Footnote 115:
The mere fact that a person who becomes a shareholder must be taken to
have impliedly agreed to be bound not only by the articles as they
stand, but by any subsequent modification of them, does not render
subsequent modifications conventional instead of legislative in their
nature. The immediate source of the new rules is not agreement, but
imposition by superior authority.
Footnote 116:
Plato’s Laws, 624. Spencer’s Sociology, II. pp. 515 _et seq._