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.

108. D. 50. 17. 207.

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.

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.

111. Austin, p. 538.

112. Austin, p. 531.

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.

114. Blackstone, I. 161.

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.

116. Plato’s Laws, 624. Spencer’s Sociology, II. pp. 515 et seq.

117. On this and other grounds “judge-made law,” as he called it, was the object of constant denunciation by Bentham. “It is the judges,” he says in his vigorous way (Works, V. 235), “that make the common law. Do you know how they make it? Just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait till he does it and then beat him. This is the way you make laws for your dog, and this is the way the judges make laws for you and me.”

118. D. 1. 3. 17.

119. Strict interpretation is an equivocal expression, for it means either literal or narrow. When a provision is ambiguous, one of its meanings may be wider than the other, and the strict (i.e. narrow) sense is not necessarily the strict (i.e. literal) sense. When the equitable interpretation of a law is wider than the literal, it is called extensive; when narrower, it is called restrictive.

120. In the interpretation of contracts, no less than in that of statutes, there is to be noticed this distinction between the real and the latent intention of the parties. The difficulty of construing a contract arises more often from the fact that the parties had no clear intention at all as to the particular point, than from the fact that they failed to express an intention which they actually had.

121. Hale’s History of the Common Law, chap. ii.

122. Blackstone, I. 63.

123. Co. Litt. 141 a; The Case of Tanistry, Dav. Rep. 32; Blackstone, I. 77.

124. “If any general custom were directly against the law of God, or if any statute were made directly against it, ... the custom and statute were void.” Doctor and Student, Dial. I. ch. 6. See also Bonham’s Case, 8 Co. Rep. 118a; Coke’s 2nd Inst. 587; Hobart, 87; Blackstone, I. 91; Pollock and Maitland, History of English Law, I. 491; Pollock, Jurisprudence, pp. 262–267.

125. Dernburg, Pandekten, I. sect. 27. 3.

126. Blackstone, I. 78. Suarez, de Legibus, VII. 14. 7: Ad consuetudinem necessarium esse, ut eo animo et intentione servetur, ut jus in posterum fiat.

127. Blackstone, I. 76. Co. Litt. 113 a.

128. Quare rectissime etiam illud receptum est, ut leges non solum suffragio legislatoris. sed etiam tacito consensu omnium per desuetudinem abrogentur. D. 1. 3. 32. 1. Considerable doubt, however, exists as to the true relation between custom and statute in Roman law, owing to a passage in the Code (C. 8. 53. 2.) which, if read literally, conflicts with the doctrine expressed in the Digest, and declares custom to be destitute of legal effect if contrary to statute law. The ingenuity of German jurists has suggested numerous solutions of the apparent inconsistency, but with no convincing result. See Savigny’s System, vol. i. Appendix II. Vangerow, Pandekten, I. sect. 16. Dernburg, Pandekten, I. sect. 28.

129. System, sect. 18.

130. Vol. i. sect. 18.

131. For the similar doctrine of Scottish law, see Erskine’s Institutes, I. 19.

132. It is to be noticed that the term custom is often used to mean particular custom exclusively. Custom (meaning local usage having legal validity) is opposed to law (meaning the common law of the land). When we find in the books any proposition laid down as to the legal efficacy or requirements of custom, it must be carefully ascertained from the context whether the term does or does not extend to general customs.

133. Both in English and foreign law, however, the time of memory was extended by the allowance of tradition within defined limits. A witness might testify not only to that which he had himself seen, but to that which he had been told by others who spoke of their own knowledge. D. 22. 3. 28. Bracton f. 373 a. 318 b. By French law time of memory was held to extend for one hundred years. Pothier, De la Prescription, sects. 278–288.

134. The statute of Westminster I. c. 39, imposed a limitation upon actions for the recovery of land. It provided that no such action should lie, unless the claimant or his predecessor in title had had possession of the land claimed at some time subsequent to the accession of Richard I. The previous common law rule of limitation for such actions was no other than the rule as to time immemorial. At common law the claimant had to prove his title and his seisin by the testimony of living men; therefore he or his predecessors must have been in possession within time of human memory. The enactment in question was accordingly construed as laying down a statutory definition of the term time of memory, and this supposed statutory definition was accepted by the courts as valid in all departments of the law in which the idea of time immemorial was relevant. See Blackstone, II. 31; Littleton, sect. 170.

135. R. v. Joliffe, 2 B. & C. 54; Bryant v. Foot, L. R. 3 Q. B. 497; Lawrence v. Hitch, L. R. 3 Q. B. 521; Simpson v. Wells, L. R. 7 Q. B. 214.

136. In limiting the requirement of immemorial antiquity to local customs, we have, for the sake of simplicity, spoken somewhat more absolutely than the present state of the authorities warrants. The more common, and, it is believed, the better opinion is that the law is as stated in the text. There is, however, some authority for saying that the same requirement exists in the case of certain general customs also. In Crouch v. Crédit Foncier, L. R. 8 Q. B. 374, it was held that modern mercantile custom was powerless to render an English instrument negotiable, although it is well settled that foreign instruments, such as the bonds of foreign governments, may be made negotiable in this way. Gorgier v. Mieville, 27 R. R. 290. The authority, however, of the case in question is exceedingly doubtful. See Goodwin v. Robarts, L. R. 10 Ex. 337; Bechuanaland Exploration Co. v. London Trading Bank, (1898) 2 Q. B. 658; Edelstein v. Schuler, (1902) 2 K. B. 144; L. Q. R. XV. 130 and 245. There is no doubt that a great part of our mercantile law has been derived from modern mercantile custom, and we may assume with some confidence that such custom still retains the law-creating efficacy which it formerly possessed.

137. Decretals, I. 4. 8. Gloss. (Ed. of 1671. Vol. ii. p. 92). Secundum jus canonicum non valet consuetudo, nisi praescripta sit et rationabilis. Decretum, Dist. I. 4. Gloss. (Vol. i. p. 3). Ad hoc ergo ut consuetudo juri communi praejudicet, requiritur primo quod rationabilis sit, et quod sit praescripta. Decretals, I. 4. 11. 8. Gloss. (Vol. ii. p. 96).

138. Suarez, De Legibus, VII. 15. 5.

139. Novel. 131. ch. 6.

140. Decretals, I. 4. 11. Gloss. (Vol. ii. p. 96). Illa consuetudo praejudicat juri, quae excedit hominum memoriam. Decretum, Dist. VIII. c. 7. Gloss. (Vol. i. p. 25).

141. D. 43. 20. 3. 4. Fossam jure factam aut cuius memoria non exstat. D. 39. 3. 2. 7.

142. Pothier, De la Prescription, sects. 278–288; Baudry-Lacantinerie, De la Prescription, sects. 12, 21; Windscheid, I. sect. 113.

143. Suarez, De Legibus, VII. 15. 2. Aliqui enim antiqui immemoriale tempus postulabant, tamen sine fundamento, et ita relicta et antiquata est illa sententia.

144. Y. B. 20 and 21 Ed. I. 136. As to the history of immemorial prescription see Die Lehre von der unvordenklichen Zeit, by Friedländer, 1843.

145. Littleton (sect. 169) tells us that: Consuetudo ex certa causa rationabili usitata privat communen legem. And to this Coke (113 a) adds by way of commentary the canonical maxim: Consuetudo praescripta et legitima vincit legem. In Goodwin v. Robarts, L. R. 10 Ex. at p. 357, it is said: “We must by no means be understood as saying that mercantile usage, however extensive, should be allowed to prevail if contrary to positive law, including in the latter such usages as having been made the subject of legal decision, and having been sanctioned and adopted by the courts, have become, by such adoption, part of the common law. To give effect to a usage which involves a defiance or disregard of the law would be obviously contrary to a fundamental principle. And we quite agree that this would apply quite as strongly to an attempt to set up a new usage against one which has become settled and adopted by the common law as to one in conflict with the more ancient rules of the common law itself.” See also to the same effect Edie v. East India Company, 2 Burr. 1216.

146. Pothier on Obligations, sect. 95.

147. Encyklopädie, sect. 20.

148. Pandektenrecht, I. sect. 15.

149. Austin, p. 538. An able and forcible defence of the Austinian position will be found in Professor W. J. Brown’s Austinian Theory of Law, Excursus D.—“Customary Law in Modern England.”

150. Co. Litt. 113 b.

151. The importance of reported decisions has, however, been increasing in both France and Germany for some time, and Continental law shows a distinct tendency to follow the example of English in this matter.

152. Hale’s History of the Common Law, p. 89 (ed. of 1820).

153. Hale’s History of the Common Law, p. 88.

154. In re Hallett, 13 Ch. D. at p. 710.

155. Castro v. R., 6 A. C. p. 249; Scaramanga v. Stamp, 5 C. P. D. p. 303.

156. In re Parsons, 45 Ch. D. 62: “Decisions of the Irish Courts, though entitled to the highest respect, are not binding on English judges.”

157. In Leask v. Scott, 2 Q. B. D. 376, at p. 380, it is said by the Court of Appeal, speaking of such a decision: “We are not bound by its authority, but we need hardly say that we should treat any decision of that tribunal with the greatest respect, and rejoice if we could agree with it.”

158. Persuasive efficacy, similar in kind though much less in degree, is attributed by our courts to the civil law and to the opinions of the commentators upon it; also to English and American text-books of the better sort.

159. London Street Tramways Company v. London County Council, (1898) A. C. 375, at p. 379. This is said to be so even when the House of Lords is equally divided in opinion, so that the judgment appealed from stands unreversed and so authoritative. Beamish v. Beamish, 9 H. L. C. p. 338; Att.-Gen. v. Dean of Windsor, 8 H. L. C. p. 392. As to the equal division of other courts, see The Vera Cruz, 9 P. D. p. 98.

160. Pledge v. Carr, (1895) 1 Ch. 51; Lavy v. London County Council, (1895) 2 Q. B. at p. 581, per Lindley, L.J. See, however, Mills v. Jennings, 13 C. D. p. 648.

161. It is to be remembered that the overruling of a precedent has a retrospective operation. In this respect it is very different from the repeal or alteration of a statute.

162. Sheddon v. Goodrich, 8 Ves. 497.

163. Pugh v. Golden Valley Railway Company, 15 Ch. D. at p. 334.

164. Smith v. Keal, 9 Q. B. D. at p. 352. See also In re Wallis, 25 Q. B. D. 180; Queen v. Edwards, 13 Q. B. D. 590; Ridsdale v. Clifton, 2 P. D. 306; Fookes v. Beer, 9 A. C. at p. 630: “We find the law to have been accepted as stated for a great length of time, and I apprehend that it is not now within our province to overturn it.”

165. In re Hallett, 13 Ch. D. at p. 712.

166. Osborne v. Rowlett, 13 Ch. D. at p. 785.

167. It is clearly somewhat awkward to contrast in this way the terms authority and principle. It is odd to speak of deciding a case on principle because there is no legal principle on which it can be decided. To avoid misapprehension, it may be advisable to point out that decisions as to the meaning of statutes are always general, and therefore establish precedents and make law. For such interpretative decisions are necessarily as general as the statutory provisions interpreted. A question of statutory interpretation is one of fact to begin with, and is decided on principle; therefore it becomes one of law, and is for the future decided on authority.

168. Holmes, The Common Law, p. 35.

169. On the decision by judges of questions of fact under the guise of questions of law, see Thayer’s Preliminary Treatise on the Law of Evidence, pp. 202, 230, 249.

170. This statement, to be strictly correct, must be qualified by a reference to the interests of the lower animals. It is unnecessary, however, to complicate the discussion at this stage by any such consideration. The interests and rights of beasts are moral, not legal.

171. Pandekt. I. sect. 37.

172. Geist d. r. R. III. p. 339, 4th ed.

173. Theory of Legislation, pp. 82–84. See also Works, III. 217.

174. Principles of Ethics, II. p. 63.

175. The denial of natural rights is not rendered any more defensible by the recognition of other positive rights in addition to the strictly legal rights which are created by the state; for example, rights created by international law, or by the so-called law of public opinion.

176. See Austin, Lect. 17.

177. The terms subject and object are used by different writers in a somewhat confusing variety of senses:—

(a) The subject of a right means the owner of it; the object of a right means the thing in respect of which it exists. This is the usage which has been here adopted: Windscheid, I. sect. 49.

(b) The subject of a right means its subject-matter (that is to say, its object in the previous sense). The object of a right means the act or omission to which the other party is bound (that is to say, its content): Austin, pp. 47, 712.

(c) Some writers distinguish between two kinds of subjects—active and passive. The active subject is the person entitled; the passive subject is the person bound: Baudry-Lacantinerie, Des Biens, sect. 4.

178. As to ownerless rights, see Windscheid, I. sect. 49, n. 3. Dernburg, Pandekten, I. sect. 49.

179. See as to rights to rights, Windscheid, I. sect. 48 a (Rechte an Rechten).

180. Musgrove v. Toy, (1891) A. C. 272.

181. On the distinction between liberties and rights, see Bentham’s Works, III. p. 217; Starey v. Graham, (1899) 1 Q. B. at p. 411, per Channell, J.; Allen v. Flood, (1898) A. C. at p. 29, per Cave, J.; Terry, p. 90; Brown’s Austinian Theory of Law, p. 180.

182. A power is usually combined with a liberty to exercise it; that is to say, the exercise of it is not merely effectual but rightful. This, however, is not necessarily the case. It may be effectual and yet wrongful; as when, in breach of my agreement, I revoke a licence given by me to enter upon my land. Such revocation is perfectly effectual, but it is a wrongful act, for which I am liable to the licensee in damages. I had a right (in the sense of power) to revoke the licence, but I had no right (in the sense of liberty) to do so: Wood v. Leadbitter, 13 M. & W. 838; Kerrison v. Smith, (1897) 2 Q. B. 445.

183. On the distinction between powers and other kinds of rights, see Windscheid, I. sect. 37; Terry, p. 100.

184. This division of rights into rights (stricto sensu), liberties, and powers, is not intended to be exhaustive. These are the most important kinds of advantages conferred by the law, but they are not the only kinds. Thus, the term right is sometimes used to mean an immunity from the legal power of some other person. The right of a peer to be tried by his peers, for example, is neither a right in the strict sense, nor a liberty, nor a power. It is an exemption from trial by jury—an immunity from the power of the ordinary criminal courts.

185. A very thorough examination of the conception of a legal right is to be found in Terry’s Principles of Anglo-American Law (Philadelphia, 1884), a work of theoretical jurisprudence too little known in England, and characterised by much subtle analysis of legal conceptions. Rights are there divided (ch. 6, pp. 84–138) into four kinds, which the author distinguishes as (1) permissive rights (which we have here termed liberties), (2) facultative rights (which we have here termed powers), (3) correspondent rights (which are so called because they correspond to duties, and which we have here termed rights in the strict sense), and (4) protected rights. These last we have not recognised as being in truth a class of rights at all. They are, if I understand Mr. Terry correctly, not rights but the objects of rights stricto sensu; for example, life, reputation, liberty, property, domestic relations, &c. That is to say, they are the things in which a person has an interest, and to which, therefore, he has a right, so soon as, but not until, the law protects that interest by imposing duties in respect of it upon other persons. There is no right to reputation apart from and independent of the right that other persons shall not publish defamatory statements.

186. The distinction here drawn between duty and liability may seem to conflict with the common usage, by which certain kinds of duties are apparently spoken of as liabilities. Thus we say that a man is liable for his debts. This, however, may be construed as meaning that he is liable to be sued for them. We certainly cannot regard liability as a generic term including all kinds of duty. We do not say that a man is liable not to commit murder, or not to defraud other persons.

187. Of the three classes of rights or legal interests which we have considered, the first, consisting of those which are the correlative of duties, are by far the most important. So predominant are they, indeed, that we may regard them as constituting the principal subject-matter of the law, while the others are merely accessory. In future, therefore, we shall use the term right in this narrow and specific sense, except when the context indicates a different usage; and we shall commonly speak of the other forms of rights by their specific designations.

188. The term enforcement is here used in a wide sense to include the maintenance of a right or duty by any form of compulsory legal process, whether civil or criminal. There is a narrower use of the term, in which it includes only the case of civil proceedings. It is in this sense that we have already defined civil justice as being concerned with the enforcement of rights, and criminal justice as being concerned with the punishment of wrongs. As to the distinction between recognising and enforcing a right, see Dicey, Conflict of Laws, p. 31, 2nd ed.

189. There is another use of the term imperfect duty which pertains to ethics rather than to jurisprudence, and must be distinguished from that adopted in the text. According to many writers, an imperfect duty is one of such a nature that it is not fit for enforcement, but ought properly to be left to the free will of him whose duty it is. A perfect duty, on the other hand, is one which a man not merely ought to perform, but may be justly compelled to perform. The duty to give alms to the poor is imperfect; that of paying one’s debts is perfect. Perfect duties pertain to the sphere of justice; imperfect to that of benevolence. The distinction is not equivalent to that between legal duties and those which are merely moral. A duty may be a perfect duty of justice, although the actual legal system takes no notice of it; and conversely an imperfect duty of benevolence may be unjustly made by law the subject of compulsion. It does not seem possible, however, so to divide the sphere of duty by a hard and fast line. One of the most noteworthy attempts to do so is to be seen in Spencer’s Principles of Ethics.

190. Ex parte Sheil, 4 Ch. D. 789. London & Midland Bank v. Mitchell, (1899) 2 Ch. 161.

191. As to rights against the state see Brown’s Austinian Theory of Law, p. 194.

192. Some writers treat jus in personam and jus ad rem as synonymous terms. It seems better, however, to use the latter in a narrower sense, as including merely one species, although the most important species, of jura in personam. Savigny, System, sect. 56, n. b.

193. Gaius, IV. 2.

194. A personal as opposed to a proprietary right is not to be confounded with a personal as opposed to a real right. It is a misfortune of our legal nomenclature that it is necessary to use the word personal in several different senses. The context, however, should in all cases be sufficient to indicate the particular signification intended. The more flexible language of the Germans enables them to distinguish between personliche Rechte (as opposed to dingliche Rechte or real rights) and Personenrechte (as opposed to Vermögensrechte or proprietary rights). See Dernburg, Pandekten, I. sect. 22, note 7.

195. Ahrens, sect. 55: Tous les biens, soit matériels en eux-mêmes, soit susceptibles d’être estimés en argent comme équivalent (par aestimatio et condemnatio pecuniaria) appartenant à une personne, forment son avoir ou son patrimoine.

Baudry-Lacantinerie, Des Biens, sect. 2. Le patrimoine est un ensemble de droits et de charges appréciables en argent.

Dernburg, Pandekten, I. sect. 22. Vermögen ist die Gesammtheit der geldwerthen Rechte einer Person.

Windscheid, I. sect. 42, note: Vermögensrechte sind die Rechte von wirthschaftlichem Werth.

See also to the same effect Savigny, System, sect. 56, and Puchta, Institutionen, II. sect. 193.

196. The words status and estate are in their origin the same. As to the process of their differentiation in legal meaning, see Pollock and Maitland, History of English Law, II. pp. 10 and 78 (1st ed.). The other uses of the term property will be considered by us later, in chapter xx.

197. See Dicey, Conflict of Laws, p. 458, 2nd ed.

198. See Maine’s Ancient Law, Ch. 5 ad fin.; Markby’s Elements of Law, § 178; Hunter’s Roman Law, p. 138, 3rd ed.

199. See Savigny, System, § 59; Moyle, Inst. Just. pp. 86–94, 183–193.

200. The Romans termed them servitutes, but the English term servitude is used to include one class of jura in re aliena only, namely the servitutes praediorum of Roman Law.

201. The owner of an encumbrance may be termed the encumbrancer of the servient right or property over which it exists.

202. In addition to the distinctions between different kinds of rights considered in this chapter, there must be borne in mind the important distinction between Primary and Sanctioning Rights, but this has already been sufficiently dealt with in the chapter on the Administration of Justice.

203. Pollock, Jurisprudence, p. 175: “Ownership may be described as the entirety of the powers of use and disposal allowed by law.... The owner of a thing is not necessarily the person who at a given time has the whole power of use and disposal; very often there is no such person. We must look for the person having the residue of all such power when we have accounted for every detached and limited portion of it; and he will be the owner even if the immediate power of control and use is elsewhere.”

204. The figurative identification of a right with its object is not absolutely limited to the case of material things, though this is by far the most important instance. Similar reasons of convenience of speech and ease of thought lead to a similar metonymy in other cases, when the object of a jus in re propria has a recognised name. We speak, for example, of the ownership of a trade-mark, or of that of the good-will of a business; meaning thereby the ownership of a jus in re propria in respect of these things.

205. A similar explanation of the distinction between corporeal and incorporeal ownership is given by the following writers:—

Windscheid I. sect. 42: “A very common form of speech ... substitutes for the right of ownership (Eigenthumsrecht) the thing in respect of which it exists.”

Baudry-Lacantinerie, Des Biens, sect. 9: “This confusion finds its excuse, if not its justification, in the consideration that the right of ownership, being the most complete right which can exist in respect of a thing, since it is absolute and exclusive, is identified with the thing itself.”

Bruns, Das Recht des Besitzes, p. 477.

Girard, Droit Romain, p. 244.

206. Austin, p. 358. German Civil Code, sect. 90: Sachen im Sinne des Gesetzes sind nur körperliche Gegenstände.

207. Vide supra, § 73.

208. This use of the term thing (res) and the distinction between res corporalis and res incorporalis are derived from Roman Law. Just. Inst. II. 2:—Quaedam praeterea res corporales sunt, quaedam incorporales. Corporales eae sunt, quae sui natura tangi possunt: veluti fundus, homo, vestis, aurum, argentum, et denique aliae res innumerables. Incorporales autem sunt, quae tangi non possunt. Qualia sunt ea, quae in jure consistunt: sicut hereditas, usufructus, obligationes quoque modo contractae.

209. The same explanation is applicable to the distinction between corporeal and incorporeal property. A person’s property consists sometimes of material objects and sometimes of rights. As to the different uses of the term property, see infra, ch. xx.

210. He who owns property for his own use and benefit, without the intervention of any trustee, may be termed the direct owner of it, as opposed to a mere trustee on the one hand, and to a beneficial owner or beneficiary on the other. Thus if A. owns land, and makes a declaration of trust in favour of B., the direct ownership of A. is thereby changed into trust-ownership, and a correlative beneficial ownership is acquired by B. If A. then conveys the land to B., the ownership of B. ceases to be merely beneficial, and becomes direct.