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We have already considered the general theory of agreement as a title of right. It will be remembered that we used the term to include not merely contracts but all other bilateral acts in the law, that is to say, all expressions of the consenting wills of two or more persons directed to an alteration of their legal relations. Agreement in this wide sense is no less important in the law of property than in that of obligations.

The second class of exceptions to the general principle includes the cases in which the possession of a thing is in one person and the ownership of it in another. Partly by the common law, and partly by various modern statutes, the possessor is in certain cases enabled to give a good title to one who deals with him in good faith believing him to be the owner. The law allows men in these cases to act on the presumption that the possessor of a thing is the owner of it; and he who honestly acts on this presumption will acquire a valid title in all events. The most notable example is the case of negotiable instruments. The possessor of a bank-note may have no title to it; he may have found it or stolen it; but he can give a good title to any one who takes it from him for value and in good faith. Similarly mercantile agents, in possession of goods belonging to their principals, can effectively transfer the ownership of them, whether they are authorised thereto or not.

Testamentary succession, on the other hand, demands further consideration. Although a dead man has no rights, a man while yet alive has the right to determine the disposition after he is dead of the property which he leaves behind him. His last will, duly declared in the document which we significantly call by that name, is held inviolable by the law. For half a century and more, the rights and responsibilities of living men may thus be determined by an instrument which was of no effect until the author of it was in his grave and had no longer any concern with the world or its affairs. This power of the dead hand is so familiar a feature in the law, that we accept it as a matter of course, and have some difficulty in realising what a very singular phenomenon it in reality is.

It is clear that some limitation must be imposed by the law upon this power of the dead over the living, and these restrictions are of three chief kinds:

SUMMARY.

The ownership of material things. Its essential qualities: 1. Generality. 2. Permanence. 3. Inheritance. Ownership of land in English law. Movable and immovable property. Land and chattels. Movable and immovable rights. The local situation of rights.

Real and personal property. Meanings of the term chattel.

The extraordinary importance attributed to the fact of possession was a characteristic feature of our early law. As this importance diminished, the original significance of the distinction between things in possession and things in action was lost sight of, and these terms gradually acquired a new meaning. Originally shares and annuities would probably have been classed as things in possession, but they are now things in action. Conversely lands and chattels are now things in possession, whether the owner retains possession of them or not. Obligations were always the most important species of things in action, and they are now the only species. Neither the old law nor the new gives any countenance to the suggestion made by some that immaterial property, such as patents, copyrights, and trade-marks, should be classed as choses in action.

The normal type of obligation is that in which there is one creditor and one debtor. It often happens, however, that there are two or more creditors entitled to the same obligation, or two or more debtors under the same liability. The case of two or more creditors gives rise to little difficulty, and requires no special consideration. It is, in most respects, merely a particular instance of co-ownership, the co-owners holding either jointly or in common, according to circumstances. The case of two or more debtors, however, is of some theoretical interest, and calls for special notice.

Examples of it are debts owing by a firm of partners, debts owing by a principal debtor and guaranteed by one or more sureties, and the liability of two or more persons who together commit a tort. In all such cases each debtor is liable for the whole amount due. The creditor is not obliged to divide his claim into as many different parts as there are debtors. He may exact the whole sum from one, and leave that one to recover from his co-debtors, if possible and permissible, a just proportion of the amount so paid. A debt of ?100 owing by two partners, A. and B., is not equivalent to one debt of ?50 owing by A. and another of the same amount owing by B. It is a single debt of ?100 owing by each of them, in such fashion that each of them may be compelled to pay the whole of it, but that when it is once paid by either of them, both are discharged from it.

The following are examples of solidary obligations which are several in their nature:

The liability of a principal debtor and that of his surety, provided that the contract of suretyship is subsequent to, or otherwise independent of the creation of the debt so guaranteed. But if the two debts have the same origin, as where the principal debtor and the surety sign a joint bond, the case is one of joint obligation.

The liability of two or more co-sureties who guarantee the same debt independently of each other. They may make themselves joint, or joint and several debtors, on the other hand, by joining in a single contract of guarantee.

Separate judgments obtained in distinct actions against two or more persons liable for the same debt. Two persons, for example, jointly and severally liable on the same contract may be separately sued, and judgment may be obtained against each of them. In such a case they are no longer jointly liable at all; each is now severally liable for the amount of his own judgment; but these two obligations are solidary, inasmuch as the satisfaction of one will discharge the other.

Examples of joint and several obligations are the liabilities of those who jointly commit a tort or breach of trust, and also all contractual obligations which are expressly made joint and several by the agreement of the parties.

Classed in respect of their sources or modes of origin, the obligations recognised by English law are divisible into the following four classes:

Innominate.

A tort may be defined as a civil wrong, for which the remedy is an action for damages, and which is not solely the breach of a contract or the breach of a trust or other merely equitable obligation. This definition contains four essential elements, there being four kinds of wrongs excluded by it from the sphere of tort.

In what cases, then, does the law recognise this fiction of quasi-contract? What classes of obligations are regarded as contractual in law, though they are not so in fact? To this question it is not possible to give any complete answer here. We can, however, single out two classes of cases, which include most, though not all, of the quasi-contractual obligations known to English law.

The reasons which have induced the law to recognise the fiction of quasi-contractual obligation are various. The chief of them, however, are the three following:--

The traditional classification of the various forms of personal actions, as being based either on contract or on tort. This classification could be rendered exhaustive and sufficient only by forcing all liquidated pecuniary obligations into the contractual class, regardless of their true nature and origin. The theory that all common law actions are either contractual or delictal is received by the legislature even at the present day, and its necessary corollary is the doctrine of quasi-contract.

The desire to supply a theoretical basis for new forms of obligation established by judicial decision. Here as elsewhere, legal fictions are of use in assisting the development of the law. It is easier for the courts to say that a man is bound to pay because he must be taken to have so promised, than to lay down for the first time the principle that he is bound to pay whether he has promised or not.

It seems clear that a rational system of law is free to get rid of the conception of quasi-contractual obligation altogether. No useful purpose is served by it at the present day. It still remains, however, part of the law of England, and requires recognition accordingly.

The foregoing classification of obligations as either contractual, delictal, or quasi-contractual, is not exhaustive, for it is based on no logical scheme of division, but proceeds by simple enumeration only. Consequently, it is necessary to recognise a final and residuary class which we may term innominate, as having no comprehensive and distinctive title. Included in this class are the obligations of trustees towards their beneficiaries, a species, indeed, which would be sufficiently important and distinct to be classed separately as co-ordinate with the others which have been named, were it not for the fact that trusts are more appropriately treated in another branch of the law, namely in that of property.

SUMMARY.

Obligations defined. Choses in action. Solidary obligations: Their nature. Their kinds: 1. Several. 2. Joint. 3. Joint and several. Contractual obligations. Delictal obligations: The nature of a tort: 1. A civil wrong. 2. Actionable by way of damages. 3. Not a mere breach of contract. 4. Not a mere breach of trust or other equitable obligation. Quasi-contractual obligations: The nature of quasi-contract. Instances of quasi-contracts. Reasons of their recognition. Innominate obligations.

A glance at the actual contents of the law of procedure will enable us to judge of the accuracy of this explanation. Whether I have a right to recover certain property is a question of substantive law, for the determination and the protection of such rights are among the ends of the administration of justice; but in what courts and within what time I must institute proceedings are questions of procedural law, for they relate merely to the modes in which the courts fulfil their functions. What facts constitute a wrong is determined by the substantive law; what facts constitute proof of a wrong is a question of procedure. For the first relates to the subject-matter of litigation, the second to the process merely. Whether an offence is punishable by fine or by imprisonment is a question of substantive law, for the existence and measure of criminal liability are matters pertaining to the end and purpose of the administration of justice. But whether an offence is punishable summarily or only on indictment is a question of procedure. Finally it may be observed that, whereas the abolition of capital punishment would be an alteration of the substantive law, the abolition of imprisonment for debt was merely an alteration in the law of procedure. For punishment is one of the ends of the administration of justice, while imprisonment for debt was merely an instrument for enforcing payment.

So far as the administration of justice is concerned with the application of remedies to violated rights, we may say that the substantive law defines the remedy and the right, while the law of procedure defines the modes and conditions of the application of the one to the other.

Although the distinction between substantive law and procedure is sharply drawn in theory, there are many rules of procedure which in their practical operation are wholly or substantially equivalent to rules of substantive law. In such cases the difference between these two branches of the law is one of form rather than of substance. A rule belonging to one department may by a change of form pass over into the other without materially affecting the practical issue. In legal history such transitions are frequent, and in legal theory they are not without interest and importance.

Of these equivalent procedural and substantive principles there are at least three classes sufficiently important to call for notice here.

It is plain that in every process of proof some form of judicial evidence is an essential element. Extrajudicial evidence may or may not exist. When it is present, it forms an intermediate link or a series of intermediate links in a chain of proof, the terminal links of which are the principal fact at one end and the judicial evidence at the other. Judicial evidence requires production merely; extrajudicial evidence stands itself in need of proof.

Presumptive or conditional proof, on the other hand, is a fact which amounts to proof, only so long as there exists no other fact amounting to disproof. It is a provisional proof, valid until overthrown by contrary proof. A conditional or rebuttable presumption is the acceptance of a fact by the law as conditional proof.

One of the most singular features in early systems of procedure is the extent to which the process of proof is dominated by conclusive presumptions. The chief part of the early law of evidence consists of rules determining the species of proof which is necessary and sufficient in different cases, and allotting the benefit or burden of such proof between the parties. He who would establish his case must maintain it, for example, by success in that judicial battle the issue of which was held to be the judgment of Heaven ; or he must go unscathed through the ordeal, and so make manifest his truth or innocence; or he must procure twelve men to swear in set form that they believe his testimony to be true; or it may be sufficient if he himself makes solemn oath that his cause is just. If he succeeds in performing the conditions so laid upon him, he will have judgment; if he fails even in the slightest point, he is defeated. His task is to satisfy the requirements of the law, not to convince the court of the truth of his case. What the court thinks of the matter is nothing to the point. The whole procedure seems designed to take away from the tribunals the responsibility of investigating the truth, and to cast this burden upon providence or fate. Only gradually and reluctantly did our law attain to the conclusion that there is no such royal road in the administration of justice, that the heavens are silent, that the battle goes to the strong, that oaths are naught, and that there is no just substitute for the laborious investigation of the truth of things at the mouths of parties and witnesses.

Many of these presumptions are based on no real estimate of probabilities, but are established for the purpose of placing the burden of proof upon the party who is best able to bear it, or who may most justly be made to bear it. Persons accused of crime are probably guilty, but the presumption of their innocence is in most cases and with certain limitations clearly expedient.

It is only in respect of very special kinds of contracts that written evidence can wisely be demanded by the law. In the case of all ordinary mercantile agreements such a requirement does more harm than good; and the law would do well in accepting the principle that a man's word is as good as his bond. The Statute of Frauds, by which most of these rules of exclusive evidence have been established, is an instrument for the encouragement of frauds rather than for the suppression of them. How much longer is it to remain in force as a potent instrument for the perversion of English law? Its repeal would sweep away at one stroke the immense accumulation of irrational technicality and complexity that has grown in the course of centuries from this evil root.

The second part of the law of evidence consists of rules regulating its production. It deals with the process of adducing evidence, and not with the effect of it when adduced. It comprises every rule relating to evidence, except those which amount to legal determinations of probative force. It is concerned for example with the manner in which witnesses are to be examined and cross-examined, not with the weight to be attributed to their testimony. In particular it includes several important rules of exclusion based on grounds independent of any estimate of the probative force of the evidence so excluded. Considerations of expense, delay, vexation, and the public interest require much evidence to be excluded which is of undoubted evidential value. A witness may be able to testify to much that is relevant and important in respect of the matters in issue, and nevertheless may not be compelled or even permitted to give such testimony. A public official, for example, cannot be compelled to give evidence as to affairs of state, nor is a legal adviser permitted or compellable to disclose communications made to him by or on behalf of his client.

The idea of the oath, therefore, is that his testimony is true who is prepared to imprecate divine vengeance on his own head in case of falsehood. Yet it needs but little experience of courts of justice to discover how ineffective is any such check on false witness and how little likely is the retention of it to increase respect either for religion or for the administration of justice. The true preventive of false testimony is an efficient law for its punishment as a crime. Punishment falling swiftly and certainly upon offending witnesses would purge the courts of an evil which the cumbrous inefficiency of the present law of perjury has done much to encourage, and which all the oaths in the world will do nothing to abate.

SUMMARY.

APPENDICES

The purpose of the following pages is to consider, in respect of their origin and relations, the various names and titles which have been borne by the law in different languages. This seems an inquiry fit to be undertaken in the hope that judicial terms may be found to throw some light upon the juridical ideas of which they are the manifestation. A comparison of diverse usages of speech may serve to correct misleading associations, or to suggest relations that may be easily overlooked by any one confining his attention to a single language.

In discussing the theory of the state, we noticed the distinction between sovereign and subordinate power. The former is that which, within its own sphere, is absolute and uncontrolled, while the latter is that which is subject to the control of some power superior and external to itself. We have now to consider in relation to this distinction a celebrated doctrine which we may term Hobbes's theory of sovereignty. It was not, indeed, originated by the English philosopher, but is due rather to the celebrated French publicist Bodin, from whom it first received definite recognition as a central element of political doctrine. In the writings of Hobbes, however, it assumes greater prominence and receives more vigorous and clear-cut expression, and it is to his advocacy and to that of his modern followers that its reception in England must be chiefly attributed.

The theory in question may be reduced to three fundamental propositions:--

The first of these propositions must be accepted as correct, but the second and third would seem to have no solid foundation. The matter, however, is one of very considerable obscurity and complexity, and demands careful consideration.

The English constitution, therefore, recognises a sovereign executive, no less than a sovereign legislature. Each is supreme within its own sphere; and the two authorities are kept from conflict by the fact that the executive is one member of the composite legislature. The supreme legislative power is possessed jointly by the Crown and the two Houses of Parliament, but the supreme executive power is held in severalty by the Crown. When there is no Parliament, that is to say, in the interval between the dissolution of one Parliament and the election of another, the supreme legislative power is non-existent, but the supreme executive power is retained unimpaired by the Crown.

This is not all, however, for, until the passing of the Parliament Act, 1911, the British constitution recognised a supreme judicature, as well as a supreme legislature and executive. The House of Lords in its judicial capacity as a court of final appeal was sovereign. Its judgments were subject to no further appeal, and its acts were subject to no control. What it declared for law no other authority known to the constitution could dispute. Without its own consent its judicial powers could not be impaired or controlled, nor could their operation be annulled. The consent of this sovereign judicature was no less essential to legislation, than was the consent of the sovereign executive. The House of Lords, therefore, held in severalty the supreme judicial power, while it shared the supreme legislative power with the Crown and the House of Commons.

This argument confounds the limitation of power with the subordination of it. That sovereignty cannot within its own sphere be subject to any control is self-evident, for it follows from the very definition of this species of power. But that this sphere is necessarily universal is a totally different proposition, and one which cannot be supported. It does not follow that if a man is free from the constraint of any one stronger than himself, his physical power is therefore infinite.

The contrary view is based on that unduly narrow view of the nature of law which identifies it with the command of the sovereign issued to his subjects. In this view, law and legal obligation are co-extensive, and the legal limitation of supreme power appears to involve the subjection of the possessor of it to legal obligations in respect to the exercise of it. This, of course, conflicts with the very definition of sovereign power, and is clearly impossible. That sovereign power may be legally controlled within its own province is a self-contradictory proposition; that its province may have legally appointed bounds is a distinct and valid principle.

There is one application of the doctrine of illimitable sovereignty which is of sufficient importance and interest to deserve special notice. Among the chief functions of sovereign power is legislation. It follows from the theory in question, that in every political society there necessarily exists some single authority possessed of unlimited legislative power. This power is, indeed, alleged to be the infallible test of sovereignty. In seeking for that sovereign who, according to the doctrine of Hobbes, is to be found somewhere in every body politic, all that is necessary is to discover the person who possesses the power of making and repealing all laws without exception. He and he alone is the sovereign of the state, for he necessarily has power over all, and in all, and is subject to none.

At no very remote period it was considered to be the law of England, that a statute made by Parliament was void if contrary to reason and the law of God. The rule has now been abandoned by the courts, but it seems sufficiently obvious that its recognition involves no theoretical absurdity or impossibility, however inexpedient it may be. Yet it clearly involves the limitation of the power of the legislature by a rule of law. To take another example, the most striking illustration of the legislative omnipotence of the English Parliament is its admitted power of extending the term for which an existing House of Commons has been elected. Delegates appointed by the people for a fixed time have the legal power of extending the period of their own delegated authority. It is difficult to see any theoretical objection to a rule of the opposite import. Why should not the courts of law recognise and apply the principle that an existing Parliament is sovereign only during the limited time for which it was originally appointed, and is destitute of any power of extending that time? And in such a case would not the authority of the supreme legislature be limited by a rule of law?

In respect of its legislative omnipotence the English Parliament is almost unique in modern times. Most modern constitutions impose more or less stringent limitations upon the powers of the legislature In the United States of America neither Congress nor any State Legislature possesses unrestricted powers. They cannot alter the constitutions by which they have been established, and those constitutions expressly withdraw certain matters from their jurisdiction. Where, then, is the sovereignty vested? The reply made is that these constitutions contain provisions for their alteration by some other authority than the ordinary legislature, and that the missing legislative power is therefore to be found in that body to which the right of altering the constitution has been thus entrusted. In the United States the sovereignty, it is said, is vested not in Congress, but in a majority of three-fourths of the State Legislatures; this composite body has absolute power to alter the constitution, and is therefore unbound by any of the provisions of it, and is so possessed of unlimited legislative power.

Legal maxims are the proverbs of the law. They have the same merits and defects as other proverbs, being brief and pithy statements of partial truths. They express general principles without the necessary qualifications and exceptions, and they are therefore much too absolute to be taken as trustworthy guides to the law. Yet they are not without their uses. False and misleading when literally read, these established formulae provide useful means for the expression of leading doctrines of the law in a form which is at the same time brief and intelligible. They constitute a species of legal shorthand, useful to the lawyer, but dangerous to any one else; for they can be read only in the light of expert knowledge of that law of which they are the elliptical expression.

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