Chapter XXX: Appendix: V (1)

THE LITERATURE OF JURISPRUDENCE.

The following list is intended to serve partly by way of explanation of the references contained in the text and notes, and partly as a guide to the literature of the subject. Nothing, however, is here attempted save a selection of the more important works which bear with more or less directness upon the abstract theory of the law. Many of them are primarily ethical or political, rather than legal, and of those which are strictly legal, many are devoted to some special branch of law rather than to general theory. But all of them are relevant, in whole or in part, to the subject-matter of this work. The editions mentioned are those to which the references in the text and notes relate, and are not invariably the latest.

_Ahrens._—Cours de Droit Naturel, ou de Philosophie du Droit. 8th ed.
1892, Paris. (A good example of the modern Continental literature of
Natural Law.)

_Amos._—The Science of Jurisprudence, 1872. The Science of Law, 6th
ed. 1885.

_Anson, Sir W. R._—Principles of the English Law of Contract. 13th ed.
1912.

_Aquinas, St. Thomas._—Tractatus de Legibus and Tractatus de Justitia
et Jure, included in his Summa Theologiae.

(The scholastic philosophy of the Middle Ages included within its
scope the more abstract portions of juridical science, and the
legal and ethical doctrines of the schoolmen found their most
authoritative expression in the above-mentioned work of Aquinas in
the thirteenth century.)

_Arndts._—Juristische Encyklopädie und Methodologie. 9th ed.
Stuttgart, 1895. Lehrbuch der Pandekten. 14th ed. Stuttgart, 1889.

_Austin._—Lectures on Jurisprudence or the Philosophy of Positive Law.
5th ed. 1885.

Abridgement by Campbell for the use of Students. 9th ed. 1895.

The Austinian Theory of Law, by Professor W. J. Brown. An edition of
the more essential portions of Austin’s work, with notes and
excursus by the editor. 1906.

(Almost unknown, and entirely unhonoured on the Continent, Austin’s
work has had immense influence in England, and he is the founder
of a distinct school of juridical speculation.)

_Baudry-Lacantinerie._—Traité Théorique et Pratique de Droit Civil.
Paris, 1895—.

(A series of commentaries on French law by various writers.)

_Beccaria._—Dei Delitti e delle Pene. (Crimes and Punishments.) 1764.
Engl. transl. by Farrer, 1880.

_Bentham._—The Principles of Morals and Legislation. Clarendon Press
ed. 1879.

Theory of Legislation. Translated from the French of Dumont, by
Hildreth. 8th ed. 1894.

A Fragment on Government. Ed. by Montague, 1891. Oxford.

Collected Works. Edited by Bowring, 11 vols., 1843.

_Bierling._—Juristische Prinzipienlehre. 1894.

_Birkmeyer._—Encyklopädie der Rechtswissenschaft. 1901, Berlin.

_Blackstone, Sir William._—Commentaries on the Laws of England. 4
vols. 1765–1769.

_Bluntschli._—Allgemeine Staatslehre. (Engl. transl. The Theory of the
State, 2nd ed. 1895, Oxford.)

_Bodin._—De la République, 1576. Latin version, De Republica, 1586.

(A work of great influence and celebrity in its day. Bodin may be
regarded as one of the founders of the political science of modern
times.)

_Bracton_.—De Legibus Angliae.

(One of the earliest of English legal treatises, dating from the
reign of Henry III. Printed in 1569. Edited, with translation, by
Twiss, in the Rolls Series, but in a manner very discreditable to
English scholarship.)

_Brown._—The Austinian Theory of Law. 1906.

_Bruns._—Das Recht des Besitzes in Mittelalter und in der Gegenwart.
Tübingen, 1848.

_Bryce._—Studies in History and Jurisprudence. 1901, Oxford, 2 vols.

_Burlamaqui._—Principes du Droit de la Nature et des Gens. 1766.
Edited by Dupin, 1820, Paris, 5 vols.

_C._—The Code of the Emperor Justinian.

(A collection of the statute law of the Roman Empire, made by order
of Justinian, A.D. 534, and forming one portion of the Corpus
Juris Civilis.)

_Clark, E. C._—Practical Jurisprudence; a Comment on Austin.
Cambridge, 1883.

Analysis of Criminal Liability. Cambridge, 1880.

_Co. Litt._—Coke’s Commentary upon Littleton.

_Cosack._—Lehrbuch des deutschen bürgerlichen Rechts. 2 vols. Jena,
1901.

_D._—The Digest or Pandects of the Emperor Justinian.

(A compilation of extracts from the writings of the chief Roman
lawyers, made by order of Justinian, A.D. 533, as part of the
Corpus Juris Civilis.)

_Dernburg._—Pandekten. 3 vols. 6th ed. 1900, Berlin.

(This is one of the best examples of the German works on
Pandektenrecht, that is to say, the modern Roman law which was in
force as the common law of Germany until superseded by the recent
Codes.)

Das bürgerliche Recht des Deutschen Reichs. 3 vols. 1901.

_Franck._—Réformateurs et Publicistes de l’Europe. 3 vols. 1864, 1881,
1893, Paris.

Philosophie du Droit Civil. Paris, 1886.

Philosophie du Droit Pénal. Paris, 4th ed. 1893.

_French Codes._—Codes et Lois Usuelles; edited by Roger and Sorel.
Paris.

_Fustel de Coulanges._—La Cité Antique. Paris, 15th ed. 1895.

_Gaius._—Institutiones.

(An institutional compendium of Roman law by a jurist of the second
century of the Christian era. It is of great value as the chief
source of our knowledge of the earlier law of Rome.)

_Gareis._—Rechts-Encyklopädie. 2nd ed. 1900, Giessen. English
translation by Kocourek, Introduction to the Science of Law. Boston,
1911.

_German Civil Code._—Das bürgerliche Gesetzbuch.

(A codification of the civil law of the German Empire, which came
into force in 1900. French trans. by Grasserie, Code Civil
Allemand, Paris, 1901.)

_German Criminal Code._—Das Strafgesetzbuch für das Deutsche Reich,
1872. Annotated edition by Oppenhoff, 1896, Berlin.

_Gierke._—Deutsches Privatrecht. 2 vols. 1895–1905. Leipzig.

(The First Book or General Part of this work contains an admirable
exposition of the first principles of legal theory.)

_Girard._—Manuel Elémentaire de Droit Romain. 2nd ed. 1898, Paris.

_Goadby._—Introduction to the Study of the Law. 1910.

_Graham._—English Political Philosophy. 1899.

_Gray, J. C._—The Nature and Sources of the Law. New York, 1909.

_Green, T. H._—Lectures on the Principles of Political Obligation.
(Collected Works, vol. ii. 3rd ed. 1893.)

_Grotius._—De Jure Belli ac Pacis, 1625. Edited, with English
translation, by Whewell. Cambridge, 3 vols.

(Grotius confines his attention for the most part to international
law, of which he was one of the founders. This work, however, is
not without importance with respect to the theory of civil law
also.)

_Hearn._—The Theory of Legal Duties and Rights. 1883, Melbourne.

_Heron._—Introduction to the History of Jurisprudence, 1860.

_Hobbes._—Leviathan; or the Matter, Form, and Power of a Commonwealth,
Ecclesiastical and Civil. 1651. (English Works, edited by
Molesworth, vol. iii. Published separately, Cambridge University
Press, 1904.)

De Cive. 1642. (Latin Works, edited by Molesworth. Vol. ii.)

_Holdsworth._—History of English Law. 3 vols. 1903–1909.

_Holland._—Elements of Jurisprudence. 11th ed. 1910, Oxford.

_Holmes, O. W._—The Common Law. 1887.

_Holtzendorff._—Encyklopädie der Rechtswissenschaft. 6th ed. 1904,
Berlin.

_Hooker._—Ecclesiastical Polity. Book I. 1594. (Works in 3 vols. 1888,
Oxford.)

(Remarkable as the first adequate presentation in the English
language of the abstract theory of law. Hooker’s doctrine is
essentially that of the scholastic philosophy.)

_Hunter._—A Systematic and Historical Exposition of Roman Law; with an
historical Introduction by A. F. Murison. 4th ed. 1904.

_Ihering._—Geist des römischen Rechts. 3 vols. 5th ed. 1891, Leipzig.

French translation by Meulenaere, L’Esprit du Droit Romain, 4 vols.
1877.

Der Zweck im Recht. 2 vols. 3rd ed. 1893, Leipzig. French
translation by Meulenaere, L’Evolution du Droit. 1901.

Grund des Besitzesschutzes. 2nd ed. 1869, Jena.

Der Besitzwille. 1889, Jena.

_Inst. Just._—The Institutes of the Emperor Justinian.

(A text-book of Roman law for the use of students, compiled by order
of Justinian, A.D. 533, and forming part of the Corpus Juris
Civilis.)

_Italian Civil Code._—French trans. by Prudhomme. Paris, 1896.

_Italian Penal Code._—French trans. by Turrel. Paris, 1890.

_Janet._—Histoire de la Science Politique. 2 vols. 3rd ed. 1887,
Paris.

_Jellinek._—Allgemeine Staatslehre. 1900. Berlin. (The first volume of
Das Recht des modernen Staates.)

_Kant._—Rechtslehre. 1796. English translation by Hastie, Kant’s
Philosophy of Law, 1887.

(With Kant, jurisprudence fell for the first time into the hands of
the metaphysicians, and this union of law and metaphysics has
since characterised a considerable portion of German juridical
literature.)

_Kenny._—Outlines of Criminal Law, 4th ed. 1909.

_Korkunov._—The General Theory of Law. Translated from the Russian by
W. G. Hastings. Boston, 1909.

_L.Q.R._—Law Quarterly Review. London, 1885–.

_L.R._—The Law Reports, from 1865 onwards.

Q.B. or K.B.—Reports of cases decided in the Court of Queen’s Bench
or the Queen’s (or King’s) Bench Division of the High Court of
Justice. Thus L.R. 10 Q.B. 27, is the 10th volume of the Queen’s
Bench Law Reports; and (1900) 1 Q.B. 27, is the first volume of
the Queen’s Bench Reports for the year 1900.

Ch. D.—Reports of cases in the Chancery Division of the High Court
of Justice.

A.C.—Appeal Cases, _i.e._, reports of cases in the House of Lords
and Privy Council.

C.P. or C.P.D.—Reports of cases in the Court of Common Pleas, or the
Common Pleas Division of the High Court.

Ex. or Ex.D.—Reports of cases in the Court of Exchequer, or the
Exchequer Division of the High Court.

_Lea._—Superstition and Force. 4th ed. Philadelphia, 1892.

_Lee._—Historical Jurisprudence; an Introduction to the Systematic
Study of the Development of Law. 1900.

_Lightwood._—A Treatise on Possession of Land. 1894.

The Nature of Positive Law. 1883.

_Lindley, Lord._—An Introduction to the Study of Jurisprudence. 1855.

(A translation, with copious notes, of the General Part of Thibaut’s
Pandektenrecht.)

_Locke._—Two Treatises on Civil Government. 1690.

_Lorimer._—The Institutes of Law; a Treatise of the Principles of
Jurisprudence as determined by Nature. 2nd ed. 1880.

_Maine, Sir Henry._—Ancient Law. 1861; edited with introduction and
notes by Sir F. Pollock. 1906.

The Early History of Institutions. 1875. Early
Law and Custom. 1883.

(Sir Henry Maine is a leading representative in England of the
scientific treatment of legal conceptions in respect of their
origin and historical development.)

_Markby, Sir W._—Elements of Law. 6th ed. 1905, Oxford.

_Merkel._—Lehrbuch des Deutschen Strafrechts. 1889, Stuttgart.

_Merriam._—History of the Theory of Sovereignty since Rousseau. New
York, 1899.

_Miller._—The Data of Jurisprudence. Edinburgh. 1903.

_Montesquieu._—L’Esprit des Lois. 1748.

_Moyle, J. B._—Imperatoris Justiniani Institutionum Libri Quattuor;
with Introductions, Commentary, and Excursus. Oxford, 5th ed. 1913.

_Muirhead._—Historical Introduction to the Private Law of Rome. 2nd
ed. 1899.

_Pollock, Sir F._—First Book of Jurisprudence. 2nd ed. 1904.

Essays in Jurisprudence and Ethics. 1882.
Introduction to the History of the Science of Politics. 1897.

_Pollock and Wright._—Possession in the Common Law. 1888.

_Pollock and Maitland._—The History of English Law before the Time of
Edward I. 2 vols. Cambridge, 1895. 2nd ed. 1898.

_Pothier._—Works, 10 vols. ed. by Bugnet. 3rd ed. 1890, Paris.

(Pothier, _ob._ 1772, is one of the most celebrated of French
lawyers. His admirably lucid and methodical expositions of
Roman-French law are the source of great part of the Codes
prepared in France at the beginning of the 19th century and still
in force there.)

_Puchta._—Cursus der Institutionen. 10th ed. 1893, 2 vols. Leipzig.

(A treatise of Roman law. Puchta, _ob._ 1846, was one of the leading
representatives of the Historical School of German Jurisprudence,
and the introductory portion of this work is of importance as
setting forth the abstract theory of law as understood by that
school. This portion is translated by Hastie, Outlines of the
Science of Jurisprudence, 1887, Edinburgh.)

_Pufendorf._—De Jure Naturae et Gentium. 1672. English trans. by
Kennet, 1729:—The Law of Nature and Nations.

(This is one of the earliest and most celebrated examples of a form
of literature which was once of considerable repute and
importance, but has now all but disappeared, namely, Natural
Jurisprudence, or the Theory of Natural Law and Justice.)

_Pulszky._—The Theory of Law and Civil Society. 1888, London.

_Rattigan, Sir W. H._—The Science of Jurisprudence. 3rd ed. 1909.

_Regelsberger._—Pandekten. Vol. i. 1903.

_Rehm._—Allgemeine Staatslehre. 1899, Freiburg.

_Ritchie._—Natural Rights; a Criticism of some Political and Ethical
Conceptions. 1895.

_Rousseau._—Du Contrat Social; ou Principes du Droit Politique. 1762.

_Saleilles._—De la Déclaration de Volonté. 1901.

De la Possession des Meubles. 1907. De la Personnalité
Juridique. 1910.

_Savigny._—System des heutigen römischen Rechts. 1840–1849. French
translation by Guenoux, Traité de Droit Romain. 8 vols.

Das Obligationenrecht. 1851–1853. French translation by Gérardin and
Jozon, Le Droit des Obligations. 2 vols. 2nd ed. 1873.

Das Recht des Besitzes. 1803. English translation by Perry, Von
Savigny’s Treatise on Possession. 1848.

_Schmidt._—Allgemeine Staatslehre. 1901, Leipzig.

_Select Essays in Anglo-American Legal History._—By various authors.
Edited by a Committee of the Association of American Law Schools. 3
vols. 1907–1909.

_Sidgwick, H._—Elements of Politics. 2nd ed. 1897.

_Spencer, Herbert._—Principles of Sociology. Vol. ii. Part V.
Political Institutions. 3rd ed. 1893.

Principles of Ethics. Vol. ii. Part IV.
Justice. 1893.

_Spinoza._—Tractatus Politicus. 1677, posthumous.

(Works edited by Van Vloten and Land. 3 vols. English translation by
Elwes. 2nd ed. 1889.)

_Stephen, Sir J. F._—History of the Criminal Law of England. 3 vols.
1883.

General View of the Criminal Law. 2nd ed.
1890.

_Street._—Foundations of Legal Liability. 3 vols. 1906, New York.

_Suarez._—De Legibus et de Deo Legislatore. 1613.

(Suarez was a Spanish Jesuit of the sixteenth century. In this work
he sums up, with the greatest completeness and elaboration, the
scholastic doctrine of the law.)

_Tarde._—Les Transformations du Droit. 2nd ed. 1894. Paris.

La Philosophie Pénale. 5th ed. 1900. Paris.

_Terry._—Leading Principles of Anglo-American Law. 1884, Philadelphia.

(A treatise of Theoretical Jurisprudence.)

_Thomasius, C._—Institutionum Jurisprudentiae Divinae Libri Tres.
1687.

Fundamenta Juris Naturae et Gentium. 1705.

(Thomasius is chiefly noteworthy as the originator of that
distinction between natural jurisprudence, or the science of
justice strictly so called, and ethics or the science of virtue,
which was subsequently adopted by Kant, and through his influence
became a characteristic feature of Continental doctrine.)

_Vangerow._—Lehrbuch der Pandekten. 3 vols. 7th ed. 1876, Leipzig.

_Windscheid._—Lehrbuch des Pandektenrechts. 3 vols. 8th ed. 1900.
Frankfurt.

(Windscheid was one of the most distinguished of the German
exponents of modern Roman law, and this work is an admirable
example of the scientific study of a legal system.)

_Woolsey._—Political Science or the State. 2 vols. 1877.

_Y.B._—The Year Books, viz., the early Law Reports from the reign of
Edward I. to that of Henry VIII. The Year Books of Edward I. and
some others are published with a translation in the Rolls Series;
others by the Selden Society. The rest are to be found in a black
letter folio edition of 1678.

INDEX

Abrath _v._ North Eastern Ry. Co., 289.

Accessory rights, distinguished from principal, 216;
examples of, 216;
rights both accessory and dominant, 217.

Accident, distinguished from mistake, 371;
culpable and inevitable, 372;
defence of, 372;
absolute liability for, 372.

Actio furti, 86, _n._

Actio in rem and in personam, 207.

Actio personalis moritur cum persona, 376, 377.

Acts, their generic nature, 323;
positive and negative, 323;
internal and external, 323;
intentional and unintentional, 324;
their circumstances and consequences, 325;
place of, 330;
time of, 330

Acts in the law, 301–304;
unilateral and bilateral, 302;
two classes of unilateral, 303.
_See_ Agreements.

Acts of the law, 302.

Acts of Parliament, public and private, 30;
said formerly to be void if unreasonable, 146.
_See_ Legislation, Statute law.

Actus non facit reum, &c., 322, 474.
_See_ Mens rea.

Administration of justice, necessity of, 11, 65–67;
logically prior to the law, 12;
possible without law, 13;
origin of, 67–70;
civil and criminal, 70–75;
specific and sanctional enforcement of rights, 85;
penal and remedial proceedings, 88;
secondary functions of courts of law, 89–91;
an essential function of the state, 93;
compared with war or the extrajudicial use of force, 94–98;
element of force usually latent in, 97;
not the substitution of arbitration for force, 97.

Aequitas sequitur legem, 34.

Agere non valenti non currit praescriptio, 412 _n._

Agreements, a source of law, 31, 54, 124;
constitutive and abrogative power of, 124, 307;
nature of, 303;
different uses of the term, 303;
unilateral and bilateral, 304 _n._;
importance of, as a vestitive fact, 305;
grounds of operation of, 305;
compared with legislation, 306;
classes of, 307–309;
void and voidable, 309;
unenforceable, 310 _n._;
formal and informal, 310;
illegal, 311;
effect of error on, 312;
effect of coercion on, 313;
want of consideration for, 313–317;
a title to property, 412–416.

Ahrens, his Cours de Droit Naturel, 2;
on proprietary rights, 208 _n._;
his definition of property, 387.

Alfred, laws of King, on private war, 69, _n._;
on accidental homicide, 373.

Alienative facts, 300.

Aliens, members of the state if resident in its territory, 100;
disabilities of, 101.

Allegiance, nature of, 105;
permanent and temporary, 105.
_See_ Citizenship.

Allen _v._ Flood, 192, 341, 342.

Analogy, a source of judicial principles, 175.

Ancona _v._ Rogers, 253.

Animals, possess no legal personality, 273;
have no legal rights, 274;
effect of trusts for, 274;
punishment of, in early law, 273, 373;
liability of owner of, 273, 372.

Animus possidendi, essential to possession, 242;
its nature, 242;
need not be rightful, 242;
must be exclusive, 242;
need not be a claim of ownership, 243;
need not be on one’s own behalf, 243;
need not be specific, 243.

Anson, Sir W., his definition of contract, 303 _n._

Apices juris, 474.

Appeals of felony, abolition of, 69, _n._

Aquinas, his distinction between jus naturale and jus positivum, 3
_n._;
on equity, 36;
on the lex aeterna, 42;
on agreement as a title of right, 306;
his Tractatus de Legibus, 487.

Arbitration, international, dependent on the development of
international law, 22.

Aristotle, on being wiser than the laws, 22, 478;
on the arbitrium judicis, 26;
on law and equity, 36;
on the law of nature, 45.

Armory _v._ Delamirie, 249, 270, 408.

Arndts, on Juridical Encyklopaedia, 7;
on customary law, 155.

Asher _v._ Whitlock, 270, 408.

Ashford _v._ Thornton, 69.

Assignment. _See_ Transfer.

Assumpsit, 435.

Attempts, criminal, their nature, 343;
distinguished from preparation, 343;
by impossible means, 345.

Att.-Gen. _v._ Dean of Windsor, 165.

Att.-Gen. _v._ Dimond, 394.

Attornment, 258.

Austin, on general jurisprudence, 6;
his definition of law, 47;
his use of the term legislation, 127;
his theory of customary law, 156;
on illimitable sovereignty, 469;
his influence on English thought, 488.

Autonomous law, the product of autonomous legislation, 130;
its relation to conventional law, 131.

Azo, on equity, 37.

Backhouse _v._ Bonomi, 331.

Bacon, Sir F., on being wiser than the laws, 23, _n._;
on the arbitrium judicis, 26.

Barnet _v._ Brandao, 29.

Battle, trial by, its origin, 69;
its duration in English law, 69, _n._;
a mode of authenticating testimony, 451.

Baudry-Lacantinerie, on proprietary rights, 208, _n._;
on ownership, 224, _n._;
on corporeal and incorporeal possession, 264, _n._;
on movable and immovable property, 392, _n._

Beamish _v._ Beamish, 165.

Beardman _v._ Wilson, 399.

Beati possidentes, 265.

Bechuanaland Exploration Co. _v._ London Trading Bank, 150.

Beneficial ownership. _See_ Trust.

Bentham, his objections to case-law, 134, _n._;
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.