Chapter XXXI: Appendix: V (2)

Spencer, H., on the essential functions of the state, 94, _n._;
on the gradual differentiation of these functions, 98, _n._;
on natural rights, 182.

Spinoza, on the rule of reason and of force, 11.

Starey _v._ Graham, 192.

State, its will the sole source of law, 49, 117, 155;
its nature, 93–98;
defined, 99;
its essential functions, war and the administration of justice,
93–98;
generic identity of these two functions, 94;
their specific difference, 95;
secondary differences, 96–98;
secondary functions of the state, 98;
its territory, 99;
non-territorial states, 99;
membership of the state, 99;
citizens and aliens, 100;
personal and territorial idea of the state, 102;
its constitution, 105–110;
its government, 110;
independent and dependent states, 111–114;
different meanings of the term state, 113, _n._;
fully sovereign and semi-sovereign states, 113;
unitary and composite states, 114;
imperial and federal states, 115;
rights against the state, 199;
legal personality of the state, 294–298.

Status distinguished from estate, 208–212;
different uses of the term, 210;
subject-matter of the law of persons, 211;
the law of, 484.

Statute law, the typical form of law in modern times, 132;
compared with case-law, their relative merits and defects, 133–136;
interpretation of, 137–142.
_See_ Interpretation.

Statutes referred to: Interpretation Act, 30;
Judicature Act, 34, 217, 231;
Statute of Marlborough, 70;
Westminster I., 149;
Prescription Act, 158;
Magna Carta, 96;
Sale of Goods Act, 258;
Lord Campbell’s Act, 277;
Statute of Uses, 413;
Factors Act, 416;
Statute of Frauds, 447;
Parliament Act, 469.

Stephen, Sir J. F., his definition of criminal attempts, 344.

Suarez, his distinction between lex positiva and lex naturalis, 3,
_n._;
on opinio necessitatis in customary law, 147, _n._;
on time immemorial, 152;
his treatise De Legibus, 493.

Subject of a right, different uses of the term, 185;
no rights without subjects, 186.

Subjects. _See_ Citizenship.

Substantive law, distinguished from procedure, 437.

Subtilty of law and lawyers, 26.

Succession, 416.
_See_ Inheritance.

Summum jus opposed to aequitas, 35.

Summum jus summa injuria, 24, 36, 479.

Suretyship, 402, _n._

Suzerainty, 113.

Sydney _v._ The Commonwealth, 298.

Taylor, Jeremy, on the uncertainty of natural justice, 21;
on men and wolves, 65.

Taylor, _Ex parte_, 340.

Territory, of a state, 99.

Terry, analysis of rights, 194, _n._

Text-books, authority of, 164, _n._

Tharsis Sulphur Co. _v._ Loftus, 355.

Themis, meanings and derivation of the term, 462.

Things, different senses of the term, 225;
material and immaterial, 225, 387;
corporeal and incorporeal, 225, 387;
law of, 211;
in action and in possession, 423.

Things, law of, 211.

Thomasius, on the law of nature, 46;
his distinction between jurisprudence and ethics, 494.

Thompson _v._ London County Council, 427.

Tillett _v._ Ward, 357.

Time immemorial, a requisite of particular customs, 148–152;
rule derived from canon, through civil law, 149, 150;
original meaning of rule, 149;
how affected by Statute of Westminster, 149;
reason for requirement of immemorial antiquity in custom, 150.

Titles, their nature, 185, 299;
original and derivative, 299, 301;
origin of term, 300, _n._

Torts, their nature, 428–432;
waiver of, 434.

Trade-marks, a form of immaterial property, 397.

Traditio brevi manu, 257.

Transfer of rights, 299, 300, 301, 414.

Trial by battle. _See_ Battle.

Trusts, a kind of encumbrance, 216;
their nature, 227–231;
their purposes, 228, 291;
distinguished from contracts, 229;
distinguished from agency, 230;
how created and destroyed, 230;
distinguished from the relation between legal and equitable
ownership, 232;
not recognised at common law, 232;
for animals, 274;
for maintenance of tombs, 276.

Turquand, _Ex parte_, 29.

Ubi eadem ratio, ibi idem jus, 479.

Ubi jus ibi remedium, 198, 480.

Ultimate rules of law, without legal sources, 125.

Unitary states, 114.

United States _v._ Davis, 330.

Universitas, use of the term in Roman law, 283, _n._

Unus homo plures personas sustinet, 278.

Vaughan, _In re_, 276.

Vera, Cruz, The, 165.

Vested ownership, 232–235.

Vestitive facts, 299–301.

Vigilantibus non dormientibus, jura subveniunt, 411, 480.

Volenti non fit injuria, 480.

Waiver of torts, 434.

Walker _v._ Great Northern Ry. Co., 277.

Wallis, _In re_, 167.

Wandsworth Board of Works _v._ United Telegraph Co., 391.

War, an essential function of the state, 93–98;
compared with the administration of justice, 93–98;
not governed by law, 96;
private, 70, _n._

Ward _v._ National Bank, 426.

West Rand Co. _v._ Rex, 57.

Williams _v._ Howarth, 296.

Williams _v._ Williams, 275, 276.

Wilson _v._ Brett, 359.

Windscheid, on the relation between enacted and customary law, 148;
his theory of customary law, 155;
on the nature of rights, 182;
on proprietary rights, 208, _n._;
on ownership, 224, _n._;
on the possession of rights, 266, _n._;
his Pandektenrecht, 494.

Winter _v._ Winter, 257.

Witnesses, exclusion of, in early law, 27, 448

Wood _v._ Leadbitter, 193.

Woolsey, on retribution as the essential end of punishment, 82, _n._

Written and unwritten law, 128.

Wrongs, civil and criminal, 71;
private and public, 72;
these distinctions not equivalent, 73;
historical relation between public wrongs and crimes, 74;
definition of, 179;
moral and legal, 179.
_See_ Liability.

Year books, 494.

-----

Footnote 1:

See on this subject Reid’s Philosophical Works, Essay on the Active
Powers, V. 3. (Of systems of natural jurisprudence.) Also Dugald
Stewart’s Works, VII. 256 (Hamilton’s ed.).

Footnote 2:

The term civil law, though once in common use to indicate the law of
the land, has been partly superseded in recent times by the improper
substitute, _positive_ law. _Jus positivum_ was a title invented by
medieval jurists to denote law made or established (_positum_) by
human authority, as opposed to that _jus naturale_ which was uncreated
and immutable. It is from this contrast that the term derives all its
point and significance. It is not permissible, therefore, to confine
positive law to the law of the land. All is positive which is not
natural. International and canon law, for example, are kinds of _jus
positivum_ no less than the civil law itself. See Aquinas, Summa, 2.
2. q. 57 (De Jure) art. 2. Utrum jus convenienter dividatur in jus
naturale et jus positivum. See also Suarez, De Legibus, I. 3. 13:
(Lex) positiva dicta est, quasi addita naturali legi.

The term civil law possesses several other meanings, which are not
likely, however, to create any confusion. It often means the law of
Rome (_corpus juris civilis_) as opposed more especially to the canon
law (_corpus juris canonici_), these being the two great systems by
which, in the Middle Ages, State and Church were respectively
governed. At other times it is used to signify not the whole law of
the land, but only the residue of it after deducting some particular
portion having a special title of its own. Thus civil is opposed to
criminal law, to ecclesiastical law, to military law, and so on.

The term civil law is derived from the _jus civile_ of the Romans.
Quod quisque populus ipse sibi jus constituit, id ipsius proprium
civitatis est vocaturque jus civile, quasi jus proprium ipsius
civitatis. Just. Inst. I. 2. 1.

Footnote 3:

It will be understood that this list is not intended as an exhaustive
statement of the proper contents of a work of abstract jurisprudence,
but merely as illustrative of the kinds of matters with which this
branch of legal learning justly concerns itself.

Footnote 4:

Austin, p. 1077.

Footnote 5:

Arndts, Juristische Encyklopädie und Methodologie, p. 5. 9th ed. 1895.
See also Puchta’s Encyklopädie, being the introductory portion of his
Cursus der Institutionen, translated by Hastie (Outlines of
Jurisprudence, 1887). The term general jurisprudence (allgemeine
Rechtslehre) is occasionally applied to this form of literature. See
Holtzendorff’s Encyklopädie der Rechtswissenschaft, 5th ed. 1890.
(Elemente der allgemeinen Rechtslehre, by Merkel.)

Footnote 6:

_Jurisprudentia universalis_ or _generalis_ was originally merely a
synonym for _jurisprudentia naturalis_.

Footnote 7:

The term jurisprudence is used by French lawyers as the equivalent of
that which English lawyers call case-law—the development of the law by
judicial decisions. “Jurisprudence—la manière dont un tribunal juge
habituellement telle ou telle question” (Littré). Jurisprudence in
this sense is contrasted with doctrine, _i.e._, extrajudicial legal
literature.

Footnote 8:

On the distinction between law in the concrete and law in the abstract
senses, see Pollock’s Jurisprudence, pp. 15–19, and Bentham’s
Principles, p. 324, n. (Works I. 148 n.)

Footnote 9:

Tractatus Politicus, I. 5.

Footnote 10:

The term sanction is derived from Roman law. The _sanctio_ was
originally that part of a statute which established a penalty, or made
other provision in respect of the disregard of its injunctions. D. 48.
19. 41. By an easy transition it has come to mean the penalty itself.

Footnote 11:

It is to be noted, therefore, that the distinction between law and
fact depends not on the person by whom, but on the manner in which,
the matter is determined. Yet, although this is so, an illogical and
careless usage of speech sometimes classes as questions of law all
those which are for the decision of judges, irrespective of the
existence or non-existence of legal principles for their
determination.

It is worth notice that questions of fact, left to the determination
of judges, tend to be transformed into questions of law, by the
operation of judicial precedent. In the hands of judges decisions of
fact beget principles of law, while the decisions of juries have no
such law-creating efficacy. This is a matter which we shall consider
at length in connection with the theory of precedent.

The distinction between law and fact, with special reference to trial
by jury, is very fully considered by Thayer in his Preliminary
Treatise on the Law of Evidence, pp. 183–262. See also Terry’s Leading
Principles of Anglo-American Law, pp. 53–62.

Footnote 12:

Ductor Dubitantium (Works XII. 209. Heber’s ed.).

Footnote 13:

Treatise of Government, II. 11. 136.

Footnote 14:

Pro Cluentio, 53. 146.

Footnote 15:

Ecclesiastical Polity, I. 10. 7.

Footnote 16:

Rhetoric, I. 15. See also Bacon, De Augmentis, Lib. 8, Aph. 58:
Neminem oportere legibus esse sapientiorem.

Footnote 17:

Bacon, De Augmentis, Lib. 8, Aph. 46; Aristotle’s Rhetoric, I. 1.

Footnote 18:

_Edie_ v. _East India Co._, 2 Burr 1226; _Barnet_ v. _Brandao_, 6 M. &
G. at p. 665; _Moult_ v. _Halliday_, (1898) 1 Q. B. 125; _Ex parte
Turquand_, 14 Q. B. D. 636; _Edelstein_ v. _Schuler_, (1902) 2 K. B.
144.

Footnote 19:

By the Interpretation Act, 1889, s. 9, it is provided that “Every Act
passed after the year 1850 ... shall be a public Act, and shall be
judicially noticed as such, unless the contrary is expressly provided
by the Act.”

Footnote 20:

As to equity, see the next section.

Footnote 21:

The term _jus commune_ is found in the civil law also, but in senses
unconnected with that which here concerns us. It sometimes signifies
_jus naturale_ as opposed to _jus civile_ (D. 1. 1. 6. pr.), while at
other times it is contrasted with _jus singulare_, that is to say,
anomalous rules of law inconsistent with general legal principles, but
established _utilitatis causa_ to serve some special need or occasion.
D. 28. 6. 15. D. 1. 3. 16.

Footnote 22:

Y. B. 20 & 21 Ed. I. 329. See Pollock and Maitland’s History of
English Law, I. 155.

Footnote 23:

Y. B. 21 & 22 Ed. I. 213.

Footnote 24:

Y. B. 21 & 22 Ed. I. 458.

Footnote 25:

Y. B. 21 & 22 Ed. I. 55.

Footnote 26:

Bracton, 48 b.

Footnote 27:

Nic. Ethics V. 10. 3. The Greeks knew equity under the name epieikeia.

Footnote 28:

Rhet. I. 13. 19.

Footnote 29:

De Officiis I. 10. 33. See also Pro Caecina 23. 65: Ex aequo et bono,
non ex callido versutoque jure rem judicari oportere. De Oratore I.
56. 240: Multa pro aequitate contra jus dicere. De Officiis III. 16.
67.

Footnote 30:

In omnibus quidem, maxime tamen in jure, aequitas spectanda est. D.
50. 17. 90. Placuit in omnibus rebus praecipuam esse justitiae
aequitatisque, quam stricti juris rationem. C. 3. 1. 8. Haec aequitas
suggerit, etsi jure deficiamur. D. 39. 3. 2. 5. A constitution of
Constantine inserted in Justinian’s Code, however, prohibits all
inferior courts from substituting equity for strict law, and claims
for the emperor alone the right of thus departing from the rigour of
the jus scriptum: Inter aequitatem jusque interpositam
interpretationem nobis solis et oportet et licet inspicere. C. 1. 14.
1.

Footnote 31:

Summa Theologiae 2. 2. q. 120. art. 1. De epieikeia seu aequitate:—In
his ergo et similibus casibus malum est sequi legem positam; bonum
autem est praetermissis verbis legis, sequi id quod poscit justitiae
ratio et communis utilitas. Et ad hoc ordinatur epieikeia, quae apud
nos dicitur aequitas.

Footnote 32:

Pollock and Maitland, History of English Law, I. 168; Glanville VII.
1.: Aliquando tamen super hoc ultimo casu in curia domini Regis de
consilio curiao ita ex aequitate consideratum est. Bracton in
discussing the various meanings of jus says (f. 3. a.):—Quandoque pro
rigore juris, ut cum dividitur inter jus et aequitatem. Following Azo,
who follows Cicero (Topica IV. 23), he says:—Aequitas autem est rerum
convenientia, quae in paribus causis paria desiderat jura (f. 3. a).
See also f. 12. b. and f. 23. b. Aequitas tamen sibi locum vindicat in
hac parte. See also Y. B. 30 and 31 Ed. I. 121:—Et hoc plus de rigore
quam de aequitate.

Footnote 33:

Cited in Spence’s Equitable Jurisdiction of the Court of Chancery, I.
408, note (_a_).

Footnote 34:

D. 1. 1. 7. 1.

Footnote 35:

A special application by English lawyers of the term equity in its
original sense, as opposed to _strictum jus_ is to be seen in the
phrase, _the equity of a statute_. By this is meant the spirit of a
law as opposed to its letter. A matter is said to fall within the
equity of a statute, when it is covered by the reason of the statute,
although through defective draftsmanship it is not within its actual
terms. “Valeat aequitas,” says Cicero, “quae paribus in causis paria
jura desiderat.” Topica IV. 23.

Footnote 36:

Ecc. Pol. I. 3. 1.

Footnote 37:

Comm. I. 38.

Footnote 38:

Proverbs, 8. 29.

Footnote 39:

Job, 28. 26.

Footnote 40:

Summa, 1. 2. q. 91. art. 1.

Footnote 41:

Summa, 1. 2. q. 93. art. 1.

Footnote 42:

Natural law, _lex naturae_, is either (1) the law of _human_ nature,
_i.e._, the moral law, or (2) the law of nature in the sense of the
universe, _i.e._, physical law.

Footnote 43:

Ecc. Pol. I. 3. 2.

Footnote 44:

Ecc. Pol. I. 16. 8.

Footnote 45:

Rhet. I. 10.

Footnote 46:

Rhet. I. 13.

Footnote 47:

De Rep. III. 22. 23.

Footnote 48:

Works, III. 516 (Bohn’s Ecc. Library). On the Virtuous being also
Free.

Footnote 49:

Institutes, I. 1.

Footnote 50:

Institutes, I. 2. 11.

Footnote 51:

Ecc. Pol. I. 1. 10. 1.

Footnote 52:

Inst. Jurisp. Div. I. 2. 97.

Footnote 53:

See Nettleship, Contributions to Latin Lexicography, _sub. voc. jus
gentium_; Burle, Essai historique sur le développement de la notion du
droit naturel dans l’antiquité grecque; Phillipson, The International
Law and Custom of Ancient Greece and Rome, vol. I. ch. 3; Bryce,
Studies in History and Jurisprudence, I. pp. 112–171; Pollock, Journ.
Compar. Legisl. 1900, p. 418; 1901, p. 204; Clark, Practical
Jurisprudence, ch. 13.

Footnote 54:

De Officio Hominis et Civis, I. 2. 2.

Footnote 55:

I. 96.

Footnote 56:

“The moral law is the declaration of the will of God to mankind,
directing and binding every one to ... obedience thereunto ... in
performance of all those duties of holiness and righteousness which he
oweth to God and man: promising life upon the fulfilling, and
threatening death upon the breach of it.” Larger Catechism of the
Westminster Assembly of Divines, Quest. 93.

Footnote 57:

“The laws that men generally refer their actions to, to judge of their
rectitude or obliquity, seem to me to be these three: 1. The divine
law; 2. The civil law; 3. The law of opinion or reputation, if I may
so call it. By the relation they bear to the first of these, men judge
whether their actions are sins or duties; by the second, whether they
be criminal or innocent; and by the third, whether they be virtues or
vices.” Locke on the Human Understanding, Bk. II. ch. 28, § 7.

Footnote 58:

Eng. Wks. II. 185.

Footnote 59:

Principles of Morals and Legislation, p. 330 (Cl. Press ed.), Works,
I. 151.

Footnote 60:

I. 86.

Footnote 61:

Leviathan, ch. 46.

Footnote 62:

See, for example, Bryce’s Studies in History and Jurisprudence, vol.
ii. pp. 44 and 249: “Broadly speaking, there are in every community
two authorities which can make law: the State, _i.e._, the ruling and
directing power, whatever it may be, in which the government of the
community resides, and the People, that is, the whole body of the
community, regarded not as incorporated in the state, but as being
merely so many persons who have commercial and social relations with
one another.... Law cannot be always and everywhere the creation of
the state, because instances can be adduced where law existed in a
community before there was any state.” See also Pollock’s First Book
of Jurisprudence, p. 24: “That imperative character of law, which in
our modern experience is its constant attribute, is found to be
wanting in societies which it would be rash to call barbarous, and
false to call lawless.... Not only law, but law with a good deal of
formality, has existed before the State had any adequate means of
compelling its observance, and indeed before there was any regular
process of enforcement at all.” See also Maine’s Early History of
Institutions, Lect. 12, p. 364, and Lect. 13, p. 380; Walker’s Science
of International Law, pp. 11–21.

Footnote 63:

Commentaries, I. 44.

Footnote 64:

See, for example, Bentham’s Principles, p. 330 (Works I. 151);
Ihering, Zweck im Recht, I. p. 334 (3rd ed.).

Footnote 65:

That part of the civil law which has its source in agreement is itself
called conventional law. See _ante_, § 11, and _post_, § 46. This use
of the term must be distinguished from that which is here adopted.
Conventional law in the present sense is not a part of the civil law,
but a different _kind_ of law.

Footnote 66:

Notice that the term customary law is ambiguous in the same manner as
the term conventional law. It means either (1) the kind of law
described in the text, or (2) that part of the civil law which has its
source in custom. See § 56.

Footnote 67:

They are the expression of what Kant and other moralists have termed
hypothetical imperatives, as opposed to the categorical imperative of
the moral law.

Footnote 68:

L. Q. R. XII. p. 313. Adopted by Lord Alverstone, C. J., in _West Rand
Gold Mining Co._ v. _Rex_, (1905) 2 K. B. at p. 407.

Footnote 69:

_Reg._ v. _Keyn_, 2 Ex. D. p. 63.

Footnote 70:

_Reg._ v. _Keyn_, 2 Ex. D. p. 131.

Footnote 71:

_Reg._ v. _Keyn_, 2 Ex. D. p. 202.

Footnote 72:

De Corpore Politico, Eng. Wks. IV. 228.

Footnote 73:

Fundamenta Juris Nat. et Gent. I. 5. 67.

Footnote 74:

De Jure Nat. et Gent. II. 3. 23.

Footnote 75:

Principes du droit de la nature et des gens, vol. iv. p. 16, ed. 1820.

Footnote 76:

It is maintained by such writers as Hall, Rivier, Bluntschli, Nys,
Sidgwick, Westlake, Walker, Lawrence, and Oppenheim.

Footnote 77:

“The sole source of (international) law,” says Dr. Walker in his
History of International Law, vol. i. p. 21, “is actual observance.”
This law, he adds, p. 31, is “the embodiment of state practice.” It is
not easy to make a list of the genuine adherents of this opinion,
because so many writers introduce vagueness and uncertainty into their
exposition by speaking of international _consent_ as well as of
international practice as a source of law; and they fail to make it
clear whether such practice is operative _per se_, or only as evidence
of underlying consent. Moreover, the word consent is itself used
ambiguously and vaguely, and it is often difficult to know whether it
means international agreement, or international opinion, or the
harmonious practice of states.

Footnote 78:

I. p. 187.

Footnote 79:

See Westlake, International Law, p. 7; Chapters on the Prls. of Int.
Law, p. 2; Hall, Int. Law, p. 1; Sidgwick, Elements of Politics, Ch.
17. pp. 274 _sqq._ 1st ed.; Oppenheim, International Law, I. § 5.

Footnote 80:

Jeremy Taylor’s Works, XIII. 306, Heber’s ed.

Footnote 81:

Hobbes’ Leviathan, ch. 13: “Hereby it is manifest that during the time
men live without a common power to keep them all in awe, they are in
that condition which is called war; and such a war as is of every man
against every man.... Whatsoever therefore is consequent to a time of
war, where every man is enemy to every man, the same is consequent to
the time wherein men live without other security than what their own
strength and their own invention shall furnish them withal. In such
condition there is no place for industry ... no arts, no letters, no
society, and, which is worst of all, continual fear and danger of
violent death; and the life of man, solitary, poor, nasty, brutish,
and short.”

Footnote 82:

Treatise on Government, II. ch. 2.

Footnote 83:

In the year 1818 in a private prosecution for murder (an appeal of
murder) the accused demanded to be tried by battle, and the claim was
allowed by the Court of King’s Bench. The prosecutor was not prepared
to face the risks of this mode of litigation, and the accused was
discharged: _Ashford_ v. _Thornton_, 1 Barn. & Ald. 405. This case led
to the abolition of appeals of felony and of trial by battle by the
statute 59 Geo. III. c. 46.

Footnote 84:

Laws of King Alfred, 42. (Thorpe’s Ancient Laws and Institutes of
England, I. 91): “We also command that he who knows his foe to be at
home fight not before he demand justice of him. If he have such power
that he can beset his foe and besiege him, let him keep him within for
seven days, and attack him not, if he will remain within.... But if he
have not sufficient power to besiege him, let him ride to the
ealdorman, and beg aid of him. If he will not aid him, let him ride to
the king before he fights.”

Footnote 85:

As late as the closing years of Henry III. it was found necessary to
resort to special statutory enactments against a lawless recurrence to
the older system. The statute of Marlborough (52 Hen. III. c. 1)
recites that “At the time of a commotion late stirred up within this
realm, and also since, many great men and divers other have disdained
to accept justice from the King and his Court, like as they ought and
were wont in time of the King’s noble progenitors, and also in his
time, but took great revenges and distresses of their neighbours and
of others, until they had amends and fines at their own pleasure.” The
statute thereupon provides that “All persons, as well of high as of
low estate, shall receive justice in the King’s Court, and none from
henceforth shall take any such revenge or distress of his own
authority without award of our Court.” Long after the strength of the
law of England had succeeded in suppressing the practice, the right of
private war continued to be recognised and regulated by law in the
more feebly governed states of the Continent. An interesting account
of the matter is given by M. Nys in his Origines du Droit
International (1894), ch. 5. A reminiscence of the older doctrine and
practice may be seen to this day in England in that “peace of our Lord
the King” which every criminal is formally charged in his indictment
with having broken. The King of England made good at an early date his
monopoly of war, and all private war or violence was and is a
violation of his peace. As to the King’s peace, see Sir F. Pollock’s
Oxford Lectures, pp. 65–90; Select Essays in Anglo-American Legal
History, II. pp. 403–417. An interesting picture of the relations
between law and private force in the primitive community of Iceland is
to be found in the Saga of Burnt Njal (Dasent’s translation).

Footnote 86:

Commentaries, III. 2.

Footnote 87:

Austin’s theory of the distinction is somewhat different from
Blackstone’s, for he makes the distinction between public and private
wrongs, and therefore between criminal and civil wrongs, turn not on
the public or private nature of the right violated, but solely on the
public or private nature of the proceeding taken in respect of its
violation. “Where the wrong,” he says (p. 502), “is a civil injury,
the sanction is enforced at the discretion of the party whose right
has been violated. Where the wrong is a crime, the sanction is
enforced at the discretion of the sovereign.” This theory, however, is
exposed to the same objections as those which may be made to
Blackstone’s, and it need not be separately considered.

Footnote 88:

Numbers, xxxv. 31.

Footnote 89:

Diogenes Laertius tells us that when Solon was asked how men might
most effectually be restrained from committing injustice, he answered:
“If those who are not injured feel as much indignation as those who
are.”

Footnote 90:

Kant’s Rechtslehre (Hastie’s trans. p. 195). The like opinion is
expressed in Woolsey’s Political Science, I. p. 334: “The theory that
in punishing an evildoer the state renders to him his deserts, is the
only one that seems to have a solid foundation.... It is fit and right
that evil, physical or mental, suffering or shame, should be incurred
by the wrongdoer.” See also Fry, Studies by the Way (The Theory of
Punishment), pp. 43–71.

Footnote 91:

Deuteronomy, xix. 21.

Footnote 92:

Lilley, Right and Wrong, p. 128.

Footnote 93:

It is worth notice that an action may be purely penal even though the
penalty is payable to the person injured. It is enough in such a case
that the receipt of the penalty should not be reckoned as or towards
the compensation of the recipient. A good example of this is the Roman
_actio furti_ by which the owner of stolen goods could recover twice
their value from the thief by way of penalty, without prejudice
nevertheless to a further action for the recovery of the goods
themselves or their value.

Footnote 94:

I. Samuel, viii. 20.

Footnote 95:

English Works, II. 76: “Both swords, therefore, as well this of war as
that of justice, ... essentially do belong to the chief command.”

Footnote 96:

“The primary function of the state,” says Herbert Spencer (Principles
of Ethics II. 204. 208. 214) “or of that agency in which the powers of
the state are centralised, is the function of directing the combined
actions of the incorporated individuals in war. The first duty of the
ruling agency is national defence. What we may consider as measures to
maintain inter-tribal justice, are more imperative, and come earlier,
than measures to maintain justice among individuals.... Once
established, this secondary function of the state goes on developing;
and becomes a function next in importance to the function of
protecting against external enemies.... With the progress of
civilisation the administration of justice continues to extend and to
become more efficient.... Between these essential functions and all
other functions there is a division, which, though it cannot in all
cases be drawn with precision, is yet broadly marked.”

Footnote 97:

It is to be noted that the term war is commonly applied only to the
more extreme forms of extrajudicial force. Rioting would not be termed
civil war, although the difference between them is merely one of
degree. Nor would the punitive expedition of an armed cruiser against
a village in the South Sea Islands be dignified with the name of war,
though it differs only in degree from the blockade or bombardment of
the ports of a civilised state. To be perfectly accurate, therefore,
we should oppose the administration of justice not to war, but to the
extrajudicial use of force, counting war as the most important species
of the latter. War, however, so greatly overshadows in importance all
other forms of such force, that it is more convenient to take it as
representing the genus, and to disregard the others.

Footnote 98:

The prohibition of the use of extrajudicial force by the King against
his subjects is one of the main provisions of Magna Carta (sec. 39):
“No free man shall be taken or imprisoned or disseized or outlawed or
exiled or anyways destroyed, nor will we go against him, nor will we
send against him, save by the lawful judgment of his peers, or by the
law of the land.” It is submitted that, subject only to the _jus
necessitatis_, this is still the law of England, notwithstanding the
doctrine of military absolutism laid down by Lord Halsbury, in the
name of the Privy Council, in the case of _Ex parte Marais_, (1902) A.
C, 109.

Footnote 99:

On the original identity and gradual differentiation of the two
functions of the state, see Spencer’s Sociology, II. pp. 493 _sqq._
“The sword of justice,” he says at p. 494, “is a phrase sufficiently
indicating the truth that action against the public enemy and action
against the private enemy are in the last resort the same.”

Footnote 100:

Speaking generally, we may say that the terms subject and citizen are
synonymous. Subjects and citizens are alike those whose relation to
the state is personal and not merely territorial, permanent and not
merely temporary. This equivalence, however, is not absolute. For in
the first place, the term subject is commonly limited to monarchical
forms of government, while the term citizen is more specially
applicable in the case of republics. A British subject becomes by
naturalisation a citizen of the United States of America or of France.
In the second place, the term citizen brings into prominence the
rights and privileges of the status, rather than its correlative
obligations, while the reverse is the case with the term subject.
Finally it is to be noticed that the term subject is capable of a
different and wider application, in which it includes all members of
the body politic, whether they are citizens (_i.e._ subjects _stricto
sensu_) or resident aliens. All such persons are subjects, as being
subject to the power of the state and to its jurisdiction, and as
owing to it, at least temporarily, fidelity and obedience. Thus it has
been said that: “Every alien coming into a British colony becomes
temporarily a subject of the Crown—bound by, subject to, and entitled
to the benefit of the laws which affect all British subjects.” _Low_
v. _Routledge_, 1 Ch. App. at p. 47. See also _Jeffreys_ v. _Boosey_,
4 H. L. C. 815. So in Hale’s Pleas of the Crown, I. 542, it is said:
“Though the statute speaks of the king’s subjects, it extends to
aliens, ... for though they are not the king’s natural born subjects,
they are the king’s subjects when in England by a local allegiance.”

Footnote 101:

The possession of political rights is so characteristic and important
a feature of citizenship, that some may be tempted to regard it as the
essence of the matter. This, however, is not so. Women have no
political rights, yet a wife is as much a British subject as her
husband is. The distinction between subject and alien may exist under
a despotic government, neither class possessing any political rights
at all.

Footnote 102:

British nationality is acquired in the following ways:—

(a) By birth in British dominions.

(b) By descent from a father or a father’s father born in British
dominions.

(c) By the marriage of an alien woman to a British subject.

(d) By naturalisation.

(e) By continued residence in a territory after it has been conquered
or otherwise acquired by the British Crown.

Footnote 103:

On this transition from the national to the territorial idea of the
state, see Maine, Early History of Institutions, pp. 72–76. As to the
history of the conception and law of citizenship, see Salmond on
Citizenship and Allegiance, L. Q. R. xvii. 270, and xviii. 49.

Footnote 104:

Although states are established for the protection of their members,
it is not necessary that this protection should be absolutely limited
to members. In exceptional cases and to a limited extent the state
will use its powers for the defence and benefit of outsiders. War way
be waged on behalf of an oppressed nation, and the state may
intervene, in the interests of justice, in a quarrel not its own. Nor
will it necessarily refuse to administer justice in its courts even to
non-resident aliens. But such external protection is exceptional and
accidental, and does not pertain to the essence of government. A state
is established, not for the defence of all mankind, and not for the
maintenance of right throughout all the earth, but solely for the
security of its own members, and the administration of its own
territory. A state which absolutely refused its protection to all
outsiders would none the less adequately fulfil the essential purposes
of a political society.

Footnote 105:

The conception of sovereignty is made by many writers the central
point in their theory of the state. They lay down certain fundamental
propositions with respect to the nature of this power: namely, (1)
that its existence is essential in every state; (2) that it is
indivisible, and incapable of being shared between two or more
different authorities; and (3) that it is necessarily absolute and
unlimited in law, that is to say, its sphere of action is legally
indeterminate. A discussion of this difficult and important branch of
political theory will be found in an Appendix.

Footnote 106:

In international law, therefore, the word state commonly means an
independent state. This is a convenient place in which to call
attention to the variety of allied meanings possessed by the term
state. They are the following:

(a) A political society dependent or independent.

(b) An independent political society.

(c) The government of a political society.

(d) The territory of a political society.

Except where the context shows that it is not so, we shall use the
term in the first of these senses.

Footnote 107:

A composite state may be of a mixed nature, being partly imperial and
partly federal. A federal state may have dependencies, over which it
exercises an imperial government—the foreign conquests, for example,
of the United States of America. So an imperial state may have
dependencies, which are themselves federal states. The Commonwealth of
Australia is a federal union which is a dependency under imperial
government.

Footnote 108:

D. 50. 17. 207.

Footnote 109:

In addition to the formal, historical, and legal sources of the law,
it is necessary to note and distinguish what may be termed its
literary sources, though this is a Continental, rather than an English
use of the term source. The literary sources are the sources of our
knowledge of the law, or rather the original and authoritative sources
of such knowledge, as opposed to later commentary or literature. The
sources of Roman law are in this sense the compilations of the Emperor
Justinian, as contrasted with the works of commentators. So the
sources of English law are the statute-book, the reports, and the
older and authoritative text-books, such as Littleton. The literature,
as opposed to the sources of our law, comprises all modern text-books
and commentaries.

Footnote 110:

In the succeeding chapters we shall consider more particularly three
of the legal sources which have been already mentioned, namely
legislation, custom, and precedent. Professional opinion as a source
of law pertains to the Roman, rather than to the English system, and
does not call for special examination here. For an account of it see
Bryce, Studies in History and Jurisprudence, II. pp. 255–269.
Agreement will be considered later, in its aspect as a title of
rights, instead of here as a source of law.

Footnote 111:

Austin, p. 538.

Footnote 112:

Austin, p. 531.

Footnote 113:

Constat autem jus nostrum aut ex scripto aut ex non scripto.... Ex non
scripto jus venit, quod usus comprobavit. Just. Inst. 1. 2. 3.; 1. 2.
9.

“The municipal law of England may with sufficient propriety be divided
into two kinds: the lex non scripta, the unwritten or common law; and
the lex scripta, the written or statute law.” Blackstone, I. 63.

Footnote 114:

Blackstone, I. 161.

Footnote 115:

The mere fact that a person who becomes a shareholder must be taken to
have impliedly agreed to be bound not only by the articles as they
stand, but by any subsequent modification of them, does not render
subsequent modifications conventional instead of legislative in their
nature. The immediate source of the new rules is not agreement, but
imposition by superior authority.

Footnote 116:

Plato’s Laws, 624. Spencer’s Sociology, II. pp. 515 _et seq._

Footnote 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.”

Footnote 118:

D. 1. 3. 17.

Footnote 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.

Footnote 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.

Footnote 121:

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

Footnote 122:

Blackstone, I. 63.

Footnote 123:

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

Footnote 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.

Footnote 125:

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

Footnote 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.

Footnote 127:

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

Footnote 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.

Footnote 129:

System, sect. 18.

Footnote 130:

Vol. i. sect. 18.

Footnote 131:

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

Footnote 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.

Footnote 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.

Footnote 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.

Footnote 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.

Footnote 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.

Footnote 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).

Footnote 138:

Suarez, De Legibus, VII. 15. 5.

Footnote 139:

Novel. 131. ch. 6.

Footnote 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).

Footnote 141:

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

Footnote 142:

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

Footnote 143:

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

Footnote 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.

Footnote 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.

Footnote 146:

Pothier on Obligations, sect. 95.

Footnote 147:

Encyklopädie, sect. 20.

Footnote 148:

Pandektenrecht, I. sect. 15.

Footnote 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.”

Footnote 150:

Co. Litt. 113 b.

Footnote 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.

Footnote 152:

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

Footnote 153:

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

Footnote 154:

_In re Hallett_, 13 Ch. D. at p. 710.

Footnote 155:

_Castro_ v. _R._, 6 A. C. p. 249; _Scaramanga_ v. _Stamp_, 5 C. P. D.
p. 303.

Footnote 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.”

Footnote 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.”

Footnote 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.

Footnote 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.

Footnote 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.

Footnote 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.

Footnote 162:

_Sheddon_ v. _Goodrich_, 8 Ves. 497.

Footnote 163:

_Pugh_ v. _Golden Valley Railway Company_, 15 Ch. D. at p. 334.

Footnote 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.”

Footnote 165:

_In re Hallett_, 13 Ch. D. at p. 712.

Footnote 166:

_Osborne_ v. _Rowlett_, 13 Ch. D. at p. 785.

Footnote 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.

Footnote 168:

Holmes, The Common Law, p. 35.

Footnote 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.

Footnote 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.

Footnote 171:

Pandekt. I. sect. 37.

Footnote 172:

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

Footnote 173:

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

Footnote 174:

Principles of Ethics, II. p. 63.

Footnote 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.

Footnote 176:

See Austin, Lect. 17.

Footnote 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.

Footnote 178:

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

Footnote 179:

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

Footnote 180:

_Musgrove_ v. _Toy_, (1891) A. C. 272.

Footnote 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.

Footnote 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.

Footnote 183:

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

Footnote 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.

Footnote 185: