place only with regard to the immediate successor, and therefore at first the right of making testaments extended no further, unless in case the person in whose favour it was made should refuse to succeed, in which case another might be appointed. This was a further extent of the right. Again, if a man died and left his sister's1 son heir to him, that the estate might not go to foreign relations, the testator was allowed to say that if the pupil die at a certain age, the estate shall go to such another person. This was called pupillar substitution2. Thus property was still further extended.
The greatest of all extensions of property is that by entails. To give a man power over his property after his death is very considerable, but it is nothing to an exten sion of this power to the end of the world. In the begin nings of society the state of families is very different from what it is at present. As the wife was subject to the husband, and at the best only on the footing of a daughter, she seldom made any addition to the husband's estate unless by her own industry; but when female succession took place, and women came to be possessed of fortunes, they would not marry without a previous capitulation by which the}^ insured themselves of good usage, and stipulated that some part of their fortune should go to their relations after their death. By this arose a new species of marriage from agreement which rendered the parties equally independent 3. This great alteration in domestic affairs would naturally at first be complained of, and, as the ultimate cause of it was the succession of females, they would endeavour to prevent their opulence. On this account a law was made at Rome bringing matters to their ancient footing, called the Voconian law. To elude this law ayfafejY] commissum was invented, by which, when 1 A mistake. The pupil must 2 MS. reads 'popular suc- be a descendant in the power of cession.' the testator. 8 Above, p. 77.
PRIVATE LAW 123 a man had a mind to leave his estate to a person whom the law would not allow, [he left it to someone else] and took his solemn promise that he would transfer it to the person for whom he intended it. Augustus made a law obliging the trustee always to restore it, and appointed a [fidei-]commissary praetor for that purpose \ The person to 2 whom the estate was left was called hercs fiduciarius, and the person to whom it was to be restored was called fide\i~\ commissaries: thus property was extended beyond the first successor, and when this step was gained they easily advanced further and introduced entails.
Entails were first introduced into the modern law by the ecclesiastics, whose education made them acquainted with the Roman customs 3. As they were the preachers of this doctrine, they naturally became the explainers and executors of wills till Theodosius and Valentinian4 took it from them. In England William the Conqueror restored it to the ecclesiastics5.
By the customs of our country6 a man, if he leave a wife and children, can dispose only of a third by testament; and if he leave a wife without children, only a half. Lands after the introduction of the feudal system could only be disposed [of] by testament in the same way with military services, by the consent of the superior. Origin ally in England there were no entails by will, but by 1 Heineccius,^////#. Rom. lib. ii. to meddle with wills; Cod. lib. i. tit. xxiii. §§ 2-4. tit. iii. § 40 (41).
2 MS. reads 'for.' 8 Perhaps a rash inference from :f The Roman origin of entails statements to the effect that is denied in W.ofN. bk. iii. ch. ii. anciently the probate of wills vol. i. p. 388. was in the county court, where 4 MS. reads 'Theodosius Valen- the bishop and sheriff sat together, tinus.' It is difficult to account and that William the Conqueror for the statement in the text, divided the ecclesiastical from the which exaggerates enormously civil jurisdiction: see Bacon, the powers of the ecclesiastics. New Abridgement of the Law, s. v.
Justinian considered it manifestly Courts ecclesiastical, vol. i. p. 618.
absurd that they should attempt tf I.e. Scotland.
tenure. A man held an estate for himself and his heirs, but if he had no heirs he could not alienate it, it returned to the superior. But if he had heirs he could alienate it, and thus the lord was deprived of his right of reversion. A law 1 was afterwards made to secure this.
Upon the whole nothing can be more absurd than perpetual entails. In them the principle of testamentary succession can by no means take place. Piety to the dead can only take place when their memory is fresh in the minds of men: a power to dispose of estates for ever is manifestly absurd. The earth and the fullness of it belongs to every generation, and the preceding one can have no right to bind it up from posterity -; such exten sion of property is quite unnatural. The insensible progress of entails was owing to their not knowing how far the right of the dead might extend, if they had any at all. The utmost extent of entails should be to those who are alive at the person's death, for he can have no affection to those who are unborn. Entails are disadvantageous to the improvement of the country, and those lands where they have never taken place are always best cultivated: heirs of entailed estates have it not in their view to cultivate lands, and often they are not able to do it. A man who buys land has this entirely in view, and in general the new purchasers are the best cultivators.
1 Stat. Westm. II, 13 Ed. Leap. i. to the earth and to all that it De donis conditionalibus. possesses; but that the property 2 'In the present state of Europe of the present generation should...nothing can be more completely be restrained and regulated absurd [than entails]. They are according to the fancy of those founded upon the most absurd of who died perhaps 500 years ago.' all suppositions, the supposition W. of N. bk. iii. ch. ii. vol. i. that every successive generation p. 388. ' Absurd ' occurs twice, of men have not an equal right as in the text above.
PRIVATE LAW 125 [$5. Fifth way of acquiring Property: Voluntary Transference?^ In voluntary transference two things are required: first, a declaration of the intention both of the person who transfers, and of him to whom it is transferred: second, the actual delivery of the thing. In most cases the first of these is not binding without the latter, because there is no right without possession. If a man indeed have borrowed a thing and afterwards purchase it, there is no need of delivery, for it is already in his possession. Before possession you can have no right to the thing, though you may have a right to make the man keep his promise or contract. If I buy a horse from a man, and before delivery he sell him to a third person, I cannot demand the horse from the possessor, but onl\- from the person who sold him. But if he has been delivered I can claim him from any person. Property therefore cannot be transferred without tradition or delivery. Grotius indeed justly observes that in the transference of a pledge there is no need of deliver}-, because in this case the thing is already in the man's possession *. In France, if a man declare his purpose to make a donation, and die before the delivery, the donation goes to the heir. This was also a custom among the Wisigoths. In transferring the property of lands and other large objects, what gives possession is not so easy to determine. As there cannot be an actual delivery, in our country a symbolical delivery is used; an ear or sheaf of corn signifies the whole field, a stone and turf, the estate to the centre of the earth, and the keys of the door, the house. By the Scotch law, if there be a transference of several estates, the purchaser must be infeft in each. By the English law infeftment in one 1 De hire belli et pact's, lib. ii. cap. viii. § 25.
126 PART I: JUSTICE 126 PART I: JUSTICE serves for all l when done in presence of the county court2. In Scotland it must be done on the land: it is enough in England if it be done in view of it. Besides delivery a charter or writing, showing on what terms the transference was made, is also requisite for security. Till the custom was abolished by a late statute, no vassal or possessor had a right of alienating his estate without the consent of the superior 3. As he held it for military service, it was requisite that the estate should be resigned to the superior, who resigned it to the purchaser, as it was proper that his vassal should be of his own choosing. Afterwards, however, it became necessary to accept of creditors, and this was often used as a handle to elude the law. The seller gave a bond for a sum of borrowed money without any mention that it was a sale, by which means the lands were adjudged to the creditor, and the lord was obliged to accept of him as his vassal. In like manner, as the tenant was liable to oppression from a new superior, the lord could not dispose of his estate without consent of his vassal. If therefore either of them alienated any part of their estates without the other's consent, his right was forfeited.
The duty of vassals to their lords continued longer in Scotland than in England, which may be accounted for from the difference of their government, for that [of] Eng land all along favoured democracy, and that of Scotland aristocracy. After society was fully established, there was no occasion for mutual consent, because the tenant was protected by law, whatever the lord was.
In the time of the civil wars 4 a new sort of delivery took place. When a person transferred his estate to another 1 Scil. 'in the same county.' Feoffment, vol. ii. p. 492; Coke, 2 This should probably read Littleton, p. 253 a.
'as the feoffment and giving s In Scotland. The 'late statute' livery was anciently done in is 20 Geo. II. cap. 50. presence of the county court.' 4 Of the Lancastrians and York- See Bacon, Abridgement, s. v. ists.
PRIVATE LAW 127 for his own use it was not affected by forfeiture; the person to whom it was transferred was considered as the bailiff, and took possession in the other's name.
[§6. Of Servitudes.]
The second species of real rights is servitudes or burdens which one man has on the property of another. These rights were at first personal, as they were entered into by a contract between the persons. It is necessary that I should have a road to the market town; if a man's estate lie between me and it, I must bargain with him for the privilege of a road through it. This contract produces only a personal right, though I should bind him not to sell this estate without the burden; but here was an incon- veniency, for, if the land were sold and the new proprietor refused the road, I could not sue him on a personal right upon the former proprietor. Before I can come at the new purchaser, I must pursue the person from whom I had the right, who must pursue him to whom he sold it. If the land has gone through several hands this is very tedious and inconvenient. The law, to remedy this, made servitudes real rights, demandable a quociunque posscssore.
Servitudes were rusticae, such as the right of a road to the town, or to the river, and of feeding so many cows on another man's pasture grounds, or iirbanac, such as the right of leaning the beams of my house on your gable, the right of obliging him who is proprietor of the under-story to make his wall strong enough to support mine, and the like. These are all naturally personal rights and are only made real by lawyers. Life rents on estates and many other things are also servitudes, and are properly personal. Feudal burdens were only persons' rights, and therefore every new vassal must renew his homage and the promise of fealty.
128 PART I: JUSTICE In the beginning of the feudal law, if the proprietor did not perform his duty in every article he forfeited his feu; in like manner, if the tenant encroached on his lord's grounds, what he had feued returned to the superior. The right of the vassal is founded on the charter of the superior, and every article of it must be fulfilled, and every new possessor must renew the obligation. When tenants be came independent and had a real property, they were said to have the dominhnn directum, not the dominium utile1.
[I 7. Of Pledges and Mortgages^ Pledges and mortgages are certain securities for the payment of debts. At first they could not be claimed as real rights, though afterwards the law considered them as such. Pledges properly regard moveable subjects, and mortgages immoveable; if a pledge be not redeemed at a certain time, it is forfeited. As people in bad circum stances are naturally slothful, the negligence of debtors among the Romans gave occasion to the lex comtnissaria, by which the creditor was empowered to seize the pledge, and return the overplus if there was any. By the English law, if no day be named, the pledge falls to the pawntaker on the death of the pawner-. In immoveables, lands are mortgaged but not delivered, and in case of failure they are forfeited. The Roman law and ours are much the same on this head. If payment be not made within some few months after demand, the creditor adjudges the land for the whole sum and the penalty incurred; but his property is not secure without long possession, for the proprietor has a power of redeeming it within a reasonable time; but, as upon redemption much trouble must be 1 By a slip of the lecturer or directum.' Dalrymple, Feudal the reporter, 'directum' and Property, pp. 200, 238.
' utile ' have been transposed. ~ Bacon, Abridgement, s. v.
The text should read ' the domi- Bailment, vol. i. p. 239. nium utile, not the dominium PRIVATE LAW 129 occasioned in examining old accounts and the like, the law1 has made twenty years the stated time in England for redeeming mortgages.
Hypothecs are another kind of pledges really arising from contract, but made real rights by the civil law. By them anciently the landlord was empowered to detain the furniture and whole stock of the tenant if he turned bank rupt, and could claim them a qiiocumque possessore. This arose from the practice of keeping tenants by steel-bow, by which the whole stock in the farm was the landlord's. At present the landlord has only a right of preference, and we have not so many hypothecs as the Romans had.
All pledges are naturally personal rights, and are only made real by the "civil law.
[§ 8. Of Exclusive Privileges.']
Exclusive privileges are the last division of real rights. Among these is the right of inheritance, which is not a creature of the civil law, but arises from nature. The heir, previous to any other person, has a privilege of demanding what belonged to the deceased, and after he is admitted heir it is his real property. Again, if a person start a wild beast, he has an exclusive privilege of pursuing, and what ever person comes in upon the chase is liable to punish ment2 because he breaks in upon his exclusive privilege. In the year 1701 an English man-of-war engaged with a French merchant fleet under convoy, which was just about to fall into their hands, when a Scotch privateer came and carried off the prize. A lawsuit commenced and the Scotch privateer was declared guilty of breach of property, but upon strict inquiry we shall find that it was only breach of privilege3. Though these and some other exclusive 1 I.e. the practice of the courts. 3 No such case appears to have Bacon, Abridgement, vol. iii. p. 654. occurred in 1701. In 1677, how- 2 MS. erroneously reads 'not' ever, a case (King's Advocate v. here. Rankin) was tried which is K 130 PART I: JUSTICE privileges arise from nature, they are generally the creatures of the civil law. Such are monopolies and all privileges of corporations, which, though they might once be conducive to the interest of the country, are now pre judicial to it. The riches of a country consist in the plenty and cheapness of provisions, but their effect is to make everything dear. When a number of butchers have the sole privilege of selling meat, they may agree to make the price what they please, and we must buy from them whether it be good or bad. Even this privilege is not of advantage to the butchers themselves, because the other trades are also formed into corporations, and if they sell beef dear they must buy bread dear. But the great loss is to the public, to whom all things are rendered less comeatable, and all sorts of work worse done; towns are not well inhabited, and the suburbs are increased. The privilege, however, of vending a new book or a new machine for fourteen years has not so bad a tendency, it is a proper and adequate reward for merit. A right to servi tudes and exclusive privileges, it is to be observed, may be acquired by prescription.
So much for the different kinds of real rights: we proceed now to personal rights, which arise either from contract, quasi-contract, or delinquency.
U 9-] Of Contract.
That obligation to performance which arises from contract is founded on the reasonable expectation propossibly the one referred to. had captured one of the prizes.
The frigate Nightingale pursued The court held that Rankin's a Dutch privateer which was action was injurious 'otherways taking home three French prizes than to assist the first attacter, (England and France being then unless it had been proven that in alliance against Holland). the prize would have escaped ' When she returned from the if he had not stopped her. W. M.
pursuit, she found that Rankin, Morison, Decisions of the Court of in command of a Scotch privateer, Session, 1811, pp. 11930-11936.
PRIVATE LAW 131 duced by a promise, which considerably differs from a mere declaration of intention. Though I say I have a mind to do such a thing for you, yet on account of some occurrences do not do it, I am not guilty of breach of promise. A promise is a declaration of your desire that the person for whom you promise should depend on you for the performance of it. Of consequence the promise produces an obligation, and the breach of it is an injury.
Breach of contract is naturally the slightest of all injuries, because we naturally depend more on what we possess than what is in the hands of others. A man robbed of five pounds thinks himself much more injured than if he had lost five pounds by a contract. Accordingly in rude ages crimes of all kinds, except those that disturb the public peace, are slightly punished, and society is far advanced before a contract can sustain action or the breach of it be redressed. The causes of this were the little importance of contracts in those times, and the uncertainty of language.
The first contracts that sustained action would be those where the damage done was very great, and where there could be no doubt but the person once intended to perform. Accordingly among the ancients promises entered into with great solemnity first sustained action. Among them no stipulation could be made unless the contractors were personally present, and no promissory note in writing was binding. As no promises by the Roman law sustained action without a stipulation, so by the English a consider ation or cause for the promise was at first necessary to make it obligatory. It was thought contrary to good manners to insist on a promise: if a man promised with his daughter a certain sum, there is a consideration, and therefore he was obliged to perform it; but if he promised it with any other man's daughter it was sine causa, and, unless she was a relation, could not sustain action. If I made you a promise it did not sustain action, but if I again promised not to forget my former promise, the latter promise was obligatory, and the former was the consideration that made it so 1.
By the civil law the first promises that sustained action were those entered into in presence of a court where there could be no doubt of the intention, and accordingly recognizance of every promise was taken before some court. A recognizance is when a debtor comes before a court with the creditor, and acknowledges that he owes him a certain sum; a copy of this acknowledgment was given to the creditor and another lodged in the hands of the clerk, and whenever the creditor produced this, if it was found to correspond to the other, he might pursue for his money. Afterwards a recognizance before the magistrate of a staple town served the purpose 2.
The next contracts that sustained action were the con- tractus reales, or those which were entered into by the delivery of a thing to be returned itself, or in species, or in value. These are of four kinds, the muttium, commo- datum, depositum andpignus*.
The mutuum is when I lend anything to be returned in value, as money. This soon sustained action.
Commodahim is when the thing itself is to be restored, as a borrowed horse.
Depositum is when a thing is committed to another's care but not to his use.
Pignits is a security for debt.
All these sustained action before the consensual con tracts, which are also four, to wit, buying and selling, letting 1 This appears to be an ex- self liable for otherwise irrecoveraggerated or misreported account able debts contracted when he of the old rule, ' that wherever a was a minor, and a liability barred defendant is under a moral ob- by the statute of limitations may ligation, or is liable in conscience be similarly revived, and equity to pay, that is a sufficient 2 Bacon, Abridgement, s. v. Execonsideration.' Cowper, Reports, cution, vol. ii. pp. 330-332.
p. 294. So a man may make him- 3 Instit. lib. hi. tit. xiv.
PRIVATE LAW 133 and hiring, partnership, and commission. In buying, if the contract be not fulfilled, you lose your earnest money. Letting and hiring once comprehended leases, day's wages, building, and almost everything with regard to society. If the contract of commission was performed gratuitously it could not at first sustain any action, but if a reward was given, it was nearly the same with the cormnodahim. If a small price be paid for the loan of a thing it becomes letting and hiring. The mutuum does not infer interest, and in a bond, unless the interest be specified, it will carry none.
Besides these there was in the Roman law what was called a pactuni nudum, when there was a bare promise without any consideration, which produced an exception or defence against the action of the pursuer \ As contracts deprive men of that liberty which every man wishes to enjoy, a very small defence set them free. Originally no contracts were sued before any court but the ecclesiastic, but they came gradually to civil courts a. The canon s law, which judged from principles of honour and virtue, obliged men to perform even those promises that were made gratuitously. This was imitated by the civil law; and by our law if a promise be clearly proven, he who promises must perform it. In general the law gave only action for damages till the court of chancery was introduced. It is indeed the natural idea of [a] court to redress injuries, and accordingly if a person refused to perform his contract he was only obliged to pay the loss which the other had sustained; but the court of chancery forced the person to a performance of the agreement.
Nothing can be more different than the present and ancient state of contracts. Execrations and the most 1 ' Nuda pactio obligationem be 'some cases of breach of faith non parit, sed parit exceptionem.' were not.'
Digest, lib. ii. tit. xiv. § 7. 3 MS. reads ' common.'
2 ' No contracts were ' should 134 PART I: JUSTICE solemn ceremonies were scarce thought sufficient to secure the performance of a contract; drinking blood and water mixed, bleeding one another, promising before the altar, breaking a straw, and a number of other ceremonies to impress the mind, were invented. At present almost anything will make a contract obligatory.
There are some questions concerning contracts much agitated by lawyers, especially one in the case when the coin happens to be debased1. [If] I borrow £LOO when the coin is 4 oz. [to] the pound, and it be afterwards debased to 2 oz., whether should I pay ^100 of the new coin or,£200? When the government makes any alteration in the coin it is to answer some urgent necessity. In 1705 the crown of France had a demand for ten million, and could raise only five 2. They cried up the coin and paid the ten with five. As the government allows private persons to pay with the new coin, the injury is not great. The debasement of the coin cheapens for some time all commodities and provisions, as all are paid in the new coin, and therefore the uses of money may be served by the new as well as the old coin 3.
Quasi-contract is founded on the duty of restitution. If you find a watch on the way, you are obliged to restore it by the right of property, because a man loses not property with possession. But if you and I balance accounts, and you pay me a sum which both think due, but you afterwards find you did not owe that sum, how 1 Pufendorf, De hire naturae et sur le commerce, 1734 (in Daire's gentium, lib. v. cap. vii. § 6. Economistes financiers, p. 721), and 2 The date in the MS. is not Dutot, Reflexions politiques sur les clearly written and might be finances et le commerce, 1738 (in the 1703, 1705, or 1706. The pro- same collection, p. 797), though on bability is that the reference is that occasion the augmentation to the recoinage of 1708-9 men- was only 25 per cent.
tioned in Melon, Essai politique 3 See below, Part ii. Div. ii. § 8.
PRIVATE LAW 135 will you claim it? You cannot ask it as your property, for you alienated that sum, nor can you claim it by contract, for there never was one made between us 1, yet it is evident that I am a gainer by your loss, and there fore restitution is due.
In the same manner if a man was called away by a sudden order of the state without leaving an attorney to manage a law suit that he had going on, and a friend undertakes this office without commission, as the defence is necessary, and the undertaking it prudent, restitution of his expenses are due. On the same principle were founded the actioncs contrariac of the Roman law. If you lent me a horse which had cost me extraordinary expenses, by the contract commodate you could redemand your horse in the same [state] in which you lent him, but I could claim my extraordinary expenses by an acfio contraria. The same principle takes place in many other cases. If a person borrows money, and gets three of his acquaintances sureties for him, jointly and severally, and if he turn bankrupt, the creditor pursues the ablest surety, who has a claim by the duty of restitution on the other two for their thirds. The Scotch law carries this still farther. If a bankrupt had two estates, and two creditors A and B: A has a security on both estates, B has security only on the best: A has a liberty of drawing his money from either estate he pleases, and draws from that on which B has his security. As B in this case is cut out, the law obliges A