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.
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.
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 inconveniency, 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.
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 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 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.
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 contractus 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, commodatum, 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.
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 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.
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 to give up his security on the other estate to B. The same was the case in tho Roman law with regard to tutory.
[§ ii. Of Delinquency^ We come now to the third kind of personal rights, those to wit, ex deli do.
Delicts are of two kinds, as they arise ex dolo when 1 ' Namqui solvendianimopecu- trahat potius ncgotium quam conniamdat,inhocdarevidetur,utdis- trahat.' Instit. lib. iii. tit. xxvii. § 6.
there is a blameable intention, or ex culpa when they are done through a culpable negligence.
Injury naturally excites the resentment of the spectator, and the punishment of the offender is reasonable as far as the indifferent spectator can go along with it. This is the natural measure of punishment. It is to be observed that our first approbation of punishment is not founded upon the regard to public utility which is commonly taken to be the foundation of it. It is our sympathy with the resentment of the sufferer which is the real principle. That it cannot be utility is manifest from the following example. Wool in England was conceived to be the source of public opulence, and it was made a capital crime to export that commodity1. Yet though wool was exported as formerly and men were convinced that the practice was pernicious, no jury, no evidence, could be got against the offenders. The ex portation of wool is naturally no crime, and men could not be brought to consider it as punishable with death '-. In the same manner, if a sentinel be put to death for leaving his post, though the punishment be just and the injury that might have ensued be very great, yet mankind can never enter into this punishment as if he had been a thief or a robber.
Resentment not only prompts to punishment, but points out the manner of it. Our resentment is not gratified unless the offender be punished for the parti cular offence done ourselves, and unless he be made sensible that it is for that action. A crime is always the violation of some right, natural or acquired, real or personal. The non-performance of a contract indeed 1 13 and 14 Car. II. cap. 18. of the penalty under 13 and 14 2 The preamble of 7 and 8 W. Car. II. cap. 18, 'the prosecution III. cap. 28, quoted in W. of N. of offenders hath not been so bk. iv. ch. viii. vol. ii. p. 232, effectually put in execution.' says that owing to the severity is not a crime, unless it be through some fraudulent intention.
The greatest crime that can be done against any person is murder, of which the natural punishment is death, not as a compensation, but as a reasonable retaliation. In every civilized nation death has been the punishment of the murderer, but in barbarous nations a pecuniary compensa tion was accepted of, because then government was weak, and durst not meddle in the quarrels of individuals unless in the way of mediation. In the age of hunters particularly there was little more than the name of authority, and a man of superior influence can do no more than persuade the parties to an agreement. When one man killed another, the whole society met and advised the one party to give, and the other to take, a compensation. In America when one member of a family kills another, the society does not intermeddle with them, as this cannot hurt the peace of the society; they only take notice of it when one family attacks another1. It was long before the government could call a man before them and tell him what he must do, because it was long before people would submit to such absolute authority.
In the laws of all nations we have the remains of this ancient state of weakness. When government became more powerful, the murderer was not only obliged to make a compensation to the relations of the slain, but likewise to the public, who were put to the trouble of lending him their protection, on that occasion, against the revenge of those who were concerned. This was the state of criminal law among the Germans at the declension of the Roman Empire. The Germans were much farther advanced than the Americans at this day. Though they seldom punished with death, yet they seemed to make the punishment in some measure proportioned to the crime. A price was set 1 Lafitau, Mwurs des sauvages Anie'nquains, torn. i. pp. 486, 487, 490. See above, p. 15.
on every person according to his station. There was one price paid for killing the king, and another for killing a slave. The compensation was proportioned to the dignity of the person and of his relations. What was paid to the prince for interposition was increased and diminished in the same proportion. It was a higher fine to kill a man belonging to a lord than one belonging to a little baron. To disturb the king's peace subjected to a greater fine than to disturb the peace of a baron or lord. If the injurer refused to pay the compensation he was left to the resent ment of the injured, and if he was not able to pay it, he was obliged to implore the assistance of his friends. As the compensation was not adequate to the offence, the government, after it acquired strength, took this additional compensation to itself as the price of the offender's freedom. From this the sovereign acquired the right of pardoning criminals, for naturally he has no more right to pardon a crime than to discharge an unpaid debt.
Anciently a crime was considered in two lights, as committed against the family injured and against the peace. The government had the exclusive right of punishing those who had disturbed the peace and killed any of the king's vassals. The compensation to the government was after wards changed into a capital punishment. After the king's pardon, the offender was free, and the relation had no right to pursue him. In England the offender can be punished for the relation as well as for the king. When an appeal1 is made to the king, he cannot pardon, but appeals are seldom or never used, as it is difficult to bring them about. If a man was murdered, nobody but the wife could pursue for an appeal, or, if she was accessory, the legal 1 ' Appeal is a word used in our by a party who had interest in law for the removal of a cause the person killed, or of a felon by from an inferior court or judge one of his accomplices.' G.Jacob, to a superior; but more commonly New Law Dictionary, 8th ed. 1762, for the accusation of a murderer, s. v. Appeal.
heir1. Any mistake in the process, such as a word wrong spelled, stopped the procedure 2, for the statute of amend ment, which permitted courts to overlook errors, did not extend to appeals. Appeals in former times were often made in cases of maiming, hurting, &c.3 There are several kinds of murder by the English law. The word originally signified stealth, as the crime was usually committed in private. Afterwards felonious4 killing of every kind was called murder, and compensation made for it accordingly. Murder arises either from malice prepense, or from sudden provocation, or from chance per infortnnium. Of these the first alone is properly called murder, the second is manslaughter, and the last chance medley, which is often excusable and often justifiable. Murder committed se dcfcndcndo is when two persons quarrel, and the one is obliged to kill the other for his own safety. This is excusable, not justifiable homicide. Justi fiable homicide is of two kinds. First, in defence [of] one's person, goods, or house. It differs from homicide se defcndcndo in this, that there is no quarrel, but an attack on the highway, or in a man's house. Second, homicide is justifi able in support of a constable or officer of justice.
These are the different species of murder and homicide, we shall next show what is the nature of each. When a person lies in wait for another and kills him, it is plainly murder. It is the same when a man kills another without provocation. By the English law there is no provocation without a blow; no words or menaces are sufficient. How ever, if a man give you a blow, and you return it and kill him, it is not murder, but manslaughter. If a man be shooting at tame fowl, or doing any other criminal action, 1 Hawkins, Pleas of the Crown, ' Appeals of rape and robbery are bk. ii. ch. xxiii. §§ 36-43. now much out of use, but the - Ibid. §§ 103-125. appeal of murder still continues, 3 Jacob, New Law Dictionary and is often brought.'
(s.v. Appeal of Robbery), says, * MS. reads 'felony and.'
and without intending it, kill a man, it is murder. Whereever there is any appearance of malice or forethought it is murder. If a person kills another in the afternoon for some provocation received in the forenoon, it is murder, but if he has only retired a few steps, and returned to do it immediately, it is not murder, but manslaughter. Homicide se defendcndo is not punishable if there was no possibility of escape, but if a man had time to retire and draw his sword, it is punishable, because he might have escaped l.
The Scotch law makes no distinction between man slaughter and murder2. In England manslaughter was introduced by what is called benefit of clergy. When civil government increased in authority, the punishment[s] of crimes were made more severe that the peace might be less disturbed. The clergy pled that this was not agree able to the word of God, and as they derived their authority from Jesus Christ and the Pope, they would answer before no civil judicatory. They pretended that the scripture did not consider any crime where there was no malice or fore thought as murder, and this they proved from Deuteronomy xixth. When any [clerical] person therefore had com mitted a crime, the bishop had a power to claim him and take him out of the hands of the secular power. If a person could get twelve persons to swear for him, he was acquitted. If not, the bishop judged whether he was corrigible or not. If he was incorrigible, he was degraded. The bishop could claim in this manner all clergy and beadles, wardens, or other persons \vho had 1 Hawkins, Pleas of the Crown, the intention to kill is antecedent bk. i. chs. xxviii-xxxi. even to the very blow; it follows 2 ' As by intended homicide we that the homicide which is cornmean not only that which is pre- mitted in Rixa or Tulzie will be meditated and the consequence construed by us to be intended of malice preconceived, but also homicide,' Alex. Bayne, Instituthat which is instantly conceived tions of tlie Criminal Law of in the very encounter, so as to Scotland, 1748, pp. 33, 34. comprehend all slaughter where PRIVATE LAW 14!
any connexion with the Church, but the civil courts after-[wards] allowed him only to claim those that could read, as this [was] more immediately connected with the office of the clergy. Queen Anne afterwards extended the privileges arising from benefit of clergy, with regard to manslaughter, to all equally1. For chance medley a man forfeits his goods, but he has the power of suing for them again and of obtaining pardon. In justifiable homicide a man must plead not guilty of anything the court can meddle [with], and if he can bring in his evidence he is not arraigned2.
Our resentment naturally falls upon inanimate as well as animate objects, and in many places the sword or instrument that had killed any person was considered as execrable, and accordingly was destroyed, particularly among the Athenians. By the English law if a man fell from a house and was killed, the house was forfeited by the law of deodand:i. Deodand signifies to be given to the devil, by the same sort of metaphor that the scripture uses where it is said he blessed God in his heart, that is, he cursed him. Afterwards the clergy applied deodands to charitable uses. If a man was killed by an object at rest, only the part by which he was killed was forfeited.
1 'And forasmuch as when any of the Realm). The indulgence person is convicted for any felony had already been extended to within the benefit of clergy, upon women (who were of course inhis prayer to have the benefit capable of obtaining benefit of thereof allowed to him it hath clergy) by 3 W. and M. cap. 9.
been used to administer a book The account of the origin of to him to try whether he can benefit of clergy in the text is read as a clerk, which by ex- far from accurate, perience is found to be of no use, 2 Not quite accurately put. See be it therefore enacted ' that such Hawkins, Pleas of the Crown, bk. i.
person ' shall not be required to ch. xxix. § 25.
read, but without any reading s This is erroneous, as nothing shall be allowed, taken, and re- annexed to the freehold could