 CHAPTER XXI. THE LAW OF OBLIGATIONS. Obligation in its popular sense is merely a synonym for duty. Its legal sense, derived from Roman law, differs from this in several respects. In the first place, obligations are merely one class of duties, namely those which are the correlatives of rights in personum. An obligation is the vinculum juris, or bond of legal necessity, which binds together two or more determinate individuals. It includes, for example, the duty to pay a debt, to perform a contract or to pay damages for a tort, but not the duty to refrain from interference with the person, property, or reputation of others. Secondly, the term obligation is in law the name not merely of the duty, but also of the correlative right. It denotes the legal relation, or vinculum juris, in its entirety, including the right of the one party no less than the liability of the other. Looked at from the point of view of the person entitled, an obligation is a right. Looked at from the point of view of the person bound, it is a duty. We may say either that the creditor acquires, owns, or transfers an obligation, or that the debtor has incurred or been released from one. Thirdly, and lastly, all obligations pertain to the sphere of proprietary rights. They form part of the estate of him who is entitled to them. Rights which relate to a person's status, such as those created by marriage, are not obligations, even though they are rights in personum. An obligation, therefore, may be defined as a proprietary right in personum, or a duty which corresponds to such a right. The person entitled to the benefit of an obligatio was, in Roman law, termed a creditor, while he who was bound by it was called a debater. We may venture to use the corresponding English terms creditor and debtor in an equally wide sense. We shall speak of every obligation, of whatever nature, as vested in or belonging to a creditor, and availing against a debtor. There is, of course, a narrower sense, in which these terms are applicable only to those obligations which constitute debts. That is to say, obligations to pay a definite or liquidated sum of money. A technical synonym for obligation is CHOSE IN ACTION, or THING IN ACTION. A CHOSE IN ACTION means, in our modern use of it, a proprietary right in personum, for example, a debt, a share in a joint stock company, money in the public funds, or a claim for damages for a tort. A non-proprietary right in personum, such as that which arises from a contract to marry, or from the contract of marriage, is no more a choice of action in English law than it is an obligatio in Roman law. CHOSE IN ACTION are opposed to CHOSE IN POSSESSION, though the latter term has all but fallen out of use. The true nature of the distinction, thus expressed, has been the subject of much discussion. At the present day, if any logical validity at all is to be ascribed to it, it must be identified with that between real and personal rights, that is to say, with the Roman distinction between dominium and obligatio. A CHOSE IN ACTION is a proprietary right in personum, all other proprietary rights, including such objects of rights as are identified with the rights themselves, are CHOSE IN POSSESSION. If we regard the matter historically, however, it becomes clear that this is not the original meaning of the distinction. In its origin, a CHOSE IN POSSESSION was anything or right which was accompanied by possession, while a CHOSE IN ACTION was anything or right of which the claimant had no possession, but which he must obtain, if need be, by way of an action at law. MONEY IN A MAN'S PERCE was a thing in possession, money due to him by a debtor was a thing in action. This distinction was largely, though not wholly, coincident with that between real and personal rights, for real rights are commonly possessed as well as owned, while personal rights are commonly owned but not possessed. This coincidence, however, was not complete. A CHATEL, for example, stolen from his owner, was reduced so far as he was concerned to a thing in action, but his right of ownership was not thereby reduced to a mere obligatio. The extraordinary importance attributed to the fact of possession was a characteristic feature of our early law. As this importance diminished, the original significance of the distinction between things in possession and things in action was lost sight of, and these terms gradually acquired a new meaning. Originally shares and annuities would probably have been classed as things in possession, but they are now things in action. Conversely lands and chattels are now things in possession, whether the owner retains possession of them or not. Obligations were always the most important species of things in action, and they are now the only species. Neither the old law nor the new gives any countenance to the suggestion made by some that immaterial property, such as patents, copyrights, and trademarks, should be classed as CHOSES in action. Section 166. SOLIDARY OBLIGATIONS The normal type of obligation is that in which there is one creditor and one debtor. It often happens, however, that there are two or more creditors entitled to the same obligation or two or more debtors under the same liability. The case of two or more creditors gives rise to little difficulty and requires no special consideration. It is, in most respects, merely a particular instance of co-ownership, the co-owners holding either jointly or in common according to circumstances. The case of two or more debtors, however, is of some theoretical interest and calls for special notice. Examples of it are debts owing by a firm of partners, debts owing by principal debtor and guaranteed by one or more sureties, and the liability of two or more persons who together commit a tort. In all such cases, each debtor is liable for the whole amount due. The creditor is not obliged to divide his claim into as many different parts as there are debtors. He may exact the whole sum from one and leave that one to recover from his co-debtors, if possible and permissible, a just proportion of the amount paid. A debt of 100 pounds owing by two partners, A and B, is not equivalent to one debt of 50 pounds owing by A and another of the same amount owing by B. It is a single debt of 100 pounds owing by each of them in such fashion that each of them may be compelled to pay the whole of it, but that when it is once paid by either of them, both are discharged from it. Obligations of this subscription may be called solidarity, since in the language of Roman law, each of the debtors is bound in soledom instead of pro parte, that is to say for the whole and not for proportionate part. A solidarity obligation, therefore, may be defined as one in which two or more debtors owe the same thing to the same creditor. In English law, they are of three distinct kinds, being either one, several, two, joint, or three, joint and several. One, solidarity obligations are several when, although the thing owed is the same in each case, there are as many distinct obligations and causes of action as there are debtors. Each debtor is bound to the creditor by a distinct and independent vinculum juris, the only connection between them being that in each case the subject matter of the obligation is the same, so that performance by one of the debtors necessarily discharges all of the others also. Soledare obligations are joint, on the other hand, when, though there are two or more debtors, there is only one debt or other cause of action, as well as only one thing owed. The vinculum juris is single, though it binds several debtors to the same creditor. The chief effect of this unity of the obligation is that all the debtors are discharged by anything which discharges any one of them. When the vinculum juris has once been severed as to any of them, it is severed as to all. Where, on the contrary, solidare obligations are several and not joint, performance by one debtor will release the others, but in all other respects the different vinculuris are independent of each other. 3. The third species of solidare obligations consist of those which are both joint and several. As their name implies, they stand halfway between the two extreme types which we have already considered. They are the product of a compromise between two competing principles. For some purposes the law treats them as joint, and for other purposes as several. For some purposes there is in the eye of the law only one single obligation and cause of action, while for other purposes the law consents to recognize as many distinct obligations and causes of action as there are debtors. On what principle then does the law determine the class of which any solidare obligation belongs? Speaking generally, we may say that such obligations are several when, although they have the same subject matter, they have different sources. They are several in their nature if they are distinct in their origin. They are joint, on the other hand, when they have not merely the same subject matter but the same source. Joint and several obligations, in the third place, are those joint obligations which the law, for special reasons, chooses to treat in several respects as if they were several. Like those which are purely and simply joint, they have the same source as well as the same subject matter, but the law does not regard them consistently as comprising a single, the column juris. The following are examples of solidary obligations which are several in their nature. One, the liability of a principal debtor and that of his surety provided that the contract of surety ship is subsequent to or otherwise independent of the creation of the debt so guaranteed, but if the two debts have the same origin as where the principal debtor and the surety sign a joint bond, the case is one of joint obligation. Two, the liability of two or more co-sureties who guarantee the same debt independently of each other, they may make themselves joint or joint in several debtors, on the other hand, by joining in a single contract of guarantee. Three, separate judgments obtained in distinct actions against two or more persons liable for the same debt. Two persons, for example, jointly and severally liable on the same contract may be separately sued, and judgment may be obtained against each of them. In such a case, they are no longer jointly liable at all. Each is now severally liable for the amount of his own judgment, but these two obligations are solidary in as much as the satisfaction of one will discharge the other. Four, the liability of independent wrongdoers whose acts cause the same damage. This is a somewhat rare case, but it's perfectly possible. Two persons are not joint wrongdoers simply because they both act wrongfully and their acts unite to cause a single mischievous result. They must have committed a joint act, that is to say, they must have acted together with some common purpose. If not, they may be liable in solitim and severally for the common harm to which their separate acts contribute, but they are not liable as joint wrongdoers. In Thompson versus the London City Council, the plaintiff's house was injured by the subsidence of its foundations. The subsidence resulting from excavations negligently made by A, taken in conjunction with the negligence of B, a water company, and leaving a water main insufficiently stopped. It was held that A and B, in as much as their acts were quite independent of each other, were not joint wrongdoers and could not be joined in the same action. It was said by Lord Justice Collins, the damage is one, but the causes of action, which have led to that damage are two, committed by two distinct personalities. The liability of the parties was solidary, but not joint. So also successive acts of wrongful conversion may be committed by two or more persons in respect to the same chattel. Each is liable in the action of trover to the owner of the chattel for its full value, but they are liable severally and not jointly. The owner may sue each of them in different actions, though payment of the value by any one of them will discharge the other. Examples of joint obligations are the debts of partners and all other solidary obligations X contract to, which have not been expressly made joint and several by the agreement of the parties. Examples of joint and several obligations are the liabilities of those who jointly commit a tort or breach of trust, and also all contractual obligations which are expressly made joint and several by the agreement of the parties. Section 167, The Sources of Obligations Classed in respect of their sources or modes of origin, the obligations recognized by English law are divisible into the four following classes. 1. Contractual Obligationis X contractu 2. Delicto Obligationis X delicto 3. Quasi-Contractual Obligationis Quasi-X contractu 4. Inominate Section 168 Obligations are rising from contracts The first and most important class of obligations consist of those which are created by contract. We have, in a former chapter, sufficiently considered the nature of a contract, and we there saw that it is a kind of agreement which creates rights in personum between the parties to it. Now, of rights in personum, obligations are the most numerous and important kind, and of those which are not obligations comparatively few have their source in the agreement of the parties. The law of contract, therefore, is almost wholly comprised within the law of obligations and for the practical purposes of legal classification it may be placed there with sufficient accuracy. The coincidence, indeed, is not logically complete, a promise of marriage, for example, being a contract which falls within the law of status and not within that of obligations. Neglecting, however, this small class of personal contracts, the general theory of contract is simply a combination of the general theory of agreement with that of obligation and does not call for any further examination in this place. Section 169. Obligations arising from torts. The second class of obligations, consisting of those which may be termed delicto, or in the language of Roman law, obligationes ex delicto, by an obligation of this kind is meant the duty of making pecuniary satisfaction for that species of wrong which is known in English law as a tort. Atomologically, this term is merely the French equivalent of the English wrong, tort, tortum, tortum. Being that which is twisted, crooked, or wrong, just as right, rectum, is that which is straight. As a technical term of English law, however, tort has become specialized in meaning and now includes merely one particular class of civil wrongs. A tort may be defined as a civil wrong for which the remedy is an action for damages, and which is not solely the breach of a contract or the breach of a trust or other merely equitable obligation. This definition contains four essential elements, there being four kinds of wrongs excluded by it from the sphere of tort. One, a tort is a civil wrong. Crimes are wrongs, but not in themselves torts, though there is nothing to prevent the same act from belonging to both these classes at once. Two, even a civil wrong is not a tort unless the appropriate remedy for it is an action for damages. There are several other forms of civil remedy besides this. For example, injunctions, specific restitution of property, and the payment of liquidated sums of money by way of penalty or otherwise. Any civil injury which gives rise exclusively to one of these other forms of remedy stands outside the class of torts. The obstruction of a public highway, for example, is to be classed as a civil injury in as much as it may give rise to civil proceedings instituted by the Attorney General for an injunction. But although a civil injury, it is not a tort, save in those exceptional instances in which, by reason of special damage suffered by an individual, it gives rise to an action for damages at his suit. 3. No civil wrong is a tort if it is exclusively the breach of a contract. The law of contracts stands by itself as a separate department of our legal system over against the law of torts, and to a large extent liability for breaches of contract and liability for torts are governed by different principles. It may well happen, however, that the same act is both a tort and a breach of contract, and this is so in at least two classes of cases. A. The first and simplest of these is that in which a man undertakes by contract the performance of a duty which lies on him already, independently of any contract. Thus he who refuses to return a borrowed chattel commits both a breach of contract and also the tort known as conversion, a breach of contract because he promised expressly or impliedly to return the chattel, but not merely a breach of contract, and therefore also a tort because he would have been equally liable for detaining another man's property even if he had made no such contract at all. B. The second class of cases is one which involves considerable difficulty and the law on this point cannot yet be said to have been thoroughly developed. In certain instances, the breach of a contract made with one person creates liability towards another person who is not a party to the contract. It is a fundamental principle, indeed, that no person can sue on an obligatio X contract to accept a party to the contract. Nevertheless, it sometimes happens that one person can sue X delicto for the breach of a contract which was not made with him, but from the breach of which he has suffered unlawful damage. That is to say, a man may take upon himself by contract with A a duty which does not already or otherwise rest upon him, but which, when it has once been undertaken, he cannot break without doing such damage to B a third person, as the law deems actionable. Thus if X lends his horse to Y who delivers it to Z a livery stable keeper to be looked after and fed and the horse is injured or killed by insufficient feeding, presumably Z is liable for this, not only in contract to Y but also in tort to X, the owner of the horse. It is true that apart from his contract with Y, Z was under no obligation to feed the animal, apart from the contract, this was a mere omission to do an act which he was not bound to do. Yet having taken this duty upon himself, he has thereby put himself in such a situation that he cannot break the duty without inflicting on the owner of the horse damage of a kind which the law deems wrongful. The omission to feed the horse, therefore, although a breach of contract is not exclusively such and is therefore a tort in as much as it can be sued on by a person who was no party to the contract. How far damage thus caused to one man by the breach of a duty undertaken by contract with another is actionable as a tort at the suit of the former is a question to be determined by the detailed rules of the concrete legal system and need not be here considered. Before the abolition of forms of action, the relation between contract and tort was complicated and obscured by the existence of a class of fictitious torts, wrongs which were in reality pure breaches of contract and nothing more and which, nevertheless, were remediable by delictal forms of action. Forms of action were classed as either contractual or delictal, but contractual actions were illogically allowed in cases in which there was no true contract but only a quasi-contract and delictal actions in cases where there was no true tort but a mere breach of contract. There seems to be no longer any occasion for recognizing the existence of such quasi-torts for they were merely a product of historical accident which may and should be now eliminated from the law. They are a relic of the days when contractual remedies were so imperfectly developed that they had to be supplemented by the use of delictal remedies in cases of breach of contract. The contractual action of a sumsit is, in its origin, merely a variant of the delictal action of case. It is not surprising, therefore, that until the abolition of all forms of action our law failed to draw with accuracy the line between torts and breaches of contract. Four. The fourth and last class of wrongs, which are not torts, consists of breaches of trust or other equitable obligations. The original reason for their exclusion and separate classification is the historical fact that the law of trusts and equitable obligations originated and developed in the court of chancery and was wholly unknown to those courts of common law in which the law of torts grew up. But even now, although the distinction between law and equity is abolished, it is still necessary to treat breaches of trust as a form of wrong distinct from torts and to deal with them, along with the law of trusts itself, just as breaches of contract are dealt with, along with the law of contract. Torts, contracts, and trust develop separately. The principles of liability in each case are largely different and they must be retained as distinct departments of the law. By some writers a tort has been defined as the violation of a right in rem, giving rise to an obligation to pay damages. There is attempting simplicity and neatness in this application of the distinction between rights in rem and in personum, but it may be gravely doubted whether it does in truth conform to the actual contents of the English law of torts. Most torts undoubtedly are violations of rights in rem, because most rights in personum are created by contract. But there are rights in personum which are not contractual and the violation of which, if it gives rise to an action for damages, must be classed as a tort. The refusal of an innkeeper to receive a guest is a tort, yet it is merely the breach of a non-contractual right in personum. So with any actionable refusal or neglect on the part of a public official to perform his statutory duties on behalf of the plaintiff. Section 170 Obligations are rising from quasi contracts. Both in Roman and in English law, there are certain obligations which are not in truth contractual, but which the law treats as if they were. They are contractual in law but not in fact, being the subject matter of a fictitious extension of the sphere of contract to cover obligations which do not in reality fall within it. The Romans called them obligationis quasi ex contractu. English lawyers call them quasi contracts or implied contracts, or often enough contracts simply and without qualification. We are told, for example, that a judgment is a contract and that a judgment debt is a contractual obligation. Implied contracts, says Blackstone, are such as reason and justice dictate and which therefore the law presumes that every man undertakes to perform. Thus it is that every person is bound, and Hath virtually agreed, to pay such particular sums of money as are charged on him by the sentence or assessed by the interpretation of the law. So the same author speaks, much too widely indeed, of the general implication and intendement of the courts of judicature that every man hath engaged to perform what his duty or justice requires. From a quasi contract or contract implied in law we must carefully distinguish a contract implied in fact. The latter is a true contract though its existence is only inferred from the conduct of the parties instead of being expressed. Thus when I enter an omnibus I impliedly, yet actually, agree to pay the usual fare. A contract implied in law, on the contrary, is merely fictitious for the parties to it have not agreed at all expressly or tacitly. In what cases then does the law recognize this fiction of quasi contract? What classes of obligations are regarded as contractual in law though they are not so in fact? To this question it is not possible to give any complete answer here. We can however single out two classes of cases which include most, though not all, of the quasi contractual obligations known to the English law. One. In the first place we may say in general that in the theory of the common law all debts are deemed to be contractual in origin. A debt is an obligation to pay a liquidated sum of money as opposed to an obligation to pay an unliquidated amount and as opposed also to all non-pecuniary obligations. Most debts are obligationous, ex-contractu, in truth and in fact, but there are many which have a different source. A judgment creates a debt which is non-contractual so also does the receipt of money paid by mistake or obtained by fraud. Nevertheless, in the eye of the common law they all fall within the sphere of contract for the law conclusively presumes that every person who owes a debt has promised to pay it. Whatever, therefore, says Blackstone, the law's order anyone to pay it becomes instantly a debt which he hath beforehand contracted to discharge. Hence it is that a judgment debtor is in legal theory liable ex-contractu to satisfy the judgment. The liability of the defendant says Lord Escher arises upon the implied contract to pay the amount of the judgment. Similarly, all pecuniary obligations of restitution are in theory contractual as in the case of money paid by mistake or obtained by fraud or duress. If the defendant says Lord Bansfield be under an obligation from the Ties of Natural Justice to refund the law implies a debt and gives this action founded on the equity of the plaintiff's case as it were upon a contract quasi ex-contractu as the Roman law expresses it. So also with pecuniary obligations of indemnity when, for example, the goods of a stranger are restrained and sold by a landlord for rent due by his tenant, the law implies a promise by the tenant to repay their value to the owner thus deprived of them. A similar fictitious promise is the ground on which the law bases obligations of contribution. If, for example, two persons acting independently of each other guarantee the same debt and one of them is subsequently compelled to pay the whole, he can recover half of the amount from the other as due to him under a contract implied in law, although there is clearly none in fact. Two. The second class of quasi-crantrax includes all those cases in which a person injured by a tort is allowed by the law to waive the tort and sue in contract instead. That is to say, there are certain obligations which are in truth delictal and not contractual but which may at the option of the plaintiff be treated as contractual if he so pleases. Thus if one wrongfully takes away my goods and sells them he is guilty of the tort known as trespass and his obligation to pay damages for the law suffered by me is in reality delictal. Nevertheless, I may, if I think it to my interest, waive the tort and sue him on a fictitious contract demanding from him the payment of the money so received by him as having rightly sold the goods as my agent and therefore as being indebted to me in respect to the price received by him and he will not be permitted to plead his own wrongdoing in bar of any such claim. So if a man obtains money from me by fraudulent misrepresentation I may sue him either in tort for damages for the deceit or on a fictitious contract for the return of the money. The reasons which have induced the law to recognize the fiction of quasi-contractual obligations of various the chief of them however are the three following one the traditional classification of the various forms of personal actions as being either based on contract or on tort this classification could be rendered exhaustive and sufficient only by forcing all liquidated pecuniary obligations into the contractual class regardless of their true nature and origin the theory that all common law actions are either contractual or delictal is received by the legislature even at the present day and its necessary corollary is the doctrine of quasi-contract 2. The desire to supply a theoretical basis for new forms of obligation established by judicial decision here's elsewhere legal fictions are of use in assisting the development of the law it is easier for the courts to say that a man is bound to pay because he must be taken to have so promised then to lay down for the first time the principle that he is bound to pay whether he is promised or not 3. The desire plaintiffs to obtain the benefit of the superior efficiency of contractual remedies in more than one respect it was better in the old days of formalism to sue on contract than on any other ground the contractual remedy of a sumsit was better than the action of debt for it did not allow the defendant the resource of wager of law it was better than trespass and other delictal remedies for it did not die with the person of the wrong doer but was available against his executors therefore plaintiffs were allowed to allege fictitious contracts and to sue on them in a sumsit whereas in truth their appropriate remedy was debt or some action ex delicto it seems clear that a rational system of law is free to get rid of the conception of quasi contractual obligations altogether no useful purposes served by it in the present day it still remains however part of the law of England and requires recognition accordingly Section 171 Inominate Obligations The foregoing classification of obligations as either contractual delictal or quasi contractual is not exhaustive for it is based on no logical scheme of division but proceeds by simple enumeration only consequently it is necessary to recognize a final and residuary class which we may term inominate as having no comprehensive and distinctive title included in this class are the obligations of trustees toward their beneficiaries a species indeed which would be sufficiently important and distinct to be classed separately as coordinate with the others which have been named were not for the fact that trusts are more appropriately treated in another branch of the law namely that of property Summary Obligations defined Choses in action Solidary obligations their nature their kinds several joint joint and several contractual obligations delictal obligations the nature of a tort one a civil wrong to actionable by way of damages three not a mere breach of contract for not a mere breach of trust or other equitable obligation quasi contractual obligations the nature of quasi contract instances of quasi contracts reasons for their recognition inominate obligations and a section 32 Section 33 of jurisprudence this is a LibriVox according all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org recording by Michael Fosio Jurisprudence by John Salmond Chapter 22 The Law of Procedure Part 1 Section 172 Substantive Law and the Law of Procedure It is no easy task to state with precision the exact nature of the distinction between substantive law and the law of procedure and it will conduce to clearness if we first consider a plausible but erroneous explanation in view of the fact that the administration of justice in its typical form consists in the application of remedies to the violations of rights it may be suggested that substantive law is that which defines the rights while procedural law determines the remedies this application however of the distinction between use and remedium is inadmissible for in the first place there are many rights which belong to the sphere of procedure for example a right of appeal a right to give evidence on one's own behalf a right to interrogate the other party and so on in the second place rules defining the remedy may be as much a part of the substantive law as are those which define the right itself no one would call the abolition of capital punishment for instance a change in the law of criminal procedure the substantive part of the criminal law deals not with crimes alone but with the punishments also so in the civil law the rules as to the measure of damages pertain to the substantive law no less than those declaring what damage is actionable and rules determining the classes of agreements which will be specifically enforced are as clearly substantive as are those determining the agreements which will be enforced at all to define procedure as concerned not with rights but with remedies is to confound the remedy with the process by which it is made available what then is the true nature of the distinction the law procedure may be defined as that branch of the law which governs the process of litigation it is the law of actions jus quo the odd action us pertinent using the term action in a wide sense to include all legal proceedings civil or criminal all the residue is substantive law and relates not to the process of litigation but to its purposes in subject matter substantive law is concerned with the ends which the administration of justice seeks procedural law deals with the means and instruments by which these ends are to be attained the latter regulates the conduct and relations of courts and litigants in respect to the litigation itself the former determines their conduct and relations in respect of the matters litigated procedural law is concerned with affairs inside the courts of justice substantive law deals with matters in the world outside a glance at the actual contents of the law of procedure will enable us to judge of the accuracy of this explanation whether I have a right to recover certain property is a question of substantive law for the determination and the protection of such rights are among the ends of the administration of justice but in what courts and within what time I must institute proceedings are questions of procedural law for they relate merely to the modes in which the courts fulfill their functions what facts constitute a wrong is determined by the substantive law what facts constitute proof of a wrong is a question of procedure for the first relates to the subject matter of litigation the second to the process merely whether an offense is punishable by fine or by imprisonment is a question of substantive law for the existence and measure of criminal liability are matters pertaining to the end and purpose of the administration of justice but whether an offense is punishable summarily or only on indictment is a question of procedure finally it may be observed that whereas the abolition of capital punishment would be an alteration of the substantive law the abolition of imprisonment for debt was merely an alteration in the law procedure for punishment is one of the ends of the administration of justice while imprisonment for debt was merely an instrument for enforcing payment so far as the administration of justice is concerned with the application of remedies to violated rights we may say that the substantive law defines the remedy and the right while the law procedure defines the modes and conditions of the application of the one to the other although the distinction between substantive law and procedure is sharply drawn in theory there are many rules of procedure which in their practical operation are wholly or substantially equivalent to rules of substantive law in such cases the difference between these two branches of the law is one of form rather than a substance a rule belonging to one department may by a change of form pass over into the other without materially affecting the practical issue in legal history such transitions are frequent and in legal theory they are not without interest and importance of these equivalent procedural and substantive principles there are at least three classes sufficiently important to call for notice here number one an exclusive evidential fact is practically equivalent to a constituent element in the title of the right to be proved the rule of evidence that a contract can be proved only by a writing corresponds to a rule of substantive law that a contract is void unless reduced to writing in the former case the writing is the exclusive evidence of title in the latter case it is part of the title itself in the former case the right exists but is imperfect failing in its remedy through defective proof in the latter case it fails to come into existence at all but for most purposes this distinction is one of form rather than a substance number two a conclusive evidential fact is equivalent to and tends to take the place of the fact proved by it all conclusive presumptions pertain in form to procedure but in effect to the substantive law that a child under the age of seven years is incapable of criminal intention is a rule of evidence but differs only in form from the substantive rule that no child under that age is punishable for a crime that the acts of a servant done about his master's business are done with his master's authority is a conclusive presumption of law and pertains to procedure but it is the forerunner and equivalent of our modern substantive law of employers liability a bond that is to say an admission of indebtedness under seal was originally operative as being conclusive proof of the evidence of the debt so acknowledged but it is now itself creative of a debt for it has passed from the domain of procedure into that a substantive law number three the limitation of actions is the procedural equivalent of the prescription of rights the former is the operation of time and severing the bond between right and remedy the latter is the operation of time in destroying the right the former leaves an imperfect right subsisting the latter leaves no right at all but save in this respect their practical effect is the same although their form is different the normal elements of judicial procedure are five in number namely summons pleading proof judgment and execution the object of the first is to secure for all parties interested in opportunity of presenting themselves before the court and making their case heard pleading formulates for the use of the court and of the parties those questions of fact or law which are an issue proof is the process by which the parties supply the court with the data necessary for the decision of these questions judgment is this decision itself while execution the last step in the proceeding is the use of physical force in the maintenance of the judgment when voluntary submission is withheld of these five elements of judicial procedure one only namely proof is a sufficient theoretical interest to repay such abstract considerations as is here in place the residue of this chapter therefore will be devoted to an analysis of the essential nature of the law of evidence section 173 evidence one fact is evidence of another when it tends in any degree to render the existence of that other probable the quality by virtue of which it has such an effect may be called its probative force and evidence may therefore be defined as any fact which possesses such force probative force maybe of any degree of intensity when it is great enough to form a rational basis for the inference that the fact so evidenced really exists the evidence possessing it is said to constitute proof it is convenient to be able to distinguish shortly between the fact which is evidence and the fact of which it is evidence the former may be termed the evidential fact the latter the principle fact where as is often the case there is a chain of evidence a being evidence of b b of c c of d and so on each intermediate fact is evidential in respect of all that follow it and principle in respect of all that proceed it number one evidences of various kinds being in the first place either judicial or extra judicial judicial evidence is that which is produced to the court it comprises all evidential facts that are actually brought to the personal knowledge and observation of the tribunals extra judicial evidence is that which does not come directly under judicial cognizance but nevertheless constitutes an intermediate link between judicial evidence and the fact requiring proof judicial evidence includes all testimony given by witnesses in court all documents produced to and read by the court and all things personally examined by the court for the purposes of proof extra judicial evidence includes all evidential facts which are known to the court only by way of inference from some form of judicial evidence testimony is extra judicial when it is judicially known only through the relation of a witness who heard it a confession of guilt for example is judicial evidence if made to the court itself but extra judicial if made elsewhere and proved to the court by some form of judicial evidence similarly a document is judicial evidence if produced extra judicial if known to the court only through a copy or through the report of a witness who has read it so the locus in quo or the material subject matter of the suit becomes judicial evidence when personally viewed by the court but is extra judicial when described by witnesses it is plain that in every process of proof some form of judicial evidence is an essential element extra judicial evidence may or may not exist when it is presented it forms an intermediate link or a series of intermediate links in a chain of proof the terminal links of which are the principal fact at one end and the judicial evidence at the other judicial evidence requires production merely extra judicial evidence stands itself in need of proof number two in the second place evidence is either personal or real personal evidence is otherwise termed testimony it includes all kinds of statements regarded as possessed of probative force and respect of the facts stated this is by far the most important form of evidence there are a few processes of proof that do not contain it few facts that are capable of being proved in courts of justice otherwise than by the testimony of those who know them testimony is either oral or written and either judicial or extra judicial there is a tendency to restrict the term to the judicial variety but there is no good reason for this limitation it is better to include under the head of testimony or personal evidence all statements verbal or written judicial or extra judicial so far as they are possessed of probative force real evidence on the other hand includes all the residue of evidential facts anything which is believed for any other reason than that some one has said so is believed on real evidence this too is either judicial or extra judicial though here there is also a tendency to restrict the term to the former use number three evidence is either primary or secondary other things being equal the longer any chain of evidence the less its probative force for with each successive inference the risk of error grows in the interests of truth therefore it is expedient to shorten the process to cut out as many as possible of the intermediate links of extra judicial evidence and to make evidence assume the judicial form at the earliest practical point hence the importance of the distinction between primary and secondary evidence primary evidence is evidence viewed in comparison with any available and less immediate instrument of proof secondary evidence is that which is compared with any available and more immediate instrument of proof primary evidence of the contents of a written document is the production in court of the document itself secondary evidence is the production of a copy or of oral testimony as to the contents of the original primary evidence that a assaulted b is the judicial testimony of c that he saw the assault secondary evidence is the judicial testimony of d that c told him that he saw the assault that secondary evidence should not be used when primary evidence is available is in his general form a mere counsel of prudence but in particular case the most important of which are those just used as illustrations this counsel has hardened into an obligatory rule of law subject to certain exceptions the courts will receive no evidence of a written document save the document itself and will listen to no hearsay testimony number four evidence is either direct or circumstantial this is a distinction important and popular opinion rather than a legal theory direct evidence is testimony relating immediately to the principal fact all other evidence is circumstantial in the former case the only inference required is one from testimony to the truth of it in the latter the inferences of a different nature and is generally not single but composed of successive steps the testimony of A that he saw B commit the offense charged or the confession of B that he is guilty constitutes direct evidence if we believe the truth of the testimony or confession the matter is concluded and no further process of proof or inference is required on the other hand the testimony of A that B was seen by him leaving the place where the offense was committed and having the instrument of the offense in his possession is merely circumstantial evidence for even if we believe this testimony it does not follow without a further inference and therefore a further risk of error that B is guilty direct evidence is commonly considered to excel the other in probative force this however is not necessarily the case for witnesses lie and facts do not circumstantial evidence of innocence may well prevail over direct evidence of guilt and circumstantial evidence of guilt may be indefinitely stronger than direct evidence of innocence section 174 the valuation of evidence the law of evidence comprises two parts the first of these consists of rules for the measurement or determination of the probative force of evidence the second consists of rules determining the modes and conditions of the production of evidence the first deals with the effect of evidence when produced the second with the manner in which it is to be produced the first is concerned with evidence in all its forms whether judicial or extrajudicial the second is concerned with judicial evidence alone the two departments are intimately connected for it is impossible to formulate rules for the production of evidence without reference and relation to the effect of it when produced nevertheless the two are distinct in theory and for the most part distinguishable in practice we shall deal with them in their order in judicial proceedings as elsewhere the accurate measurement of the evidential value of facts is a condition of the discovery of truth except in the administration of justice however this task is left to common sense and personal discretion rules and maxims when recognized at all are recognized as proper for the guidance of individual judgment not for the exclusion of it but in this as in every other part of judicial procedure law has been generated and in so far as it extends has made the estimation of probative force or the weighing of evidence a matter of inflexible rules excluding judicial discretion these rules constitute the first and most characteristic portion of the law of evidence they may be conveniently divided into five classes declaring respectively that certain facts amount to one conclusive proof in other words raise a conclusive presumption two presumptive proof in other words raise a conditional or rebuttable presumption three insufficient evidence that is to say do not amount to proof and raise no presumption conclusive or conditional four exclusive evidence that is to say are the only facts which in respect of the matter in issue possess any probative force at all and five no evidence that is to say are destitute of evidential value Roman number one conclusive presumptions by conclusive proof is meant a fact possessing probative force of such strength as not to admit of effective contradiction in other words this fact amounts to proof irrespective of the existence or non-existence of any other facts whatsoever which may possess probative force in the contrary direction by a conclusive presumption is meant the acceptance or recognition of a fact by the law as conclusive proof presumptive or conditional proof on the other hand is a fact which amounts to proof only so long as there exists no other fact amounting to disproof it is a provisional proof valid until overthrown by a contrary proof a conditional or rebuttable presumption is the acceptance of a fact by the law as conditional proof one of the most singular features of early systems of procedure is the extent to which the process of proof is dominated by conclusive presumptions the chief part of the early law of evidence consists of rules determining the species of proof which is necessary and sufficient in different cases and allotting the benefit or burden of such proof between the parties he who would establish his case must maintain it for example by success in that judicial battle the issue of which was held to be the judgment of heaven judicium day or he must go unscathed through the ordeal and so make manifest his truth or innocence or he must procure 12 men to swear in set form that they believe his testimony to be true or it may be sufficient if he himself makes solemn oath that his case is just if he succeeds in performing the conditions so laid upon him he will have judgment if he fails even in the slightest point he is defeated his task is to satisfy the requirements of the law not to convince the court of the truth of his case what the court thinks of the matter is nothing to the point the whole procedure seems designed to take away from the tribunals the responsibility of investigating the truth and to cast this burden upon providence or fate only gradually and reluctantly did our law attain to the conclusion that there is no such royal road in the administration of justice that the heavens are silent that the battle goes to the strong that oaths are not and that there is no just substitute for the laborious investigation of the truth of things at the mouths of parties and witnesses the days are long since past in which the conclusive presumptions played any great part in the administration of justice they have not however altogether lost their early importance they are indeed almost necessarily more or less false for it is seldom possible in the subject matter of judicial procedure to lay down with truth a general principle that any one thing is conclusive proof of the existence of any other nevertheless such principles may be just and useful even though not wholly true we have already seen how they are often merely the procedural equivalents of substantive rules which may have independent validity they have also been of use in developing and modifying by way of legal fictions the narrow and perverted principles of the early law as an illustration of their employment in modern law we may cite the maxim raised you to kata pro verite excipitur a judgment is conclusive evidence as between the parties and sometimes as against all the world of the matters adjudicated upon the courts of justice may make mistakes but no one will be heard to say so for their function is to terminate disputes and their decisions must be accepted as final and beyond question Roman numeral two conditional presumptions the second class of rules for the determination of probative force are those which establish rebuttable presumptions for example a person shown not to have been heard of for seven years by those who would naturally have heard of him if he had been alive is presumed to be dead so also a negotiable instrument is presumed to have been given for value so also a person accused of any offense is presumed to be innocent many of these presumptions are based on no real estimate of probabilities but are established for the purpose of placing the burden of proof upon the party who is best able to bear it or who may most justly be made to bear it persons accused of crime are probably guilty but the presumption of their innocence is in most cases and with certain limitations clearly expedient Roman numeral three insufficient evidence in the third place the law contains rules declaring that certain evidence is insufficient that its probative force falls short of that required for proof and that it is therefore not permissible for the courts to act upon it an example is the rule that in certain kinds of treason the testimony of one witness is insufficient almost the sole recognition by English law of the general principle familiar in legal history that two witnesses are necessary for proof Roman numeral four exclusive evidence in the fourth place there is an important class of rules declaring certain facts to be exclusive evidence none other being admissible the execution of a document which requires attestation can be proved in no other way than by the testimony of a testing witness unless owing to death or some other circumstance his testimony is unavailable a written contract can be proved in no other way than by the production of the writing itself whenever its production is possible certain kinds of contracts such as one for the sale of land cannot be proved except by writing no verbal testimony being virtue enough in the law to establish the existence of them it is only in respect of very special kinds of contracts that written evidence can wisely be demanded by the law in the case of all ordinary mercantile agreements such a requirement does more harm than good and the law would do well in accepting the principle that a man's word is as good as his bond the statute of frauds by which most of these rules of exclusive evidence have been established is an instrument for the encouragement of frauds rather than for the suppression of them how much longer is it to remain in force as a potent instrument for the perversion of English law its repeal would sweep away at one stroke the immense accumulation of irrational technicality and complexity that has grown in the course of centuries from this evil route Roman numeral five facts which are not evidence fifthly and lastly there are rules declaring that certain facts are not evidence that is to say our destitute of any probative force at all such facts are not to be produced to the court and if produced no weight is to be attributed to them for no accumulation of them can amount to proof for example here say is no evidence the bond of connection between it and the principal fact so reported at second hand being in the eye of the law too slight for any reliance to be justly placed upon it similarly the general bad character of an accused person is no evidence that he is guilty of any particular offense charged against him although his good character is evidence of his innocence these rules of exclusion or relevancy assume two distinct forms characteristic respectively of the earlier and later periods in the development of the law at the present day there are almost wholly rules for the exclusion of evidence in earlier times there were rules for the exclusion of witnesses the law imposed testimonial incapacity upon certain classes of persons on the ground of their antecedent incredibility no party to a suit no person possessing any pecuniary interest in the event of it no person convicted of any infamous offense was a competent witness his testimony was deemed destitute of evidential value on account of the suspicious nature of its source the law has now learned that it is not in this fashion that the truth is to be sought for and found it is now more confidence in individual judgment and less in general rules it no longer condemns witnesses unheard but receives the testimony of all placing the old grounds of exclusion at their proper level as reasons for suspicion but not for antecedent rejection whether rules for the exclusion of evidence are not in general exposed to the same objections that have already prevailed against the rules for the exclusion of witnesses is a question which we shall presently consider End of Section 33 Section 34 of Jurisprudence this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org Recording by Michael Fasio Jurisprudence by John Salmond Chapter 22 The Law of Procedure, Part 2 Section 175 The Production of Evidence The second part of the law of evidence consists of rules regulating its production it deals with the process of inducing evidence and not with the effect of it when adduced it comprises every rule relating to evidence except those which amount to legal determinations of probative force it is concerned for example with the manner in which witnesses are to be examined and cross-examined not with a weight to be attributed to their testimony in particular it includes several important rules of exclusion based on grounds independent of any estimate of the probative force of the evidence so excluded considerations of expense delay vexation and the public interest require much evidence to be excluded which is of undoubted evidential value a witness may be able to testify to much that is relevant and important in respect of the matters in issue and nevertheless may not be compelled or even permitted to give such testimony a public official for example cannot be compelled to give evidence as to affairs of state nor is a legal advisor permitted or compelable to disclose communications made to him by or on behalf of his client the most curious and interesting of all these rules of exclusion is the maxim Nemo tenetur seipsum accusare no man not even the accused himself can be compelled to answer any question the answer to which may tend to prove him guilty of a crime no one can be used as the unwilling instrument of his own conviction he may confess if he so pleases and his confession will be received against him but if tainted by any form of physical or moral compulsion it will be rejected the favor with which this rule has been received is probably due to the recoil of English law from the barbarities of the old continental system of torture and inquisitorial process even as contrasted with the modern continental procedure in which the examination of the accused seems to English eyes too prominent and too hostile the rule of English law is not without merits it confers upon a criminal trial an aspect of dignity humanity and impartiality which the contrasted inquisitorial process is too apt to lack nevertheless it seems impossible to resist Bentham's conclusion that the rule is destitute of any rational foundation and that the compulsory examination of the accused is an essential feature of sound criminal procedure even its defenders admit that the English rule is extremely favorable to the guilty and in a proceeding the aim of which is to convict the guilty this would seem to be a sufficient condemnation the innocent have nothing to fear from compulsory examination and everything to gain the guilty have nothing to gain and everything to fear a criminal trial is not to be adequately conceived as a fight between the accused and his accuser and there is no place in it for Maxims whose sole foundation is a supposed duty of generous dealing with adversaries subject always to the important qualifications that a good prima facie case must first be established by the prosecutor every man should be compelable to answer with his own lips the charges that are made against him a matter deserving notice in connection with this part of the law of evidence is the importance still attached to the ceremony of the oath one of the great difficulties involved in the process of proof is that of distinguishing between true testimony and false by what test is the lying witness to be detected and by what means is corrupt testimony to be prevented three methods commended themselves to the wisdom of our ancestors these with the judicial combat the ordeal and the oath the first two of these have long since been abandoned as an effective but the third is still retained as a characteristic feature of judicial procedure though we may assume with some confidence that its rejection will come in due time and will in no way injure the cause of truth and justice trial by battle as soon as it acquired a theory at all became in reality a form of ordeal in common with the ordeal commonly so-called it is a judicium day it is an appeal to the god of battles to make manifest the right by giving the victory to him whose testimony is true successful might is the divinely appointed test of right so in the ordeal the party or witness whose testimony is impeached calls upon heaven to bear witness to his truth by saving him harmless from the fire the theory of the oath is generically the same an oath says Hobbes quote is a form of speech added to a promise by which he that promiseeth signifyeth that unless he perform he renounceeth the mercy of his god or calleth to him for vengeance on himself such was the heathen form let Jupiter kill me else as I kill this beast so as our form I shall do thus and thus so help me God unquote the definition is correct save that it is restricted to promissory instead of including also declaratory oaths a man may swear not only that he will speak the truth but that certain statements are the truth the idea of the oath therefore is that his testimony is true who is prepared to imprecate divine vengeance on his own head in case of falsehood yet it needs but little experience of courts of justice to discover how ineffective is any such check on false witness and how little likely is the retention of it to increase respect either for religion or for the administration of justice the true preventative of false testimony is an efficient law for its punishment as a crime punishment falling swiftly and certainly upon offending witnesses would purge the courts of an evil which the cumbersome inefficiency of the present law of perjury has done much to encourage in which all the oaths in the world will do nothing to abate section 176 criticism of the law of evidence we have in a former chapter considered the advantages and disadvantages of that substitution of predetermined principles for judicial discretion which constitutes the essential feature of the administration of justice according to law in no portion of our legal system is this question of more immediate importance than in the law of evidence here if anywhere the demerits of law are at a maximum and those of the opposing system at a minimum general rules for the predetermination of probative force are of necessity more or less false it is impossible to say with truth and a priori what evidence is or is not sufficient for proof it is not true that hearsay is absolutely destitute of evidential value it is not true that a contract for the sale of land cannot be satisfactorily proved by oral testimony it is not true that the contents of a document cannot be well proved by a copy of it to elevate these maxims and such as these from their proper position as councils for warning and guidance to the level of rigid and preemptory rules is to be inevitably led astray by them like all general principles they are obtained by way of abstraction and elimination of elements which may be in particular instances of the first importance to apply such abstract principles to concrete cases without making the needful allowance for the special circumstances of these cases is as wise as to apply the laws of motion without allowing for the disturbing influence of friction no unprejudiced observer can be blind to the excessive credit and importance attached in judicial procedure to the minutia of the law of evidence this is one of the last refuges of legal formalism nowhere is the contrast more striking between the law's confidence in itself and its distrust of the judicial intelligence the fault is to be remedied not by the abolition of all rules for the measurement of evidential value but by their reduction from the position of rigid and preemptory to that of the flexible and conditional rules most of them have their source in good sense and practical experience and they are profitable for the guidance of individual discretion though mischievous as substitutes for it the cases are few in which we can rightly place such rules upon the higher level in general courts of justice should be allowed full liberty to reject as irrelevant superfluous or vexatious whatever evidence they will and to accept at such valuation as they please whatever evidence seems good to them we must learn to think less highly of the wisdom of the law and less meanly of the understanding and honor of its administrators and we may anticipate with confidence that in this department at least of judicial practice the change will be in the interests of truth and justice summary law substantive relating to the subject matter of litigation procedural relating to the process of litigation the occasional equivalence of substantive and procedural rules procedure its elements summons pleading proof judgment and execution the law of evidence evidence and proof defined kinds of evidence namely judicial and extra judicial personal and real primary and secondary direct and circumstantial divisions of the law of evidence roman numeral one rules determining probative force number one conclusive proof number two conditional proof number three insufficient evidence number four exclusive evidence number five no evidence roman numeral two rules determining the production of evidence nemo teneter say ipsum accusare oaths criticism of the law of evidence and a section 34 section 35 of jurors prudence this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org recording by Josh Kibbe jurors prudence by John Salmond appendix one the names of the law the purpose of the following pages is to consider in respect of their origin and relations the various names and titles which have been born by the law in different languages this seems an inquiry fit to be undertaken in the hope that judicial terms may be found to throw some light upon the juridical ideas of which they are the manifestation a comparison of diverse usages of speech may serve to correct misleading associations or to suggest relations that may be easily overlooked by anyone confining his attention to a single language the first fact which an examination of juridical nomenclature reveals is that all names for law are divisible into two classes and that almost every language possesses one or more specimens of each to the first class belong such terms as Dua, Rext, Dorito, Equity to the second belong Lex, Lois, Quessets, Lege, La and many others it is a striking peculiarity of the English language that it does not possess any generic term falling within the first of these groups for equity in the technical juridical sense means only a special department of civil law not the whole of it and therefore is not co-extensive with Jus, Dua and the other foreign terms with which it is classed since therefore we have an English no pair of contrasted terms adequate for the expression of the distinction between these two groups of names we are constrained to have recourse to a foreign language and we shall employ for this purpose the terms Jus and Lex using each is typical of and representing all other terms which belong to the same group as itself what then are the points of difference between Jus and Lex what is the importance and the significance of the distinction between the two classes of terms in the first place Jus has an ethical as well as a juridical application while Lex is purely juridical Jus means not only law but also right Lex means law and not also right thus our own equity has clearly the double meaning it means either the rules of natural justice or that special department of the civil law which was developed and administered in the court of chancery the English law on the other hand has a purely juridical application justice in itself and as such has no claim to the name of law so also with the law as opposed to the law with wrecked as opposed to gay sets with the reto as opposed to leisure if we inquire after the cause of this duplication of terms we find it in the double aspect of the complete juridical conception of law law arises from the union of justice and force of right and might it is justice recognized and established by authority it is right realized through power since therefore it has two sides and aspects it may be looked at from two different points of view and we may expect to find as we find in fact that it acquires two different names Jus is law looked at from the point of view of right and justice Lex is law looked at from the point of view of authority and force Jus is the rule of right which becomes law by its authoritative establishment Lex is the authority by virtue of which the rule of right becomes law law is Jus in respect of its contents namely the rule of right it is a Lex in respect of its source namely its recognition and enforcement by the state we see then how it is that so many words for law mean justice also since justice is the content or subject matter of law and from this subject matter law derives its title we understand also how it is that so many words for law do not also mean justice law has another side in aspect from which it appears not as justice realized and established but as the instrument through which its realization and establishment are affected a priori we may presume that in the case of those terms which possess a double application both ethical and legal the ethical is historically prior and the legal later and derivative we may assume that justice comes to mean law not that law comes to mean justice this is the logical order and is presumably the historical order also as a matter of fact this presumption is as we shall see correct in the case of all modern terms possessing the double signification in the case of rect dua dorito equity the ethical sense is undoubtedly primary and the legal secondary in respect to the corresponding greek and latin terms just decay on the data would seem insufficient for any confident conclusion the reverse order of development is perfectly possible there is no reason why lawful should not come to mean in a secondary sense rightful though a transition in the opposite direction is more common and more natural the significant fact is the union of the two meanings in the same word not the order of development a second distinction between just and lex is that the former is usually abstract the second concrete the english term law indeed combines both these uses in itself in its abstract application we speak of the law of england criminal law courts of law in its concrete sense we say that parliament has enacted or repealed a law in foreign languages on the other hand this union of the two significations is unusual just dua rect mean law and the abstract not in the concrete lex law gay sets signify at least primarily and normally a legal enactment or a rule established by way of enactment not law in the abstract this so ever is not invariably the case lex law and some other terms belonging to the same group have undoubtedly acquired a secondary and abstract signification in addition to their primary concrete one a medieval usage the law of the land is lex terra and the law of england is lexate consortudo angliae so in modern french law is often merely an equivalent for dua we cannot therefore regard the second distinction between jus and lex as essential it is closely connected with the first but though natural and normal it is not invariable the characteristic difference between english and foreign usage is not that our law combines the abstract and concrete significations for so also do certain continental terms but that the english language contains no generic term which combines ethical and legal meanings as du jus dua and rect rect dua dorito these three terms are all closely connected with each other and with the english right the french and italian words are derivatives of the latin directus and directus these being cognate with rect and right we may with some confidence assume the following order of development among the various ideas represented by this group of expressions one the original meaning was an all probability physical straightness this use is still retained in our right angle and direct the root is rag to stretch or straighten the group of connected terms ruler rex rajah regulates and others would seem to be independently derived from the same root but not to be in the same line of development as right and its synonyms the ruler or regulator is he who keeps things straight or keeps order not he who establishes the right nor is the right to that which is established by a ruler two in a second and derivative sense the terms are used metaphorically to indicate moral approval ethical rightness not physical moral disapproval is similarly expressed by the metaphorical expressions wrong and tort that is to say crooked or twisted these are metaphors that still come in themselves for the honest man is still the straight and upright man and the ways of wickedness are still crooked in this sense therefore rekt do and diritto signify justice and right three the first application being physical and the second ethical the third is juridical the transition from the second to the third is easy law is justice as recognized and protected by the state the rules of law are the rules of right as authoritatively established and enforced by tribunals appointed to that end what more natural therefore than for the ethical terms to acquire derivatively a juridical application at this point however our modern english right has parted company with its continental relatives it has remained physical and ethical being excluded from the juridical sphere by the superior convenience of the english law four the fourth and last use of the terms we are considering may be regarded as derivative of both the second and third it is that in which we speak of rights namely claims powers or other advantages conferred or recognized by the rule of right or the rule of law that a debtor should pay his debt to his creditor is not merely right it is the right of the creditor right is his right for whose benefit it exists so also wrong is the wrong of him who is injured by it the Germans distinguish this use of the term by the expression subjectives wrecked right is vested in a subject as opposed to objectives wrecked namely the rule of justice or of law as it exists subjectively the english right has been extended to cover legal as well as ethical claims though it has as we have seen been confined to ethical rules as reit it is worthy of notice that the english section reit the progenitor of our modern right possessed like its continental relatives the legal in addition to the ethical meaning the common law is folk reit the divine law is gold is reit a plaintiff claims property as his by folk reit even as a roman would have claimed it as being dominus extra curitium the usage however did not prosper it had to face the formidable and ultimately successful rivalry of the english originally danish law and even norman french on its introduction into england fell under the same influence for a time indeed in the earlier books we find both do and lay as competing synonyms but the issue was never doubtful the archaism of common right as a synonym for common law is the sole relic left in england of a usage universal in continental languages equity the english term equity has pursued the same course of development as the german rect and the french dois one it's primitive meaning if we trace the word back to its latin source ecuam is physical equality or evenness just as physical straightness is the earliest meaning of right and its analogues two its secondary sense is ethical just as rightness is straightness so equity is equality in each case there is an easy and obvious metaphorical transition from the physical to the moral idea equity therefore is justice three in a third and later stage of its development the word takes on a juridical significance it comes to mean a particular portion of the civil law that part namely which was developed by and administered in the court of chancery like rect and dois it passed from the sense of justice in itself to that of the rules in accordance with which justice is administered for fourthly and lastly we have to notice illegal and technical use of the term equity as meaning any claim or advantage recognized or conferred by a rule of equity just as a right signifies any claim or advantage derived from a rule of right and equity is inequitable as opposed to a legal right when the equities are equal so runs the maximum of chancery the law prevails so a debt is assignable subject to equities just we have to distinguish in the case of just the same three uses that have already been noticed in the case of rect the law and equity one right or justice id code simple acquam acbonum asus dc tour says palace from just in this sense are derived justilia and justin to law this is the most usual application of the term the juridical sense having a much greater predominance over the ethical in the case of just then in that of its modern representatives rect and dois just in its ethical signification is distinguished as just natural and in its legal sense as just civil it is often contrasted with faas the one being human and the other divine law just however is also used in a wider sense to include both of these just to win him a two monum three a right moral or legal just soon seek a tribute the origin and primary signification of just are uncertain it is generally agreed however that the old derivation from just soon and jubar is not merely incorrect but an actual reversal of the true order of terms and ideas just soon is a derivative of just jubar is in its proper and original sense to declare hold or establish anything as just it was the recognized expression for the legislative action of the roman people the gem jubar is to give to a statute lex the force of law just only in a secondary and derivative sense is jubar equivalent to emperor the most probable opinion is that just is derived from the arian root you to join together a root which appears also in yugam yungo and in the english yoke it has been suggested accordingly that jus in its original sense means that which is fitting applicable or suitable if this is so there is a striking correspondence between the history of the latin term and that of the modern words already considered by us the primary sense in all cases being physical the ethical sense being a metaphorical derivative of this and the legal application coming last the transition from the physical to the ethical sense in the case of the english fit and fitting is instructive in this connection another suggestion however is that just means primarily that which is binding the bond of moral and subsequently of legal obligation but no definite conclusion on this matter is possible viki the vikaion the greek term which most nearly corresponds to the latin jus is viki these words cannot however be regarded as anonymous the juridical use of jus is much more direct and predominant than the corresponding use of viki indeed we may say of the greek term that it possesses juridical implications rather than applications its chief uses are the following the connection between them being obvious one custom usage way two right justice three law or at least legal right four judgment five a lawsuit six a penalty seven a court of law the primary sense is said to be that first mentioned vis custom the transition is easy from the idea of the customary to that of the right and from the idea of the right to that of the lawful in the case of the latin most we may trace an imperfect and tentative development in the same direction professor clark on the other hand prefers to regard judgment as the earliest meaning of viki the other ethical and legal applications being derivatives from this and eviki in the sense of custom being an independent formation from the original route such an order of development seems difficult and unnatural analogy and the connection of ideas seem to render more probable the order previously suggested if is custom right law and finally the remaining legal uses famous famous days as viki corresponds to juice so famous apparently corresponds to vas while vas however preserved its original signification as that which is right by divine ordinance and never required any secondary legal applications or implications the greek term proved more flexible and consequently has to be reckoned with in the present connection the matter is one of very considerable difficulty and no certain conclusions seem possible but the following order of development would seem to commend itself as the most probable one famous divine ordinance the will of the gods the term is derived from the arian route da to set place a point or establish which appears also in thesmos a statue or ordinance the latter term however included human enactments while famous was never so used the greek term is cognant with thesis and theme and with our english doom a word whose early legal uses we shall consider later two famous right the transition is easy from that which is decreed and willed by the gods to that which it is right for mortal men to do three famous days the rules of right whether moral or legal so far as any such distinction was recognized in that early stage of thought to which these linguistic usages belong four famous days judgments judicial declarations of the rules of right and law lex so far we have dealt solely with those words which belong to the class of juice namely those which possess a double signification ethical and legal we proceed now to the consideration of the second class represented by lex and first of lex itself the following arts various uses given in what is probably the historical order of their establishment one proposals terms conditions offers made by one party and accepted by another thus a lege utt on condition that dictate tbs lex you know the conditions his legibus on these conditions so ledges posse are the terms conditions of peace pox data philippo and has leges est similarly in law leges locationis are the terms and conditions agreed upon between lender and borrower so we have the legal expressions lex mens api lex commissoria and others to a statute enacted by the populace romanus in the comitia centriata on the proposal of a magistrate this would seem to be a specialized application of lex in the first mention since such a statute is conceived rather as an agreement than as a command it is a proposal made by the consuls and accepted by the roman people it is therefore lex even as a proposal of peace made and accepted between the victor and the vanquished is lex lex says justinian est code populace romanus senatorio magistratu interagante voluti consul constitutot three any statute house whoever made whether by way of authoritative imposition or by way of agreement with the self-governing people four any rule of action imposed or observed e.g. lex locundi lex sermanus this is simply an analogical extension similar to that which is familiar in respect to the corresponding terms in modern languages la la guisette five la in the abstract sense lex so used cannot be regarded as classical latin although in certain instances as in cicero's references to lex natura we find what seems a very close approximation to it in medieval latin however the abstract signification is quite common as in the phrases lex romana lex terra lex communus lex et constituto lex has become equivalent to jus in its legal applications this use is still retained in certain technical expressions of private international law such as lex fori lex domicilii and others it is possible that we have here an explanation of the very curious fact that so celebrated an important award is jus fail to maintain itself in the romance languages of the two terms jus and lex bequeathed to later times by the latin language one was accepted la la equals lex and the other rejected and supplanted by a modern substitute duat dorito why was this may not have been owing to that post classical use of lex in the abstract sense whereby it became synonymous and co-extensive as jus if lex romana was jus civil why should the growing languages of modern europe cumbers themselves with both terms the survivor of the two rivals was lex at a later stage the natural evolution of thought and speech conferred juridical uses on the ethical terms duat and dorito and the ancient duality of legal nomenclature was restored six judgment this like the last and like the three following uses is a medieval addition to the meanings of lex we have already seen the transition from law to judgment in the case of jus viki and famous legion facer is to obey or fulfill the requirements of a judgment legion va dire the english wager of law is to give security for such obedience and fulfillment seven the penalty proof for other matter imposed or required by a judgment lex igna the ordeal of fire lex dueli trial by battle eight legal rights regarded collectively as constituting a man's legal standing or status legion emitter in english to lose one's law was an early english law an event analogous to the capitas diminuto and infamia of the romans it was a loss of legal status a partial deprivation of legal rights and capacities nomos as viki corresponds to jus and famous to faz so nomos is the greek equivalent of lex we have to distinguish two uses of the term one earlier in general the other later and specialized one nomos is used in a very wide sense to include any human institution anything established or received among men whether by way of custom opinion convention law or otherwise it was contrasted at least in the language of the philosophers with feces or nature that which is natural is though physicon that which is artificial owing its origin to the art and invention of mankind is though namakan it is often said that the earliest meaning of nomos is custom the original conception however seems to include not merely that which is established by long usage but that which is established received ordained or appointed in whatever fashion nomos is institutum rather than constituto nomos in a later secondary and specialized application means a statute ordinance or law so prominent among human institutions are the laws by which men are governed so greatly with increasing political development due to the spheres and influence of legislation extend themselves that the nomos became an especial and preeminent since the laws of the state nomos was a word unknown to homer but it became in later times the leading juridical term of the greek language the greek spoken rote of the laws nomi while the romans perhaps with the true or legal insight concern themselves with the law jus when like cicero they write delegibus it is an imitation of greek usage law laws by nomines the earliest legal term acquired by the english language curiously enough indeed it would seem not even to be indigenous but to be one of those additions to english accent speech which are due to the danish invasions and settlements of the earlier terms the commonest and the most significant for our present purpose is dumb the ancestor of our modern doom a dumb or doom is either one a law ordinance or statute or two a judgment it does not seem possible to attribute with any confidence historical priority to either of these senses in modern english the idea of judgment has completely prevailed over and excluded that of ordinance but we find to know such predominance of either meaning in english accent usage the word has its source in the arian root da to place set establish a point and it is therefore equally applicable to the decree of the judge and to that of the law giver and the laws of king alfred we find the term in both its senses these are the dooms which almighty god himself spake into moses and commanded him to keep judge then not one doomed to the rich and another to the poor in the following passage of the laws of edgar the laws of the danes are plainly equivalent to the dooms of the english i will that secular right stand among the danes with as good laws as they best may choose but with the english let that stand which i and my witton have added to the dooms of my forefathers doom is plainly cognate to themus the religious implication however which in the greek term is general and essential is in the english term special and accidental in modern english doom is like famous the will decree and judgment of heaven fate or destiny but the inglosaxan dumb included the ordinances and judgments of mortal men no less than those of the gods famous therefore acquired the sense of human law only derivatively through the sense of right and so belongs to the class of juice not of lex while doom like famous dais acquired juridical applications directly and so stands besides lex and nomos doom together with all the other inglosaxan legal terms including strangely enough right itself was rapidly superseded by lagu which is the modern law the new term makes its appearance in the 10th century and the passage sided above from the laws of king edgar is one of the earliest instances of its use lagu and law are derived from the root log to lay settle or place law is that which is laid down there was a considerable conflict of opinion as to whether it is identical in origin with the latin lex lex schmidt and others decide in the affirmative and the probabilities of the case seem to favor this opinion the resemblance between law and lex seems too close to be accidental if this is so the origin of lex is to be found in the latin lego not in its later sense of reading but in its original sense of laying down our setting as in the derivative lexis which is also the primary signification of the greek yego the german legan and the english lay if this is so then law and lex are alike that which is laid down just as gay sets is that which is set setson this interpretation is quite consistent with the original possession by lex of a wider meaning than statute is already explained we still speak of laying down terms conditions and propositions no less than of laying down commands rules and laws lex however is otherwise and variously derived from or connected with ligar to bind legere to read and yeging to say or speak it is true indeed that by several good authorities it is held that the original meaning of lagu and law is that which lies not that which has been later settled that which is customary not that which is established by authority the root lag however must contain both the transitive and intransitive senses and i do not know what evidence there is for the exclusion of the former from the signification of the derivative law moreover there seems no ground for chibidine to lagu the meaning of custom it seems from the first to have meant the product of authority not that of use and want it is that you to him not constituto as soon as we meet with it it is equivalent to dumb the analogy also of lex cassettes dumb famous and other similar terms is in favor of the interpretation here preferred end of section 35