 section 29 of Jurisprudence this is a LibriVox recording all LibriVox recordings are the public domain for more information or to volunteer please visit LibriVox.org recording by Mary Ann Jurisprudence by John Salmond chapter 19 liability continued section 145 wrongs of absolute liability we now proceed to consider the third class of wrongs namely those of absolute liability these are the acts for which a man is responsible irrespective of the existence of either wrongful intent or negligence they are the exceptions to the rule actus nonfacet reum nisi mencetria it may be thought indeed that in the civil as opposed to the criminal law absolute liability should be the rule rather than the exception it may be said it is clear that in the criminal law liability should in all ordinary cases be based upon the existence of men's rea no man should be punished criminally unless he knew that he was doing wrong or might have known it by taking care inevitable mistake or accident should be a good defense for him but why should the same principle apply to civil liability if I do another man harm why should I not be made to pay for it what does it matter to him whether I did it willfully or negligently or by inevitable accident in either case I've actually done the harm and therefore should be bound to undo it by paying compensation for the essential aim of civil proceedings is redress for harm suffer by the plaintiff not punishment for wrong done by the defendant therefore the rule of men's rea should be deemed inapplicable it is clear however that this is not the law of England and it seems equally clear that there is no sufficient reason why it should be in all those judicial proceedings which fall under the head of penal redress the determining purpose of the law is not redress but punishment redress is in those cases merely the instrument of punishment in itself it is not a sufficient ground or justification for such proceedings at all unless damages are at the same time a deserved penalty inflicted upon the defendant they are not to be justified as being a deserved recompense awarded to the plaintiff for they in no way undo the wrong or restore the former state of things the wrong is done and cannot be undone if by accident I burned down another man's house the only result of enforcing compensation is that the loss has been transferred from him to me but it remains as great as ever for all that the mischief done has been in no degree abated if I am not him fault there's no more reason why I should ensure other persons against the harmful issues of my own activity than why I should ensure them against lightning or earthquakes unless some definite gain is to be derived by transferring loss from one head to another sound reason as well as the law requires that the loss should lie where it falls although the requirement of mens rea is general throughout the civil and criminal law there are numerous exceptions to it the considerations on which these are based are various but the most important is the difficulty of procuring adequate proof of intention or negligence in the majority of instances indeed justice requires that this difficulty be honestly faced but in certain special cases it is allowable to circumvent it by means of a conclusive presumption of the presence of this condition of liability in this way we shall certainly punish some who are innocent but in the case of civil liability this is not a very serious matter since men know that in such cases they acted their peril and are content to take the risk well in respect of criminal liability such a presumption is seldom resorted to and only in the case of comparatively trivial offenses whenever therefore the strict doctrine of mens rea would too seriously interfere with the administration of justice by reason of the evidential difficulties involved in it the law tends to establish a form of absolute liability in proceeding to consider the chief instances of this kind of liability we find that the matter falls into three divisions namely one mistake of law to mistake of fact and three accident section 146 mistake of law it is a principle recognized not only by our own but by other legal systems that ignorance of the law is no excuse for breaking it ignore about the adjuris the minimum excuse it the rule is also expressed in the form of a legal presumption that everyone knows the law the rule is absolute and the presumption irreverable no diligence of inquiry will avail against it no inevitable ignorance or error will serve for justification whenever a man is thus held accountable for breaking a law which he did not know and which he could not by do care have acquired a knowledge of the case is one of absolute liability the reasons rendered for the somewhat rigorous principle are three in number in the first place the law is in legal theory definite and knowable it is the duty of every man to know that part of it which concerns him therefore innocent and inevitable ignorance of the law is impossible men are conclusively presumed to know the law and are dealt with as if they did know it because they can and ought to know it in the second place even if invincible ignorance of the law is in fact possible the evidential difficulties in the way of the judicial recognition of such ignorance are insuperable and for the sake of any benefit derivable there from it is not advisable to weaken the administration of justice by making liability dependent on well night inscrutable conditions touching knowledge or means of knowledge of the law who can say of any man whether he knew the law or whether during the course of his past life he had an opportunity of acquiring a knowledge of it by the exercise of due diligence thirdly and lastly the law is in most instances derived from and in harmony with the rules of natural justice it is a public declaration by the state of its intention to maintain by force those principles of right and wrong which have already a secure place in the moral consciousness of men the common law is in great part nothing more than common honesty and common sense therefore although a man may be ignorant that he is breaking the law he knows very well in most cases that he is breaking the rule of right if not to his knowledge of lawless he is at least dishonest and unjust he has little ground of complaint therefore if the law refuses to recognize his ignorance as an excuse and deals with him according to his moral deserts he who goes about to harm others when he believes that he can do so within the limits of the law may justly be required by the law to know those limits at his peril this is not a form of activity that need be encouraged by any scrupulous insistence on the formal conditions of legal responsibility it must be admitted however that while each of these considerations is valid and weighty they do not constitute an altogether sufficient basis for so stringent and severe a rule none of them goes the full length of the rule that the law is knowable throughout by all whom it concerns is an ideal rather than a fact in any system as indefinite and mutable as our own that it is impossible to distinguish invincible from negligent ignorance of the law is by no means wholly true it may be doubted whether this inquiry is materially more difficult than many which courts of justice undertake without hesitation that he who breaks the law of the land disregards at the same time the principles of justice and honesty is in many instances far from the truth in a complex legal system a man requires other guidance than that of common sense and good conscience the fact seems to be that the ruling question while in general sound does not in its full extent and uncompromising rigidity at mid of any sufficient justification section 147 mistake of fact in respect of the influence of ignorance or error upon legal liability we have inherited from Rowan law a familiar distinction between law and fact by reason of his ignorance of the law no man will be excused but it is commonly said that inevitable ignorance of fact is a good defense this however is far from an accurate statement of English law it is much more nearly correct to say that mistake of fact is an excuse only within the sphere of the criminal law while in the civil law responsibility is commonly absolute in this respect so far civil liability is concerned it is a general principle of our law that he who intentionally interferes with the person property reputation or other rightful interests of another does so at his peril and will not be heard to allege that he believed in good faith and unreasonable grounds in the existence of some circumstance which justified his act if I trespass upon another man's land it is no defense to me that I believed it on good grounds to be my own if in absolute innocence and under an inevitable mistake of fact I'm metal with another's goods I'm liable for all loss incurred by the true owner if intending to arrest a I rest B by mistake instead I'm absolutely liable to him not withstanding the greatest care taken by me to ascertain his identity if I falsely but innocently make a defamatory statement about another I'm liable to him however careful I may have been to ascertain the truth there are indeed exceptions to this rule of absolute civil liability for mistake of fact but they are not of such number or importance as to cast any doubt on the validity of the general principle in the criminal law on the other hand the matter is otherwise and it is here that the contrast between mistake of law and mistake of fact finds its true application absolute criminal responsibility for a mistake of fact is quite exceptional an instance of it is the liability of him who abducts a girl under the legal age of consent inevitable mistake as to her age is no defense he must take the risk a word may be said as to the historical origin of this failure of English law to recognize inevitable mistake as a ground of exemption from civil liability ancient modes of procedure and proof were not adapted for inquiries into mental conditions by the practical difficulties of proof early law was driven to attach exclusive importance to overt acts the subjective elements of wrongdoing were largely beyond proof or knowledge and were therefore disregarded as far as possible it was a rule of our law that intent and knowledge were not matters that could be proved or put in issue it is common learning said one of the judges of king Edward the fourth that the intent of man will not be tried for the devil himself knoweth not the intent of man the sole question which the courts would entertain was whether the defendant did the act complained of whether he did it ignorantly or with guilty knowledge was entirely immaterial this rule however was restricted to civil liability it was early recognized that criminal responsibility was too serious a thing to be imposed upon an innocent man simply for the sake of avoiding a difficult inquiry into his knowledge and intention in the case of civil liability on the other hand the rule was general the success with which it has maintained itself in modern law is due in part to its undeniable utility and obviating inconvenient or even impracticable inquiries and in part to the influence of the conception of redress in minimizing the importance of the formal condition of penal liability section 148 accident unlike mistake inevitable accident is commonly recognized by our law as a ground of exemption from liability it is needful therefore to distinguish accurately between these two things for they are of near kin every act which is not done intentionally is done either accidentally or by mistake it is done accidentally when it is unintentional in respect of its consequences it is done by mistake when it is intentional in respect of its consequences but unintentional in respect of some material circumstance if I drive over a man in the dark because I do not know that he is in the road I injure him accidentally but if I procure his arrest because I mistake him for someone who is liable to arrest I injure him not accidentally but by mistake in the former case I did not intend the harm at all while in the latter case I fully intended it but falsely believed in the existence of a circumstance which would have served to justify it so if by insufficient care I allow my cattle to escape into my neighbor's field their presence there is due to accident but if I put them there because I wrongly believe that the field is mine their presence is due to mistake in neither case that I intend to wrong my neighbor but in the one case my intention failed as to the consequence and in the other as to the circumstance accident like mistake is either culpable or inevitable it is culpable when due to negligence but inevitable when the avoidance of it would have required a degree of care exceeding the standard determined by the law culpable accident is no defense saving those exceptional cases in which wrongful intent is the exclusive and necessary ground of liability inevitable accident is commonly a good defense both in the civil and in the criminal law to this rule however there are at least in the civil law important exceptions there are cases in which the law insists that a man shall act at his peril and shall take his chance of accidents happening if he desires to keep wild beasts or to light fires or to construct a reservoir of water or to accumulate on his land any substance which will do damage to his neighbors if it escapes or to erect dangerous structures by which passengers in the highways may come into harm he will do all these things suo perculo although none of them are per se wrongful and will answer for all ensuing damage notwithstanding consummate care there's one case of absolute liability for accident which deserves special notice by reason of its historical origin every man is absolutely responsible for the trespasses of his cattle if my horse or my ox escapes from my land to that of another man I'm answerable for it without any proof of negligence a such a rule may probably be justified as based on a reasonable presumption of law that all such trespasses are the outcome of negligent keeping viewed historically however the rule is worth notice as one of the last relics of the ancient principle that a man is answerable for all damage done by his property in the theory of accident law I'm liable for the trespasses of my cattle not because of my negligent keeping of them but because of my ownership of them for the same reason in roman law a master was liable for the offenses of his slaves the case is really in its historical origin one of vicarious liability in early law and custom vengeance and its products responsibility and punishment were not conceived as necessarily limited to human beings but were in certain cases extended dumb animals and even inanimate objects we've already cited in another connection the provision of the mosaic law that if an ox gore a man or a woman that they die then the ox shall be surely stoned and his flesh shall not be eaten in the laws of Plato it is said if a beast of burden or other animal caused the death of anyone the kinsmen of the deceased shall prosecute the slayer for murder and the wardens of the country shall try the cause and let the beast when condemned be slain by them and cast beyond the borders so in the laws of king alfred if at their common work of wood cutting one man slay another unwillingly let the tree be given to the kindred and by english law until the year 1846 the weapon or other thing which moved to the death of a man was forfeited to the king as guilty and accursed here we have the ground of a rule of absolute liability if a man's cattle or his slaves do damage they are thereby exposed to the vengeance of the injured person but to take destructive vengeance upon them is to impose a penalty upon their owner the liability then resulting probably passed through three stages first that of unconditional forfeiture or surrender of the property to the vengeance of the injured person secondly that of an option given to the owner between forfeiture and redemption the action s noxalis of roman law and thirdly that of compulsory redemption or in other words unconditional compensation section 149 vicarious responsibility hitherto we have dealt exclusively with the conditions of liability and it is needful now to consider its incidents normally and naturally the person who is liable for wrong is he who does it yet both ancient and modern law admit instances of vicarious liability in which one man is made answerable for the acts of another criminal responsibility indeed is never vicarious at the present day except in very special circumstances and in certain of its less serious forms in more primitive systems however the impulse to extend vicariously the incidents of liability receives free scope in a manner altogether alien to modern notions of justice it is in barbarous times considered a very natural thing to make every man answerable for those who are of kin to him in the mosaic legislation it is deemed necessary to lay down the express rule that the father shall not be put to death for the children neither shall the children be put to death for the fathers let every man be put to death for his own sin Plato in his laws does not deem it needless to emphasize the same principle further more so long as punishment is conceived rather as expatiative retributive and vindictive than as deterrent and reformative there seems no reason why the incidents of liability should not be determined by consent and therefore why a guilty man should not provide a substitute to bear his penalty and to provide the needful satisfaction to the law guilt must be wiped out by punishment but there's no reason why the victim should be one person rather than another such modes of thought have long since ceased to pervert the law but that they were at one time natural is rendered sufficiently evident by their survival in popular theology modern civil law recognizes vicarious liability in two chief classes of cases in the first place masters are responsible for the acts of their servants done in the course of their employment in the second place representatives of dead men are liable for deeds done in the flesh by those whom they represent we shall briefly consider each of these two forms it has been sometimes said that the responsibility of a master for his servant has its historical source in the responsibility of an owner for his slave this however is certainly not the case the english doctrine of employers liability is of comparatively recent growth it has its origin in the legal presumption gradually become conclusive that all acts done by a servant in and about his master's business are done by his master's express or implied authority and are therefore in truth the acts of the master for which he may be justly held responsible no employer will be allowed to say that he did not authorize the act complained of or even that it was done against his express injunctions for he is liable nonetheless this conclusive presumption of authority has now after the manner of such presumptions disappeared from the law after having permanently modified it by establishing the principle of employers liability historically as we have said this is a fictitious extension of the principle qe facet per allium fact that per se formally it has been reduced to the laconic maxim responde at superior the rational basis of this form of vicarious liability is in the first place evidential there's such immense difficulties in the way of proving actual authority that it is necessary to establish a conclusive presumption of it a word a gesture or tone may be sufficient indication from a master to his servant that some lapse from the legal standard of care or honesty will be deemed acceptable service yet who could prove such a measure of complicity who could establish liability in such a case where evidence of authority required or evidence of the want of it admitted a further reason for the vicarious responsibility of employers is that employers usually are while their servants usually are not financially capable of the burden of civil liability it is felt probably with justice that a man who is able to make compensation for the hurtful results of his activities should not be enabled to escape from the duty of doing so by delegating the exercise of those activities to servants or agents from whom no redress can be obtained such delegation confers upon impercuneous persons means and opportunities of mischief which would otherwise be confined to those who are financially competent it disturbs the correspondence which would otherwise exist between the capacity of doing harm and the capacity of paying for it it is requisite for the efficacy of civil justice that this delegation of powers and functions should be permitted only on the condition that he who delegates them shall remain answerable for the acts of his servants as he would be for his own a second form of vicarious responsibility is that of living representatives for the acts of dead men there is no doubt that criminal responsibility must die with the wrongdoer himself but with respect to penal redress the question is not free from difficulty for in this form of liability there is a conflict between the requirements of the two competing principles of punishment and compensation the former demands the termination of liability with the life of the wrongdoer while the latter demands its survival in this dispute the older common law approved the first of these alternatives the received maxim was actio personalis morator cum persona a man cannot be punished in his grave therefore it was held that all actions for penal redress being in their true nature instruments of punishment must be brought against the living offender and must die with him modern opinion rejects this conclusion and by various statutory provisions the old rule has been in great part abrogated it is considered that although liability to afford redress ought to depend in point of origin upon the requirements of punishment it should depend in point of continuance upon those of compensation for when this form of liability has once come into existence it is a valuable right of the person wronged and it is expedient that such rights should be held upon secure tenure and should not be subject to extinction by a mere irrelevant accident such as the death of the offender there is no sufficient reason for drawing any distinction in point of survival between the right of a creditor to recover his debt and the right of a man who has been injured by assault or defamation to recover compensation for the law suffered by him as a further argument in the same sense it is to be observed that it is not strictly true that a man cannot be punished after his death punishment is effective not at the time it is inflicted but at the time it is threatened a threat of evil to be inflicted upon a man's descendants at the expense of his estate will undoubtedly exercise a certain deterrent influence upon him and the apparent injustice of so punishing his descendants for the offense of their predecessor is in most cases no more than a parent the right of succession is merely the right to acquire the dead man's estate subject to all charges which on any grounds and apart altogether from the interests of the successors themselves may justly be imposed upon it there is a second application of the maxim actio personalis morator cum persona which seems equally destitute of justification according to the common law an action for pinot redress died not merely with the wrongdoer but also with the person wronged this rule has been abrogated by statute in part only there can however be little doubt that in all ordinary cases if it is right to punish a person at all his liability should not cease simply by reason of the death of him against whom his offense was committed the right of the person injured to receive redress should descend to his representatives like any other proprietary interest section 150 the measure of criminal liability we've now considered the conditions and the incidents of penal liability it remains to deal with the measure of it and here we must distinguish between criminal and civil wrongs for the principles involved are fundamentally different in the two cases in considering the measure of criminal liability it will be convenient to bestow exclusive attention upon the deterrent purpose of the criminal law remembering however that the conclusions so obtained are subject to possible modification by reference to those subordinate and incidental purposes of punishment which we thus provisionally disregard we're meant perfectly rational so as to act invariably in accordance with an enlightened estimate of consequences the question of the measure of punishment would present no difficulty a draconian simplicity and severity would be perfectly just and perfectly effective it would be possible to act on the stoic paradox that all offenses involve equal guilt and to visit with the utmost rigor of the law every deviation however slight from the appointed way in other words if the deterrent effect of severity were certain and complete the best law would be that which by the most extreme and undiscriminating severity effectually extinguished crime where human nature so constituted that a threat of burning all offenders alive would with certainty prevent all breaches of the law then this would be the just and fitting penalty for all offenses from high treason to petty larceny so greatly however our men moved by the impulse of the moment rather than by rational estimate of future good and evil and so ready are they to face any future evil which falls short of the inevitable that the utmost rigor is sufficient only for the diminuation of crime not for the extinction of it it is needful therefore in judging the merits of the law to subtract from the sum of good which results from the partial prevention of offenses the sum of evil which results from the partial failure of prevention and the consequent necessity of fulfilling those threats of evil by which the law had hoped to affect its purpose the perfect law is that in which the difference between the good and the evil is at a maximum in favor of the good and the rules as to the measure of criminal liability are the rules for the attainment of this maximum it is obvious that it is not attainable by an indefinite increase of severity to substitute hanging for imprisonment as a punishment for petty theft would doubtless diminish the frequency of this offense but it is certain that the evil so prevented would be far outweighed by that which the law would be called on to inflict in the cases in which its threats proved unavailing in every crime there are three elements to be taken into account in determining the appropriate measure of punishment these are one the motives to the commission of the offense to the magnitude of the offense and three the character of the offender one the motive of the offense other things being equal the greater the temptation to commit a crime the greater should be the punishment this is an obvious deduction from the first principles of criminal liability the object of punishment is to counteract by the establishment of contrary and artificial motives the natural motives which lead to crime the stronger these natural motives the stronger must be the counteractives which the law supplies if the profit to be derived from an act as great or the passions which lead men to it are violent a corresponding strength or violence is an essential condition of the efficacy of repressive discipline we shall see later however that this principle is subject to a very important limitation and that there are many cases in which extreme temptation is a ground of extenuation rather than of increased severity of punishment two the magnitude of the offense other things being equal the greater the offense that is to say the greater the sum of its evil consequences or tendencies the greater should be its punishment at first sight indeed it would seem that this consideration is irrelevant punishment it may be thought should be measured solely by the profit derived by the offender not by the evils caused to other persons if two crimes are equal in point of motive they should be equal in point of punishment notwithstanding the fact that one of them may be many times more mischievous than the other this however is not so and the reason is twofold a the greater the mischief of any offense the greater is the punishment which it is profitable to inflict with the hope of preventing it for the greater this mischief the less is the proportion which the evil of punishment bears to the good of prevention and therefore the greater is the punishment which can be inflicted before the balance of good over evil attains its maximum assuming the motives of larceny and of homicide to be equal it may be profitable to inflict capital punishment for the latter offense although it is certainly unprofitable to inflict it for the former the increased measure of prevention that would be obtained by such severity would in view of the comparatively trivial nature of the offense be obtained at too great a cost b a second and subordinate reason for making punishment vary with the magnitude of the offense is that in those cases in which different offenses offer themselves as alternatives to the offender an inducement is thereby given for the preference of the least serious if the punishment of burglary is the same as that of murder the burglar has obvious motives for not stopping at the lesser crime if an attempt is punished as severely as a completed offense why should any man repent of his half executed purposes three the character of the offender the worst the character or disposition of the offender the more severe should be his punishment badness of disposition is constituted either by the strength of the impulses to crime or by the weakness of the impulses toward law-abiding conduct one man may be worse than another because of the greater strength and prevalence within him of such antisocial passions as anger covetousness or malice or his badness may lie in a deficiency of those social impulses and instincts which are the springs of right conduct in normally constituted men in respect of all the grave reforms of law-breaking for one man who abstains from them for fear of the law there are thousands who abstain by reason of quite other influences their sympathetic instincts their natural affections their religious beliefs their love of the approbation of others their pride and self-respect renders pluriflores the threatenings of the law in the degree in which these impulses are dominant and operative the disposition of a man as good in the degree in which they are wanting or inefficient it is bad in both its kinds badness of disposition is a ground for severity of punishment if a man's emotional constitution is such that normal temptation acts upon him with abnormal force it is for the law to supply in double measure the counteractive of penal discipline if he is so made that the natural influences toward well-doing fall below the level of average humanity the law must supplement them by artificial influences of a strength that is needless in ordinary cases any fact therefore which indicates to poverty of disposition is a circumstance of aggravation and calls for penalty in excess of that which would otherwise be appropriate to the offense one of the most important of these facts is the repetition of crime by one who has already been punished the law rightly imposes upon habitual offenders penalties which bear no relation either to the magnitude or to the profit of the offense a punishment adaptive for normal men is not appropriate for those who by their repeated defiance of it prove their possession of abnormal natures a second case in which the same principle is applicable is that in which the mischief of an offense is altogether disproportionate to any profit to be derived from it by the offender to kill a man from mere wantonness or merely in order to facilitate the picking of his pocket is proof of extraordinary depravity beyond anything that is imputable to him who commits homicide only through the stress of passionate indignation or under the influence of great temptation a third case is that of offenses from which normal humanity is adequately dissuaded by such influences as those of natural defection to kill one's father is in point of magnitude no worse a crime than any other homicide but it has at all times been viewed with greater abhorrence and by some laws punished with greater severity by reason of the depth of depravity which it indicates in the offender lastly it is on the same principle that willful offenses are punished with greater rigor than those which are due merely to negligence an additional and subordinate reason for making the measure of liability depend upon the character of the offender is that badness of disposition is commonly accompanied by deficiency of sensibility punishment must increase as sensibility diminishes the more depraved the offender the less he feels the shame of punishment therefore the more he must be made to feel the pain of it a certain degree of even physical insensibility is said to characterize the more degraded orders of criminals and the indifference with which death itself is faced by those who in the callousness of their hearts have not scrupled to inflict it upon others is a matter of amazement to normally constituted men we are now in a position to deal with a question which we have already touched upon but deferred for fuller consideration namely the parent paradox involved in the rule that punishment must increase with the temptation to the offense as a general rule this proposition is true but it is subject to a very important qualification for in certain cases the temptation to which a man succumbs may be of such a nature as to rebut that presumption of bad disposition which would in ordinary circumstances arise from the commission of the offense he may for example be driven to the act not by the strength of any bad or self-regarding motives but by that of his social or sympathetic impulses in such a case the greatness of the temptation considered in itself demands severity of punishment but when considered as a disproof of the degraded disposition which usually accompanies wrongdoing it demands leniency and the latter of these two conflicting considerations may be of sufficient importance to outweigh the other if a man remains honest until he is driven in despair to steal food for his starving children it is perfectly consistent with the deterrent theory of punishment to deal with him less severely than with him who steals from no other motive than cupidity he who commits homicide for motives of petty gain or to attain some trivial purpose deserves to be treated with the utmost severity as a man thoroughly callous and deprived but he who kills another retaliation for some intolerable insult or injury need not be dealt with according to the measure of his temptations but should rather be excused on account of them section one hundred and fifty one the measure of civil liability penal redress is that form of penal liability in which the law uses the compulsory compensation of the person injured as an instrument for the punishment of the offender is characteristic of this form of punishment that it takes account of one only of the three considerations which as we have seen rightly determine the measure of penal responsibility it is measured exclusively by the magnitude of the offense that is to say by the amount of loss inflicted by it it takes no account of the character of the offender and so this is him who does harm through some trivial want of care with as severe a penalty as if his act have been prompted by deliberate malice similarly it takes no account of the motives of the offense he who has everything and he who has nothing to gain are equally punished if the damage done by them is equal finally it takes no account of probable or intended consequences but solely of those which actually ensue where for the measure of a wrong door's liability is not the evil which he meant to do but that which he has succeeded in doing and his punishment is determined not by his fault but by the accident of the result if one man is dealt with more severely than another it is not because he is more guilty but because he has had the misfortune to be more successful in his wrongful purposes or less successful in the avoidance of unintended issues serious as are these lapses from the due standard of penal discipline it is not to be suggested that this form of civil liability is unjustifiable the use of redress as an instrument of punishment possesses advantages more than sufficient to counterbalance any such objections to it more especially it possesses this that while other forms of punishment such as imprisonment are uncompensated evil penal redress is the gain of him who is wronged as well as the loss of the wrong door further this form of remedy gives to person's injured a direct interest in the efficient administration of justice an interest which is almost absent in the case of criminal law it is true however that the law of penal redress taken by itself falls so far short of the requirements of a rational scheme of punishment that it would by itself be totally insufficient in all modern and developed bodies of law its operations supplemented and its deficiencies made good by a coordinate system of criminal liability these two together combined in due proportions constitute a very efficient instrument for the maintenance of justice summary wrongs of absolute liability mens rea not required are exceptional nature of such wrongs penal redress is justified not as redress but as punishment mistake of law commonly no defense reasons for the rural criticisms of it mistake of fact a defense in criminal but commonly not in civil cases accident distinction between accident and mistake accident mistake being culpable or inevitable inevitable accident commonly defense and exceptions incidents of penal liability vicarious liability one employers liability its rational basis to liability of representatives of dead men its rational basis the measure of penal liability one criminal liability reasons against indiscriminate severity the end to be attained the considerations to be taken account of including a the motive of the offense b the magnitude of the offense c the character of the offender to civil liability merits and demerits of the use of compulsory compensation as an instrument of punishment and a section 29 section number 30 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 Mike Overby Parkland Washington jurisprudence by John Salmond chapter 20 the law of property part one section 152 meanings of the term property the substantive civil law is divisible into three great departments namely the law of property the law of obligations and the law of status the first deals in proprietary rights in REM the second with proprietary rights in personum and the third with personal and non-proprietary rights whether in REM or in persona in this chapter we will consider the outline of the first of these branches and we shall then proceed to deal in the same manner with the law of obligations the law of status on the other hand is not of such a nature as to require or repay any further consideration from the point of view of general theory the term property which we hear used as meaning proprietary rights in REM possesses a singular variety of different applications having different degrees of generality these are the following one all legal rights in its widest sense property includes all a person's legal rights of whatever description a man's property is all that is his in law this usage however is obsolete at the present day though it is common enough in the older books thus Blackstone speaks of the property i.e. right which a master has in the person of a servant and a father in the person of his child the inferior he says hath no kind of property in the company care or assistance as the superior is held to have in those of the inferior so Hobbes says of things held in property those that are dearest to a man are his own life and limbs and in the next degree in most men those that concern conjugal affection and after them riches and means of living in like manner Locke tells us that every man has a property in his own person and he speaks elsewhere of a man's right to preserve his property that is his life liberty and estate to proprietary rights do minimum and status in a second and narrower sense property includes not all a person's rights but only his proprietary as opposed to his personal rights the former constitute his estate or property while the latter constitute his status or personal condition in this sense a man's land chattels and shares and the debts due to him are his property but not his life or liberty or reputation in this sense we may oppose to Locke's statement that a man has a property in his own person the saying of opium dominus membrorum suorum nemo viditur this is probably the most frequent application of the term at the present day but in the case of a word having so many recognized varieties of usage it is idle to attempt to single out any one of them as exclusively correct they are all of equal authenticity three property rights in rem dominium and obligatio in a third application which is that adopted in this chapter the term includes not even all proprietary rights but only those that are both proprietary and real the law of property is the law of proprietary rights in rem the law of proprietary rights in personum being distinguished from it as the law of obligations according to this usage a freehold or leasehold estate in land or a patent or copyright is property but a debt or the benefit of a contract is not four corporeal property dominium corporus and dominium uis finally in the narrowest use of the term it includes nothing more than corporeal property that is to say the right of ownership and a material object or that object itself identified with the right by way of metonymy thus property is defined by arens as a material object subject to the immediate power of a person and bentham considers as metaphorical and improper the extension of the term to include other rights than those which relate to material things section 153 kinds of property all property is as we have already seen either corporeal or incorporeal corporeal property is the right of ownership and material things incorporeal property is any other proprietary right in rem incorporeal property is itself of two kinds namely yura enre aliena or encumbrances whether over material or immaterial things for example leases mortgages and servitudes and to yura enre propria over immaterial things for example patents copyrights and trademarks the resulting threefold division of property appears in the following table the table will be read beginning at the root property underneath the root property there are yura enre propria and yura enre aliena underneath yura enre propria there are material things and immaterial things underneath material things there are lands and chattels these material things are termed corporeal property the remainder of the tree is termed incorporeal property the sibling of material things is immaterial things underneath immaterial things there are patents copyrights trademarks et cetera the sibling of yura enre propria is yura enre aliena Underneath Yura and Rey Aliena, there are leases, servitudes, securities, etc. Section 154. The Ownership of Material Things The owner of a material object is he who owns a right to the aggregate of its uses. He who merely has a special and definitively limited right to the use of it, such as a right of way or other servitude, is not an owner of the thing, but merely an encumbrancer of it. The definition, however, must not be misunderstood. Ownership is the right of general use, not that of absolute or of unlimited use. He is the owner of a thing who is entitled to all those uses of it, which are not specifically accepted and cut off by the law. No such right as that of absolute and unlimited use is known to the law. All lawful use is either general, that is to say, residuary, or specific, the former being ownership and the latter encumbrance. The limits, thus imposed upon an owner's right of use, are two kinds. The first constitute the natural limits of ownership. They are the various applications of the maxim. A legal principle, whose function it is to restrain within due bounds the opposing maxim that a man may do as he pleases with his own. In the interests of the public or of a man's neighbors, many uses of the things which are his are wholly excluded from his right of ownership. The second class of restrictions upon an owner's right of use consists of those which flow from the existence of encumbrances vested in other persons. These are artificial limits which may or may not exist. My land may be mortgaged, leased, charged, bound by restrictive covenants, and so on. Yet I remain the owner of it nonetheless, for I am still entitled to the residue of its uses, and whatever right over it is not specifically vested in someone else is vested in me. The residuary use, so left to me, may be of very small dimensions. Some encumbrancer may own rights over it much more valuable than mine, but the ownership of it is in me and not in him. Were his right to determine tomorrow, in any manner, my own, relieve from the encumbrance which now weighs it down, would forthwith spring up to its full stature and have again its full effect. No right loses its identity because of an encumbrance vested in someone else. That which is a right of ownership, when there are no encumbrances, remains a right of ownership notwithstanding any number of them. In as much as the ownership is a right to the aggregate uses of the thing, it follows that ownership is necessarily permanent. No person having merely a temporary right to the use of a thing can be the owner of the thing. However general that right may be while it lasts. He who comes after him is the owner, for it is to him that the residue of the uses of the thing pertains. It is to be understood, however, that by a permanent right is meant nothing more than a right which is capable of lasting as long as the thing itself, which is the subject matter, however long or short that duration may be. Even as the generality of ownership involves its permanence, so its permanence involves the further essential feature of inheritance. The only permanent rights which can be owned by a mortal man are those which can be handed down by him to his successors or representatives on his death. All others are temporary, their duration being necessarily limited to the lifetime of him in whom they are vested. The right of ownership, therefore, is essentially an inheritable right. It is capable of surviving its owner for the time being. It belongs to the class of rights which are divested by death but are not extinguished by it. Summing up the conclusions to which we have attained, we may define the right of ownership in a material thing as the general permanent and inheritable right to the uses of the thing. According to the rigor of English legal doctrine, there can be no owner in land except the crown itself. The fee simple of land, the greatest right in it which the subject can possess, is not in truth ownership but a mere encumbrance upon the ownership of the crown. It is a tenancy or lease granted to a man and his heirs. It is a temporary, not a permanent right, of user. It will come to its natural termination on the death of the tenant without leaving an heir or device C in whom the right may be continued. The land will thereupon revert or a cheat to the crown. That is to say, the crown's ownership, which has never been divested but has merely been encumbranced by the fee simple, will, through the destruction of this encumbrance, become once more free and absolute. In the case of chattels, it is otherwise, they can be owned by the subject no less than by the crown. It is true that if the owner of them dies into state without kin, they will go to the crown as Bono Vicantia, just as land will go to the crown as in a cheat. But between these two processes, there is a profound difference in legal theory. In the case of chattels, the crown succeeds to the right which was vested in the dead man. His ownership has continued in the crown, just as it would have been continued in his next of kin, had there been any. But in the case of a cheat, as already said, the right of the dead man has come to an end and the crown succeeds to no right of his but simply comes into its own again. This distinction, however, between the fee simple of land and the ownership of it, is a matter of form rather than of substance. In fact, if not in legal theory, the right of a tenant and fee simple is permanent, for his cheat takes place only on an intestacy, and therefore can be prevented by the act of the tenant. We are at liberty therefore to disregard this technicality of real property law and to speak of the fee simple of land as the ownership of it, the right of the crown being viewed, accordingly, not as vested in continuing ownership subject to an encumbrance, but as a contingent right of succession to an intestate owner. Section 155 Moveable and Immovable Property Among material things, the most important distinction is that between moveables and immovable, or to use terms more familiar in English law, between chattels and land. In all legal systems, these two classes of object are to some extent governed by different rules, though in no system is the difference so great as in our own. Considered in its legal aspect an immovable, that is to say a piece of land, includes the following elements. One, a determinant portion of the earth's surface. Two, the ground beneath the surface down to the center of the world. All the pieces of land in England meet together in one terminal point at the earth's center. Three, possibly the column of space above the surface at infinitum. The earth, says Koch, hath in law a great extent upwards, not only of water, as hath been said, but of air, and all other things even up to heaven. Four, suus est solum, eus est uske ad selum. The authenticity of this doctrine, however, is not wholly beyond dispute. It would prohibit, as an actionable trespass, all use of the airspace above the appropriated surface of the earth. At whatever height this use took place, and however little it could affect the interests of the landowner. If a man is carried in a balloon at a distance of half a mile above the ground, does he infringe the rights of those who own the surface? It may be that the law recognizes no right of ownership in the airspace at all, or at least no right of exclusive use, but merely prohibits all acts which, by their nature or their proximity, interfere with the full enjoyment and use of the surface. By the German civil code, the owner of land owns the space above it, but has no right to prohibit acts so remote from the surface that they in no way affect his interests. Four, all objects which are on or under the surface in its natural state, for example minerals and natural vegetation. All these are part of the land, even though they are in no way physically attached to it. Stones lying loose upon the surface are in the same category as the stone in the quarry. Five, lastly all objects placed by human agency on or under the surface. With the intention of permanent annexation, these become part of the land and lose their identity as separate movables or chattels. For example, buildings, walls, and fences. Amne quad inidificator, solo cedit, said the Roman law, provided that the requisite intent of permanent annexation is present. No physical attachment to the surface is required. A wall built of stones without mortar or foundations is part of the land on which it stands. Conversely, physical attachment, without the intent of permanent annexation, is not in itself enough. Carpets, tapestries, or ornaments nailed to the floors or walls of a house are not thereby made part of the house. Money buried in the ground is as much a chattel as money in the owner's pocket. It is clear that the distinction between movables and immovable is in truth and in fact applicable to material objects only. Yet the law has made an unfortunate attempt to apply this to rights also. Rights no less than things are conceived by the law as having a local situation, and as being either movable or permanently fixed in a definite locality. The origin of this illogical conception is to be found in the identification of rights of ownership with the material things which are the objects of them. I am said to own land and chattels, as well as easements, shares, debts, contracts, and patents. All these things are equally property, and since some of them have a local situation, and can be truly classed as movable or immovable, the law has been led by inadvertence to attribute these qualities to all of them. It is recognized in things which are incorporeal, certain attributes, which in truth pertain to things corporeal only. It has divided the whole sphere of proprietary rights by reference to a distinction which is truly applicable not to rights at all but to physical objects, nor is this merely a peculiarity of English law, for it is found in continental systems also. On what principle then, does the law determine whether a right is to be classed as immovable or as movable? The general rule is that a right has in this respect the same quality as its subject matter. Every right over an immovable thing, whether it is a right of ownership or a lease or a servitude or a security, or any other UN-ray aliena, is itself immovable, and every other right over a movable thing is itself movable. So far, there is no difficulty. What shall we say, however, of those rights which have no material objects at all, such as a copyright, a patent, the goodwill of a business, a trademark, or the benefit of a contract? The answer is that all such rights are classed by the law as movable, for the class of movable property is residuary, and includes all rights which can make no good claim to be classed as immovable. The law not merely classifies rights as movable and immovable, but goes further in the same direction and attributes local situation to them. It undertakes to say not merely whether a right exists, but where it exists, nor is this a difficult task in the case of those rights which have determined material things as their objects. A servitude or other UN-ray aliena over a piece of land is situated in law where the land is situated in fact. A right over a channel is movable property, and where the channel goes, the right goes also. But where there is no material object at all, what are we to say as to the local situation of the right? Where is the debt situated, or share in a company, or the benefit of a contract, or a copyright? Such questions can be determined only by more or less arbitrary rules based upon analogy, and it is to be regretted that it has been thought needful to ask and answer them at all. As the law stands, however, it contains several rules based on the assumption that all property which exists must exist somewhere, and for the application of these rules the determination of the local situation of rights is necessary, even though it leads into the region of legal fictions. The legal conception of property, says Lord Lindley, appears to me to involve the legal conception of existence somewhere. To talk of property as existing nowhere is to use language which to me is unintelligible. The leading principle, as to the local situation of rights, is that they are situated where they are exercised and enjoyed. Rights over material things therefore have the same situation as those things themselves. The good will of a business is situated in the place where the business is carried on. Debt are in general situated in the place where the debtor resides, since it is there that the creditor must go to get his money. Section 156, Real and Personal Property Derived from and closely connected with the distinction between immovable and movable property is that between real and personal property. These are two cross divisions of the whole sphere of proprietary rights. Real property and immovable property form intersecting circles which are very nearly, though not quite, coincident. The law of real property is almost equivalent to the law of land, while the law of personal property is all but identical with the law of movables. The partial failure of coincidence is due not to any logical distinction but to the accidental course of legal development, and to this extent the distinction between real and personal property is purely arbitrary and possesses no scientific basis. Real property comprises all rights over land with such additions and exceptions as the law has seen fit to establish. All other proprietary rights, whether in rem or in personum, pertain to the law of personal property. The distinction between real and personal property has no logical connection with that between real and personal rights. There is, however, an historical relation between them in as much as they are both derived from the same source, namely the Roman distinction between actions in rem and actions in personum. Real property meant originally that which was recoverable in a real action, while personal property was that which was recoverable in a personal action. And this distinction between real and personal actions was derived by Brackton and other founders of our law from the Actonis and rem and in personum of Justinian, though not without important modifications of the Roman doctrine. In connection with the distinctions between movable and immovable and between real and personal property, we must notice the legal significance of the term chattel. This word has apparently three different meanings in English law. One, a movable physical object, for example, a horse, a book, or a shilling, as contrasted with a piece of land. Two, movable property, whether corporeal or incorporeal, that is to say, chattels in the first sense, together with all proprietary rights, except those which are classed as immovable. In this usage, debts, shares, contracts, and other choices in action are chattel, no less than furniture or stock and trade. So also are patents and copyrights and other rights in rem, which are not rights over land. This double use of the word chattel to indicate both material things and rights is simply an application within the sphere of movable property of the metonymy, which is the source of the distinction between corporeal and incorporeal property. Three, personal property, whether movable or immovable, as opposed to real property, in this sense lease holds are classed as chattels because of the special rule by which they are excluded from the domain of real property. Section 157, rights in repropria in immaterial things. The subject matter of a right of property is either a material or an immaterial thing. A material thing is a physical object. An immaterial thing is anything else which may be the subject matter of a right. It is to things of the former class that the law of property almost wholly relates. In the great majority of cases, a right of property is a right to the uses of a material object. It is the chief purpose of this department of the law to allot to every man his portion in the material instruments of human well-being. To divide the earth and the fullness of it among the men who live in it, the only immaterial things which are recognized by the law as the subject matter of rights of this description are the various immaterial products of human skill and labor. Speaking generally, we may say that in modern law every man owns that which he creates, that which he produces is his, and he has an exclusive right to the use and benefit of it. The immaterial product of a man's brains may be as valuable as his land or his goods. The law, therefore, gives him a proprietary right in it, and the unauthorized use of it by other persons is a violation of his ownership, no less than theft or trespasses. These immaterial forms of property are of five chief kinds. 1. Patents. The subject matter of a patent right is an invention. He whose skill or labor produces the idea of a new process, instrument, or manufacture has that idea as his own in law. He alone is entitled to use it and to draw from it the profit inherent in it. 2. Literary Copyright. The subject matter of this right is the literary expression of facts or thoughts. He to whose skill or labor this expression is due has in it a proprietary right of exclusive use. 3. Artistic Copyright. Artistic design in all its various forms such as drawing, painting, sculpture, and photography is the subject matter of a right of exclusive use analogous to literary copyright. The creations of an artist's skill or of a photographer's labor are his exclusive property. The object of this right is not the material thing produced but the form impressed upon it by the maker. The picture in the concrete sense of the material paint and canvas belongs to him who purchases it, but the picture in the abstract sense of the artistic form made visible by that paint and canvas belongs to him who made it. The former is material property, the latter is immaterial. The right in each case is one of exclusive use. The right to the material picture is infringed by destroying it or taking it away. The right to the immaterial picture is infringed by making material pictures which embody it. 4. Musical and Dramatic Copyright. A fourth class of immaterial things consists of musical and dramatic works. The immaterial product of the skill of the musician or the playwright is the subject matter of a proprietary right of exclusive use, which is infringed by any unauthorized performance or representation. 5. Commercial Goodwill, Trademarks and Trade Names. The fifth and last species of immaterial things includes commercial goodwill and the special forms of it known as trademarks and trade names. He who by his skill and labor establishes a business acquires an interest in the goodwill of it, that is to say in the established disposition of customers to resort to him. To this goodwill he has an exclusive right which is violated by anyone who seeks to make use of it for his own advantage, as by falsely representing to the public that he is himself carrying on the business in question. Special forms of this right of commercial goodwill are rights to trade names and trade marks. Every man has an exclusive right to the name under which he carries on business or sells goods. To this extent, at least, that no one is at liberty to use that name for the purpose of deceiving the public and so injuring the owner of it. He has a similar right to the exclusive use of the marks which he impresses upon his goods, and by which they are known and identified in the market as his. Section 158, leases. Having now considered the different kinds of rights in re propria, which fall within the law of property, we proceed to deal with the various rights in re aliena to which they may be subject. As already stated, the chief of these are four in number, namely leases, servitudes, securities and trusts. The nature of a trust has been sufficiently examined in another connection, and it is necessary here to consider the other three only, and first of leases or tenancies. Although a lease of land and a bailment of chattels are transactions of essentially the same nature, there is no term which, in its recognized use, is sufficiently wide to include both. The term bailment is never applied to the tenancy of land, and although the term lease is not wholly inapplicable to the case of chattels, its use in this connection is subject to arbitrary limitations. It is necessary, therefore, in the interest of orderly classification to do some violence to received usage, in adopting the term lease as a generic expression to include not merely the tenancy of land, but all kinds of bailments of chattel, and all encumbrances of incorporeal property, which possess the same essential nature as the tenancy of land. A lease, in this generic sense, is that form of encumbrance which consists in a right to the possession and use of property owned by some other person. It is the outcome of the rightful separation of ownership and possession. We have seen that possession is the continuing exercise of a right, and that although a right is normally exercised by the owner of it, it may in special cases be exercised by someone else. This separation of ownership and possession may be either rightful or wrongful, and if rightful, it is an encumbrance of the owner's title. The right which is thus encumbered by a lease is usually the ownership of a material object, and more particularly the ownership of land. Here as elsewhere, the material object is identified in speech with the right itself. We say that the land is leased, just as we say that the land is owned or possessed. The less sea of land is he who rightfully possesses it, but does not own it. The lesser of land is he who owns it, but who has transferred the possession of it to another. Encumbrance, by way of lease, is not confined, however, to the right of ownership of a material object. All rights may be leased which can be possessed, that is to say, which admit of continuing exercise, and no rights can be leased which cannot be possessed, that is to say, which are extinguished by their exercise. A servitude appertainant to land, such as a right of way, is leased along with the land itself. The owner of a lease may encumber it with a sublease. The owner of a patent or copyright may grant a lease of it for a term of years, entitling the less sea to the exercise and use of the right, but not to the ownership of it. Even obligations may be encumbered in the same fashion, provided that they admit of continuing or repeated exercise. For example, annuities, shares, money in the public funds, or interest-bearing debts. All these may be rightfully possessed without being owned, and owned without being possessed, as when they are settled in trust for a tenant for life with remainder to someone else. Is it essential that a lease should be of less duration than the right which is subject to it? This is almost invariably the case. Land is leased for a term of years or for life, but not in perpetuity. The owner of a thing owns it forever, but the less sea of it possesses it for a time. We may be tempted, therefore, to regard this difference of duration as essential, and to define a lease as a right to the temporary exercise of a right vested in someone else, but this is not so. There is no objection in principle to a lease of land in perpetuity, or to a lease of a patent or copyright for the full term of its existence. It may be objected that a lease of this subscription would not be a true lease or incumbrance at all, but an assignment of the right itself, that the grantee would become the owner of the right, and not a mere incumbrancer, and in favor of this contention it may be pointed out that a sublease for the whole term is construed in English law as an assignment of the term, a sublease being necessarily shorter than the term, if only by a single day. Whatever the actual rule of English law may be, however, there is nothing in legal theory to justify us in asserting that any difference of duration is essential to the existence of a true lease. A lease exists whenever the rightful possession of a thing is separated from the ownership of it, and although the separation is usually temporary, there is no difficulty in supposing it permanent. I may own a permanent right to exercise another right without owning the latter right itself. The ownership may remain dormant, deprived of any right of exercise and enjoyment, in the hands of the lesser. I am not necessarily the owner of a patent because I have acquired by contract with the owner a right to the exclusive use of it during the whole term of its duration. So far as legal principle is concerned, I may still remain the owner of a lease, although I may have granted a sublease to another for the whole residue of the term. To assign a lease and to sublet it for the whole term are the intention of the parties and in legal theory to entirely different transactions. The assignment is a substitution of one tenant for another, the assignor retaining no rights whatsoever. The sublease, on the contrary, is designed to leave the original relation of landlord and tenant untouched, the sublessee being the tenant of the lessee and not of the original lesser. Section 159. Servitudes. A servitude is that form of encumbrance which consists in a right to the limited use of a piece of land without the possession of it, for example a right of way over it, a right to the passage of light across it to the windows of a house on the adjoining land, a right to the pasture cattle upon it, or a right to derive support from it for the foundations of an adjoining building. It is an essential characteristic of a servitude that it does not involve the possession of the land over which it exists. This is the difference between a servitude and a lease. A lease of land is the rightful possession and use without the ownership of it, while a servitude over land is the rightful use without either the ownership or the possession of it. There are two distinct methods in which I may acquire a road across another man's property. I may agree with him for the exclusive possession of a defined strip of the land, or I may agree with him for the use of such a strip for the sole purpose of passage, without any exclusive possession or occupation of it. In the first case, I acquire a lease. In the second, a servitude. Servitudes are of two kinds, which may be distinguished as private and public. A private servitude is one vested in a determinant individual, for example the right of way of light or of support, vested in the owner of one piece of land over an adjoining piece, or a right granted to one person of fishing in the water of another, or of mining in another's land. A public servitude is one vested in the public at large or in some class of indeterminate individuals, for example the right of the public to a highway over land in private ownership, and the right of the public to navigate a river, of which the bed belongs to some private person, the right of inhabitants of a parish to use a certain piece of private ground for the purposes of recreation. Servitudes are further distinguishable in the language of English law as being either apparent or engross. A servitude appertainant is one which is not merely an encumbrance of one piece of land, but is also accessory to another piece. It is the right of using one piece for the benefit of another, as in the case of a right of way from A's house to the high road across B's house, or a right of support for the building, or a right to the access of light to a window. The land which is burdened with such a servitude is called the servient land or tenement. That which has the benefit of it is called the dominant land or tenement. The servitude runs with each of these tenements into the lands of successive owners and occupiers. Both the benefit and the burden of it are concurrent with the ownership of the lands concerned. A servitude is said to be engross, on the other hand, when it is not so attached in accessory to any dominant tenement for whose benefit it exists. An example is a public right of way, or of navigation, or of recreation, or a private right of fishing, pastureage, or mining. End of section 30 Section 31 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 Marianne. Jurisprudence by John Salmond Chapter 20 The Law of Property Part 2 Section 160 Securities A security is an encumbrance, the purpose of which is to ensure or facilitate the fulfillment or enjoyment of some other right, usually though not necessarily a debt, vested in the same person. Such securities are of two kinds, which may be distinguished as mortgages and liens, if we use the latter term in its widest permissible sense. In considering the nature of this distinction we must first notice a plausible but erroneous explanation. A mortgage, it is sometimes said, is a security created by the transfer of the debtor's property to the creditor, while a lien is merely an encumbrance of some sort created in favor of the creditor over property which remains vested in the debtor. A mortgagee is the owner of the property, while a pledgee or other lieny is merely an encumbrancer of it. This, however, is not a strictly accurate account of the matter, though it is true in the great majority of cases. A mortgage may be created by way of encumbrance, no less than by way of transfer, and a mortgagee does not necessarily become the owner of the property mortgaged. A lease, for example, is commonly mortgaged, not by the assignment of it, but by the grant of a sublease to the creditor, so that the mortgagee becomes not the owner of a lease, but an encumbrancer of it. Similarly, free-hold land may be mortgaged by the grant to the mortgagee of a long term of years. Inasmuch, therefore, as a mortgage is not necessarily the transfer of the property to the creditor, what is its essential characteristic? The question is one of considerable difficulty, but the true solution is apparently this. A lien is a right which is, in its own nature, a security for a debt and nothing more. For example, a right to retain possession of a chattel until payment, a right to destrain for rent, or a right to receive payment out of a certain fund. A mortgage, on the contrary, is a right which is, in its own nature, an independent or principal right, and not a mere security for another right, but which is artificially cut down and limited, so that it may serve in the particular case as a security and nothing more. For example, the fee simple of land, a lease of land for a term of years, or the ownership of a chattel. The right of the lien is vested in him absolutely, and not merely by way of security, for it is itself nothing more than a security. The right of a mortgagee, on the contrary, is vested in him conditionally, and by way of security only, for it is, in itself, something more than a mere security. A lien cannot survive the debt secured. It ceases, and determines, if so jury, on the execution of the debt. It is merely the shadow, so to speak, cast by the debt upon the property of the debtor. But the right vested in a mortgagee has an independent existence. It will, or may, remain outstanding in the mortgagee even after the extinction of the debt. When thus left outstanding it must be re-transferred or surrendered to the mortgageor, and the right of the mortgageor to this reassignment or surrender is called his right or equity of redemption. The existence of such an equity of redemption is, therefore, the test of a mortgage. In liens there is no such right, for there is nothing to redeem. The creditor owns no right which he can be bound to give back or surrender to his debtor. For his right of security has come to its natural and necessary termination, with the termination of the right secured. Mortgages are created either by the transfer of the debtor's right to the creditor, or by the encumbrance of it in his favor. The first of these methods is by far the more usual and important. Moreover, it is peculiar to mortgages, for liens can be created only by way of encumbrance. Whenever a debtor transfers his right to the creditor by way of security, the result is necessarily a mortgage, for there can be no connection between the duration of the debt so secured and the natural duration of the right so transferred. The right transferred may survive the debt, and the debtor, therefore, retains the right of redemption, which is the infallible test of a mortgage. When on the other hand a debtor encumbers his right in favor of the creditor, the security so created is either a mortgage or a lien according to circumstances. It is a mortgage if the encumbrance so created is independent of the debt secured in respect of its natural duration. For example, a term of years or permanent servitude. It is a lien if the encumbrance is in respect of its natural duration dependent on and coincident with the debt secured. For example, a pledge, a vendor's lien, a landlord's right of distress, or an equitable charge on a fund. Speaking generally, any alienable and valuable right, whatever, may be the subject matter of a mortgage. Whatever can be transferred can be transferred by way of mortgage. Whatever can be encumbered can be encumbered by way of mortgage. Whether I own land or chattels or debts or shares or patents or copyrights or leases or servitudes or equitable interests in trust funds or the benefit of a contract, I may so deal with them as to constitute a valid mortgage security. Even a mortgage itself may be transferred by the mortgagee to some creditor of his own by way of mortgage, such a mortgage of a mortgage being known as a sub-mortgage. In a mortgage by way of transfer, the debtor, though he assigns the property to his creditor, remains nonetheless the beneficial or equitable owner of it himself. A mortgageor, by virtue of his equity of redemption, has more than a mere personal right against the mortgagee to the reconveyance of the property. He is already the beneficial owner of it. This double ownership of mortgage property is merely a special form of trust. The mortgagee holds in trust for the mortgageor, and has himself no beneficial interest, save so far as is required for the purpose of an effective security. On the payment or extinction of the debt, the mortgagee becomes a mere trustee and nothing more. The ownership remains vested in him, but is now a bear of any vestige of beneficial interest. A mortgage, therefore, has a double aspect in nature. Viewed in respect of the newdom dominium vested in the mortgagee, it is a transfer of the property. Viewed in respect of the beneficial ownership which remains vested in the mortgageor, it is merely an encumbrance of it. The prominence of mortgage, as the most important form of security, is a peculiarity of English law. In Roman law, and in the modern continental system based upon it, the place assumed by mortgages in our system is taken by the lien, hypotheca, in its various forms. The Roman mortgage, fiducia, fell wholly out of use before the time of Justinian, having been displaced by the superior simplicity and convenience of the hypotheca. And in this respect, modern continental law has followed the Roman. There can be no doubt that a similar substitution of the lien for the mortgage would immensely simplify and improve the law of England. The complexity and difficulty of the English law of security, due entirely to the adoption of the system of mortgages, must be a source of amazement to a French and German lawyer. Whatever can be done by way of mortgage in securing debt can be done equally well by way of lien, and the lien avoids all that extraordinary disturbance and complication of legal relations which is essentially involved in the mortgage. The best type of security is that which combines the most efficient protection of the creditor with the least interference with the rights of the debtor, and in this latter respect the mortgage falls far short of the ideal. The true form of security is a lien, leaving the full legal and equitable ownership in the debtor, but vesting in the creditor such rights and powers, as of sale, possession, and so forth, as are required, according to the nature of the subject matter, to give the creditor sufficient protection and lapsing ipso jure with the discharge of the debt secured. Leans are of various kinds, none of which present any difficulty or require any special consideration. 1. Possessory liens, consisting in the right to retain possession of chattels or other property of the debtor. A power of sale may or may not be combined with this right of possession. Examples are pledges of chattels and the liens of inkeepers, solicitors, and vendors of goods. 2. Rights of distress or seizure, consisting in the right to take possession of the property of the debtor, with or without a power of sale. Examples are the right of distress for rent, and the right of the occupier of land to destrain cattle trespassing on it. 3. Powers of sale. This is a form of security seldom found in isolation, for it is usually incidental to the right of possession conferred by one or other of the two preceding forms of lien. There's no reason, however, why it should not in itself form an effective security. 4. Powers of forfeiture. Consisting in a power vested in the creditor of destroying in his own interest some adverse right vested in the debtor. Examples are a landlord's right of re-entry upon his tenant, and a vendor's right of forfeiting the deposit paid by the purchaser. 5. Charges. Consisting of the right of a creditor to receive payment out of some specific fund or out of the proceeds of the realization of specific property. The fund or property is said to be charged with the debt, which is thus payable out of it. Section 161. Modes of acquisition. Possession. Having considered the various forms which proprietary rights in REM assume, we proceed to examine the modes of their acquisition. An attempt to give a complete list of these titles would here serve no useful purpose, and we shall confine our attention to four of them, which are of primary importance. These are the following. Possession, Prescription, Agreement, and Inheritance. The possession of a material object is a title to the ownership of it. The de facto relation between the person and the thing becomes the de jure relation along with it. He who claims a chattel or a piece of land as his, and makes good his claim in fact, by way of possession, makes it good in law also by way of ownership. There is, however, an important distinction to be drawn. For the thing so possessed may, or may not, already belong to some other person. If, when possession of it is taken by the claimant, it is as yet the property of no one, res nilius, as the Roman said, the possessor acquires a good title against the world. The fish of the sea and the fowls of the air belong by an absolute title to him who first succeeds in obtaining possession of them. This mode of acquisition is known in Roman law as occupatio. On the other hand, the thing of which possession is taken may already be the property of someone else. In this case, the title acquired by possession is good, indeed, against all third persons, but is of no validity at all against the true owner. Possession, even when consciously wrongful, is allowed as a title of right against all persons who cannot show a better, because a prior title in themselves, save with respect to the rights of the original proprietor, my rights to the watch in my pocket are much the same, whether I bought it honestly, or found it, or abstracted it from the pocket of someone else. If it is stolen from me, the law will help me to the recovery of it. I can effectually sell it, lend it, give it away, or bequeath it, and it will go on my death in test state to my next of kin. Whoever acquires it from me, however, acquires in general nothing save my limited and imperfect title to it, and holds it, as I do, subject to the superior claims of the original owner. A thing owned by one man and thus adversely possessed by another has in truth two owners. The ownership of the one is absolute and perfect, while that of the other is relative and imperfect, and is often called, by reason of its origin and possession, possessory ownership. If a possessory owner is wrongfully deprived of the thing by a person other than the true owner, he can recover it, for the defendant cannot set up as a defense his own possessory title, since it is later than, and consequently inferior to, the possessory title of the plaintiff. Nor can he set up as a defense the title of the true owner, the jazz tertiae, as it is called. The plaintiff has a better, because an earlier title than the defendant, and it is irrelevant that the title of some other person, not a party to the suit, is better still. The expediency of this doctrine of possessory ownership is clear. Where it not for such a rule, force and fraud would be left to determine all disputes, as to possession, between persons of whom neither could show an unimpeachable title to the thing, as the true owner of it. Section 162. Prescription. Prescription may be defined as the effect of lapse of time in creating and destroying rights. It is the operation of time as a vestitive fact. It is of two kinds, namely one, positive or acquisitive prescription, and two, negative or extinctive prescription. The former is the creation of a right, the latter is the destruction of one, by the lapse of time. An example of the former is the acquisition of a right of way, by the de facto use of it for twenty years. An instance of the latter is the destruction of the right to sue for a debt after six years from the time at which it first became payable. Lapse of time therefore has two opposite effects. In positive prescription it is a title of right, but in negative prescription it is a divestitive fact. Whether it shall operate in one way or the other depends on whether it is or is not accompanied by possession. Positive prescription is the investigative operation of lapse of time with possession. While negative prescription is the divestitive operation of lapse of time without possession. Long possession creates rights and long want of possession destroys them. If I possess an easement for twenty years without owning it, I begin at the end of that period to own as well as to possess it. Conversely, if I own land for twelve years without possessing it, I cease on the termination of that period either to own or to possess it. In both forms of prescription, fact and right, possession and ownership, tend to coincidence. Ex facto or to just. If the root of fact is destroyed, the right growing out of it withers and dies in course of time. If the fact is present, the right will in the fullness of time proceed from it. In many cases the two forms of prescription coincide. The property which one person loses through long dispossession is often at the same time acquired by someone else through long possession. Yet this is not always so, and it is necessary in many instances to know whether legal effect is given to long possession, in which case the prescription is positive or too long want to possession, in which case the prescription is negative. I may, for example, be continuously out of possession on my land for twelve years without any other single person having continuously held possession of it for that length of time. It may have been in the hands of a series of trespassers against me and against each other. In this case, if the legally recognized form of prescription is positive, it is inoperative, and I retain my ownership. But if the law recognizes negative prescription instead of positive, as in this case, our own system does, my title will be extinguished. Who in such circumstances will acquire the right which I thus lose depends not on the law of prescription but on the rules as to the acquisition of things which have no owner. The doctrine that prior possession is a good title against all but the true owner will confer on the first of a series of adverse possessors a good title against all the world so soon as the title of the true owner has been extinguished by negative prescription. The rational basis of prescription is to be found in the presumption of the coincidence of possession and ownership, of fact and of right. Owners are usually possessors, and possessors are usually owners, fact and right are normally coincident. Therefore the former is evidence of the latter. That a thing is possessed de facto is evidence that it is owned, de jure. That it is not possessed raises a presumption that it is not owned either. Want of possession is evidence of want of title. The longer the possession or want of possession has continued, the greater is its evidential value. That I have occupied land for a day raises a very slight presumption that I am the owner of it, but if I continue to occupy it for twenty years the presumption becomes indefinitely stronger. If I have a claim of debt against a man, unfulfilled and unenforced, the lapse of six months may have but little weight as evidence that my claim is unfounded or that it has already been satisfied, but the lapse of ten years may amount to ample proof of this. If, therefore, I am in possession of anything in which I claim a right, I have evidence of my right which differs from all other evidence in as much as it grows stronger instead of weaker with the lapse of years. The tooth of time may eat away all other proofs of title. Documents are lost, memory fails, witnesses die, but as these become of no avail, an efficient substitute is in the same measure provided by the propitve force of long possession. So also with long want of possession as evidence of want of title, as the years pass the evidence in favor of the title fades, while the presumption against it grows ever stronger. Here, then, we have the Chief Foundation of the Law of Prescription. For in this case, as in so many others, the law has deemed it expedient to confer upon certain species of evidence conclusive force. It has established a conclusive presumption in favor of the rightfulness of long possession and against the validity of claims which are vitiated by long want of possession. Lapse of time is recognized as creative and destructive of rights, instead of merely as evidence for and against their existence. In substance, though not always in form, prescription has been advanced from the law of evidence to a place in the substantive law. The conclusive presumption on which prescription is thus founded falls, like all other conclusive presumptions, more or less wide of the truth. Yet in the long run, if used with due safeguards, it is the instrument of justice. It is not true as a matter of fact that a claim unenforced for six years is always unfounded, but it may be wise for the law to act as if it were true. For the effect of thus exaggerating the evidential lapse of time is to prevent the person's concern from permitting such delays as would render their claims in reality doubtful. In order to avoid the difficulty and error that necessarily result from the lapse of time, the presumption of the coincidence of fact and right is rightly accepted as final after a certain number of years. Whoever wishes to dispute this presumption must do so within that period, otherwise his right, if he has one, will be forfeited as a penalty for his neglect. Vigilantibus, non-dermiantibus, juris invenient. Prescription is not limited to rights in rem. It is found within the sphere of obligations as well as within that of property. Positive prescription, however, is possible only in the case of rights which admit of possession, that is to say, continuing exercise and enjoyment. Most rights of this nature are rights in rem. Rights in personum are commonly extinguished by their exercise and therefore cannot be possessed or acquired by prescription. And even in that minority of cases in which such rights do admit of possession, and in which positive prescription is therefore theoretically possible, modern law, at least, has seen no occasion for allowing it. This form of prescription, therefore, is peculiar to the law of property. Negative prescription, on the other hand, is common to the law of property and to that of obligations. Most obligations are destroyed by the lapse of time, for since the ownership of them cannot be accompanied by the possession of them, there is nothing to preserve them from the destructive influence of delay in their enforcement. Negative prescription is of two kinds, which may be distinguished as perfect and imperfect. The latter is commonly called the limitation of actions, the former being then distinguished as prescription in a narrow and specific sense. Perfect prescription is the destruction of the principle right itself, while imperfect prescription is merely the destruction of the accessory right of action, the principle right remaining in existence. In other words, in the one case the right is wholly destroyed, but in the other it is merely reduced from a perfect and enforceable right to one which is imperfect and unenforceable. An example of perfect prescription is the destruction of the ownership of land through dispossession for 12 years. The owner of land who has been out of possession for that period does not merely lose his right of action for the recovery of it, but also loses the right of ownership itself. An example of imperfect prescription, on the other hand, is the case of an owner of chattel who has been out of possession up at four six years. He loses his right of action for the recovery of it, but he remains the owner of it nonetheless. His ownership is reduced from a perfect to an imperfect right, but it still subsists. Similarly, a creditor loses in six years his right of action for the debt, but the debt itself is not extinguished and continues to be due and owing. Section 163 Agreement We have already considered the general theory of agreement as a title of right. It will be remembered that we use the term to include not merely contracts but all other bilateral acts in the law, that is to say, all expressions of the consenting wills of two or more persons directed to an alteration of their legal relations. Agreement in this wide sense is no less important in the law of property than in that of obligations. As a title of proprietary rights in REM, agreement is of two kinds, namely assignment and grant. By the former, existing rights are transferred from one owner to another. By the latter, new rights are created by way of incumbrance upon the existing rights of the grantor. The grant of a lease of land is the creation by agreement between the grantor and grantee of a leasehold vested in the latter and encumbering the freehold vested in the former. The assignment of a lease, on the other hand, is the transfer by agreement of a subsisting leasehold from the assiner to the assignee. Agreement is either formal or informal. We have already sufficiently considered the significance of this formal element in general. There is, however, one formality known to the law of property which requires special notice, namely the delivery of possession. That tradizio was an essential element of the voluntary transfer of dominium was a fundamental principle of Roman law. Tradizionibus et unscapionibus dominia rerum non nudis pactus transfer enter. So in English law, until the year 1845, land could in theory be conveyed in no other method than by the delivery of possession. No deed of conveyance was in itself of any effect. It is true in practice this rule was for centuries evaded by taking advantage of that fictitious delivery of possession which was rendered possible by the statute of uses. But it is only by virtue of a modern statute, passed in the year mentioned, that the ownership of land can in legal theory be transferred without possession of it. In the case of chattels the common lot is self-succeeded, centuries ago, in cutting down to a very large extent the older principle. Chattels can be assigned by deed without delivery and also by sale without delivery, but a gift of chattels requires to this day to be completed by the transfer of possession. In this requirement of tradizio we may see a curious remnant of an earlier phase of thought. It is a relic of the times when the law attributed to the fact of possession a degree of importance which at the present day seems altogether disproportionate. Ownership seems to have been deemed little more than an accessory of possession. An owner who had ceased to possess had almost ceased to own, for he was deprived of his most important rights. A person who had not yet succeeded in obtaining possession was not an owner at all, however valid his claim to the possession may have been. The transfer of a thing was conceived as consisting essentially in the transfer of the possession of it. The transfer of rights, apart from the visible transfer of things, had not yet been thought of. So far as the requirement of tradizio is still justifiably retained by the law, it is to be regarded as a formality accessory to the agreement and serving the same purposes as other formalities. It supplies evidence of the agreement, and it preserves for the parties, a locus poenitentie, lest they be prematurely bound by unconsidered consent. It is a leading principle of law that the title of a grantee or a signee cannot be better than that of his grantor or signer. Nemo plus Juris add Allium transferi protest. Quam ipsa haboret. No man can transfer or encumber a right which is not his. To this rule, however, there is a considerable number of important exceptions. The rule is ancient, and most of the exceptions are modern, and we may anticipate that the future course of legal development will show further derogations from the early principle. There are two conflicting interests in the matter. The older rule is devised for the security of established titles. Under its protection, he who succeeds in obtaining a perfect title may sit down in peace and keep his property against all the world. The exceptions, on the contrary, are established in the interests of those who seek to acquire property, not of those who seek to keep it. The easier it is to acquire a title with safety, the more difficult it is to keep one in safety. And the law must make a compromise between these two adverse interests. The modern tendency is more and more to sacrifice the security of tenure given by the older rule to the facilities for safe and speedy acquisition and disposition given by the exceptions to it. These exceptions are of two kinds. One, those due to the separation of legal from equitable ownership, and two, those due to the separation of ownership from possession. We have seen already that when the legal ownership is in one man and the equitable in another, the legal owner is a trustee for the equitable. He holds the property on behalf of that other, and not for himself, and the obligation of this trusteeship is an encumbrance upon his title. Yet he may, nonetheless, give an unencumbered title to a third person, provided that that person gives value for what he gets, and has at the time no knowledge of the existence of the trust. This rule is known as the Equitable Doctrine of Purchase for Value Without Notice. No man who ignorantly and honestly purchases a defective legal title can be affected by any adverse, equitable title vested in anyone else. To this extent, a legal owner can transfer to another more than he has himself, notwithstanding the maxim, Nemo dat quad non-habit. The second class of exceptions to the general principle includes the cases in which the possession of a thing is in one person and the ownership of it in another, partly by the common law and partly by various modern statutes. The possessor is, in certain cases, unable to give a good title to one who deals with him in good faith believing him to be the owner. The law allows men in these cases to act on the presumption that the possessor of a thing is the owner of it, and he who honestly acts on this presumption will acquire a valid title in all events. The most notable example is the case of negotiable instruments. The possessor of a bank note may have no title to it, he may have found it or stolen it, but he can give a good title to anyone who takes it from him for value and in good faith. Similarly, mercantile agents in possession of goods belonging to their principles can effectively transfer the ownership of them, whether they are authorized there to or not. Section 164. Inheritance The fourth and last mode of acquisition that we need consider is inheritance. In respect of the death of their owners, all rights are divisible into two classes, being either inheritable or uninheritable. A right is inheritable if it survives its owner, uninheritable if it dies with him. This division is to a large extent, though far from completely, coincident with that between proprietary and personal rights. The latter are in almost all cases so intimately connected with the personality of him in whom they are vested that they are incapable of separate and continued existence. They are not merely divested by death, as are rights of every sort, but are wholly extinguished. In exceptional cases, however, this is not so. Some personal rights are inheritable, just as property is, at instance being the status of hereditary nobility and the political and other privileges accessory there too. Proprietary rights, on the other hand, are usually inheritable. In respect of them, death is a divestiture, but not an instinctive fact. The exceptions, however, are numerous, at least maybe for the life of the lessy instead of for a fixed term of years. Joint ownership is such that the right of him who dies first is wholly destroyed, the survivor acquiring an exclusive title by the just a crescendi or right of survivorship. Rights of action for a tort die with the person wrong, except so far as the rule of the common law has been altered by statute. In the great majority of cases, however, death destroys merely the ownership of a proprietary right and not the right itself. The rights which a dead man thus leaves behind him vest in his representative. They pass to some person whom the dead man, or the law on his behalf, has appointed to represent him in the world of the living. This representative bears the person of the deceased, and therefore has vested in him all the inheritable rights, and has imposed upon him all the inheritable liabilities of the deceased. Inheritance is, in some sort, a legal and fictitious continuation of the personality of the dead man, but the representative is, in some sort, identified by the law with him whom he represents. The rights which the dead man can no longer own or exercise in propria persona, and the obligations which he can no longer in propria persona fulfill, he owns exercises and fulfills in the person of a living substitute. To this extent, and in this fashion, it may be said that the legal personality of a man survives his natural personality until his obligations being duly performed and his property duly disposed of, his representation among the living is no longer called for. The representative of a dead man, though the property of the deceased is vested in him, is not necessarily the beneficial owner of it. He holds it on behalf of two classes of persons, among whom he himself may or may not be numbered. These are the creditors and the beneficiaries of the estate. Just as many of a man's rights survive him, so also do many of his liabilities, and these inheritable obligations pass to his representative and must be satisfied by him. Being, however, merely the representative of another, he is not liable in propria persona, and his responsibility is limited by the amount of the property which he has acquired from the deceased. He possesses a double personality or capacity, and that which is due from him, in right of his executorship, cannot be recovered from him in his own right. The beneficiaries, who are entitled to the residue after satisfaction of the creditors, are of two classes. One, those nominated by the last will of the deceased, and two, those appointed by the law in default of any such nomination. The succession of the former is testamentary, ex testamento. That of the latter is intestate, ab intestato. As to the latter, there is nothing that need be here said, save that the law is chiefly guided by the presumed desires of the dead man, and confers his state upon his relatives in order of proximity. In default of any known relatives, the property of an intestate is claimed by the state itself, and goes as bona vacancia to the crown. Testimentary succession, on the other hand, demands further consideration. Although a dead man has no rights, a man while yet alive has the right to determine the disposition after he is dead of the property which he leaves behind him. His last will, duly declared in the document which we significantly call by that name, is held inviolable by the law. For half a century and more the rights and responsibilities of living men may thus be determined by an instrument which was of no effect until the author of it was in his grave and had no longer any concern with the world or its affairs. This power of the dead hand, Mortua Manas, is so familiar a feature in the law that we accept it as a matter of course, and have some difficulty in realizing what a very singular phenomenon it in reality is. It is clear that some limitation must be imposed by the law upon this power of the dead over the living, and these restrictions are of three chief kinds. One. Limitations of Time. It is only during a limited period after his death that the directions of a testator as to the disposition of his property are held valid. He must so order the destination of his estate that within this period the whole of it shall become vested absolutely in some one or more persons free from all testamentary conditions and restrictions. Any attempt to retain the property in Manu Mortua beyond that time limit makes the testamentary disposition of it void. In English law the period is determined by a set of elaborate rules which we need not here consider. Two. Limitation of Amount. A second limitation of testamentary power imposed by most legal systems, though not by our own, is that a testator can deal with a certain proportion of his estate only, the residue being allotted by the law to those to whom he owes a duty of support, namely his wife and children. Three. Limitations of Purpose. The power of testamentary dispositions is given to a man that he may use it for the benefit of other men who survive him, and to this end only can it be validly exercised. The dead hand will not be suffered to withdraw property from the uses of the living. No man can validly direct that his land shall lie waste or that his money shall be buried with him or thrown into the sea. Summary. Divisions of these substantive civil law. One. Law of Property. Proprietary Rights in Rem. Two. Love Obligations. Proprietary Rights in Personum. Three. Law of Status. Personal Rights. Meanings of the term Property. One. All Legal Rights. Two. All Proprietary Rights. Three. All Proprietary Rights in Rem. Four. Rights of Ownership and Material Things. Divisions of the Law of Property. One. Ownership of Material Things. Corporal Real Property. Two. Rights in Ray Propria in Immaterial Things, e.g. patents and trademarks. Three. Rights in Ray Eliana over Material or Immaterial Things, e.g. leases, trusts and securities. The Ownership of Material Things. It's essential qualities. One. Generality. Two. Permanence. Three. Inheritance. Ownership of Land in English Law. Moveable and Immovable Property. Land and Chattels. Moveable and Immovable Rights. The Local Situation of Rights. Real and Personal Property. Meaning of the Term Chattel. Rights in Ray Propria in Immaterial Things. One. Patents. Two. Literary Copyright. Three. Artistic Copyright. Four. Musical and Dramatic Copyright. Five. Goodwill, Trademarks and Tradenames. Encumbrances over Property. One. Leases. Their Nature. Their Subject Matter. Their Duration. Two. Servitudes. Their Nature. Their Kinds. Public and Private. Appartenant and Ingross. Three. Securities. Their Nature. Mortgages and Leans. The Essential Nature of a Mortgage. Equities of Redemption. Mortgages. By way of Assignment. By way of Incumbrance. The Double Ownership of Mortgaged Property. The Reduction of Mortgages to Leans. The Kinds of Leans. Modes of Acquiring Property. One. Possession. Absolute Title to Res Nilius. Absolute Ownership. Relative Title to Res Alliana. Possessory Ownership. Two. Prescription. Positive or Acquisitive. Negative or Extinctive. Rational Bases of Prescription. Presumption of Coincidence of Possession and Ownership. Classes of Rights Subject to Prescription. Prescription Perfect. Imperfect. The Limitation of Actions. Three. Agreement. Assignment. Grant. Formal. Informal. The Efficacy of Agreement. Nemo Debt. Quad Non-Habit. Exceptions. Separation of Legal and Equitable Ownership. Separation of Ownership and Possession. Four. Inheritance. Rights. Inheritable. Uninheritable. The Representatives of Dead Men. The Creditors of Dead Men. The Beneficiaries of Dead Men. One. Ab Intestato. Two. Ex Testimento. The Limits of Testimentary Power. End of Section 31