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UNIVERSITY

OF CALIFORNIA

LOS ANGELES



SCHOOL OF LAW
LIBRARY



JURISPRUDENCE



S ALMOND



BY THE SAME AUTHOR



THE LAW OF TORTS

A Treatise on the English

Law op Liability for

Civil Injuries

THIKD EDITION

1912



A SUMMARY OF THE
LAW OF TORTS

Being an Abridgement, for the

USE OF Students, of the same

Author's Treatise on the Law

OF Torts

1912



London
STEVENS AND HAYNES



\^v



Mt'



JURISPRUDENCE



BY

JOHN W. SALMOND

SOLIClTOR-liE.NEKAL FOB NEW ZEALAND



FOURTH EDITION



LONDON

STEVENS AND HAYNES

BELL YARD, TEMPLE BAR
1913



KIAITSAS
STATE
ILIBRAR



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19/5




PRINTED AT

'IHB BALLANTYNE PRESS

LONDON



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PREFACE TO THE FIRST EDITION

I HAVE endeavoured to make this book useful to more than
one class of readers. It is written primarily for the use of
those students of the law who are desirous of laying a scientific
foundation for their legal education ; yet I hope that it will
not be found destitute of interest by those lawyers whose
academic studies lie behind them, but who have not wholly
ceased to concern themselves with the theoretical and scien-
tific aspects of the law. Further, a great part of what I have
written is sufficiently free from the technicalities and details
of the concrete legal system to serve the purposes of those
laymen who, with no desire to adventure themselves among
the repellent mysteries of the law, are yet interested in those
more general portions of legal theory which touch the prob-
lems of ethical and political science.

It will be noticed that occasional passages of the text are
printed in smaller type. These are of lesser importance, of
greater difficulty, or of a controversial or historical character,
and are not essential to the continuity of the exposition.

:(: H: ^ H< ^

Certain parts of this book have already been published in
the Law Quarterly Review, and I have also incorporated in it
the substance of a much smaller work published by me some

V



vi PREFACE

years ago under the title of " The First Principles of Juris-
prudence." I have not thought it necessary to allude in the
text to certain discrepancies in matters of detail between my
earlier and later views, and it will be understood that the
present work wholly supersedes the earlier, as containing a
re-statement of the substance of it in a more comprehensive
form.

J. W. S.

Adelaide,

March 1902



PREFACE TO THE FOURTH EDITION

This edition is substantially a reprint of the third,
which was published in 1910.

J. W. S.

London,
May 1913



CONTENTS



CHAPTER I

THE SCIENCE OF JURISPRUDENCE

§ 1. Jurisprudence as the Science of Law

§ 2. Jurisprudence as the Science of Civil Law .

§ 3. Theoretical Jurisprudence

§ 4. English and Foreign Jurisprudence .



PAGE
1

3

4

7



CHAPTER II



CIVIL LAW



§ 5. The Definition of Law 9

§ 6. The Administration of Justice ...... 10

§ 7. Law logically subsequent to the Administration of Justice . 12

§ 8. Law and Fact ........ 15

§ 9. The Justification of the Law . . . . . .19

§ 10. The Defects of the Law 23

§ 11. General and Special Law ....... 28

§ 12. Common Law ......... 32

§ 13. Law and Equity ........ 34



CHAPTER ni

OTHER KINDS OF LAW

§ 14. Law in General — A Rule of Action

§ 15. Physical or Scientific Law

§ 16. Natural or Moral Law

§ 17. Imperative Law

§ 18. Conventional Law .

§ 19. Customary Law

vii



40
41
43
47
54
55



vm



CONTENTS



§ 20. Practical Law .....
§ 21. International Law ....
§ 22. The Law of Nations as Natural Law
§ 23. The Law of Nations as Customary Law
§ 24. The Law of Nations as Imperative Law



FAaE

56
56
59
60
61



CHAPTER IV



THE ADMESTISTEATION OF JUSTICE



§ 25. Necessity of the Administration of Justice .

§ 26. Origin of the Administration of Justice

§ 27. Civil and Criminal Justice .....

§ 28. The Purposes of Criminal Justice : Deterrent Punishment
§ 29. Preventive Punishment ......

§ 30. Reformative Punishment ......

§ 31. Retributive Punishment ......

§ 32. Civil Justice : Primary and Sanctioning Rights .

§ 33. A Table of Legal Remedies .....

§ 34. Penal and Remedial Proceedings ....

§ 35. Secondary Functions of Courts of Law



65
67
70
75
75
76
80
84
87
88
89





CHAPTER V












THE STATE


§ 36.


The Nature and Essential Functions of the State . . 93


§ 37.


Secondary Functions of the State . . .




98


§ 38.


The Territory of the State








99


§ 39.


The Membership of the State .








99


§40.


The Constitution of the State .








105


§41.


The Government of the State .








110


§42.


Independent and Dependent States .








111


§ 43.


Unitary and Composite States .








114




CHAPTER VI




THE SOtTBCES OF LAW


§ 44.


Formal and Material Sources








117



§ 45. Legal and Historical Sources
§ 46. A List of Legal Sources .



117

120



CONTENTS



IX



§ 47. The Sources of Law as Constitutive and Abrogative

§ 48. Sources of Law and Sources of Eights

§ 49. Ultimate Legal Principles ....

CHAPTER VII

LEGISLATION

§ 50. The Nature of Legislation
§ 61. Supreme and Subordinate Legislation
§ 52. Relation of Legislation to other Sources
§ 53. Codification .....
§ 54. The Interpretation of Enacted Law .



PAGE

123
124
125



127
129
132
136
137



CHAPTER VIII

CUSTOM

§ 55. The Early Importance of Customary Law .

§ 56. Reasons for the Reception of Customary Law

§ 57. The Requisites of a Valid Custom

§ 58. Conventional Custom ....

§ 59. Theories of Customary Law

§ 60. Custom and Prescription ....



143
144
146
153
154
157



CHAPTER IX



PRECEDENT



§ 61. The Authority of Precedents ....

§ 62. Declaratory and Original Precedents .

§ 63. Authoritative and Persuasive Precedents .

§ 64. The Absolute and Conditional Authority of Precedents

§ 65. The Disregard of a Precedent ....

§ 66. Precedents Constitutive, not Abrogative

§ 67. Grounds of the Authority of Precedents

§ 68. The Sources of Judicial Principles

§ 69. Respective Functions of Judges and Juries



159
160
163
164
165
168
170
174
176



CHAPTER X

LEGAL EIGHTS



§ 70. Wrongs
§ 71. Duties



179
180



CONTENTS



§ 72. Rights

§ 73. The Elements of a Legal Right .

§ 74. Legal Rights in a wider sense of the term

§ 75. Liberties

§ 76. Powers

§ 77. Duties, Disabilities, and Liabilities



PAOE

181
185
190
190
192
194



CHAPTER XI



THE KINDS OF LEGAL BIGHTS



§ 78. Perfect and Imperfect Rights .

§ 79. The Legal Nature of Rights against the State

§ 80. Positive and Negative Rights .

§ 81. Real and Personal Rights

§ 82. Proprietary and Personal Rights

§ 83. Rights in re propria and Rights in re aliena

§ 84. Principal and Accessory Rights

§ 85. Legal and Equitable Rights



197
199
201
202
207
212
216
217



CHAPTER XII

OWNERSHIP

§ 86. The Definition of Ownership
§ 87. Corporeal and Incorporeal Ownership
§ 88. Corporeal and Incorporeal Things
§ 89. Sole Ownership and Co-ownership
§ 90. Trust and Beneficial Ownership
§ 91. Legal and Eqviitable Ownership
§ 92. Vested and Contingent Ownership



220
221
225
226
227
231
232



CHAPTER XIII

POSSESSION



§ 93. Introduction . . . . .

§ 94. Possession in Fact and in Law .

§ 95. Corporeal and Incorporeal Possession

§ 96. Corporeal Possession

§ 97. The Animus Possidendi . . .

§ 98. The Corpus of Possession .



236
237
239
240
242
244



CONTENTS



XI



§ 99. Relation of the Possessor to other Persons

§ 100. Relation of the Possessor to the Thing Possessed



PAQE

244
250



CHAPTER XIV

POSSESSION {continued)

§ 101. Immediate and Mediate Possession ....

§ 102. Concurrent Possession ......

§ 103. The Acquisition of Possession .....

§ 104. Possession not essentially the Physical Power of Exclusion
§ 105. Incorporeal Possession ......

§ 106. Relation between Possession and Ownership

§ 107. Possessory Remedies ......



252
256
256
258
261
264
267



CHAPTER XV



PERSONS



§ 108. The Nature of Personality 272

§ 109. The Legal Status of the Lower Animals . . . .273

§ 110. The Legal Status of Dead Men 275

§ 111. The Legal Status of Unborn Persons 277

§ 112. Double Personality 278

§ 113. Legal Persons 279

§ 114. Corporations ......... 281

§ 115. The Agents, Beneficiaries, and Members of a Corporation . 285

§ 116. The Acts and LiabiUties of a Corporation .... 287

§ 117. The Uses and Purposes of Incorporation .... 289

§ 118. The Creation and Extinction of Corporations . . . 293

§ 119. The State as a Corporation 294







CHAPTER XVI








TITLES




1 120.


Vestitive Facts




. 299


§ 121.


Acts in the Law


.


. 301


§ 122.


Agreements





. 306


§ 123.


The Classes of Agreements


. 307


§ 124.


Void and Voidable Agreements .


. 309



xii CONTENTS



CHAPTER XVn »

LIABILITY

§ 125. The Nature and Kinds of Liability
§ 126. The Theory of Remedial Liabihty
§ 127. The Theory of Penal Liability
§ 128. Acts ....
§ 129. Two Classes of Wrongfiil Acts
§ 130. Damnum sine Injuria
§ 131. The Place and Time of an Act
§ 132. MensRea



I



PAOB

319
320
321
323
327
329
330
332



CHAPTER XVIII

INTENTION AND NEGLIGENCE

§ 133. The Natilre of Intention ....
§ 134. Intention and Motive ....

§ 135. MaHce

§ 136. Relevance and Irrelevance of Motives

§ 137. Criminal Attempts .....

§ 138. Other Exceptions to the Irrelevance of Motives

§ 139. Jus necessitatis

§ 140. NegUgence

§ 141. Objection Considered

§ 142. The Standard of Care

§ 143. Degrees of NegUgence

§ 144. Other Theories of Negligence



336
338
340
341
343
346
347
348
352
354
358
361



CHAPTER XIX

LIABILITY {continued)

§ 145. Wrongs of Absolute Liability

§ 146. Mistake of Law

§ 147. Mistake of Fact

§ 148. Accident

§ 149. Vicarious ResponsibUity .

§ 150. The Measure of Criminal Liability

§ 151. The Measure of Civil LiabiUty .



366

368
369
371
374
377
382



CONTENTS



xm



CHAPTER XX

THE LAW OF PROPERTY



PAQE

§ 152. Meanings of the term Property ...... 385


§ 153. Kinds of Property






. 387


§ 154. The Ownership of Material Things






. 387


§ 155. Movable and Immovable Property






. 390


§ 156. Real and Personal Property






. 394


§ 157. Rights in re propria in Immaterial Things






. 395


§ 158. Leases ......






. 397


§ 159. Servitudes






. 400


§ 160. Securities .....






. 402


§ 161. Modes of Acquisition : Possession






. 406


§ 162. Prescription .....






. 408


§ 163, Agreement .....






. 412


§ 164. Inheritance .....






. 416



CHAPTER XXI



THE LAW OF OBLIGATIONS



§ 165. The Nature of Obligations

§ 166. Sohdary Obligations

§ 167. The Sources of Obligations

§ 168. Obhgations arising from Contracts

§ 169. Obligations arising from Torts .

§ 170. Obligations arising from Quasi-Contracts

§ 171. Innominate Obhgations .



422
424
427
427
428
432
435



CHAPTER XXII

THE LAW OF PROOEDTJBB

§ 172. Substantive Law and the Law of Procedure

§ 173. Evidence

§ 174. The Valuation of Evidence

§ 175. The Production of Evidence

§ 176. Criticism of the Law of Evidence



437
440
444
449
452



xu^



CONTENTS



APPENDICES

I. The Names of the Law .
II. The Theory of Sovereignty .

III. The Maxims of the Law

IV. The Divisions of the Law
V. The Literature of Jurisprudence



457
467
474
481
487



INDEX 497



JURISPRUDENCE.



CHAPTER I.

THE SCIENCE OF JURISPRUDENCE.

§ 1. Jurisprudence as the Science of^ Lav)^,

In the widest of its applications the term jurisprudence
means the science of law, using the word law in that vague
and general sense in which it includes all species of obligatory
rules of human action. Of jurisprudence in this sense, there
are as many divisions as there are kinds of law which have
been deemed sufficiently important and well developed to
serve as the subject-matter of distinct branches of learning.
They are at least three in number :

1. Civil Jurisprudence. — This is the science of civil law,
that is to say, the law of the land. Its purpose is to give a
complete and systematic account of that complex body of
principles which is received and administered in the tribunals
of the state.

2. International Jurisjjrudence. — This is the science of
international law or the law of nations. It is concerned not
with the rules which are in force ivithin states, but with those
which prevail between states. Just as the conduct of the
subjects of a single state is governed by the civil law, -so
international law regulates the conduct of states themselves
in their relations towards each other.

3. Natural Jurisjprudence. — This is the science of that
which our forefathers termed natural law or the law of nature
{jus naturale). By this they meant the principles of natural
justice — justice as it is in itself, in deed and in truth, as

1 A



2 THE SCIENCE OF JURISPRUDENCE [§ 1

contrasted with those more or less imperfect and distorted
images of it which may be seen in civil and international law.
Whether these principles of natural justice are rightly en-
titled to the name of law — ^whether natural law, so called, can
be rightly classed along with civil and international law as a
species of the same genus — is a question which it is not needful
for us here to discuss. It is sufficient for our present purpose
to note the historical fact, that there is a very extensive
literature in which the law of nature is given a place side by
side with civil law and the law of nations {jus naturale, jus
civile, and jus gentium), and in which the resulting threefold
division of jurisprudence into natural, civil, and inter-
national, is recognised as valid.

Books of natural jurisprudence are in their essence books
of ethics or moral philosophy, limited, however, to that de-
partment which is concerned with justice, as opposed to the
other forms of right, while the method and the point of view
are those of the lawyer rather than of the moral philosopher.
Experience has shown, however, that this abstract theory
of justice in itself, this attempt to work out in abstracto the
principles of natural right, is a sufficiently unprofitable form
of literature. In England both name and thing have become
in recent years all but obsolete. Yet there are not wanting
even at this day examples of the earlier way of thought. The
most notable of these is the late Professor Lorimer's Institutes
of Law, a Treatise of the Principles of Jurisprudence as deter-
mined by Nature. On the Continent, on the other hand, the
literature of natural law, though no longer as flourishing as it
was, is still of importance. One of the best known works of
this class is Ahrens' Cours de Droit Naturel. A typical ex-
ample from an earlier epoch is Pufendorf's once celebrated
but now neglected work, De Jure Naturae et Gentium
(1672).!

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



§2| THE SCIENCE OF JURISPRUDENCE 3

§ 2. Jurisprudence as the Science of Civil Law.

In a second and narrower sense, jurisprudence, instead of
including all three of the foregoing divisions, is limited to one
only, namely, that which we have distinguished as civil. It
is the science of civil law. A similar specific application
belongs to the term law also, for when we speak of law with-
out any qualifying epithet, we commonly mean that par-
ticular form which is administered in the tribunals of the
state. So when we speak of jurisprudence without more,
we usually intend the science of this special kind of law and
this alone. ^

Civil jurisprudence is divisible into three branches, which
may be distinguished as Systematic, Historical, and Critical.
The first deals with the present ; its purpose is the exposition
of the legal system as it now is. The second deals with the
past ; it is concerned with the legal system in the process of
its historical development. The third deals Avith the ideal
future ; it expounds the law not as it is or has been, but as
it ought to be. Systematic jurisprudence is legal exposition ;
historical jurisprudence is legal history ; while critical juris-
prudence is commonly known as the science of legislation.

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

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

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



4 THE SCIENCE OF JURISPRUDENCE [§ 3

§3. Theoretical Jurisprudence.

There is yet a third and still narrower sense, in which juris-
prudence includes not the whole science of civil law, but only
a particular part of it. In this limited signification it may be
termed abstract, theoretical, or general, to distinguish it from
the more concrete, practical, and special departments of legal
study. It is with this form only that we are concerned in
the present treatise. How, then, shall we define it, and how
distinguish it from the residue of the science of the civil law ?
It is the science of the first principles of the civil law. It is not
possible, indeed, to draw any hard line of logical division be-
tween these first principles and the remaining portions of the
legal system. The distinction is one of degree rather than of
kind. Nevertheless it is expedient to set apart, as the sub-
ject-matter of a special department of study, those more
fundamental conceptions and principles which serve as the
basis of the concrete details of the law. This introductory
and general portion of legal science, cut off for reasons of
practical convenience from the special portions which come
after it, constitutes the subject-matter of our inquiry. It
comprises the first principles of civil jurisprudence in all
its three divisions, systematic, historical, and critical. The
fact that its boundaries are not capable of being traced with
logical precision detracts in no degree from the advantages
to be derived from its recognition and separate treatment as
a distinct department of juridical science. Practical legal
exposition acknowledges no call to rise to first principles, or
to proceed to ultimate analysis. From the point of view of law
as an art, the importance of conceptions and principles varies
inversely with their abstractness or generality. Practical
jurisprudence proceeds from below upward, and ascends no
further than the requirements of use and practice demand.
Theoretical jurisprudence, on the contrary, attributes value
to the abstract and the general, rather than to the concrete
and the particular. Even when these two departments of
knowledge are coincident in their subject-matter, they are far
apart in their standpoints, methods, and purposes. The aim
of the abstract study is to supply that theoretical foundation



§ 8] THE SCIENCE OF JURISPRUDENCE 5

which the science of law demands, but of which the art of law
is careless.

Opinions may well differ to some extent as to the matters
which are fit, by reason of their generality or their theoretic
and scientific interest, to find a place among the contents of
abstract jurisprudence. Speaking generally, however, it
may be said that this science appropriately deals with such
matters as the following :

1. An analysis of the conception of civil law itself, together
with an examination of the relations between this and other
forms of law.

2. An analysis of the various subordinate and constituent
ideas of which the complex idea of the law is made up ; for
example, those of the state, of sovereignty, and of the
administration of justice.

3. An account of the sources from which the law pro-
ceeds, with an investigation into the theory of legislation,
precedent, and customary law.

4. An examination of the general principles of legal
development, as contrasted with the historic details of the
growth of the individual legal system, this last pertaining
to legal history.

5. An inquiry into the scientific arrangement of the law,
that is to say, the logical division of the corpus juris into
distinct departments, together with an analj^sis of the dis-
tinctions on which the division is based.

6. An anah^sis of the conception of legal rights together
with the division of rights into various classes, and the general
theory of the creation, transfer, and extinction of rights, -i

7. An investigation of the theory of legal liability, civil
and criminal.

8. An examination of any other juridical conceptions which
by reason of their fundamental character, or their theoretical
interest, significance, or difificulty, deserve special attention
from the abstract point of vie^V ; for example, property,
possession, obligations, trusts, incorporation, and many
others. 1

1 It will be understood that this Hst is not intended as an exhaustive state
ment of the proper contents of a woi'k of abstract jurisprudence, but merely as



6 THE SCIENCE OF JURISPRUDENCE f § 3

It may avoid misconceptions, and assist us in understand-
ing wliat theoretical jurisprudence i-y, if we state shortly
what it is not.

1. In tlie first place it is not an elementary outline of the
concrete legal system. It deals not with the outlines of the
law, but with its ultimate conceptions. It is concerned not
with the simplest and easiest, but with some of the most
abstruse and difficult portions of the legal system. Theo-
retical jurisprudence is not elementary law, any more than
metaphysics is elementary science.

2. In the second place it is not, as the name general juris-
prudence suggests, and as some writers have held,^ the
science of those conceptions and principles which all or most
systems of law have in common. It is true, indeed, that
a great part of the matter with which it is concerned is to
be found in all mature legal systems. All these have the
same essential nature and purposes, and therefore agree to
a large extent in their fundamental principles. But it is
not because of this universal reception, that such principles
pertain to theoretical jurisprudence. Were it a rule of every
country in the world that a man could not marry his de-
ceased wife's sister, the rule would not for that reason be
entitled to a place in this department of legal science. Con-
versely, as universal reception is not sufficient, so neither is
it necessary. Even if no system in the world, save that of
England, recognised the legislative efficacy of precedent, the
theory of case-law would none the less be a fit and proper
subject of the science in question.

3. Finally, this branch of knowledge has no exclusive
claim to the name of jurisprudence or of legal science. It
is not, as some say, the science of law, but is simply the
introductory portion of it. As we have already seen, it is not



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