237 Companies Act (1862) 124, 125 c. 77 c. 85 c. 16 c. 16 c. 18 c. 19 c. 67 41 & 42 c. 73 124 Bill of Rights 262 Companies (Winding-up) Act (1890) 402 176, 241, 243 Employers' Liability Act (1880) 335 163, 164, 241, 602 Factory Acts 303 Foreign Juris. Act 602, 665 237, 301, 335 Merton, Stat. of 209 Quia Emptores, Stat. of 445, 446, 586, 594 47 26, 586, 587, 591, 592, 593, 595, 598 568 48 401, 402, 404 640 176, 241, 243 293 82, 306 77, 251 293 257, 259 440 48 OF PERSONS AND PERSONAL PROPERTY, BEING AN INTRODUCTION TO THE LAW OF CONTRACTS. BOOK I. THE LAW OF PERSONS. CHAPTER I. INTRODUCTORY. A FULL treatment of the subject of Municipal Law would necessarily include a discussion and comparison of the law as it is found in the various States and Territories of the Union, as well as that expounded by the tribunals of the United States. But as the author has designed this work principally for the use of students, he has deemed it most useful for the special subject in hand to state the law upon such subject first as it is administered in England, using the term "common law" with this signification for convenience; and then to give such additions and illustrations from American decisions as have seemed most serviceable. The principles of the United States Constitution and the decisions upon constitutional questions where private rights have been affected, have also been discussed. The United States law, so far as it may conflict with a State law, is supreme, and of binding force throughout the country.1 The great object of law is the creation and enforcement of legal rights. Some writers prefer to regard the subject from a different point of view, and to regard law as a mode of establishing and enforcing legal duties. Whichever view is adopted the result is quite the same, for a right implies a duty and a duty implies a right. It is most convenient to consider the subject from the point of view of rights. 1 Constitution of United States, Art. VI. § 2. The phrase "a right" as here used is not equivalent in meaning to the word "right" used adjectively. The former has merely a legal signification; while the word "right" with its correlative, "wrong," has an ethical or moral meaning. The one is an expression in jurisprudence; the other, in morals. It is conceivable that a person may have a right in law, which in morals I would be condemned. The expression, "a right," in the legal sense, includes the legal power of the person in whom the assumed right resides to control the actions of others. This power of control is derived from the authority of the state, and is called "a law." A single illustration will suffice. A. is said to own a watch. This statement implies that he can exclude, by the aid of the state, all other persons from the use or enjoyment of it. Another form of statement is, that all other persons are under a duty to abstain from interfering with his right to the watch, and his use of it. A right is secured by a direction or command, or some authoritative expression of the will of the state, which, at the same time, supplies some mode of enforcement of the right. This last element is technically called the "sanction" of the law. In some branches of the law, e. g., public or criminal, the sanction may be punishment; in others, e. g., the civil, it may be prevention or remedy; again, any act opposing the right may be declared invalid. A striking instance of invalidity as a sanction is found in the constitutional law of this country, which frequently makes void the acts of individuals, or even of States, which are in opposition to a constitutional provision. The general name of the whole group of provisions established for the enforcement of rights is "remedies" or "procedure." Rights themselves constitute the "substantive law." The whole subject may thus be arranged under two principal heads, Substantive Law and Procedure. This last branch is called by some writers Adjective Law. 66 The term, a right, as used in substantive law implies, (1) a person" in whom the right inhercs; (2) a person or persons bound to submit to, or not to interfere with, the exercise of the right; and (3) a subject over which the right is claimed. (1) The "person " who may claim the right may be either natural or artificial. The term "artificial person" is used to denote a group of individuals who when taken together constitute a single "person" in law, such as a corporation; or it may refer to a natural person who has a representative or artificial character impressed upon him. Examples of the first class are ordinary corporations, or even States and nations. Thus the United States may be regarded as an artificial person, and in this character have a right to sue in a foreign court.2 Examples of the second class are kings, bishops, deans, etc. So a foreign prince may bring an action in the courts of another country, not merely in his individual but in his political capacity.3 (2) The "person" bound to submit to the exercise of the right may also be either natural or artificial. It should, however, be remembered that in the actual condition of law, rights may exist against some artificial persons with no adequate means of enforcement. Thus a State of this country cannot in general be sued in its own courts, and only under very special circumstances in the courts of the United States.1 It is a further rule that a foreign state cannot be sued in the courts of this country. This proposition has been held in the English courts.5 The decisions of this class would no doubt be applicable here. Even if a foreign king or sovereign should come into this country, he could not be sued here for acts done by him in his sovereign character at home. This exemption from suits only applies to a sovereign prince, and accordingly was not extended to the Khedive of Egypt, who was not deemed to be a sovereign.7 (3) The subject-matter over which a right may be claimed embraces the whole domain of law. Briefly, the subject-matter of private law includes the right of the individual to the security and freedom of the person, as well as the power to labor in such manner as he may see fit, and also his property in physical objects and immaterial 1 The Republic of Honduras v. Soto, 112 N.Y. 310. 2 The United States of America v. Prioleau, 11 Jur. N. s. 792; United States of America v. Wagner, L. R. 2 Ch. App. 582. & F. 333. contract by the Crown, and it is immaterial whether the breach is occasioned by the acts or by the omissions of the Crown officials. Windsor & Annapolis Ry. Co. v. The Queen, L. R. 11 App. Cas. 607; Thomas v. The Queen, L. R. 10 Q. B. 31; The King of Spain v. Hullett, 1 Cl. Feather v. The Queen, 6 B. & S. 257. The theory of a petition of right seems to be that the sovereign power consents to abide by the decisions of its courts rendered against itself, and that this consent may be presumed as a constant thing, so that it is not necessary to show in each case an affirmative act of consent. It is somewhat singular that the various American States have not apparently adopted the common-law doctrines of "the petition of right" whereby the individual can subject the sovereign to the perform ance of obligations growing out of contracts. This doctrine provides a mode of limiting the sovereign power in respect to the invasion of the right of private property, and is thoroughly well established in England. Thus a petition of right will lie for damages resulting from a breach of 5 De Haber v. The Queen of Portugal, Wadsworth v. The Queen of Spain, 16 Jur. 164; s. c. 17 Q. B. 171. 6 The Duke of Brunswick v. The King of Hanover, 2 H. L. Cas. 1. 7 The Charkieh, 28 L. T. N. s. 513. products. It also embraces freedom of thought and expression, but all these are to be used in subordination to the general welfare of society in accordance with just and equitable rules. Rights, however, do not present themselves in law as mere abstract propositions. In that aspect, law would be but a system of philosophy. Rights appear in connection with acts done either by the claimant, or by others who may perhaps dispute the right. It will accordingly become necessary to consider the nature of the act done. Questions of intent will arise, or, perhaps, of negligence, accident, or capacity to do a legal act. It is the function of courts to solve these problems, and to determine what the right is, as well as the question whether it has been so attacked or violated in the particular instance as to justify the interposition of the state. The court will not, however, solve a mere abstract proposition. The matter must, in general, be presented to it through the medium of an action in which the one who alleges the existence of a right and its violation by another, must establish his allegation, while the person against whom the claim is made is so cited as to have an opportunity to deny or refute the allegations made against him. The word person, as used in law, has a technical meaning. It is one in whom a right may inhere, and who has a standing (locus standi) in a court of justice to assert it. It is not synonymous with the word "individual.” An individual actually alive, but "civilly" dead, is not a person in law. In like manner a slave is not a "person," since he can neither have rights in the technical sense, nor assert his "natural rights" as an individual in court. It is now obvious, that a classification of law may be made to turn upon the various persons to whom legal rules may be applied. If the state or nation is the person in whom the right inheres, or against whom it may be claimed, the matter belongs to the domain of Public Law. If two or more nations are concerned, it is a case of International Public Law. In other words, where public persons are concerned, the case belongs to public law; if private persons are involved, the case is one of private law. These distinctions may be much interlaced, as, for instance, if a private individual should become indebted to the state. His liability would in general be the same, in such a case, as if he had incurred a similar obligation to a private person. Public Law embraces that whole branch of law in which the state, if the matter came before a court of justice, would appear |