view of the English law of property as a whole is therefore hardly possible.1

It is impossible to handle the law of property without taking account of equitable estates and interests; and so far as necessary for that purpose the law of trusts must be anticipated, or rather the historical introduction to the law of trusts must have its place here. But this does not involve considering at large the duties and liabilities of trustees and the administration of trusts. Those topics form a separate and extensive branch of English law.

The forms of dealing with property by deeds or other instruments inter vivos and by will, together with the rules of construction applicable to deeds and wills and other incidental matters-in short, all that we sum up in the word Conveyancing-cannot be divided in practice from the law of property itself. It is difficult to be a good real property lawyer without a conveyancer's training, and impossible to be a good conveyancer without being a good real property lawyer. Intestate succession might be placed elsewhere in a strictly scientific arrangement. But, since in our modern law it has shrunk to almost rudimentary dimensions as compared with the large place it once filled, and in many countries continues to fill, it may well enough pass, according to the common usage of lawyers and text-writers, for an appendix to the law of property and conveyancing.

Under the same great head of Property we have an important branch of the law dealing with rights over land and goods belonging to others, and this is subdivided into the law of mortgage, pledge, and lien, and the law of easements and profits. These last coincide approximately with the servitudes of Roman law; but rights of common and other similar rights, as they occur in the Common Law, have many features and incidents which, though analogies may be found to them in the customs of widely remote countries, would be difficult to parallel in any other regular system of jurisprudence. The still living recognition of local custom as a source of rights is perhaps the most interesting of these.

Then there are exclusive private rights not relating to any defined material thing, but still in the nature of property. Such are what we call franchises: the exclusive right to maintain a ferry for profit at a particular spot is the classical example. To these a number of monopolies, limited and guarded in various ways, have been added in modern times for the encouragement of literature and art, invention and industry. Such are patent rights, copyright in its various branches, and the right to trade marks. All these, though they do not involve ownership of any material object, may be called statutory property.

1 The Appendix to Part I. of Sir Kenelm Digby's History of the Law of Real Property, on the Place of the Law of Real Property in the English System, 5th ed., 1897, p. 29, and the tables therein given, may be usefully consulted.

2 The right to restrain publication of unpublished matter is affirmed by the common law quite independently of copyright legislation. It is in part a right of property; in part, it would seem, a "primitive" right not yet exactly defined, but analogous to the right not to be molested in one's business. Neither property nor contract will fully account for it. Trade marks were in like manner formerly protected, to a certain extent, under the head of restraining fraud; and trade names, apart from trade mark, are so still. "Unfair competition" has become a recognised catchword in America, though not in England, for cases of this class.

We now pass from duties wholly created by the rules of law to those which depend on relations created by acts of the parties, and may be defined to a greater or less extent, according to the nature of the case, by the will of the parties themselves. In this category the most important place is taken by the law of contract with its many subdivisions, among which are the far-reaching modern developments of the law merchant. It would be out of place to enumerate them here. Common to them all is the cardinal principle of regard to the intention of the parties. That is always the first thing to ascertain. Auxiliary and restrictive rules are required, and are present in abundance, but their function is secondary. Many rules formerly supposed to be absolute have been reduced by the course of modern decisions to canons of construction, guides at need but not masters. The law of partnership and companies, it may be observed, is as much a branch of the law of contract as any part of mercantile law, though in the history of English justice it has fallen to the province of courts of equity, and company law has now, for about a generation, become for all practical purposes a matter of intricate statutory regulation, in which the principles of partnership law have sunk out of sight. We have come, indeed, to the singular result that a trading company may be formed without any substantial contract or association whatever. The law of bankruptcy, though its effects are not now confined to traders, is in substance a special branch of remedial law and procedure annexed to the law merchant.

In sundry cases of "relations resembling contract" (as the Indian Contract Act calls them), obligations like those of contract are attached by law to situations where otherwise one party would make an unjust profit by another's loss, that loss having been brought about by mistake of fact, compulsion of law, or, sometimes, emergency for the protection of a common interest. The duties of compensation or restitution which arise on such occasions were recognised in our law comparatively late, and only by means of pleading a fictitious promise. Hence the recognition of "contracts implied in law," or quasi-contracts' as we have now begun to say, as forming a distinct and substantive head of the law, has come even later. It is unfortunate that there is no authority for speaking of "constructive contracts," which would exhibit the analogy to other useful fictions in the law.

A few topics not commonly dealt with in this connection, as they belong to other special subjects and in part to special jurisdictions, appear to be of the same kind in principle. Such are the rules as to salvage, as to certain obligations of partners and tenants in common, and as to the duty towards the true owner incurred by the finder of a lost chattel who takes possession of it.

Trusts form an important head of our law which has many elements in common with the law of contract, but stands on an independent footing. The essence of trust is the acceptance of property to be held and administered for the benefit of the person from whom it is received, or of third persons, or both. A trustee's obligation is in the first instance personal, but the refinements of modern equity go far beyond the analogies of contract in the search for some one to be held liable. Moreover, rights created under trusts, though not binding against third

1 Salomon v. Salomon & Co., [1897] A. C. 22.

persons absolutely, are binding on third persons who have notice of the trust, and to that extent have the nature of property. Beneficial interests under the trusts of marriage settlements and wills do form, as is matter of common knowledge, a large proportion of the property and sources of income of very many persons. A peculiar feature of our law and practice under this head is the amount of administrative work undertaken by the Court, especially where the interests of infants are concerned. Much of this is quite different in kind from ordinary litigation, and cannot be judged by the same standards or reduced to the same methods.

The law of trusts, like that of contracts, has been artificially extended, for the sake of justice and convenience, to various cases where no trust has been actually created, but a legal estate or interest has been acquired in circumstances which make it inequitable for the holder to deal with the property as beneficial owner. This kind of "obligation in the nature of a trust" is exactly analogous to a quasi-contract." "Constructive contract" and " constructive trust " would be perhaps the most proper terms to mark the analogy; the latter of them is current, but the former, as above observed, has never been used at all.

There remain the domestic duties arising out of family relations, that is to say, the law of husband and wife, parent and child, and guardian and ward; this last head being no longer prominent, except sometimes in disputes between parents as to the custody or education of children, but still not obsolete. These duties depend on acts of parties, but they are strictly personal, and are not, like duties assumed by contract, variable at their will, although the right to enforce them may be lost, in certain circumstances, by misconduct or neglect. We do not count here the general disabilities or immunities of married women and infants in their dealings with the world at large, as they seem to belong in part to the preliminary notions of the law, in part to those divisions of the law of contract and property whose rules may be affected in their application by the incapacities in question.

The relation of master and servant was formerly analogous to the family relations, but in modern usage it is dealt with, both in law and in fact, as founded on contract. A few traces of the older doctrine remain in customary incidents of the contract which prevail only in the absence of any different agreement, and in rules which are now seldom used, and then not for their original purpose. The action for loss of service is perhaps the most remarkable of these survivals. A contracting party's right to bring an action against a third person for "maliciously" inducing the other party to break the contract is historically connected with the old action for enticing away a servant, but it is now maintained on other grounds, and the act of a wrong-doer in this kind must be classed among violations of the general duty not to interfere with other men's legal rights without just cause or

excuse.

Common-law jurisdiction had no means of dealing with the domestic relations as between the parties themselves. The remedies now administered by our Courts, and considerably extended in the case of divorce by modern legislation, are derived partly from the earlier

1 Indian Trusts Act, s. 80.

jurisdiction of the ecclesiastical Courts and partly from the quasipaternal jurisdiction exercised on behalf of the King, in an executive rather than a judicial capacity, by the Chancellor.

The rules of intestate succession may be logically regarded as an auxiliary department of this branch of law, but it is in fact more convenient, and in this country it is the universal practice, to annex them to the law of property, as we have said above. As in our modern law there are no limits set, as in other systems, to a man's power to dispose of his estate and effects away from his wife, children, or kinsfolk, either in his lifetime or by will, intestate succession may be said to take place only by accident or neglect, and in England it has long been of quite subordinate importance. It now occurs, and gives trouble, mostly in the case of small estates.

We have thus taken a rough view, but still some kind of view, of the variety of topics that may engage English courts of justice. Outside all these divisions, however, but capable of becoming material within any of them, is the class of questions arising from the fact that there are many civilised jurisdictions and many legal systems in the world, and rights acquired under one jurisdiction may have to be ascertained and enforced under another. A Court often has to consider whether it should assume jurisdiction at all, and also, where its jurisdiction is confirmed or not disputed, whether it should not, in exceptional circumstances, determine the legal consequences of the facts in the case according to the rules of some other system than that which the Court habitually administers. It may be disputable both what Court is the proper one to do justice, by reason of competency or practical power of executing judgment, and what law is the proper measure of justice for the parties, by reason of their express or implied agreement to be bound by one law rather than any other, or otherwise. Questions of this kind, with all the complications incident to them, are collected under the title of "Conflict of Laws" or (inelegantly, but commonly) "Private International Law." The nature and origin of the rules applied in this region have been much discussed; but it is certain that at this day a considerable number of such rules are as much part of the law of England as those of the law merchant, which also were once of a cosmopolitan character, and were regarded as not owing their force to any municipal legislation or jurisdiction. For fuller consideration of these matters the reader must be referred to the works of specialists, such as Mr. A. V. Dicey and Mr. Westlake.

It may perhaps be useful to recapitulate in a summary form the divisions we have broadly marked out:

A. GENERAL AND PRELIMINARY.

Persons and their capacity.

Extensions and limitations of capacity. Agency. Corporations.
Responsibility in general.

Intention and motives. Malice in law.

Liability for consequences.

Liability for acts of agents and servants.

Ignorance and mistake.

Negligence.

Acquisition and transfer of rights in general.

Rules of interpretation (so far as generally applicable).
Remedies.

B. PROCEDURE.

EVIDENCE.

C. SUBSTANTIVE LAW: and herein

I. Public Law.

Constitutional (including the judicial system).
Regulative and administrative.

Criminal.

II. Private Law.

Civil wrongs.

Property, conveyance and succession to property.
Contract. Mercantile law. Companies. Bankruptcy.

Trusts.

Family relations.

III. Conflict of Laws.

The foregoing arrangement is not put forward as representing necessarily, or in fact, the most convenient order of studying the law. Few lawyers will doubt that a student should have an elementary knowledge of the constitution of his country and the outlines of public law in general before grappling more closely with legal problems of any kind, or that the subject of "Conflict of Laws" should, so far as possible, be postponed till a fair knowledge of the ordinary application of English law to English causes of action has been acquired. But also not many will think it necessary that the details of local government or the minuter difficulties of criminal law should be studied at an early stage. It is really impossible to arrange a course of law studies in linear progression. Gradual acquaintance must be made with two or three aspects of the law simultaneously. Principles cannot be learnt to much good purpose without an eye on procedure, and the different branches. of our jurisprudence so constantly illustrate one another that it is a positive advantage to the student to have more than one constantly before him.

Again, the best order for a code or consolidating statute would seem to be that which makes it most useful to the practitioners who have to deal most with it, not necessarily that which would make it easiest to follow to a person ignorant of the subject. But codes may, and in some cases have been, as in India, valuable instruments of political and even moral education to the general public, and in such cases it is proper for the legislator to consider their extrajudicial uses. It may be wise now and again to declare, with the deliberate authority of the State, things which are superfluous for the lawyer but profitable for the citizen.

F. POLLOCK.