The common law of England
Odgers, William Blake, 1849-1924 | Odgers, Walter Blake, joint author
. 1195 a. 44 . . . 804 8.2 . 1024 ss. 45, 46 . . 805 c. 36. 98, 253 XC11 TABLE OF STATUTES. 59 & 60 Vict. 60 & 61 Vict. c. 44, ss. 1- c. 56. c. 57. c. 37. c. 52. c. PAGE . 866 . 237 . 990 869, 1375 312 65 (Land Transfer Act, 1897) . 1448 ss. 1-3 1257, 1392, 1397 61 & 62 Vict. c. 10, s. 16 . . . 1447 c. 29 . . . 253, 1033 s. 12 . . . 503 c. 36 (Criminal Evi- dence Act, 1898) 251 s. 1. . 328, 1078, 1089, 1095- 1098 s. 3. . 1078 8. 4. . 328, 1097 B. 6. . 251 c. 39 . . 23 1, 234, 1097 c. 48. . 732, c. 49. . 246 c. 60, ss. 1, 2 230, 1062, 1118 62 & 63 Vict. c. 9, s. 11. . 943 c. 14. . 1047 s.5. . 99 Sched. II. . 99 c. 15. . 99 c. 22. 366, 985, 1050, 1052 s. 3. . 368 c. 23, ss. 13-16 . 374 c. 33. . 94 c. 51. . 504 63 & 64 Vict. c. 22. . 869 c. 33. . 235 c. 51, s. 1 . 71f (, 731, 1152 1 Edw. VII. c. 10. 350, 363 c. 22. 314, 866, 1033 2 Edw. VII. c. 6 . 237 c. 8, s. 8 205, 246 c. 28, s. 5 . 231 1042, 1364 c. 42, s. 17. . 99 3 Edw. VII. c. 18, ss. 4, 5 314,315 c. 31. . 93 c. 36. . 253 s. 1. . 253 s. 9. 253, U00 c. 38. 1056, 1121 *. 1. 1056, 1057, 1059 ss. 2, 3 . 1057 c. 42. . 1337 6. 8 . 1 1031, 1149, 1280 <;. 45. . 98 4 Edw. VII. u. 4 . 237 c. 10 . . \ . 237 c. 15 . 61 1, 294, 1097 s. 27. 330, 1047 s. 28. . 318 c. 19, s. 2. . 1026 c. 23, s. 3. . 888 Sched. II.. . 888 5 Edw. V I. c. 1 c. 13 6 Edw. VII. c. 16 s. 1 s. 3 s. 7 c. 15 (Trade Marks Act, 1905) s. 3 s. 4 s. 8 s. 9 s. 11 s. 19 ss. 22, s. 3 s. 1 s. 2 PAGE . 253, 503 . 1433 . 283 233, 1118 233, 1118 . 610 . 611 611, 613 . 611 . 612 612, 614 . 612 39, 40, 42 . 613 986 . 1447 c 17 . . . 469, 810 ss. 76-82 . . 828 o. 24, s. 1 . . . 1445 c. 27, s. 6 . . . 374 c. 28, s. 5 . . . 880 o. 32, s. 1 . . . 510, 1041 c. 34 . . 191, 364, 734, 849 . 365 365, 991, 1122 41 (Marine Insur- ance Act, 1906) s. 1 .. s. 4. ss. 5, 6 ss. 10-12, 14 s. 17. s. 18. s. 20. ss. 21, 22. s. 23. ss. 27, 29. ss. 33, 34, 37, 39 42. ss. 45, 46, 48, 49 ss. 50, 51. ss. 55-57, 60-62 s. 63. s. 64. . 1467 . 931 931, 932 . 931 . 931 . 932 932, 933 . 932 . 933 931, 938 934 s. 65 s. 66 s. 79 s. 84 c. 43, s. 1 935 935 934 936 937 . 918, 937 917, 937 918, 937 . 937 . 933 247 c. 47 (Trade Disputes Act, 1906) 563, 628, 1423 . 563, 632 s 1 8.2 8.3 s. 4 s. 5 c. 63 c. 55 506, 632 563, 632 73, 633, 1424 261, 563, 633 939, 1043 . 1410 TABLE OF STATUTES. XC1U 6 Edw. VII. c. PAGE i (Workmen's Com- pensation Act, 1906) . 197, 496, 869, 874, 944, 945, 1020,1032,1345,1375 . 870 870, 871 731, 872 . 873 . 870 437, 866, 870, 871, 1394 870, 871, . 1348 1348, 1378 . 870 94, 119 . 928 . 1101 Of Offenders Act, 1907) . 140, 1115 s. 1 . . 324, 1053, 1116, 1120 s. 2 . . . 1117 C. 23 (Criminal Appeal Act, 1907). 984, 1441 B. 1. s. 2. 8. 3. ss. i, 5 s. 8. s. 13 . 437 Sched. I.. 7 Edw. VII c c. c c. Sched. II. ! 1 Sched. III.. 4 13, s. 8. 16, s. 1. 17 (Probation s. 1 t 996, 997, 999, 1122, 1123 s. 3 • 996, 997, 1123 s. 4 997, 1124, 1125 s. 5 . 1125 s. 6 . 141, 1120 s. 7 . 1085 s. 8 . 1126 s. 9 .1126,1127 s. 10 . 1126 s. 11 . 1124 s. 13 . 1128 s. 14 1122, 1124 s. 15 . 1126 s. 16 . 1126 s. 19 . 141, 1128 s. 20 . 984, 996, 997, 1070, 1122, 1123 .6. 23 t . 1122 c. 24, s. 7 . 857 c. 29 (Patents Act, 1907) . 598 3. 1 . 599, 601 ss. 2, 4, 5-7. 11- 14 . 599 s. 18 . 598 s. 27 . 600 s. 32 . 603 s. 33 , . 598, 604 ■h 36 . 545 ss. 78 79 . 601 c. 31. . 246 c. 32. . 92, 504 c. 47. . 216, 1353 c 53, ss. 52 -68 . 246 s. 81 , . 226 c. 54, s. 35. . 90!?, 907 PAGE 8 Edw. VII. c. 3 . 1045 c. 7, s. 1 . 495, 922 c. 11. . 237 c. 15, ss. 1, 4, 5 . 1121 s. 6. . 140, 432, 1051, 1121 s. 7. . 1121 8.9. . 1128 c. 27. . 1352, 1360, 1365 c. 28 (Agricultural Hold- ings Act 1908) s. 1. . 905, 906 s. 2. . 905 ss. 3, 4 . 906 s. 5. . 731 8.6. . 81, 906 s. 9. . 905 ss. 10, 11 . 906 s. 13. . 1021 s. 21. . 904, 906 s. 22. . 901 s. 23. 901, 906 s. 25. . 889, 1259 s. 26 . 883 s. 28. . 890 s. 29. . 893 s. 31. . 890 s. 42. . 904, 905 8.48. . 905 Sched. I. . 905 c. 36. . 1033 s. 47. . 905 c. 40. . 13 ' s. 3 . 13 s. 6 13, 731, 782 c. 45, ss. 1, 2 . 227 s. 4. . 991, 1097, 1122 c. 46, s. 1 . 996, 1122 c. 47, ss. 1, 3 . 1381 c. 48 (Post Office Act, 1908) ss. 8, 9 . 1101 8.16. . 230 s.45. . 1410 s.50. . 334, 358 s. 55 . 358 s. 61. . 398 8. 63. 228, 314, 398 s. 74. . 1101 c. 51, s. 6. . 1019 c. 53, s. 1. . 890, 892 s. 2. . 890 8.3. . 882 a. 4 . 891 c. 55. . 314 c. 59 (Prevention of Crime Act, 1908) 1117, 1119 s. 1. . 1117 s. 6. . 1118 8.10. 73, 139, 1062, 1089, 1119 s. 11. . 1124 c. 66 . 16, 161, 170, 474 XC1V TABLE OE STATUTES. PAGE 8 tEdw. VII. c. 67 (Children Act, 1908) . 222, 291, 310, 312, 987, 1467 s. 1. . 923 s. 7. . 731, 923 s. 12 . 121, 268, 293, 310, 311, 1084, 1471 s. 13. . 311 s. 15. . 312 ss. 17, 18 . 223 s. 27. . 1097 s. 30. 196, 1095, 1100 s. 32. . 1047 8.35. . 1122 s. 37. . 318 ss. 102-106 . 1368 b. 107. . 1050, 1368 ss. Ill, 112 . 1368 ss. 116, 117. . 385 s. 119. . 312 s. 128. 1050, 1051 c. 59 (Companies | solidation) Con- Act, 1908) 93, 1016, 1411, 1467 ss. 1-6 . 1411 ss. 7-9 .1411, 1412 ss. 10-17. . 1412 s. 20. . 1411 s. 63. . 823 s. 69. . 1415 s. 76. 673, 1420, 1421 s. 77. 823, 837 s. 80. . 1412 s. 81. 724, 1412 s. 82 . . ] 412, 1413 s. 83. . 1412 s. 84 . 554, 557, 558, 625, 1 721, 725, 413, 1414 ss. 85, 86. . 1413 s. 87 . .1 413, 1422 ss. 88-90. . 1413 s. 105. . 1169 s. 121. . 1411 es. 122-130. . 1414 s. 131. . 1032, 1414 ss. 132-181. . 1414 ss. 182, 197, 1! )9~ 204,209. . 1415 s. 215. . 560 ss. 242, 267. . 1415 8. 268 . .8 58, 1415 S8. 269-274. . 1415 Part IV.. . 1016 9 Edw. VII. c. 12. . 932 c. 44. . 880 ss. 14, 15. 882, 907 o. 49 • 943, 946 s. 36. . 924 PAGE 10 Edw. VII. & 1 Geo. V. c. 20 . 94 o. 24 (Licensing (Con- solidation) Act, 1910) . . 1467 ss. 2, 12, 20 . 992 si. 77 . . . 224 c 25, b. 1 . . . 223 c 29 1425 1 & 2 Geo. V. c. 6 (Perjury Act, 1911). 1100, 1467 b. 1 . 193, 195, 196, 197, 199, 1478 6. 2 . . 194, 195, 197 s. 3 . . 194, 195, 1047 s. 5 . . .195 s. 7 . . .194 s. 8 . 137, 196, 197 s. 9 . 198, 1071, 1341 s. 10 . . . 195 s. 11 . . . 1122 s. 12 . . . 195 s. 13 . . . 199 s. 14 . 1108 =■15 . . 196 s. 16 . 197 o. 7 . . 180, 192, 1047 c 13 . . . 60 c 16 . . . .13 s. 4 . . .13 c. 27 (Protection of Animals Act, 1911) 234, 402, 1467 s. 1 . . 235, 236 ss. 2, 3 . . 236 ss. 5, 6 . . 237 s. 7 . 237, 895, 968 ss. 9, 11 . 237 s. 12 . . . 480 8. 15 . . . 235 Sched. I. . . 237 c. 28 (Official Secrets Act, 1911) 61, 162, 188 s. 1 . . .152 s. 2 . . .153 s. 3 . . .152 s. 5 . . . 1084 s. 6 . . .479 8. 9 . . . 1051 s. 10 . . . 137 c. 37, s. 2 . 1257 s. 7 . . . 1366 c 38 . . 718,731,1152 c. 46 (Copyright Act, 1911) . . . 1467 s. 1 . 605, 606, 608 s. 2 . . 606, 610 s. 3 . . .605 s. 5 . . 607, 608 s. 6 . . 607, 609 s. 7 . 607 s. 8 607, 609 s. 9 . . .607 e. 10 . . 607, 1136 s. 11 . . . 607 ss. 21, 24 . . 605 TABLE OF STATUTES. XCV 1 & 2 Geo. V. c. 46 (Copyright Act, 4 & 5 Geo. V. c. 59 (Bankruptcy 1911) Act, 1914) 88. 29, 30. 605 s. 22. 1404 s. 31. 604 s. 26. 1406 8. 35. 606 s. 28. 1407, 1455 c. 50. 314, 866, 1043 B. 30. 1406 2 & 3 Geo. V. o. 10, s. 7. 1097 ss. 33-35. 1405 c. 20, o. 1. 480 s. 36. 1366 8. 2. .222 8. 37. 1401 e. 3. 140, 222 s. 38. 784, 1404 8. 4. .224 o. 45. 781 8. 5. 224, 895 s. 46. 829 8. 7. 140, 234 b. 48. 1404 o. 29. 1026 ». 52. 1366 3 & 4 Geo. V. o. 7. 1097 s. 54. 898,904 o. 27 (Forgery Act, 8.56. 1405 1913) 362, 386, 389, 1467 s. 60. 607 s. 1. 387, 389, 828 8. 62. 1012 s. 2. 388, 1472 s. 96. 1010, 1032 s. 3. 194, 388 8. 97 1010, 1011, 1032 88. 4, 5. 388 B. 98. 1011, 1032 s. 6. 390, 1472 s. 99. 1032, 1401 ss. 7-11. 391 bs. 100, 101. 1032 b. 13. 391 s. 102. .1011,1032 8. 14. 386, 1046 ss. 103-105. 1032 B. 15. 391 s. 108. .1011,1013 8. 16. 391, 1051 8. 118. 1405 B. 17. 390 8. 125. 1366, 1400 B. 18. 388 s. 127. 858 c. 28. 1053, 1382, 1385 8. 154. 378, 1469 ss. 2, 21, 27, 67. 1383 s. 155. 378, 1407, 1469 c. 34, s. 15. .469 ss. 157, 158. 379 4 & 5 Geo. V, c. 12 (Aliens Restric- 8.159. 378 tion Act, 1914). 1433 s. 164. 378, 1122 c, 17 (British Nation- 8. 167. 1406 ality, &c, Act, 1914) Sched. II. 1406 s.l. .1428,1429 5 & 6 Geo. V. c. 90 (Indictments Act, B. 5. 1429 1915) 160, 320, 334, ss. 7,7A, 10. 1430 356, 1061, 1067 bb. 13, 14. 143, 1430 ss. 1, 2. 1061 8. 15. 1430 s.3. .1061,1062 s. 16. 1431 s. 4 1063, 1064, 1074 c. 22. 866 s.5.381,1064,1072,1073 c, 58 (Criminal Justice s. 6. 1065 Administration Act, s. 8 1061, 1067, 1071 1914). .985 Sched.. 1468 83. 1-5. 1053 6 & 7 Geo. V. c. 14, s. 1. 393 ss.7-9. 1117 c. 50 (Larceny Act, B. 10. 991, 1124 1916). 61, 336, 363, s.ll. .1117,1118 366, 1467 s. 14. 402, 1049 s. 1 337, 339, 344, 347, s. 15. PAGE 6 & 7 Geo. V. c. 50 (Larceny Aot, 1916) s. 20 . 198, 350, 360, 362,363,991,1457, 1472, 1473 s. 21 . . 361, 991 s. 22 . . 362, 991 b. 23 . 321, 331, 334, 1478 ». 24 . . 214, 396 b. 25 . . 392, 1470 s. 26 . . . 395 s. 27 . 214, 395, 396 s. 28 . . 396 s. 29 . 182, 335, 1478 s. 30 . . 183, 334 6.31 . . .183 s. 32 . . 366, 1471 s, 33 . 138, 380, 382, 1066, 1473 s. 35 . . . 358 B. 36 . 346 B.37 . . . 1050 s. 38 . 198, 364, 392, 990, 991 s. 39 . . 382, 1046 B. 40 . 381, 1064, 1065 a. 41 . . . 479 s. 42 . . . 1051 s. 43 . 122, 384, 1089 PAGE 6 & 7 Geo. V, c. 50 (Larceny Act, 1916) s. 44 . 348, 356, 373, 1083, 1084 s. 45 . . . 799 s. 46 . . 361, 393 c. 58 . . . 614, 617 c. 64 . 191, 364, 734, 849 7 Geo. V. c. 4 (Grand Juries (Sus- pension) Act, 1917) 47, 1057, 1060 s. 1 . 132, 1060, 1071 7 & 8 Geo. V. c. 48 . . . 810, 825 8 & 9 Geo. V. c. 14 . . . 870 c. 23, s. 7 . . . 1039 c. 38, s. 2 . . . 1428 s. 3 . . 1429 c. 40, First Sched. . 888 9& 10 Geo. V. c. 56 . . . 1458 c. 62, s. 2 . . . 605 c. 69, s. 8 . . 261, 563 c. 71 (Sex Disqualifi- cation (Removal) Act, 1919) 1439, 1444 c. 79 (Trade Marks Act, 1919) . . 698 c. 80 (Patents and Designs Act, 1919) 610 c. 92 . . 1118, 1433 c. 102 (Old Age Pen- sions Act, 1919) . 13 B.C.E. 191, .. 1- 196, „ 6. 225, „ 6. 598, „ 5. ADDENDA ET COBBIGENDA. 13, note 3. Now see the Old Age Pensions Act, 1919 (9 & 10 Geo. V. c. 102). 100, line 13. " Ss. 39 and 45 " should be " ss. 39—45." 100, note 7. " 36 & 37 Vict. c. 7 " should be " 36 & 37 Vict. c. 71." " [1914] 1 K. B. 1283" should be " [1914] 3 K. B. 1283." " 8 Edw. VII. c. 57 " should be " 8 Edw. VII. o. 67." " 5 Geo. V. c. 83" should be " 5 Geo. IV. c. 83." Add "as amended by the Patent and Designs Act, 1919 (9 k 10 Geo. V. c. 79)." 610, „ 8. Add " as amended by the Trade Marks Act, 1919 (9 & 10 Geo. V. c. 80)." " Erie v. Kingscote" should be " Ewrlev. Kingsvote." " Hunt v. Morrell " should be " Hutt v. Morrell." " 8 Edw. VII. u. 87 " should be " 8 Edw. VII. c. 67." Add "JR. t. Beard (1919), 14 Cr. App. Rep. 110 and 159 (H. L.), and [1920] W. N. 110 (H. L.)." The date of the Law of Libel Amendment Act should be 1888. For " 17 & 18 Vict. <;. 125, s. 25 " read " 28 Vict. c. 18, s. 6." [Note. — Cases and Statutes have been vndexed as if the above auditions and corrections had been made in the body of the book,] 722, „ 4. 892, , , 6. 987, ,. 1. 999, ., 1- 1071, „ 3. 1090, „ 3. ODGEKS ON THE COMMON LAW. BOOK I. INTRODUCTION. Chapter I. EIGHTS AND DUTIES. There are two kinds of law — the law of God and the law of the State. There is no other kind of law. Philosophers write about "the moral law." By this they mean man's imperfect conception of the law of God. Writers on Juris- prudence also use the phrase " moral law," but in an entirely different sense — namely, to denote the restrictions which are imposed on a man's conduct by the manners, customs and etiquettes of his tribe, caste, sect, profession, trade union or clique. But such restrictions are not laws at all. Neither God nor the State will punish a man who disregards them. "We often hear of " the customary law." But this is merely the name given to that portion of the law of any State which happens to have been custom before it became law. A custom is not of itself a law. Until the State chooses to adopt and enforce it, it is merely a rule which a man may follow or not as he pleases ; it is not a law which he will be compelled to obey. Customs are not decreed by the State ; they are the creations of habit and fashion ; they are constantly changing, " Lest one good custom should corrupt the world." The State may, if it chooses, adopt a custom and make it a law, and then, of course, it must be obeyed. b.c.l. ! 2 RIGHTS AND DUTIES. "We also sometimes read of the " law of nature." Certain of the later Koman jurists bestowed this title upon that jus gentium, which the prcetor peregrinus administered in his court and which Sir Henry Maine describes as " the sum of the common ingredients in the customs of the old Italian tribes." 1 But the jus gentium was part of the positive law of Eome ; it differed, moreover, from the so-called " law of nature " in more than one important particular, as appears from the writings of these jurists themselves.2 Again, when a law- less band of men, such as the mutineers of The Bounty, settle down in some uninhabited island outside the pale of civilisa- tion, they are sometimes described as being governed by the "law of nature " — that is, surely, by the remnants of their consciences. So, too, our judges will refuse to enforce the decisions of a foreign Court, if they consider them contrary to " natural justice." Sir W. Blackstone rightly defines the "law of nature " as the unrevealed law of God.3 But he goes too far when he asserts that, " being coeval with mankind, it is superior in obligation to any other ; ... no human laws are of any validity, if contrary to this." "We read also in Calvin's Case 4 that the " law of nature is part of the Laws of England." But this is not the fact : it is no part of the law of any State. Again, in Forbes v. Cochrane5 Best, J., erroneously declares that if a "right sought to be enforced is inconsistent with either the law of nature or the revealed law of God, the English municipal Courts cannot recognise it." But surely the duty of our judges is to administer the law of England as they find it, whether they deem it consistent with the " law of nature " or not. In these and all similar passages the phrase the " law of nature " means that " moral law " which we have already dis- 1 Maine's Ancient Law, with notes by Sir F. Pollock, pp. 52, 53. 2 See the passages cited in the Institutes of Justinian, I. 2 pr., and I. 3, 2. 8 St. Paul makes the same distinction between the voice of nature and the written law of God in the second Chapter of his Epistle to the Romans : " When the Gentiles, which have not the law, do by nature the things contained in the law, these .... are a law unto themselves, which shew the law written in their hearts, their conscience also bearing witness . . . . " (vv.' 14 15) * (1608) 7 Eep. at p. 4b. 6 (1824) 2 B. & C. at p. 471. THE LAW OF NATURE. 3 cussed — those intuitions of right and wrong of which we are all conscious. If not, what is this "law of nature"? Where is it to be found ? How is it to be identified ? Is it the same in Timbuctoo or Teheran as it is in London or New York ? Or does it vary with the latitude of each place, or with the degree of civilisation there in vogue ? Again, was it the same in the time of Samson or Theseus as it was in the days of Ulpian or John Bright ? If not, then where are these variations recorded ? As a matter of fact, there is not now and never was any such thing as a " law of nature " in any sense in which a practising lawyer of to-day understands the word " law." It is just a convenient and very elastic term which is sometimes used as identical with the law of God or conscience, or "natural justice," while at other times it seems to denote little more than savage customs or animal instincts.1 For us, then, there are but two kinds of law — the law of God and the law of the State. Henceforward in this book by the word " law " will be meant the law of the State. A State may be roughly defined as a political community which governs itself. It governs itself by means of laws. It is essential to the welfare of the community that in every State there should exist an authoritative body of law, readily accessible, easily intelligible, and strictly and impartially enforced. This body of law should comprise all Tules, whether customary or written, which have been laid down for the guidance of the community and to which its members, if they would avoid penal consequences or civil liability, must necessarily conform.2 It should have lucid expression and scientific arrangement. Its provisions should be clear and certain and such as can be easily understood by those who have to obey them. A law, then, is a rule of conduct which the State prescribes and enforces on its subjects. Different States have different laws ; and even in the same i Just. Inst. I. 2 ; Dig. I. 1. 1. 3. 2 These penal consequences and civil liabilities are called by writers on juris- prudence the " sanctions " of the law, because they think that, without them, the law would not be binding on the subjects of the State— in other words would not be law at all. 1 — 2 4 RIGHTS AND DUTIES. State different bodies of law may co-exist. Thus in the British Empire there are more than fifty different legal systems administered in our various Law Courts. In different States, too, the power of making laws is vested in different persons or bodies of persons. In strict monarchies this power resides in the King alone. But in early times the King, who was, as a rule, merely a successful soldier with a strong will of his own, generally sought advice and assistance in his law-making from the great men of his realm. A committee of Nobles or Notables was thus formed, which soon was permitted to usurp legislative functions and organised itself into a Great Council or Senate. Later on the common people began to make its wishes felt ; it purchased redress of its grievances with blood or money, and subsequently acquired some voice in the making of the laws to which it had to submit. Eventually in most countries certain classes of the people obtained direct representation in the legislative chamber. A State may thus be a monarchy, an aristocracy or a democracy. In England we have a curious medley of all three. Yet the will of the people ultimately prevails, when- ever the people has a will and cares to make it felt. Hence more and more every year the tendency of our legislation is, without either advancing or injuring the special interests of any particular class, to assert, maintain and promote the overriding claims of the community as a whole. Every law is made by the State, either directly or indirectly. The sovereign legislature (be it one person or many) may, and usually does, confer on inferior bodies power to make laws, e.g., a county council or town council may make by- laws, the Board of Trade may issue orders, &C.1 Eights and duties, wrongs and remedies, are the subject- matter of law. Laws create rights and impose duties. Every right involves a corresponding duty in others ; and to nearly every duty there is a corresponding right. Eights are always conferred, and duties are always imposed, on " persons " a term which includes, in addition to human beings, certain 1 See post, pp. 91— 101. RIGHTS. 5 artificial bodies, which the State recognises as persons, such, for instance, as corporations. Every violation of a right, every neglect or breach of duty, is a wrong for which the State, as a rule, provides a remedy.1 Eights are of two classes. Some are absolute rights, which every one within the realm possesses, be he prince or pauper, British subject or alien. These may be called public rights, as every member of the public possesses them.2 Others are rights enjoyed only by individuals, who happen to own certain property, to hold a certain office or to have entered into a special contract, &c. These are called private rights. They are of infinite variety ; but the great majority of them relate to property. 'Eights of property are of four kinds : — (i.) A right to the exclusive enjoyment of land, or of a thing — a right to have it and use it and dispose of it as one's own. This is ownership or dominion (jus in rem). (ii.) A right to seize, or hold, or use, or enjoy, land or a thing which belongs to another person (jus in re aliend). (iii.) A right against a person merely ; a right to make him hand over to you land or money or some thing (jus in personam).3 (iv.) There is a fourth class of rights which is growing more and more important every day.4 It includes the exclu- sive right to manufacture and use a particular invention, the exclusive right to make copies of a book, poem, play, picture or design, and the exclusive right to attach to goods a particular trade mark, or to prevent any one else from selling goods under a name well known in the trade. All these acts may be innocent in themselves, but they become wrongful whenever the law has given to another person the sole right to do these acts. Such rights are clearly a kind of property.5 There are other rights known to the law, which are not rights of property. 1 " Semble que toutes fois ou on a aucun tort ou damage, la ley done a luy un remedy, et ceo per voye daccion." Year Book 12 Hen. VIII. (a.d. 1520), p. 3. 2 These are discussed in the next chapter. 3 These rights of property are discussed in Chapters III., IV. and V., post, pp. 17—38. 4 See Infringement of Patents, Copyrights, &c, post, pp. 597—622. » Exchange Telegraph Co. v. Gregory $ Co., [1896] 1 Q. B. 147, 153. D RIGHTS. (v.) A right attaching to an office, and personal to the present holder of that office and to him alone. Thus a judge, sheriff, mayor or policeman has rights which a private citizen does not possess. (vi.) A right arising out of family or other relationship. Thus parent and child, husband and wife, guardian and ward, have mutual rights, which are discussed under the Law of Persons.1 1 Book VI., pp. 1351 et aeq. Chapter II. PUBLIC RIGHTS. Under this term we group those absolute rights which every one in the realm possesses — which do not depend upon; the ownership of property, or the tenure of any office, or thef existence of any contract between the parties. First among these stands the right of personal security. " The right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health and his reputation, to each of which he has a natural inherent right, which cannot be wantonly destroyed, infringed or restricted without a manifest breach of civil liberty."1 Every citizen enjoys the right of personal liberty ; he is entitled to stay at home or walk abroad at his pleasure without interference or restraint from others. Any confine- ment or detention, for which no legal justification can be shown, is a " false imprisonment." Ancillary to the right of personal security is the right of self-defence. Every man may repel unlawful force by force ; and this whether such unlawful force be directed against him- self or against his wife, child or servant, and probably if it be directed against any weak or helpless stranger. Again, every one who is inside a house i3 entitled to use force to prevent the forcible entry into that house of any one who has no right to enter it. " Every man's house is his castle." This right is not confined to the occupier of the house or even to his family or servants. Any stranger, who is lawfully present in the house, may exercise this right. And even where no attack is being made upon a man or upon his wife, child or servant, still he may always interfere to prevent any one from committing treason or any felony, or i 1 Bla. Com. 129. 8 PUBLIC RIGHTS. any act which, would manifestly endanger another's life, or any breach of the peace, and hold the offender until he desists from his criminal attempt.1 Then, in the case at all events of a breach of the peace, he must release him ; he is not entitled to detain him after the affray is over, unless he holds a warrant from a justice authorising him so to do. Again, every man has an absolute right to have his reputation preserved inviolate. Any actual disparagement of his good name is a wrong for which civil proceedings, and sometimes even criminal proceedings, will lie. A man's livelihood often depends on his reputation. Hence words, which on the face of them must injure the reputation of the p'erson to whom they refer, are clearly defamatory and, if false, are actionable without proof that any particular damage has followed from their use. Words, on the other hand, which merely might tend to injure the reputation of another are prima facie not defamatory, and even though false are not actionable, unless as a matter of fact some appreciable injury has followed from their use. Every one has a right to comment on matters of public interest and general concern, provided that he does so fairly and with an honest purpose. This right is in no way the special privilege of the Press ; every citizen has full freedom to speak and to write on such matters. Such comments are not libellous, however severe in their terms, so long as the writer truly states his real opinion of the matter on which he comments, and does not assert as a fact that which is untrue.2 This right is a very wide one. Every man may discuss fully and fearlessly every matter of public concern in the State; he may comment on any proposed legislation and on the public conduct of any public man ; he may criticise freely any published book, or poem, any play, picture or statue publicly performed or exhibited, or any public concert or entertainment. Every person within the realm, whether a British subject or not, has a right to pass and repass along every highway in 1 Handeoclt v. Baker (1800), 2 Bos. & Pul. 260. 2 Merwale and wife v. Carton (1887), 20 Q. B. D. 275. PUBLIC HIGHWAYS. 9 the British Isles. He has a right to walk along every foot- path ; he has also a right to ride along every bridlepath, to drive cattle along every driftway, and to drive a cart or carriage along every high road, whether it be a main road or not. Our law presumes that every one of these various high- ways was voluntarily dedicated to the use of the public for ever by the owner of the land across which it runs ; but this presumption is often contrary to the facts.1 The most ancient of these high roads were constructed for military purposes by the Eomans during their occupation of this island. Others came into existence simply by the tread of many feet, passing along an accustomed track from one village to another, in the days when the country was very sparsely populated and the land between the villages was common property or practically belonged to no one. These country paths were later improved and widened into roads by some county magnate or by the vestry of some parish ; and it is now the duty of various highway authorities to maintain these roads and keep them in repair, and to remove all obstructions to the rights of the public.2 But the right of the public is merely to pass and repass along the highway, pausing only for such time as is reason- able and usual when persons are using a highway as such. No one has a right to stand still on the highway in order to shoot at pheasants flying over his head as they cross from covert to covert.3 He may walk up and down on the road either for business or pleasure, but not with the object of maliciously interfering with the rights of others.4 The right of the public extends over the whole width of- the highway, and not merely over the part which is metalled or trodden down.5 This is so whether the highway in question be a carriage road or only a bridle- path or footway.6 Thus, where an electric telegraph company without legal authority erected telegraph poles in a permanent maimer on the waste at the side of a highway, leaving room enough for the use of the 1 See Farquhar v. Newbury B. D. C, [1909] 1 Ch. 12; Folkestone Corp. v. Brock- man, [1914] A. C. 338. 2 See post, pp. 247—250. 3 B. v. Pratt (1856), 4 E. & B. 860 ; and see Fitzhardinge v. Pureell, [1908] 2 Ch. at p. 168. * See Harrison v. Duke of Butland, [1893] 1 Q. B. 142. » Fowler v. Sanders (1618), Cro. Eliz. 446. e Pullin v. Deffel (1891), 64 L. T. 134. 10 PUBLIC RIGHTS. highway, and not affecting either the metalled road or the footpath by the side of it, this was held to be a public nuisance because the company had thus obstructed a small portion of space which the public had a legal right to use.1 The person dedicating may confer on the public the right to use the way as a footway, bridlepath or driftway only, and not as a carriageway.2 He may also by contemporaneous acts limit the user of the way to certain times or seasons {e.g., he may grant the public the right to use his bridge whenever it is dangerous to cross by the ford).3 Or he may reserve to himself the right to periodically plough up the soil of the way.4 But though he may thus restrict the user, he may not limit the number of persons who may use the way {e.g., a dedication to the inhabitants of a parish or to any other limited portion of the public is void and confers no right on any one,5 though such a right may be created by grant or, it is said, by custom).6 Nor can a dedication be limited in respect of the duration of the right; every dedication is necessarily in perpetuity. And, in the absence of statutory authority, no dedication can be made subject to the payment of a toll.7 But the right of the public over a particular "way, when onc"e acquired, is permanent. The public cannot take by grant, nor can they grant away, such a public right. It cannot be lost by abandonment or non-user ; the public retain the right though they may not have occasion to exercise it. It may, it is true, be extinguished by Act of Parliament. And now8 two justices may, at the instance of either a district or a parish council, and with the prior consent ' of both bodies, and after certain formalities and certain advertisements,9 stop a highway or divert it from its accustomed track to a new route. 1 S. v. United Kingdom Telegraph Co. (1862), 3 P. & F. 73. 2 See Sheringham U. D. C. v. Ralsey (19(H), 68 J. P. 395. 3 S. v. Inhabitants of Northampton (1814), 2 M. & S. 262. * Mercer v. Woodgate (1869), L. R. 6 Q. B. 26 ; Arnold v. Blaker (1871), L. R. 6 Q. B. 433 ; Arnold v. Eolbrooh (1873), L. R. 8 Q. B. 96. Andlsee Gimgell, Ke. Ltd. v. Stepney Borough Council, [1908] 1 K. B. 115 ; [1909] A. C. 245. 6 Vestry of Bermondsey v. Brown (1865), L. R. 1 Eq. 204. 6 Co..Litt. 66 a, 110 b. 7 Austerberry v. Corporation of Oldham (1885), 29 Ch. D. 750. 8 Ss. 84-92 of the Highway Act, 1835 (5 & 6 Will. IV., c. 50), as amended by the L. G. Acts, 1888 and 1894. J 9 See Odgers on Local Government, 2nd ed., pp. 168, 169. PUBLIC RIGHTS. 11 A navigable river is a public higbway as far as tbe ebb and flow of tbe tide extends. If tbe course of sucb a river be changed by tbe act of God, the right of tbe public is ipso facto diverted into the new channel. Every one has the right to fish in the high sea and within the territorial waters of his own State, and also to fish in any tidal waters, such as a creek of the sea, or an estuary of a river so far up it as the ebb and flow of the tide reaches. But the right of the public to fish in a creek of the sea or estuary of a river will be excluded, if some subject shows that the exclusive right to fish therein is vested in him either by grant from the Crown or by prescription. And in most places where the right of fishing is valuable, tbe public generally find that an exclusive right of fishing is vested in the lord of some manor or the corporation of some adjoining borough. " Every man has a natural right to enjoy the air pure and free from noxious smells or vapours and any one, who sends on his neighbour's land that which makes the air impure, is guilty of a nuisance." 1 Hence, the owner of a chemical factory can be restrained from poisoning the air with fumes of sulphur or alkali by any of his neighbours to whom such fumes are a nuisance ; and a tramway company can be restrained from using creosoted wood blocks, the fumes of which kill the trees and flowers in the adjoining gardens.2 But no one has a right to the access of the open air to his land across his neighbour's land.3 Thus the owner of a windmill cannot prevent the owner of adjoining land from building so as to interrupt the passage of air to the mill, though the mill has been worked thus for over twenty years.4 So no man has a right to have the view or prospect from his house preserved for his enjoyment ; the owners of the adjoin- ing land are entitled to build so as to block it out, provided they do not materially interfere with the access of light to his ancient windows.0 i Per Lopes, L. J., in Chastey v. Aekland, [1895] 2 Ch. at p. 396. 2 West v. Bristol Tramways Co., [1908] 2 K. B. 14. 3 But a man may by long-continued user acquire a right to the access of air along " some definite channel constructed for the purpose of containing aud com- municating it." Per Lopes, L. J., in Chastey v. Aekland, [1895] 2 Ch. at p. 39" * Webb v. Bird (1862), 13 C. B. N. S. 841. 6 See post, p. 571. 12 PUBLIC RIGHTS. Again, whenever legal proceedings are commenced against a man -which may affect either his person or pocket, he has an absolute right to be heard in his defence. He cannot be condemned unheard. " It is implied by natural justice in the construction of all law that no one ought to suffer any prejudice thereby, without having first an opportunity of defending himself."1 " No man shall be condemned to con- sequences resulting from f alleged misconduct unheard and without having the opportunity of making his defence. This rule is not confined to the conduct of strictly legal tribunals, but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving civil con- sequences to individuals." 2 If, however, he had clear notice of the proceedings and was given an opportunity of urging his defence, and yet deliberately chose to stay away and say nothing, this right is forfeited and the proceedings may continue in his absence. Our Law Courts are open to every one who honestly believes that he has any grievance or ground of complaint, but there are many cases in which an action will lie against a man who puts the law in motion against another maliciously and without reasonable and probable cause.3 Every British subject has also the right to petition the King through the Home Secretary.4 Every man has a right to be baptised, and to have his child baptised, in the parish church of the parish in which he lives ; and this, as a rule, without payment of any fee.5 Every man has the right to be married in the church of the parish in which either he or his intended wife resides, provided both have been baptised and provided banns have been duly published there, or he has procured a licence to be married there from the archbishop.6 And this without paying any fee to the incumbent, unless a right to a fee has 1 Per Lord Denman, 0. J., in B. v. Wilson (1835), 3 A. & E. at p. 826. 2 Per Kelly, C. B., in Wood v. Woad (1874), L. B. 9 Ex. at p. 196. 3 One instance of the application of this general principle is found in the action for malicious prosecution ; another in the action for malicious arrest. * Bill of Eights, 1688 (1 Will. & Mary. Sesa. 2, o. 2). » 35&36 Vict. c. 36, s. 1. « 4 Geo. IV., c. 76, ». 20, 22. OLD AGE PENSIONS. 13 been given him either by a local custom1 or by statute. "Where there is such a custom, the fee must be of a fixed and reasonable amount. In no case, it seems, can the incumbent insist upon receiving the fee before he performs the ceremony. And now, by virtue of the Old Age Pensions Acts, 1908 and 1911, 2 every British subject, male or female, who has attained the age of seventy years, if he or she has been a British subject, natural born or naturalised, for at least twenty years, and has resided in the United Kingdom for at least twelve of those years, and is not in receipt of an income amounting to 311. 10s. a year, is entitled while in the United Kingdom to receive for the rest of his or her life from the State a pension varying according to the amount of the recipient's income, so as to bring that income just over 13s. a week. Thus, a person whose income does not exceed 211. 