Billeder på siden
[blocks in formation]

A FREE government is not a government in which liberty prevails, or in which there is an absence of inconvenient restraints and oppression on the part of the sovereign power; but a government in which there is a plurality of rulers, and fixed laws respected by the administrative authority. A free government is thus opposed to an arbitrary or despotic government, such as the Roman, French, or Austrian empires. In this sense, Hume' opposes free states to absolute monarchies, and Rousseau speaks of the difference between free and monarchical states; i.e. between states where the sovereignty belongs


'The provinces of absolute monarchies are always better treated than those of free states.' Part i. Essay 3.

2 Contrat Social, liv. iii. ch. 8. According to Sir James Mackintosh, 'as general security is enjoyed in very different degrees under different governments, those which guard it most perfectly, are by way of eminence called free. Such governments attain most completely the end which is common to all governments. A free constitution of government, and a good constitution of government, are therefore different expressions for the same idea.' On the Law of Nature and Nations, p. 60. However, one who thought with Hobbes that absolute monarchy is the best form of government, would probably not call that a free constitution. On the difference between free and despotic governments, see likewise Bentham's Fragment on Government, p. 113.*

• Fixed laws respected by the administrative authority. This condition is not recognised by Austin. Sir James FitzJames Stephen (Liberty, Equality, and Fraternity, p. 171, goes so far as to declare that 'democracy has, as such, no definite or assignable relation to liberty;' but this can hardly be admitted, for the reason given by Mr. James Mill in the passage quoted above (p. 100), which is almost conclusive for this purpose, though justly criticised by Sir G.

C. Lewis on other grounds. An absolute despot will naturally put down whatever displeases him; a more numerous body are pretty sure to present variety in their likes aud dislikes, so that the practices which they will agree to suppress or enforce, will, ceteris paribus, be comparatively few. It is true on the other side that the despot may be indifferent to practices very hateful to the majority, but which do not touch him personally.-W.

* And Austin's 6th Lecture (Student's Austin, p. 112). He says: 'They who die

[blocks in formation]

Of the real and nominal price of Commodities, or of their price in Labour, and their price in Money. EVERY MAN IS RICH OR POOR ACCORDING TO THE DEGREE IN WHICH HE CAN AFFORD TO ENJOY THE NECESSARIES, CONVENIENCES, AND AMUSEMENTS OF LIFE; only a small part of which can be supplied by a man's own labour the greater part must be derived from the labour of other people, and which he must purchase; hence labour is the real measure of the exchangeable value of all commodities, p. 30.


The real price of everything is the toil and trouble of acquiring it.' What is bought with money is purchased by labour, as much as what we acquire by the toil of our own body. The money saves us the toil, and contains the value of a certain quantity of labour. Labour was the first price, the original purchase money, that was paid for all things: by it all the wealth of the world was purchased, and its value is equal to the quantity of labour which it can command, p. 31.

'WEALTH,' as Hobbes says, 'Is POWER,' 2 i.e., it may afford a man the means of acquiring power, by giving him the command of other men's labour; and his fortune is greater or less according to the quantity of other men's labour which it enables him to command, p. 31.

Though labour be the real measure of the exchange

'Adam Smith does not make any distinction here between value and price. Modern economists regard the latter as a particular case of the former. Observe that the toil and trouble of the acquirer may have been less than the toil and trouble of the producer. Value may be defined as The ratio in which commodities are exchanged against each other in the open market.' (Cairnes.) Therefore there can be no such thing as a general rise or fall in values.

Leviathan, Part I. cap. x.




Rules for the creation of valid remainders.


1. There must be some particular estate precedent to the estate in remainder, (or)

Every estate in remainder requires a particular estate to support it.

2. The remainder must commence or pass out of the grantor at the time of the creation of the particular estate.

3. The remainder must vest in the grantee during the continuance of the particular estate, or eo instanti that it determines.

[These rules are based upon the feudal principle that an estate of freehold cannot be created to commence in futuro, but ought to take effect at once either in possession or remainder. The whole estate-i.e. the particular estate and the remainders-passes from the grantor to the grantees by the livery of seisin.

The above rules also imply another, that the feudal seisin must never be without an owner; thus in the case of a grant to A, for twenty years and one year after the end of such term to B, in fee, the remainder would be void on account of the feudal seisin reverting to the grantor after A's term.]

Remainders are also divided into


[blocks in formation]

I. If an estate, be it ever so small, be always ready from its commencement to its end to come into possession the moment the prior estates happen to determine, it is then termed a vested remainder.'-Will. R. P. p. 245, 10th ed.

II. A contingent remainder is a future estate which waits for and depends on the termination of the estates



19 & 20 Vict. c. 108, s. 50.

19 & 20 Vict. c. 120.


21 & 22 Vict. c. 77.

21 & 22 Vict. c. 94.

1859. & 23 Vict. c. 35.



Chief Real Property Statutes.

If the term of a tenant has determined, and the tenant refuses to deliver up possession, the landlord may enter a plaint in the County Court for recovery of possession. This is limited to cases where the rent does not exceed 50l. per Ste. 296.


An Act to facilitate leases and Sales of settled estates. [21 & 22 Vict. c. 77.]

(2) Chancery in certain cases authorized to permit leases for certain long terms, for agricultural, mining, and other purposes.

(5) Any lease granted under the Act may be surrendered to be renewed.

(11) The Court may authorize the sale of settled estates and the timber thereon.

(32) Any person entitled to the possession of an estate for life under a settlement may demise the same for any term not exceeding twentyone years, under certain conditions. Tenants by the courtesy and in dower may demise for twentyone years. Ste. 252, 253, 263, 266, 279, 288, 478.

Act to amend the Settled Estates Act, 1856. Ste. 479.

An Act to amend the Copyhold Acts. Ste. 224, 630, 642, 645,

An Act to further amend the law of Property.

(1) A licence given to any lessee or assignee to extend only to the permission actually given.

(2) Restricted operation of partial licences.

(3) Assignee of part of reversion to have the



2. A persona in personam transcriptio. When the sum which Titius owes me is entered in my journal as advanced to you (this substitution being of course made at the suggestion of Titius).

According to Theophilus the 'nomen transcriptitium' always effected a novation: Prior obligatio extinguebatur; nova autem, id est litterarum, nascebatur,' but the case related by Val. Maximus, viii. 2. 2, goes to prove that this was not always the case.

Gaius tells us that it was questioned whether aliens were bound by this contract or not, because such an obligation belonged to the civil law.

Sabinus and Cassius held that in the case of a 'transcriptitio a re in personam' even aliens were bound.

'These literal contracts. . . . seem never to have had any great importance. They remained in use for the mutual transactions of the "argentarii" (or brokers), long after they had become obsolete for other persons. But before the time of Justinian they had disappeared altogether. In the Corpus Juris there is no literal contract, properly so called, no use of writing as the formal ground of an obligation. That some formal ground was necessary, that a mere informal agreement of two persons was not sufficient to establish a full legal obligation, was the general principle of the Roman law, though subject to some ancient and important exceptions.'-Hadley's Introduction to Roman Law,' pp. 216, 217.

In the Literal or Written Contract, the formal act by which an obligation was superinduced on the convention, was an entry of the sum due, where it could be specifically ascertained, on the debit side of a ledger. The explanation of this contract turns on a point of Roman domestic manners, the systematic character and exceeding regularity of book-keeping in ancient times. There are several minor difficulties of old Roman Law, as, example, the nature of the Slave's Peculium, which are only


« ForrigeFortsæt »