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 The theory of contract in its social iii 
 
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THE THEOEY OF CONTRACT 
 ' IN ITS SOCIAL LIGHT 
 
Feinted by Tuekbull akd Spears 
 
 FOE 
 
 T. & T. CLARK, EDINBURGH. 
 
 London : Simpkin, Maeshali, Hamilton, Kbht <fc Co., Ltd. 
 New Tokk : Geaeles Sceibneb's Sohs. 
 
THE THEORY OE CONTRACT 
 IN ITS SOCIAL LIGHT 
 
 BY 
 
 W. A. WATT 
 
 M.A., LL.B., D.PHIL., GLASGOW. 
 
 EDINBURGH 
 
 T. & T. CLARK, 38 GEORGE STREET 
 
 1897 
 
h< \ Crv 5"«f 
 
PREFACE 
 
 In the following pages an attempt is made to in- 
 vestigate the fundamental conception and chief social 
 relations of contract. That conception is admittedly 
 in one sense an abstract one. Property more clearly 
 suggests the living problems of modern society ; 
 wrong and crime indicate their relation to morality. 
 Yet contract forces on our attention the importance 
 of the distinctly juridical standpoint, which neither 
 Ethics nor Economics can afford to ignore. It 
 has therefore been suggested to me, that a state- 
 ment regarding contract, brief, and not encumbered 
 with technical details, might serve as a foot-note 
 to Ethics and Economics ; whilst it might also be 
 useful for the legal student as an introductory 
 chapter to the more practical parts of the law. 
 That the conception is an interesting as well as a 
 serviceable one, the questions raised in the text 
 regarding Labour, Marriage, Socialism, etc., will help 
 to show. 
 
 Glasgow, December 1896. 
 
CONTENTS 
 
 CHAPTER I 
 
 The General Meaning and Moral Bearing op 
 Contract 
 
 Contract as tlie union of the ideas of Agreement and 
 
 Obligation 
 
 It involves a right to conduct 
 
 The union of Egoism and Altruism in contract 
 
 Contract represents restraint 
 
 But also, individualistic development 
 
 For Idealism, contract is an aflfair of the Will, and implies 
 
 the meeting of the wills of several proprietors in a 
 
 typical act 
 
 Chief points brought out in this survey 
 
 Illustrated by the case of contracts for services 
 
 Contract and slavery 
 
 Freedom of labour-contracts 
 
 6 
 II 
 12 
 13 
 14 
 
 CHAPTER II 
 The Technical View 
 
 Sir F. Pollock's principle — an agreement as contemplating 
 something to be done or forborne by one or more of the 
 parties for the use of the others or other 
 Objective theory of Prof. Holland 
 Contract as " the taking of a risk," in this connection 
 Minor points of theory .... 
 Classification of contracts 
 
 Main principles employed . 
 Examples of classification . 
 
 19 
 21 
 23 
 23 
 
 25 
 25 
 27 
 
X Contents 
 
 CHAPTER W—cmtinuiA 
 
 PAGE 
 
 No theoretic difficulty (thougli there may be a difficulty of 
 practical grouping) in the relations of quasi-contract 
 and those usually treated along with them . 28- 
 
 CHAPTER III 
 Is Marriage a Contract? 
 
 Objections (even in a favourable legal system, like that of 
 
 Scots law) to regarding marriage as a mere contract 32 
 
 Marriage is an Institution . 34 
 
 The objections to altering it from the nature of the family 35 
 
 Reason for legal tendency towards a contractual view . . 37 
 
 The family and the State . . 39 
 
 CHAPTER IV 
 
 The Background op the State 
 
 The State is implied in contract, and its relation to Right must 
 
 be observed . . . . 41 
 
 Green's theory of the basis of Right . 41 
 
 The State is (essentially) an ethical unity — this view not 
 
 unhistorical . . .43 
 
 Prof. Clark's analysis of Law in this connection 44 
 
 Rationality as grounding Right . . 47 
 
 Speculative theory corresponding to this doctrine — the self 
 
 cannot be treated in isolation from the not-self . 48 
 Interference of the State in imposing restraints on legal 
 
 agreements ■ ■ . . 50 
 
 Restraints in respect of (1) Morality, (2) Public Policy 51 
 
 The State as a contracting power in relation to other States . 55 
 
 CHAPTER V 
 
 The Relation op Contract to Property and Agency 
 
 Two fundamental views of property— as the means of a tnie 
 
 ■and of a /afee self-realisation ■ • . 50 
 
 Property as the matter of contract . . gi 
 
Contents xi 
 
 CHAPTER Y— continued 
 
 PAGE 
 
 The suggestion of Socialism, that certain portions of private 
 property, as it exists at present, should be withdrawn 
 from that sphere ...... 62 
 
 Some objections to Socialism, e.g., that it is a "hard and fast" 
 
 system ....... 63 
 
 Scientific Socialism ; Mr Ball's view . . 65 
 
 The legal doctrine furnishes no a priori objection to the with- 
 drawal above mentioned ..... 70 
 
 Survey of the view of the " person '' which has been adopted . 72 
 
 Agency, as an extension of contract . . 72 
 
 Its power in modern commerce . . 75 
 
 CHAPTER VI 
 
 Conclusion 
 
 " Eightmindedness " in contract 76 
 
 Contracts and promises . . ... 77 
 
 B^surn^ of former chapters . . .78 
 
 Jurisprudence is bound up with all Social Philosophy, and 
 
 contract is both a technical and a popular conception . 81 
 
 APPENDIX 
 
 I. Typical contracts ...... 85 
 
 II. The extinction and transmission of obligations . . 90 
 
 III. Puchta's view of the Evolution of Private Eight . 93 
 
CHAPTER I 
 
 THE GENERAL MEANING AND MORAL BEARING OF 
 CONTRACT 
 
 The borderland between Ethics and Jurisprudence 
 is full of interest. It is frequently approached from 
 the ethical side. Here, we propose to approach it from 
 the juridical ; and particularly through one of the 
 most important, and perhaps the most typical, of legal 
 notions, that of contract. What then is contract ? 
 
 The central idea of the relation, from the legal 
 point of view, may, provisionally, be taken to be 
 that of an agreement creating one or more obliga- 
 tions which the law will enforce. A bond directly 
 affecting the contracting parties is formed, which 
 is an essential part of the transaction. It is in 
 virtue of this bond that the strikingly simple de- 
 finition introduced into the Indian Contract Act, 
 "An Agreement enforceable bylaw is a contract,"^ 
 is true. If it were not for the bond, there would 
 be nothing to enforce. And the definition just 
 quoted does not simplify the conception so much 
 as it may at first sight appear to do, for it really 
 implies what it apparently eliminates, a legal tie, 
 
 1 No. ix. of 1872, sect. 2 (h). 
 
The Theory of Contract 
 
 which may be regarded as an obligation. Contract, 
 in this view, is the meeting-place of the ideas of 
 agreement and obligation. 
 
 Generally, mutual obligations are created by the 
 contracting parties ; for the tendency in contract 
 is towards some kind of reciprocal relationship. 
 And the obligations, whether mutual or not, are 
 supported by the strength of society ; a strength 
 which must be assumed to be sufficient to " enforce " 
 them in some sense, in at least the great majority 
 of instances. But the forcible interference of the law 
 is an extreme step: nor can it be entirely separated 
 from that force of public opinion from which it 
 seems to grow. For its usefulness, contract relies 
 on a certain measure of trust which a man has 
 in his fellows. Supporting this is the trust which 
 he places in the whole social organism. Thus, Sir 
 Frederick Pollock writes : — " The law of contract 
 may be described as the endeavour of the State, a 
 more or less imperfect one by the nature of the case, 
 to establish a positive sanction for the expectation 
 of good faith which has grown up in the mutual 
 dealings of men of average right-mindedness. . . . 
 The specific mark of Contract is the creation of a 
 right, not to a thing, but to another man's conduct 
 in the future." ^ As we shall see, it is the ethical 
 
 1 Contract (Gfh ed.), p. 1. 
 
The General Meaning of Contract 3 
 
 bearing of the creation of a right to another man's 
 conduct, that is the important point. 
 
 We may push our analysis of contract a step 
 further, by means of the ideas — using them in their 
 most general sense — of egoism and altruism; "self- 
 regarding " and " other-regarding " tendencies. In 
 contract we have a peculiar instance of the com- 
 bination of these two principles in one social fact ; 
 though our explanation of the combination, from 
 this stand-point, must not be regarded as final. If 
 we confine our view to the obligation implied, to 
 this "conduct" of which we have been speaking, we 
 see that the fulfilment of the obligation, the carrying 
 out of the conduct, is essentially an altruistic act 
 on the part of the person who does so. Whether 
 the obligant does a certain thing or exercises a 
 certain forbearance, he performs a duty ; he acts 
 for the good of others, not in his own interest. 
 
 On the other hand, contract itself is character- 
 istically egoistic. One of the two parties always 
 contracts for a benefit. But that is not aU. With 
 comparatively few exceptions, the engagement is, on 
 both sides, egoistic. This is clearly seen in the 
 onerous contracts, such as sale, which must be taken 
 to form the representative type. No doubt our 
 argument thus relies for its full force upon the wide 
 and ever-increasing development of the onerous and 
 
The Theory of Contract 
 
 reciprocal contracts, and the comparative insignifi- 
 cance of the truly gratuitous ones. But of these facts 
 there can be no reasonable question. If it could 
 be shewn that the real usefulness of contract in 
 the past had been to regulate the performance of 
 gratuitous services, based on friendly feeling alone, 
 contract might be proved to be altruistic. But such 
 a suggestion has only to be made to be abandoned. 
 Broadly, the law of contract has always rested on 
 egoistic presuppositions. It recognises a conflict of 
 interests, a struggle. Caveat em]}tor. Let the fittest 
 survive. The only qualification admitted is, that you 
 must play according to the rules of the game. So, the 
 altruistic obligation, or duty, must be regarded as 
 essentially bound up with the egoistic engagement. 
 The two amalgamate. 
 
 Even on a theory in which the full ethical value 
 of altruism, or of egoism, is denied, the combina- 
 tion just mentioned can hardly be gainsaid. The 
 tendency of the present day is not in the direction 
 of depreciating altruism, but the theory of Professor 
 Huxley, as set forth in his " Evolution and Ethics," 
 is often taken as an example of the depreciation of 
 egoism. We cannot attempt to enter into that theory 
 here. Suffice it to say, that from such a general 
 point of view there is obviously great difficulty in 
 accounting for the progressive value of contract. 
 
The General Meaning of Contract 5 
 
 What the uncompromising altruist must rely on, 
 and what is, so far, true of contract on its altruistic 
 side, is that it represents a series of restraints, which 
 have been necessarily placed on the egoistic caprice of 
 man. Not only have certain regions, which form the 
 ground of possible contract, been definitely forbidden 
 him in the general social interest, but he has been tied 
 down to fulfil his own obligations. At the beginning 
 of social life, no doubt, the existence of the individual 
 is largely lost sight of in the attempt to secure the 
 welfare of various social groups which are continually 
 at war with one another. But, as war becomes a less 
 prominent factor in primitive society, voluntary asso- 
 ciation supersedes the compulsory association which the 
 existence of an external foe necessitated. Co-operation 
 of a voluntary nature demands voluntary agreement ; 
 and this can only be" achieved by the imposition of 
 restraints. Division of labour arises ; the continual 
 adjusting of benefits to services is necessitated ; and 
 therefore, bargains must be protected ; individual 
 caprice must be controlled ; and contract, in its widest 
 sense, appears as a restraining power.^ 
 
 But we must not lose sight of the fact that con- 
 tract, also, on its egoistic side represents a fight. It 
 
 ^ Gf. Spencer's view ; especially Data of Ethics, ch. viii. On the late 
 development of technical contracts, see Pollock and Maitland, History of 
 English Lorn, Vol. II. Bk. 11. ch. v. 
 
The Theory of Contract 
 
 is to some extent the industrial equivalent of war. 
 With all its limiting responsibilities, it is like a new 
 weapon put into the hands of the competitors in the 
 great struggle for life. The formality which attends 
 primitive contract, in the strictly legal sense of the 
 term, is gradually broken down. The tendency is 
 towards freedom of contract — that is, towards 
 freedom in the egoistic employment of contract. 
 
 On the one side then, there is the self-seeking ; on 
 the other, the habitual control. Thus, though the 
 social contract theory of the origin of society may be 
 a delusion, contract, in its general sense, really does 
 shew that the rational pursuit of egoism involves an 
 association of man with man, which, as it were, breeds 
 altruism — not a complete system of social renuncia- 
 tion ; but duty, forbearance, a course of right conduct, 
 which at least contain the promise of better things. 
 
 But while thus attempting to focus the meaning 
 of contract, we may be attacked from the rear. It 
 may be urged, that (on Idealistic principles at least) 
 egoism and altruism are mere abstractions, and that 
 it is illegitimate to treat them apart, even in such 
 a manner as we have done. If we keep their ulti- 
 mate significance before us, however, there does not 
 seem to be any very sound objection to our adopting 
 the convenient points of view which they sometimes 
 afford. The danger is infinitesimal. The Idealistic 
 
The General Meaning of Contract 7 
 
 theory, to which we have referred, seems to assert, 
 as a fundamental principle in sociology, that civil 
 society is founded in the idea of there being a 
 common good amongst men ; and that if we lose 
 sight of this idea, in studying the history of man- 
 kind, we lose sight of the link of identity which 
 binds history to ourselves, and consequently lose the 
 power of explaining society at all.'- It is quite 
 possible to admit this, however, and yet to maintain 
 that such an idea is not yet realized in society, 
 because our good is still being sought, very largely, 
 in objects for which there is strenuous competition. 
 When the object generally sought as good comes 
 to be a state of character towards which we all 
 help each other to progress, the universal good ^ 
 will appear on the surface of life. Meanwhile, we 
 must allow ourselves at times to regard the scene 
 as one of war. The smoke of battle hides the 
 common ground ; and, while we may acknowledge^ 
 that there is a common ground between the op- 
 ponents, and that that is of the utmost importance, 
 the plan of their successive positions naturally 
 receives attention. Indeed, such a way of looking 
 at the subject is almost inevitable when we start 
 with an abstract conception like that of contract. 
 Is there then any correction which, from the 
 
 1 See infra, cli. iv. 
 
8 The Theory of Contract 
 
 point of view o£ Idealism, we require to make m 
 our conclusions? In the first place, this,— we shall 
 revert to the idea of a common good hereafter, — that 
 contract must be regarded more completely as an 
 instrument of the developing will. 
 
 Contract, it is hardly necessary to say, in the 
 Idealistic view, finds its place between the notion 
 of property on the one side, and that of penalty on 
 the other. In the sphere of property, man attempts 
 to realize his will through the instrumentality of 
 external things. In that of contract, the will is no 
 longer confined to mere inanimate objects, but comes 
 into relation with another will like its own ; there 
 is a union of wills. In penalty, the individual will 
 is brought into relation to the will of the whole, 
 the universal will. In contract, then, we must con- 
 ceive of man's will as realizing itself through his 
 fellows ; and according to Dr Stirling's explanation, 
 it implies " the production of an identical will in 
 the absolute difi'erence of independent proprietors, 
 in which each, with his own will and the will of 
 the other, ceases to be a proprietor, remains a 
 proprietor, and becomes a proprietor." ^ The con- 
 
 1 Philosophy of Law, p. 49. Contract is tlie process wliicli presents 
 and resolves the contradiction "by wMch. I, existing for myself and 
 excluding another will, am and remain owner only in so far as I 
 identify myself with the will of another and cease to be an owner.'' 
 Hegel, Philosophy of Bight, sect. 72 (Eng. Trans, by Prof. Dyde, p. 77). 
 
The General Meaning of Contract 9 
 
 tracting proprietor excludes something from the 
 sphere of his own will by entering into the obliga- 
 tion ; yet, though it is implicitly the other's, it 
 remains with himself until the obligation is fulfilled. 
 Again, he becomes a proprietor in virtue of the 
 reciprocal obligations which the other has granted. 
 Accordingly, there is between the two proprietors 
 a virtually identical property, which is constituted 
 by the value in which, notwithstanding their differ- 
 ence, the articles to be transferred by the contract 
 are equal to one another. 
 
 Here the engagement and the obligation are 
 reduced to one totality, and the matter of the 
 obligation is regarded as something within the 
 sphere of the obligant's will in one sense, yet 
 without it in another. So that, logically, the 
 obligations and the agreement are merged in one. 
 Moreover, though the matter of the obligation has 
 been spoken of as property, it must be observed 
 that now, in a question between will and will, there 
 is no longer any necessity for the manifestation of 
 will in an external object. The object, so to speak, 
 has become internal. This, as a matter of fact, 
 is seen in many common contracts. 
 
 "Tte comparatively ideal utterance (of contract) in the stipulation 
 contains the actual surrender of a property by the one, its changing 
 hands, and its acceptance by the other, will." Hegel, Philosophy of 
 Mind, Prof. Wallace's translation, p. 108. 
 
lo The Theory of Contract 
 
 Indeed, in tlie variations of the object of contract, 
 we see at once the strength and the limitations of 
 the notion. The object tends to become a " personal 
 thing," an obligation, part of a man's conduct, a 
 piece of life. Yet, as it loses its particularity, we 
 find it more and more difEcult to treat it on a 
 merely contractual basis. It can only be so treated, 
 successfully, provided it is strictly definite and 
 limited in extent. Take the case of marriage, for 
 example. There we have a totality of relations 
 which is often said to be treated, from the legal 
 point of view, as an object of mere contract. Yet 
 this can never be done completely. We shall enquire 
 into the doctrine of marriage hereafter, and we 
 shall see that substantial modifications require to 
 be made on the contractual theory.^ Again, the 
 view suggests that the idea of " obligation " might 
 be altogether dispensed with in the definition of 
 contract. Logically, this is perhaps true ; obligation, 
 as we use the term, involves a cross division. But 
 its historical significance, at any rate, cannot be 
 forgotten. 
 
 In order to understand fully the Idealistic theory of 
 contract, we require no doubt to take into considera- 
 tion the whole movement of which it forms part. 
 But, if the theory is sound, it ought to shew the 
 
 ^ Infra, cli. iii. 
 
The General Meaning of Contract 1 1 
 
 usefulness even apart from that. And we may see 
 in this uniting of particular wills, in the common 
 interest to which they give rise, and in the attempt, 
 made, as it were, by the union, to deal with objects 
 which are really too large for its grasp, facts which 
 are full of significance for the sociologist. Contract 
 represents a great and important step towards the 
 realization of the universal will. The end is not the 
 only point of interest which the process affords 
 — we must not ignore the gradual unfolding of 
 the end. It is the endeavour, no less than the 
 result of the endeavour, that makes a true moral 
 success. 
 
 We find, then, two specially important points 
 before us. First, the strange, if not unique, example 
 of reciprocal relationship, with all that it implies, 
 exhibited in contract, either as the uniting of the 
 altruistic and egoistic tendencies, or as the blending 
 of individual wills in their efforts after realization, 
 according to the standpoint adopted. Second, the 
 right to conduct, as opposed to property, the trans- 
 formation of external things into a spiritual medium, 
 which is the result. Socialistic legislation may in 
 the future materially curtail the objects of possible 
 contract. It may modify the principle itself. But it 
 cannot minimize the influence which these facts have 
 exercised on our social history. 
 
12 The Theory of Contract 
 
 On the first of these two heads we have said 
 enough ; but here is an important problem, which 
 ought to be brought out, connected with the second. 
 As has been pointed out, on the usual view, a totality 
 of relations — the phrase is perhaps somewhat am- 
 biguous, but it will serve — cannot form the proper 
 matter for contract. Still less can a man's career 
 taken as a whole. But when the logic of life forces 
 contract to deal with conduct, when contract * is 
 compelled to concern itself with a course of future 
 action on the part of an obligant, it finds itself, as 
 it were, intruded into the moral sphere ; and it is a 
 result of this that many of the significant problems 
 of the present day may be regarded, from the con- 
 tractual point of view, as ranging themselves round 
 the doctrine of Contract for Services. Here we reach 
 a practical issue. 
 
 Of course, there is an infinite variety of contracts, 
 just as there is an infinite variety of social relations. 
 But contracts for services form a group of more than 
 ordinary power, which deserves more than ordinary 
 attention. There is almost no class of workers which 
 is not, as a class, concerned with the legal principle 
 involved ; though individuals within the class may 
 not feel that it concerns their lives. And the 
 question arises, how far can we allow contract to 
 stretch out its legal machinery so as to control the 
 
The General Meaning of Contract 13 
 
 future actions of men ? So long as we regard these 
 actions as fragmentary, as merely isolated occurrences, 
 contract may be easily justified. But clearly, a series 
 of services may without difl&culty be expanded, until 
 it has fastened on the whole of the essential interests 
 of the life of an individual. It may really dominate 
 his career in every important particular. It may 
 enable another to treat him merely as a means, in 
 the carrying out of certain schemes, and in no sense 
 as an end. 
 
 It is true, indeed, that to a certain extent the 
 common sense of the civilized world has provided 
 against the danger. "We have, for example, forbidden 
 slavery.^ And, speaking generally, we discountenance 
 contracts which, though disguised in form, resolve 
 themselves into contracts of slavery. But it has been 
 suggested to thinking men that we must do more 
 than that. It has become a serious question whether 
 we are not bound to interfere, whenever the right to 
 a man's conduct shews a tendency to expand itself 
 into the right to a man's life. 
 
 We are speaking of a right; a private right. 
 It may be sweet to die for one's country, or 
 glorious to sacrifice oneself for an ideal. But there 
 is no parallel between that, and the case of an 
 
 1 On the distinction between slavery and service, see Fraser, Master 
 and Servant, ch. i. 
 
14 The Theory of Contract 
 
 individual, in his private capacity, "using up" 
 another, as of right.^ 
 
 How far, then, may a man be permitted to make 
 an obligant of himself unrestrainedly ? No doubt he 
 enters into the service, in one sense, for his own 
 advantage. But he may be unintelligent, or he may 
 be in unfortunate circumstances. Shall he be pro- 
 tected from selling himself ; from bartering away the 
 real interest and meaning of his life ?, Frequently 
 he does not realize what he is doing. Yet, if he is 
 to be so protected, we must exercise extreme caution 
 in carrying out such a principle. 
 
 For, on the other hand, we must beware of senti- 
 mentality. Contract nixist deal with conduct. We 
 must be allowed to buy human activity. We must be 
 allowed to deal in human brain and muscle, so long as 
 contract exists. I sell my actions, quite legitimately ; 
 and have no right to quarrel with the purchaser, because 
 he is buying human flesh and blood. If any suggestion 
 lurks in our minds that, whilst contract can leeiti- 
 mately deal with property, with external objects, it 
 cannot deal with what we may call human products, 
 
 1 Aristotle says {Politics, I. ch. xiii.) that, as the slave is useful 
 merely in providing us with the necessaries of life, he needs no higher 
 virtue than wiU prevent his failing in his duties from licentiousness or 
 timidity. The mechanical artizan lives in a position of limited 
 slavery, and his virtue is only a fraction of the slave's. This forms an 
 excellent contrast to the modern vie\y. 
 
The General Meaning of Contract 15 
 
 that must be dismissed. Indeed it has only to be stated 
 clearly to be dismissed. All the property that forms 
 the matter of contract has been so related to human life 
 as to become part of it. From the legal point of view, 
 it has been taken up into the unity of an obligation. 
 
 Again a special difficulty arises from the fact that 
 the periods of service, for which many of the persons 
 whom we would desire to aid are in the habit of 
 contracting, are so short. It is obvious that the 
 difficulty is increased when a series of separate con- 
 tracts requires to be considered ; when we are asked 
 to regulate, not the effect of one isolated engagement, 
 but the cumulative effect of many. Are we justified 
 in dealing with this cumulative effect ? Can we 
 regulate the terms on which a man is to contract 
 to-day, on the ground that he will probably enter 
 into a similar contract to-morrow ? It seems as if we 
 would need to go this length ; and yet, when the 
 question is put in such a manner, it is difficult for 
 one who has a respect for existing legal principles 
 to answer it unhesitatingly. Of course our final 
 decision will depend largely on the general view 
 which we take of the moral functions of the State. 
 
 The legal remedies for the evil, as for other evils 
 of a similar nature which are more frequently con- 
 sidered by juristic science, must always be to a large 
 extent arbitrary. They must in large measure be 
 
1 6 The Theory of Contract 
 
 justified by mere expediency. Both in its restraint 
 of certain forms of contract, and in its effort to pre- 
 vent the undue interference with contract in general 
 by private individuals, the law must be much influ- 
 enced by local and accidental considerations. The 
 law of trade-unions in this country, to take an ex- 
 treme example, can only be understood by a care- 
 ful consideration of its historical development. On 
 the other hand, there is some truth in the view, 
 that the question of restraints becomes one of mere 
 "expediency" only when we have advanced beyond 
 an elementary principle to which many legal restraints 
 on contract are due — that of the non-recognition 
 of certain classes of contract which have for their 
 aim an undoubtedly immoral object. That principle 
 obviously rests on the fundamental constitution of 
 civilized life.^ 
 
 It ought to be noticed in passing, however, that 
 it is one thing to interfere with the so-called rights 
 of contract between normal men, and quite another 
 thing to protect weaker persons, such as women and 
 children, from the stress of social life. To do the 
 latter is not, unless we introduce a new meaning 
 into our terms, to interfere with the rights of 
 contract. For in this latter case we are to a 
 certain extent withdrawing from the contractual 
 
 "■ See infra, cli. iv. 
 
The General Meaning of Contract 17 
 
 strife, various classes of persons whom we consider 
 to be unable to hold their own in it. To borrow 
 an analogy from international law, in the case which 
 we first considered we are maintaining that no com- 
 batant should fight with explosive bullets ; in the 
 latter case we are defining the distinction between 
 combatants and non-combatants. On the other hand, 
 when restrictions are imposed on the employment 
 of foreign workers, a class is withdrawn from the 
 competition, not for its own good, but for the good 
 of the remainder. 
 
 On the whole, then, although there may be some 
 truth in the assertion that the abstract consideration 
 of contract will not aid us much in dealing with the 
 problems of actual life, it must be maintained that 
 such a consideration will at any rate clear our view, 
 and help us to attack particular problems with pre- 
 cision and efi"ect. And it may suggest the true 
 answer to the cry, popular in some quarters, that 
 we must on no account interfere with the domain 
 of contract. For contract is ever tending to creep 
 beyond its proper sphere. It is quite reasonable, 
 indeed, it is necessary, that it should do so. But 
 in the territory of another it can hardly expect that 
 deference to be paid to its sovereignty which it 
 exacts in its own. 
 
 "We shall then, in what follows, after we have 
 
1 8 The Theory of Contract 
 
 glanced at the technical aspect of contract, consider 
 it in its relation to the two main unities which seem 
 to oppose or restrict its individualizing tendency 
 — those which flow from marriage and from the 
 State. Before concluding, also, we shall notice the 
 material on which it works, and the means by which 
 it is extended. 
 
CHAPTER II 
 
 THE TECHNICAL VIEW 
 
 Having now obtained a general idea of the nature of 
 contract, we may revert to the technical view, and 
 consider it more particularly, partly for its own sake, 
 and partly in order to clinch our previous argument. 
 We have already touched upon the legal notion of an 
 agreement, and upon the analytic definition that an 
 agreement enforceable by law is a contract. Sir 
 Frederick Pollock, in dealing with English law, states 
 that not only every agreement, but every promise, 
 which is enforceable by law is a contract. He admits, 
 however, that the doctrine of promise in English law 
 is of an archaic and technical kind ; we may there- 
 fore leave it out of account. Fastening on the term 
 agreement, then, we may follow him in admitting 
 that there must be in it, the meeting of two minds 
 in the same intention. But in order that their con- 
 sent may be of such a character as to form an agree- 
 ment with which the law can deal, the agreement 
 must be, in the old English phrase, an " act in the 
 law," that is, it must be on the face of the matter 
 capable of having legal effects. And it must be the 
 
20 The Theory of Contract 
 
 intention of the parties that the matter shall if neces- 
 sary be leg-ally dealt with, or, at least, they must not 
 have the contrary intention. Thus the acceptance of 
 an invitation to dinner does not form a legal agree- 
 ment in this sense. An agreement might accordingly 
 be defined, as purporting to create an obligation 
 between the parties ; but, for English law, Sir 
 Frederick prefers the view (which he admits to be in 
 effect the same) that an agreement contemplates some- 
 thing to be done or forborne by one or more of the 
 parties for the use of the others or other.^ 
 
 Here we should notice that, by the elimination of 
 the idea of obligation, Sir Frederick's most important 
 result is to shew clearly the unity of the whole trans- 
 action entered into in contract. Again, in emphasizing 
 the intention to create legal effects, we bring out the 
 philosophic conception, of contract being essentially an 
 affair of the will. Moreover, we must not omit, in 
 fairness to the other side, to note how vague and 
 barren the terms " acts " and " forbearances " seem 
 to be, in comparison with the historic "obligation" ; 
 though undoubtedly they bring out, with some clear- 
 ness, the limited and fragmentary character of a true 
 obligation.^ 
 
 ^ See ContrcKt (6tli ed.) pp. 3, 7 ; Append. Note A. The nexus must, 
 of course, directly aflfeot the contractors. 
 
 ^ As regards the p)opular meaning of obligation, the definition of the 
 Institutes may be given — " Obligatio est juris vinculum, quo necessitate 
 
The Technical View 21 
 
 This view may be contrasted with that of Professor 
 Holland, which he calls the " objective " theory of 
 contract. " Is it the case," he asks, " that a contract 
 is not entered into unless the wills of the parties are 
 
 really at one? Or should we not rather 
 
 say that here, more even than elsewhere, the law looks, 
 not at the will itself, but at the will as voluntarily 
 manifested? When the law enforces contracts, it 
 does so to prevent the disappointment of well-founded 
 expectations, which, though they usually arise from 
 expressions truly representing intention, yet may 
 occasionally arise otherwise. If, for instance, one of 
 the parties to a contract enters into it, and induces 
 the other party to enter into it, resolved all the while 
 not to perform his part under it, the contract will 
 
 surely be good nevertheless Indeed, when 
 
 the question is once raised it is hard to see how it can 
 be supposed that the true consensus of the parties is 
 within the province of law, which must needs regard 
 not the wiU itself, but the will as expressed by one 
 party to the other, taking care only that the expression 
 of will exhibits all those characteristics of a true act 
 which have already been enumerated." ^ 
 
 adstringimur alicujus solvendae rei secundum nostras civitatis jura.'' 
 Inst, iii. 13, pr. The act must be restricted in kind. Cf. generally, 
 Savigny, Obligationenrecht ; Vinnius' Commentary (Inst.), iii. 14 ; Dig., 
 xliv. 7. 
 
 1 Jurisprudence (7tli ed.), p. 228, et seq. 
 
22 The Theory of Contract 
 
 Now in reply, it may be admitted that there is a 
 sense in which the outward expression of the will is 
 in law dominant. The inner agreement is an inference 
 of fact which must be proved ; from the very nature 
 of the case it could not be otherwise ; and in some 
 instances, it is tru.e that the inference is not allowed 
 to be disproved. But the latter fact is not vital to 
 the theory of contract, and the agreement is. The 
 expressions are expressions of an agreement. The 
 inference drawn is that of an agreement. And the 
 inferences depend for their reasonableness and useful- 
 ness on the fact, that in the vast majority of cases 
 they are right. Without the reference to will, the 
 expression of agreement would be meaningless. By 
 itself it is nothing. On Professor Holland's own 
 shewing, we have to take care that it exhibits the 
 characteristics of a true legal act. It is surely logical, 
 then, to conclude than an adequate theory of contract 
 must regard a true agreement as the fact on which the 
 contract rests ; and explain the cases in which the 
 contract holds good, notwithstanding a mental reserva- 
 tion on the part of one of the contractors, by reference 
 to the law of evidence, or to a separate doctrine which 
 introduces practical safeguards against fraudulent deal- 
 ing. In doing this there is no difficulty whatever ; 
 and unless we do so we can never relate the lea;al 
 with the popular and natural view of contract. Yet 
 
The Technical View 23 
 
 we are surely forced to believe that the law was made 
 for contractual dealings, and not the contractual deal- 
 ings for the law. 
 
 Mr Justice Holmes has propounded a theory that 
 contract may be regarded as the "taking of a risk" ; 
 and, in criticising this view, Professor Holland quotes 
 approvingly, as one argument against it, the statement 
 that " when people make contracts they usually con- 
 template the performance rather than the breach." ^ 
 The principle involved in this objection is precisely 
 that which ought to be used against Professor 
 Holland's own theory — the necessity for taking the 
 real meaning of contract as our guiding rule in its 
 technical interpretation.^ 
 
 With reference to the minor points which range 
 themselves round the central doctrine, there is perhaps 
 a tendency to universalize special types too broadly. 
 The two sides of the agreement seem to find their 
 appropriate typical form, however, in the conceptions 
 of offer and acceptance.^ By the junction of these 
 two, the tie is logically created ; and the contract, 
 unless prevented by some neutralising circumstances, 
 or special rule, comes into being. Again, the operation 
 
 1 Holmes, The Gommon Law, p. 301 ; Holland's Jurispruderice, p. 227. 
 
 2 A general argument against the analytic method is given in the 
 author's OutliTie of Legal PMlosophy, ch. ii. 
 
 3 Of. however Kant's view, Philosophy of Law (Hastie's ed.), p. 101, 
 and the notion of stipulation, &c. 
 
24 The Theory of Contract 
 
 of such facts as error, fraud, misrepresentation, undue 
 influence, and force, upon the consent embodied in the 
 agreement, may vitiate it wholly, or create a flaw 
 which renders it liable to be destroyed from one side. 
 This, in English law, gives rise to the question 
 whether the agreement is void or voidable. More- 
 over, it must not be forgotten, that there may be a 
 breach, as well as an observance, of the contractual 
 undertaking. Although, as has been pointed out, 
 contract is ordinarily entered into in contemplation 
 of its fulfilment, provision for its non-fulfilment also 
 occupies the law's attention.'- 
 
 Other points may be mentioned, of importance in 
 any given system of law :• — the capacity of persons, 
 the subjects of rights, to contract ; the modifications 
 of contract which arise in respect of time, place and 
 condition ; the transference and extinction of contract. 
 Most recent authorities who have written treatises on 
 contract have contributed suggestive material for the 
 better classification of the legal doctrine; and some who 
 have only treated of it incidentally — notably Professors 
 Hunter and Holland — have also done so. It might be 
 interesting to compare their results, but that would 
 take us far beyond the limits of our task. It should, 
 
 1 The rights thus created, as remedial, strictly fall out of the sphere 
 of contract ; but their relation to the second of the points above pre- 
 sented is important. See some interesting remarks in Hegel's Philosophy 
 of Bight, and more briefly, in his Philosophy of Mind. 
 
The Technical View 25 
 
 perhaps, be noticed here that two special points are 
 reserved for separate consideration in subsequent 
 chapters ; the restrictions imposed by the State on the 
 objects of contract, and the conception of agency as 
 an extension of contractual power. The former raises 
 directly the question of the relation of contract to the 
 State, which is very important from the social side. 
 The latter may conveniently be postponed until the 
 various bearings of our subject have been more fully 
 brought out. The formalities of contract must be 
 studied with reference to particular systems to be 
 treated satisfactorily ; and the same holds good of the 
 doctrine of " consideration." ^ 
 
 It would also be beypnd our province to enter, 
 very minutely, into the vexed question of the classi- 
 fication of particular contracts. But, adapting a 
 section of Savigny's work on Obligations ^ to our 
 own purposes, we may notice that the chief principles 
 of classification are perhaps the following. First, we 
 may look at the historical origin of the contracts, and 
 consider them in relation to their place in the general 
 development — or, it may be, in relation to their sup- 
 posed historical development, if that supposition has in- 
 fluenced the systematisation of the law. For example, 
 
 ^ Some particular contracts, and the subject of the transference and 
 extinction of obligations are noticed in the Appendix. 
 2 Section 52. 
 
26 The Theory of Contract 
 
 in Eoman law, we may enquire whether they are to be 
 treated as originating in the jus gentiutn or the jus 
 civile. Next, we may consider what may be de- 
 scribed as the internal extent of the contracts ; and 
 classify them as unilateral, or bilateral, according 
 to the bearing of the obligations involved. A third 
 class, of those which are intermediate between 
 the two, is sometimes added. The division of uni- 
 lateral and bilateral contracts is technically im- 
 portant. In contrast to this, we may classify them 
 according to their external end or purpose. They 
 thus become either onerous or gratuitous. This 
 principle is also important ; though the ground on 
 which it is distinguished from that of the previous 
 classification is open to some criticism. Next, we 
 may arrange contracts according to their end, as 
 interpreted by the action, stricti juris, or equitable 
 only, to which they give rise. Again, we may classify 
 them according to the formalities which accompany 
 them. These formalities, however, are rarely re- 
 garded by modern jurists as logically essential points. 
 Lastly, by taking a suitable meaning for " contract," 
 we may classify them according to the scope of their 
 legal power, that is, according to whether they yield 
 an action, or give rise to an exception merely. But 
 this final division is not of importance from our 
 standpoint. 
 
The Technical View 27 
 
 These principles — to whicli we must add the fact 
 that some contracts are obviously " accessory " in 
 scope — can be worked out in various ways; and the 
 enumeration of them ought to give us some concep- 
 tion of the logical basis on which attempts to classify 
 the most important contracts rest.^ Thus, Kant's pri- 
 mary divisions, which he maintains are the rational 
 divisions, are : — (1) Gratuitous, with unilateral ac- 
 quisition ; (2) Onerous, with reciprocal acquisition ; 
 and (3) Cautionary, with no acquisition, but only 
 guarantee of what has been already acquired. These 
 last contracts, he says, may be gratuitous on the one 
 side, yet, at the same time, onerous on the other.^ 
 Hegel follows Kant, in the main, under the three 
 heads — (a) gift, (&) exchange, (c) completion of a 
 contract through a security.^ In a similar spirit 
 Trendelenburg divides his main branch of contracts 
 into those which involve — (1) a donation, where there 
 is an advantage without a counter-exchange ; or (2) 
 a simple exchange ; or (3) an agreement with regard 
 to a common afiair — "Association."* Professor Hol- 
 land, always independent in his standpoint, divides 
 contracts into "principal," which are entered into 
 
 1 A parallel difficulty, mutatis mutcmdis, to that of the claasifioation 
 of contract is found in, the classification of Judgments in Logic, which 
 is simply set forth in Bosanquet's Essentials of Logic, Lect. vii. 
 
 2 Hastie's Kmt, p. 122. ' Philosophy of Bight, sect. 80. 
 * Naturrecht, II. ch. i. 
 
28 The Theory of Contract 
 
 without any ulterior object, and "accessory." His 
 principal contracts lie ranges round the following, 
 heads: — (1) Alienation. (2) Permissive use. (3) 
 Marriage {i.e., to marry). (4) Service. (5) Negative 
 Service. (6) Aleatory gain.^ Such a classification is 
 before all things practical. These examples, each 
 of which is in its way typical, must suffice here. 
 The list might be indefinitely extended. ^ 
 
 Whether we consider it prudent to banish obliga- 
 tion from our legal vocabulary or not, there are 
 certain legal relations placed, as it were, on the fringe 
 of contract, to which attention must be directed. 
 They correspond broadly to the Eoman division of 
 those obligations which arise, not ex contractu, but 
 quasi ex contractu. They may therefore be briefly 
 described as quasi-contracts; and though the term 
 is not altogether satisfactory, it is as good as any 
 that has been suggested. They may also be called 
 
 ^ Jurisprudence, p. 252. 
 
 2 As to Roman contracts, Dr Hunter's tabulated criticism of Justinian's 
 arrangement {Rornan Law, 2nd ed., 458) may be given for reference. 
 A.— Justinian's arrangement (tabulated in extenso by Hunter)— I. Con- 
 tracts re. 11. Contracts verbis. III. Contracts Uteris. IV. Contracts 
 consensu. B.— Hunter's own arrangement— I. Formal Contracts. (1.) 
 {Nexum). (2.) Stipulatio. (3.) Expensilatio. II. Equitable Contracts. 
 Bilateral ; giving rise to an obligation only when one party lias per- 
 formed Ms part of tbe engagement ; corresponding to contracts re ; 
 e.g., mutuum. III. Contracts for valuable consideration— corresponding 
 nearly to the class described erroneously (according to Hunter, p. 
 490) as made by consent alone ; e.g., Emptio Venditio. 
 
The Technical View 29 
 
 " implied contracts " ; but it is perhaps |)etter to 
 restrict this name to those cases in which the implica- 
 tion is most easily traceable. The relations, however, 
 clearly resemble, and are analogous, to contract. 
 Thus, the Indian Contract Act speaks of " certain 
 relations resembling those created by contract." ^ 
 They are in truth distinguished from contract by 
 their arising, not from express agreement, but from 
 the particular circumstance of the case. In other 
 words, it is necessary for us, in following out the 
 scheme of a legal system, to hold that a nexus 
 analogous to contract is created in certain instances 
 from force of circumstances ; or, if we prefer it, from 
 the exigencies of civil society. For, obviously, men 
 in civil society cannot be considered as mere units, 
 independent of each other, in all relations except those 
 in which by an explicit agreement they create a 
 voluntary relation. 
 
 In the cases under consideration, there is clearly, as 
 a matter of fact, a relation between definite persons, 
 which the law clothes with legal consequences. One 
 of the persons becomes bound by a legal obligation, 
 as if he had undertaken it ; a tie is enforced by the 
 law, as if it was a contractual one ; that is the 
 essential point. Often, the person bound may 
 reasonably be held to have agreed to the creation of 
 
 1 Ch, V. 
 
30 The Theory of Contract 
 
 the tie, but that is not, perhaps, essential in all cir- 
 cumstances. The essential is that the law construes the 
 relation in the same way, broadly, as it would con- 
 strue the contractual relation. And it is forced to do 
 so, as we have seen, from its inability to allow the units 
 of society to maintain their abstract independence in 
 all cases except those in which they formally contract. 
 Thus the doctrine of " Recompense " implies the 
 principle that where one person is made a gainer 
 by the lawful act of another, which was performed 
 without any intention of donation, then the first 
 person is bound to recompense or indemnify the 
 second, to the extent of the benefit accruing to him. 
 The often-mentioned Negotiorum Gestio consists, in 
 essentials, in the management of the affairs of an 
 absent person,^ by one who undertakes that task with- 
 out the knowledge of the other, and, it is often stated, 
 on the presumption that the other, had he known the 
 circumstances, would have approved. A 7iexus is 
 here created, to the efi'ect, amongst other things, of 
 giving the negotiorum gestor a right to indemnifica- 
 tion. In "Repetition," again, there is not, in the 
 same way as in the above cases, a legal act performed 
 by one party on which the nexus relies. It rather 
 arises through the effects of a mistake, of an act 
 
 1 Or, in Scotland (e.g.), one unable to attend to them himself. Cf., 
 generally, Inst, 3, 27, 1. 
 
The Technical View 31 
 
 which, is not a real act. Thrown into its most 
 general form, the rule appears to be (though several 
 limitations must be observed in applying it) that when 
 something has been delivered or money has been paid 
 to another, through an erroneous conception, restitu- 
 tion may be demanded.^ From these instances, we 
 may see what sort of relations lie at the limits of 
 contract. Nor does there seem to be any peculiar 
 difficulty in treating of them, except such as arises 
 from the fact that they do not yield to analytic 
 classification with the same readiness that some 
 other classes of legal relations do. The law of Jettison ^ 
 and of Trusts should be considered in this connection. 
 
 1 Gf. Amos' view, summarised in his Science of Law, p. 215. " The 
 rights and duties really belong to the law of ownership." Note also 
 his view of implied contract with reference to what has been said 
 above. The Scots Law (with a reference to the civilians' controversy 
 regarding error in fact and law) will be found in Bell's Principles, 
 sect. 531, et seq. 
 
 2 See Big. 14, 2, 2, 2 ; Hunter, Roman Law, p. 516. 
 
CHAPTER III 
 
 IS MARRIAGE A CONTRACT ? 
 
 We have already maintained, generally, that the 
 important relation of marriage cannot be considered 
 as in any true sense a mere contract ; but, as the 
 subject is one which is frequently discussed, we may in 
 pursuance of the plan mentioned in the first chapter 
 direct attention more specifically to some of the facts 
 which help to prove our contention. In doing so 
 we shall confine our view to monogamous marriage 
 in its developed aspect. A well-known chapter 
 on this subject in Lord Eraser's Husband mid 
 Wife,^ furnishes quite an armoury of legal arguments 
 against the contractual theory. The truth seems to 
 be that marriage possesses one of the characteristics 
 of a contract, inasmuch as it cannot be entered into 
 without the consent of at least two parties. But 
 here the analogy ends. Even in a system of law 
 in which, like that of Scotland, marriage is regarded 
 apparently from the contractual point of view, the 
 leading features of a contract are wanting in this 
 
 1 Husband and Wife, ch. ii. — " The Legal Character of Marriage." 
 
Is Marriage a Contract ? 33 
 
 relation. In contract, the parties can attach any 
 conditions to their bargain which are not against 
 good morals, or public policy. The contract may be 
 conditional in regard to its beginning ; and its dura- 
 tion is dependent on the "will of the parties. In 
 ordinary partnership, with which marriage is some- 
 times compared, one of the partners may, if it is so 
 agreed, be the manager, with greater or less power ; 
 or all may have equal power. In fact, the rule is, 
 that everything connected with the origin, the 
 administration, and the termination of contract, may 
 be made a matter of bargain. In marriage, none 
 of these characteristics is present. When marriage 
 is entered into, it is not governed by private con- 
 tract in its most important particulars, but by the 
 stereotyped law of Husband and Wife. It cannot be 
 entered into on condition that a certain event shall 
 occur, or that it shall be dissolvable at pleasure, or 
 that it shall last for a certain fixed period of time. 
 The dominant power of the husband cannot be handed 
 over to the wife by stipulation. The husband cannot 
 by mere agreement shake off his obligation to main- 
 tain the wife. The relation between the husband and 
 wife extends an influence to their relatives, and 
 maintains its influence even when death ends the 
 marriage. The husband and wife, again, create not 
 only their own status, but the status of their children ; 
 
34 The Theory of Contract 
 
 and this status can never be taken away, or infringed 
 by the acts of the parties. 
 
 Such, according to Lord Fraser, are some of the 
 characteristics which legally differentiate marriage 
 from an ordinary contract. And though these are 
 well known, their import is perhaps not sufficiently 
 realised by the general reader. They bear out the 
 idea that marriage is not a contract, but an institu- 
 tion ; ^ a moral and sociological fact which cannot be 
 placed on the same platform with an ordinary agree- 
 ment. The rights and duties involved have not that 
 isolated character which enables them to be treated 
 as mere legal obligations, and nothing more. A 
 system of relations is implied. Stahl, whom Fraser 
 quotes, has thus summed up the argument : " Mar- 
 riage is in no way a contract, for it is above, not 
 under, the power of the parties. It derives its type, 
 its character, its binding force, not from them, but 
 from its own moral nature. As it does not spring 
 from them, so by them it cannot be rescinded. 
 Not only the moral, but even the j uridical, elements 
 of marriage — such as the community of domicile, 
 the reciprocity of service — are far from being 
 matters of contract. These are inseparable from 
 marriage; when it exists, they exist. Even the 
 
 1 The religions aspect of marriage is not, of course, considered in 
 tMs discussion. 
 
Is Marriage a Contract ? 35 
 
 coi)wnsus on which marriage rests is distinguished 
 from other contracts, inasmuch as it does not relate, 
 as do other contracts, to the limited transfer of 
 particular interests, but to the unlimited surrender of 
 the person." ^ 
 
 The doctrine that marriage is merely a form of 
 partnership (a phase of the contractual theory) has 
 been often put forward.^ In modern times it is 
 generally advanced by those who have some practical 
 issue in \dew, such as the widening of the law of 
 divorce. But in their desire to press forward their 
 practical ends, its advocates, if they apply it to exist- 
 ing circumstances, make the mistake of endeavouring 
 to prove too much. On the other hand we have 
 already pointed out how in one respect marriage ap- 
 proximates to an ordinary contract ; and that there 
 is some excuse for marriage being technically treated 
 as such, will be shewn in the sequel. 
 
 The main objections to any attempt to realise a 
 consistent contractual doctrine in society seem to flow 
 from the fact that marriaoje is the foundation of the 
 unity of the family. It cannot be treated by itself; 
 
 ' Phil, ih'i lurhts, 11. sect. 67 ; Fmsor, I. p. 168. For two famous 
 Roman dofinitions of marriage, see Dig. ^3, 2, 1, and /».rf., 1, 9, 1. 
 
 - 'Plio notion of " sale,'' again, survives cliiefijr as the subject for a 
 grim sort of pleasantry. Only when the woman is regarded as selling 
 Jnrself does it illustrate our argument. Kant's interpretation of mar- 
 riage is well known, and has often been criticised. 
 
36 The Theory of Contract 
 
 a constant reference to the family is necessary in any 
 adequate consideration of its nature. The physical 
 facts ranged round marriage are unique ; they occupy 
 a peculiar place in the moral and social world ; and 
 family relationships form the natural basis for a 
 higher ethical life, which must always be kept in 
 view. The family is thus — it is a mere platitude to 
 say so — an all-important means of developing moral 
 tendencies. The altruistic sentiment finds there its 
 first appropriate medium. The prominent place 
 which the family occupies in the history of human 
 relationships, comes largely from the facts, that it has 
 a permanent physical basis, and that it creates a 
 comparatively permanent relation between human 
 beings. It thus aff'ords men and women an oppor- 
 tunity of knowing, and forming close associations 
 with, a circle or group of their fellows ; a group 
 which they accept as largely determined for them. 
 In our friendships, it must be observed, we pick and 
 choose : we allow a chance acquaintanceship to ripen 
 into friendship only after deliberation. Two neigh- 
 bours become true friends for their mutual advantage. 
 They almost contract: they adopt the legal idea, 
 and adapt it to the circumstances. But the family 
 throws the individual into a group where a diff'erent 
 influence is at work. No doubt, the importance of 
 this influence may be exaggerated. The family circle 
 
Is Marriage a Contract f 37 
 
 is a narrow circle. The history of family life in the 
 world is not free from the blemishes which mar all 
 other histories. But the tendency at present seems 
 to be to under-estimate rather than to over-estimate 
 its moral value. 
 
 The chief functions of the family in modern social 
 life may perhaps be indicated thus. Through 
 marriage, it provides a suitable union for the sexes, 
 in which tbeir ethical nature can be developed. It 
 provides for the support, and to certain extent for the 
 education, of the children — the rising generation of 
 citizens. It forms not only such close relationships as 
 those of husband and wife, parent and child, brother 
 and brother, but also many wider though weaker 
 ties, which should be noted. It helps general social 
 intercourse, by promoting, in addition to the asso- 
 ciation of individuals, the association of group with 
 group. And it presides over the creation of new 
 citizens, when the children have reached maturity and 
 take their place in the political world. It has, more- 
 over, been generally supposed that a special sphere, 
 in which women might do the best work of which 
 they were capable, was provided by the family. 
 Whether the activities of women are not unduly 
 confined by the influence of such a conception is an 
 interesting question of Applied Ethics. 
 
 Apart from this altogether, however, there is 
 
38 The Theory of Contract 
 
 unquestionably a tendency in the legal mind to 
 disintegrate the family, in its legal aspect, as much 
 as possible. The relation of husband to wife, for 
 example, is regarded as giving rise to, first, a series 
 of rights, which the husband possesses, over the wife, 
 and against the world. These are rights in rem. In 
 the second place, it is regarded as giving rise to a 
 series of rights which the husband possesses against 
 the wife — rights in 'personam. And because these two 
 series can be distinguished as rights in rem,, on the 
 one hand, and as rights in personam, on the other, 
 they are relegated to the opposite sides of the legal 
 system, so that all connection between them is lost ; 
 and fragments of the marital relation, in the form of 
 rights, are scattered through the whole corpus juris. 
 Such a principle rests upon unqualified individualism. 
 In the carrying of it out, every unity, but that of the 
 legal person, must be destroyed. The lines must all 
 be drawn from person to person. And there is this 
 to be said for it — that it does represent, though it 
 pushes it to an extreme, the abstract tendency of law. 
 In developing it, marriage, regarded as an isolated 
 fact, is often, perhaps naturally and certainly with 
 some historical justification, treated as a contract : 
 for the contractual view is believed to be best adapted 
 to the general scheme. A similar principle can, of 
 course, be applied to the parental relation, though 
 
Is Marriage a Contract f 39 
 
 that relation cannot on any scheme be reduced to a 
 contract. 
 
 An analogy has often been drawn between the 
 family and the State. The unity of the latter, it is 
 often maintained, grew out of that of the former. 
 Both stand in marked contrast to the individual. 
 But the parallel must not be exaggerated. In the 
 individual we find an individual will, a will which is 
 obviously at one with itself. In the State, also, we 
 find a will, the general or universal will, perhaps not 
 so easily comprehended, but still prominent enough 
 to form the basis of most theories of the nature of 
 the State. In the family, although there must be, 
 to a certain extent, a united will, corresponding in 
 some degree to that of the State, the " family will " 
 is not sufficiently prominent to be placed alongside of 
 the others. In the family, the bond is rather that 
 of affection ; not afi"ection apart from will, but affection 
 dominating will. That is the chief reason why the 
 family falls into the sphere of private, rather than of 
 'public law. It is also the reason why there is no real 
 " family law," which can be compared with " national 
 law." ^ And it is the reason why contract — an 
 important relation between individuals, and, as we 
 shall see, an important relation between States — is 
 not an important relation between families. The 
 
 1 Gf. Clark's Practical Jurisprudence, p. 147. 
 
40 The Theory of Contract 
 
 family forms, as it were, a unity by itself. Contract 
 to a certain extent disintegrates it, but does not 
 affect it further. 
 
 A word may in conclusion be said as to divorce. 
 The argument that marriage is not a mere contract 
 implies that divorce is not merely the result of a 
 breach of contract. It is impossible to consider it at 
 all, in short, without taking into consideration the 
 ethical questions which it involves. And that is 
 widely recognised. 
 
CHAPTER IV 
 
 THE BACKGROUND OF THE STATE 
 
 Hitherto we have been looking at contract as if it 
 were the most conspicuous object set in a landscape 
 of which the background was formed by the State. 
 It is now necessary to observe this background more 
 closely ; in other words, to take up the second of the 
 two social unities which we have to consider. And 
 in order to do so we must notice the view, that rights 
 of contract, like all other rights, a,re grounded in a 
 common interest which men who find themselves 
 placed together in a state of society necessarily 
 possess. This is the theory advanced by Idealism, to 
 which reference has already been made. According 
 to Professor Green ^ — to begin with his way of putting 
 the matter — the consciousness of having rights is 
 co-ordinate with the recognition of others as having 
 them ; and the basis of both is the conception of a 
 common good which at least ought to be attained. 
 Without this conception the recognition of a mere 
 power, as a right, would not be possible. The mere 
 power on the part of one person is recognised by 
 
 1 Worh, II. pp. 350, et seq. 
 
42 The Theory of Contract 
 
 others as a right which ought to be exercised, in 
 consequence of the logical principle that these others 
 regard it as a means to an ideal good, in which all are 
 interested ; and the possessor regards his power as not 
 merely a power, but also a right, through the con- 
 sciousness of this social recognition. Not, of course, 
 that such a principle is avowedly acted on ; but it is 
 the philosophical basis on which all rights rest, the 
 rational explanation of their existence. The same 
 principle explains why everyone who is socially a 
 person, and, therefore, capable of entering into this 
 conception of a common good, should be regarded as 
 capable of having rights. It is thus that he is 
 enabled to play his part in society ; he thus obtains 
 a footing on a platform to which there is no other 
 pass. 
 
 Green, therefore, makes two points cardinal. First, 
 that no one can have a right except as a member of 
 a society. Second, that that society must have a 
 common good recognised by the members as that 
 which should be the ideal good for each. Yet one 
 who asserts these facts must not be taken as denying 
 the view, that "the logical disentanglement of the 
 conception of rights precedes that of the conception of 
 the legal person, and that the conception of the moral 
 person in its abstract and logical form is not arrived 
 at till after that of the legal person." Rights are 
 
The Background of the State 43 
 
 thus in one sense^ — and it must be admitted a broad 
 sense — tbe negative realization of a social capacity. 
 It is not necessary, however, that, in the progress of 
 Right as such, the individual should in an active 
 way make the common good his own.^ 
 
 If we accept this view of there being a social well- 
 being at the root of legal principle, it will be difficult 
 for us to escape from the conclusion that society, or, 
 in developed communities, the State, is essentially the 
 ethical unity, and that an ethical end is involved in 
 all its activities. This does not imply that the means 
 which it uses to promote what it conceives to be 
 moral ends are always well considered ; or that the 
 ends which it should seek to promote do not involve 
 arbitrary detail. But it does mean that in spite of all 
 the defects which may reveal themselves in the appli- 
 cation of the principle, society ought to strive to 
 
 2 TVorhs, II. p. 350. (For the otlier side of tie question, see Holland's 
 criticism, Jurisprudence, p. 56.) It is hardly necessary to refer the 
 reader to the many recent works in English which adopt the Idealistic 
 standpoint, to be explained as we proceed. But Green's Prolegomena to 
 Ethics, and Dr Caird's Kant and Hegel, must be mentioned, together 
 with the various translations of Hegel. For our purposes Mr Miller's 
 Philosophy of Law, and Prof. Mackenzie's Social Philosophy, will be 
 found useful in their spheres. A very clear view of the main specu- 
 lative idea will be found in chapter viii. of Prof. Jones' Lotze, and a 
 well-known survey of Hegelianism in Jowett's Plato, vol. iv. pp. 316, 
 et seq. Green has a Lecture on " Liberal Legislation and Freedom of 
 Contract" (Works, vol. iii.) which appeals rather to the citizen than 
 to the lawyer or philosopher. 
 
44 The Theory of Coittract 
 
 harmonise the various elements which appear in it, in 
 an ethical whole. 
 
 Such a principle of common good, we may repeat, 
 can only be regarded as implicit in the ordinary 
 consciousness ; and probably Green might have 
 emphasised this more strongly, though he sets it 
 forth quite clearly. It is always tending, however, 
 to work itself out ; and in contract, as we have 
 already argued, the reciprocal element is the all- 
 important one. The theory, in truth, so far from 
 implying that we should shut our minds to the 
 teaching facts of history, or undervalue what Plato 
 calls "the long and difficult language of facts," as 
 some have suggested, on the contrary, welcomes 
 historical investigation sincerely. But the historical 
 view requires to be supplemented by philosophical 
 reflection. The language of facts must itself be 
 studied. 
 
 To illustrate this, let us take the case of one of the 
 most general and important conceptions with which 
 we are concerned, that of law. In his careful and 
 scholarly examination of Austin's analytic views. Pro- 
 fessor Clark, who is by no means inclined to favour 
 the philosophic school unduly, after a thorough review 
 of the philological facts of history, comes to this con- 
 clusion. Where there is amongst any body of human 
 beings, associated together, a rule of conduct actually 
 
The Background of the State 45 
 
 operating upon their wills, by virtue of human 
 displeasure, that constitutes a law ; that is to say, 
 people would not feel that they were employing any 
 metaphor in calling such a rule, a law. The term 
 fits the fact. The displeasure which is involved, may 
 either be that of the whole association, or of a part, 
 or of some other human beings ; but that is by the 
 way. " Formulation, if not imposition, by a political 
 authority is more and more the case with law, as it 
 approaches modern times ; but it has not always been 
 the case, and it is not essential to the true, that is, the 
 commonly received signification of law in general." ^ 
 With regard to the general object of law. Professor 
 Clark will not allow, indeed, that it is correct to 
 assert that it is a moral one, in the ordinary sense of 
 that word, as he maintains is done by Savigny. 
 Instead of the 'prime moral end of law, he says, we 
 must substitute that which Savigny considers second- 
 ary — the fublic weal.^ But Professor Clark agrees 
 with Savigny's theory of original law, as against that 
 of the analyst. " Certain rules of conduct sanctioned 
 by the displeasure of the community must necessarily 
 grow up in the first association of three or four fami- 
 lies. These may be even then reasonably considered 
 laiv, and a common feeling of obligation may be ac- 
 cepted as the test which distinguishes them from 
 
 ^ Practical Jv/risprudence, p. 134. ^ Ihid., p. 188. 
 
46 The Theory of Contract 
 
 other customs. This test, however, can scarcely be 
 appealed to in any but the most primeval times." ^ 
 
 Such a result is possibly rather negative and barren, 
 and in that respect disappointing ; but it is the 
 conclusion yielded by a wide investigation of the idea 
 of law in its historical aspect. Taken as a whole, it 
 certainly does not conflict with the philosophical 
 meaning which we have attributed to Eight. It would 
 seem to do so only if our doctrine were misunderstood 
 to imply that the direct and avowed object of law 
 was always to promote morality in its differentiated 
 form. The theory does not attempt to explain the 
 logical ground of law, and we have here used it only 
 as an illustration; but it enables us to fit into the his- 
 torical landscape, without much difficulty, and not- 
 withstanding the criticism passed on Savigny, whom 
 we need not stop to defend, that reciprocity and that 
 organic connection for which we are contending. The 
 basis of law in our sense of the words is not the object 
 of law in Professor Clark's. Of course, an extraneous 
 law may at any time be forced on a people — the view 
 leaves room for that — but such a fact does not affect 
 the logical explanation of law ; it is a mere anomaly. ^ 
 
 ^ Practical Jurisprudence, pp. 332, 333. 
 
 2 The beginning of Grotius' De jure belli ac pads may be usefully 
 studied in connection with this theory. Law, there, is a rule of moral 
 actions, obliging to that which is right. Prof. Clark says: "With 
 the distinction, which Grotius goes on to make, of law, into natural 
 
The Background of the State 47 
 
 Our whole argument will perhaps be more clearly 
 seen if we bring out, at this point, the conception of 
 the legal person as, primarily, a being who is by his 
 very nature rational. When he claims for himself, 
 and against others, he in principle recognises the con- 
 verse — a right on the part of others to claim as against 
 him. If we deny this reciprocity, then we practically 
 deny his legal personality. A right, when understood, 
 implies the recognition of it by others, on the ground 
 of a common rational nature. The persons of law are 
 thus in principle exclusive, but the exclusion must not 
 be conceived in an abstract or physical way. Their 
 spheres must be mutually limited ; they must so 
 exclude each other as not to contradict the principle 
 upon which exclusion is possible. And thus we see 
 that the interference of the State — not indeed exclu- 
 sively in the interests of law itself, but of something 
 much wider — the whole social organism — is justified. 
 
 and voluntary, I am not at present concerned. But as to his view of 
 law in general, I would conclude by remarking, first, that it agrees 
 exactly with the conclusions of philology in deducing Lam from a prior 
 recognition of Riyht : second, that it does not necessarily include the 
 idea of any determinate imposer, but is defined primarily by its 
 practical results, i.e., as regulating human conduct." Jurisprudence, p. 
 103. Oijus naturale, Grotius says (1, 1, 10) that it is " dictatum rectae 
 rationis, indioans actui alioui, ex ejus convenientia aut disconvenientia 
 cum ipsa natura rationali ac sociali, inesse moralem turpitudinem aut 
 necessitatem moralem, ac consequenter ab auctore naturae Deo talem 
 actum aut vetari aut prascipi." Hegel, in a short notice of Grotius in 
 his History of Philosophy (E. T.), III. p. 315, emphasises the empirical 
 side of Grotius' reasoning ; but all sides demand attention. 
 
48 The Theory of Contract 
 
 The speculative hypothesis which corresponds to 
 this view ^ may be summed up in the statement that 
 the consciousness of self implies the consciousness of 
 the not-self, and particularly of the not-self in the 
 form of other selves. In order to know himself as 
 rational, man must diBtingnish himself from, while he 
 relates himself to, his fellows, who are also rational 
 He cannot simply dissociate himself from others, say- 
 ing, " I am different from these" : nor can he simply 
 unite himself with them, implying, ■' "We are all the 
 same." For in the effort to do either, he makes an 
 abstraction. He throws out of account an e.=^sential 
 factor in the problem. The idea of the person as an 
 end to himself is therefore not a complete conception. 
 We may adopt it temporarily if we choose — indeed we 
 must adopt it in dealing with the law — but we can 
 only adopt it under the resei-vation that it implies a 
 limited point of view which must afterwards be 
 changed for a more adequate one. The whole com- 
 munity is bound together as one political society. 
 Through that community the abstract idea of the 
 person is being realised; and it cannot be dealt 
 with except under reference to the community. 
 The civic community, in other words, is not merely 
 the means of maintaining, or sanctioning, the doctrine 
 of the legal person ; it has a closer connection with 
 
 1 Caird'6 Kard, IL \:\,. .302, d seq. 
 
The Background of the State 49 
 
 it than that, because each conception implies the 
 other. 
 
 The main difficulty in such a doctrine is to see how- 
 there can be in any true sense a unity between the 
 self-conscious individuals. Or we should rather say, 
 not to sec that there is some such unity, but to realise 
 it clearly, ;uid stake our faith on its existence. The 
 difficulty, however, seems to rest on the presupposition 
 that our consciousness is in the first instance inwardly 
 complete and at home with itself, and that we after- 
 wards add to it, bit by bit, as it were, our knowledge 
 of outward things, and of our fellowmen. Now this 
 supposition is erroneous. When we track the idea 
 of our thus knowing objects down to its ultimate 
 for'm, we find that there confronts us in the last 
 resort a mere sensation which cannot be inter- 
 preted except in terms of our self-consciousness, 
 and which, so far as it is a pure datum from with- 
 out, ultimately vanishes, on our discovering that 
 in order that it may be even a sensation, we have 
 already objectified it. Our having such a sensation 
 implies, even in its origin, a transition from simple 
 sensitiveness, if we can conceive of such a state, to a 
 consciousness of an ol)ject felt ; and this is, on the 
 other hand, the beginning of our conscious life. Now 
 this principle — the principle that self-consciousness 
 must grow with, and by means of, the consciousness 
 
50 The Theory of Contract 
 
 of an object — applies with peculiar force to our social 
 life. Consciousness of self is brought out through the 
 consciousness of other selves. It results from a return 
 upon the self, made by us after we have sought other 
 selves in society, and not from a solitary development 
 which each individual self has undergone, so to speak, 
 in vacuo. The opposition between ourselves and 
 others is the result of the knowledge of unity which 
 has been gained. The antagonism is based on a con- 
 viction of the identity beneath it. And so, interpreting 
 this in the manner which seemed best suited to the 
 object we had in view, we have advanced into pro- 
 minence the idea of a common good as logically implied 
 in the existence of a community of rational beings. 
 
 Such a conception, then, involves in turn a concep- 
 tion of the functions of the State which brings with 
 it important consequences ; and some of these which 
 most directly concern contract may be considered. 
 From our particular point of view, we may divide the 
 legitimate efforts of the State to promote its weU-being 
 into two classes. It may, in the first place, seek to 
 maintain specific moral principles. It may attach 
 penal consequences to fraud. Or it may attach 
 consequences which are not in themselves penal, but 
 are admittedly very unwelcome, to other forms of 
 wrong-doing. In the second place, it may seek to 
 promote the general harmony of the civic organism 
 
The Backgrotmd of the State 51 
 
 by restraihing acts on the part of individuals, which 
 tend to disorganise it. These two views obviously 
 shade into one another. But we may forget for the 
 moment that immorality must ultimately disorganise 
 political society, and look at the two evils, to which 
 we have referred, as distinct. 
 
 We may say then, generally, in regard to contract, 
 that (leaving out of account the idea of illegal agree- 
 ments, which are regarded simply as illegal without 
 any further reason being offered) the State may refuse 
 to recognise a so-called contract on two broad grounds 
 — because it is immoral, because the object is contra 
 honos mores; or because it is against public policy, 
 because, apart from the question of its abstract 
 immorality, it is inexpedient to allow* it free scope in 
 the unity of civic life.^ 
 
 These principles may easily be seen to be of great 
 value, though to follow them out in the details of 
 
 1 The legal point of view may be illustrated by reference to the 
 following statement of Sir F. Pollock, regarding English Law. " We 
 have then, in the main, three sorts of agreement which are unlawful 
 and void, according as the matter or purpose of them is — A. Contrary 
 to positive law. (Illegal.) B. Contrary to positive morality recognised 
 as such by law. (Immoral.) C. Contrary to the common weal as tending 
 — (a) To the prejudice of the State in external relations ; (6) To the 
 prejudice of the State in internal relations ; (c) To the improper or 
 excessive interference with the lawful actions of individual citizens — 
 {against public policy).'^ Contract, p. 261. We shall for convenience 
 sake continue to speak of these as " contracts," though they are not 
 " contracts in law." 
 
52 The Theory of Contract 
 
 social life is difficult ; and, as we have already 
 emphasised, an arbitrary element, or an apparently 
 arbitrary element, must enter into the application of 
 Them. 
 
 In seeking to promote vrelfare along the first of 
 these lines, the State must be careful, as has often 
 been pointed out. not to hinder the development of 
 character by the attempt to enforce duties, the due 
 performance of which depends upon voluntary eifort. 
 But, on the other hand, there are obvi(juslv manv 
 moral dehnquencies, which cannot be allowed to take 
 place in a civilised societv. And further, with special 
 reference to contract, we must observe that the State 
 cannot allow itself to be made a partv to obvious 
 immoralities, by enforcing contracts which have been 
 entered iuto for their performance. To do this would 
 be incompatible with its very nature. It mttst at 
 least stand aside, and refuse to lend its arm to the 
 enforcement of them. Sueli conti-aets should, of 
 course, cijfend agaiust the broadest principles of mor- 
 ality, about which there is no doubt in the common 
 consciousness : for it is not the business of the Stare 
 to enter into refinements of ethical speculation. 
 
 Again, in it- efforts to maintain what has been 
 called its public pohcy, the State meets with an even 
 more difficult task. Its efforts are frequently directed, 
 for example, to prevent what it considers to be undue 
 
The Background of the State 53 
 
 restraint of trade. We have already referred to the 
 law of trade-unions in this connection. In maintaining 
 the freedom of the person, the State requires to pre- 
 vent the undue interference of some persons with the 
 freedom of others. It is only thus that the idea of 
 freedom can be carried out. 
 
 On the other hand, we have indicated that in 
 many important cases the two views which we have 
 been considering merge into one. This is probably 
 the case in the instance of that virtual slavery of 
 the labourer, of which we formerly treated. We then 
 appealed to the moral sense against a practical serfdom. 
 We might with equal force have appealed to public 
 policy. Such an instance shews how, ultimately, the 
 moral end is involved in similar instances. The 
 limits of legal freedom must be ultimately determined 
 by an appeal to the sense of social morality. The limits 
 of the State's interference with contract depend on the 
 same principle. And in marked cases, at any rate, the 
 inadequency of the legal idea to deal satisfactorily 
 with the human relation will shew itself, if the 
 doctrine of contract is critically examined. We saw 
 how this might be brought out in the case of 
 " services." 
 
 In short, a compromise is continually taking place 
 between the abstract principle of the equality of men, 
 in virtue of their rational nature, and the obvious 
 
54 The Theory of Contract 
 
 inequalities which exist between them. This gives 
 rise both to freedom and to restraints on the freedom 
 of contract. And whenever the State, taking a 
 possible social relation in the abstract, such as 
 marriage or a particular kind of service, fixes the 
 form, and says to its citizens — " You must either enter 
 into that relation in exact accordance with the form 
 which has been appointed, or you must not enter into 
 it at all," there emerges the most subtle, and therefore 
 the most important, type of social restraint. In a 
 similar spirit the State may see fit to limit the 
 freedom of bequest, because it conceives that by 
 doing so it may really be securing the freedom of the 
 community at large. 
 
 A practical consideration which must always aff"ect 
 us in dealing with the question of new restraints,^ 
 is what we might call their " definiteness of bearing." 
 A proposed alteration ought not only to give promise 
 of some benefit, but ought to be, in principle, sufii- 
 ciently limited for us to see that it will not work 
 mischief in other departments. We must be able to 
 see to the end of the lane. We ought to know not 
 only what are the limits which define the measure in 
 question, but what the strength of these limits wiU 
 
 1 Gf. authorities cited in BluntsoMi's Thm-y of the State, 2nd Eng. 
 ed., p. 326. Bluntsclili himself is hardly so lucid in his remarks on 
 this subject as he usually is. 
 
The Background of the State 55 
 
 be should they ever come to be tested in the political 
 world. Thus, even though a measure may be justified 
 temporarily, by some necessity of social life, we ought 
 to ask ourselves what will be its moral effect on legis- 
 lation, and what similar alterations it will carry in its 
 train. To this feeling, even more than to any abstract 
 theory, is due the suspicion with which new measures 
 of such a kind are regarded. And no one can doubt 
 that the demand made for caution in this respect is a 
 justifiable and permanent one.^ 
 
 But the State not only forms the background against 
 which private contract stands out ; it is also one of 
 the parties actually engaged in a species of contract 
 of growing importance. Hence, although it is hardly 
 our province to enter into international law, a few 
 words regarding the international a-spect of contract 
 
 1 In an article whici Mr Albert Gray contributes to Vol. I., No. 1, of 
 the Jowrnal of the Society of Comparative Legislation, he gives a 
 siunmary of new or further legislative experiments which the United 
 States have made during the year 1895, in regulating matters which in 
 the British Empire are either within the realm of law or within " the 
 wider sphere of debate"; and it is curious to note how markedly 
 "ethical" in intention these experiments are. Thus they have for 
 their principal subject-matter— the marital relations, gambling and 
 lotteries, intoxicating liquors, employment of females and others in 
 saloons, &c., abuse of cigarettes, Sunday observance, pernicious litera- 
 ture, education (including, e.g., the teaching of kindness to animals, in 
 Washington), women's suffrage, labour and factory regulations, boards 
 for labour disputes, exemptions from execution, usury, the age of 
 consent, convict labour, first offenders. It would be beyond our pro- 
 vince, however, to discuss these in detail. 
 
56 The Theory of Contract 
 
 may be added. The persons of international law are 
 States— States which fulfil the conditions required 
 of them in order that they may enter into the family 
 of nations, chief of which is perhaps that of external 
 sovereignty. The circle of States amongst which the 
 claims of international law have been recognised is 
 largely the outcome of historical circumstances, but a 
 common civilisation may be regarded as the basis of 
 the union. International ownership is mainly recog- 
 nised in the form of territory, which a State possesses 
 as one of the conditions of its international existence. 
 The State also possesses and exercises many rights 
 analogous to those of property. Its contractual rights, 
 however, are not less important. They are those of 
 treaty, and result in international alliances, commer- 
 cial agreements, and the like. Treaties, from one 
 standpoint at any rate, correspond closely to con- 
 tracts ; 1 and notwithstanding the differences which 
 are obviously demanded by the circumstances of the 
 
 1 The other view is that treaties correspond, not to contract, but to 
 legislation. Both views contain an element of truth, but it is sometimes 
 maintained that the legislative view is the more philosophical. See 
 Lect. II. of Miller's Law of Nature and Nations in Scotland, where what 
 may be called the new theory of international law, along lines suggested 
 by Sir James Stephen's History of Criminal Law and J. K. Stephen's 
 essay on international law, is worked out. It is submitted here, how- 
 ever, that the most prominent facts of international evolution can be 
 fairly represented along the lines of the older theory, which may 
 require modification, but should not be abandoned. 
 
The Background of the State 57 
 
 case, the parallel between the treaty and the private 
 contract is remarkable. A State, it should be ob- 
 served, can only contract with other States, through 
 its representatives ; and a comparatively large portion 
 of the doctrine of international law is occupied with 
 defining the position of international representatives, 
 not only as the contracting agents of the State, 
 but in respect to the other functions which they 
 fulfil. 
 
 The influence — or perhaps we should say the reaction 
 — of international law on the modern idea of a State 
 has been a powerful one. But while this influence 
 tends to definiteness and explicitness in detail, we 
 must not forget that the philosophic conception of a 
 State is not to be nailed down to international usages, 
 but must seek to embody the spirit which the usages 
 imply. 
 
 Bluntschli, for instance, has attempted to work this 
 conception out, from his own point of view, in his 
 excellent treatise on the Theory of the, State, a fact 
 which gives his book much of its value. We need 
 only notice here that of the various characteristics of 
 a State which are commonly enumerated — a number 
 of men, a fixed territory, unity, sovereignty, and the 
 like — the characteristic of sovereignty is what pri- 
 marily concerns us in dealing with the State's con- 
 tractual power. In its external aspect, sovereignty 
 
58 The Theory of Contract 
 
 represents the legal personality of the State : it gives 
 it its position, as one amongst a group of States, all 
 entitled to contract on an equal basis and to expect 
 that the international acts and forbearances which 
 form the matter of the contract will be fulfilled. 
 
CHAPTER V 
 
 THE RELATION OF CONTRACT TO PROPERTY AND 
 AGENCY 
 
 We have devoted sufficient attention to the rela- 
 tionship of contract to the family and to the State 
 to prevent us from leaving these important unities 
 altogether out of account ; we may now ask ourselves, 
 What is its relation to another conception, which, like 
 itself, is linked to the legal person — that of property ? 
 It will be remembered that in the first chapter it was 
 suggested that, while contract indicated the relation 
 of persons to person, property indicated the relation 
 of person to things. But we must look at the subject 
 more practically. 
 
 Our ideas of private property will, in the main, be 
 found to embody one of two very general principles 
 regarding its social significance. We may look on the 
 holding of property as the great means by which men 
 have advanced to their present position in the world 
 of nature. We may look at it as indicating an 
 immense conquest over natural resources, which has 
 gradually been taking place ; and not a conquest only, 
 but an acquisition, in which each individual has found 
 
6o The Theory of Contract 
 
 the material for realising himself. On this view pro- 
 perty is, in its essence, a good. On the other hand, 
 we may look at private property as, in its essence, an 
 evil. We may say that the whole history of the 
 human race is the record of placing of restrictions on 
 the insatiable desire of man to possess in a private 
 capacity. In the first stage of his history, he desired 
 everything, sought to make everything his very own, 
 toiled for a false ideal. He is now beginning to see 
 that he has been pursuing a will-o'-the-wisp ; that 
 society advances by cutting down his title to hold as 
 " his very own " ; that true well-being will come to 
 him only when he gives up the whole attempt, when 
 the social principle dominates him completely.^ Most 
 of us adopt either the one of these standpoints or the 
 other, without, it may be, bringing our own doctrines 
 into clear self-consciousness. Now it must be noticed 
 that it is not impossible, while adopting, approxi- 
 mately, the first theory, to admit that there is some- 
 thing to be said for the second. The latter, it may 
 be argued, represents, not the whole truth, but the 
 half. It represents the fact that man's good is not 
 an individual, but a social good : history details the 
 struggle through which man has come to see that a 
 purely selfish ideal of property is a false one. But 
 this is not incompatible with our holding that through 
 
 ' Oj. Dr. Stirling's Philosophy of Law, p. 59. 
 
The Relation of Contract to Property 6i 
 
 the means of private property, men have in the past 
 realised their capacities, and that the same instrument 
 remains necessary to such realisation in the future. 
 A difficulty which was formerly considered has, in 
 short, appeared again. Selfishness and social feeling 
 are in conflict. And the solution will be found, if 
 our previous argument was correct, in the social 
 nature of the self. We need not repeat ; suffice it to 
 emphasise here that this social view by no means 
 involves the abandoning of property as private, but 
 rather implies the gradual modification of ideas and 
 ideals, so that that which is rightly regarded as 
 private, will come to be regarded as, in one sense, 
 public as well. Nor, on the other hand, does it bind 
 us down to the conclusion that everything which 
 is regarded as legitimate private property now will 
 be regarded as legitimate private property here- 
 after. It does not force us to pronounce on such 
 details. 
 
 We may call property, as it appears in society, 
 then, the sphere of the " mine and thine " ; of the 
 external " mine and thine," as Kant would say, 
 though the externality must not be confused with the 
 absence of relation to the owner. A theory of pro- 
 perty implies a theory of the relation of mine and 
 thine ; and contract presupposes a material, which is 
 property, or which is regarded in the light of pro- 
 
62 The Theory of Contract 
 
 perty.^ For we must contract about something, and we 
 must have clear views of what is meant by the owner- 
 ship of that material if contract is to be of value in the 
 social world. Hence, the notion of property, as has 
 often been pointed out, is logically prior to that of 
 contract ; and the two are so closely united that a 
 discussion of either necessarily affects our views of the 
 other. It is true that in discussing contract we 
 naturally assume property to be something fixed, a 
 known datum, which we use without special inves- 
 tigation. But the materials of contract caimot be 
 wholly separated from the form. All we can say is, 
 that in a discussion of the general conception, the 
 materials must necessarily take a secondary place. 
 
 Now in our day a suspicion has been raised that 
 certain, at any rate, of the materials which constitute 
 private property as it exists among us are wrongly 
 included in that category. These are frequently said 
 to be the " instruments of production " ; and we may 
 represent this suspicion, from our point of view, by 
 suggesting that it is a hindrance to true social freedom 
 that these things should be allowed to remain as 
 private property. They should be placed under 
 collective control. It may indeed be argued that all 
 
 1 Even an act of a personal nature which forms the matter of a con- 
 tract is regarded very much in that light for some purposes. But of 
 course the " thing " or " property " is taken up into the unity of the 
 contractual nexus. Hence the " right to conduct " before discussed. 
 
The Relation of Contract to Property 63 
 
 contract is a hindrance to true social freedona, and 
 that therefore the student of contract is out of court 
 in such a discussion. But "we shall content ourselves 
 at present with accepting the suggestion that it is 
 incompatible with true freedom of contract, in the 
 best sense of the words, that these things should be 
 made the subject of it. We are thus allowed to 
 suggest to ourselves a limitation of contract which, 
 however far-reaching it may be in its effects, and 
 however starthng it may be to contemplate it, is not 
 entirely out of line with the restrictions we have 
 already considered. 
 
 Now a difficulty, in considering socialistic ten- 
 dencies, which is very frequently expressed, is based 
 on the impossibility of dealing with schemes that 
 are political and economic in their influence, unless 
 they are clearly defined and thrown into practical 
 shape. The socialistic idea, in the hegriff, when it 
 becomes a matter of politics, is apt to elude criticism 
 in not altogether a legitimate way. It is necessary 
 to know definitely how the restrictions on private 
 ownership which are proposed are to be worked 
 out, before we can pronounce on them. There 
 are certain main lines, along which anti-socialistic 
 criticism naturally runs ; there is the criticism that 
 socialism does not sufficiently recognise some im- 
 portant facts of human nature, idleness, vice, and 
 
64 The Theory of Contract 
 
 so forth ; the criticism that the new system will 
 be too hard and fast to allow of natural develop- 
 ment ; the criticism that socialism fails to recognise 
 vested interests ; — apart from the more . specifically 
 economic criticisms, regarding the means of pro- 
 duction, and the like. Such criticisms are vague, 
 as we are often told, but it must be remembered 
 that the ideas which they are put forward to meet 
 are also vague ; and you cannot expect detailed 
 criticism before you provide a fairly authoritative 
 enunciation of details. 
 
 The second of these criticisms, however, that of 
 the hard and fast nature of any such scheme, appeals 
 specially to us, as it is our special concern that there 
 should be no attempt to create undue restrictions 
 on the legal ideal of liberty. This wide objection 
 is exemplified in a popular form — and its popular 
 form demands attention — in the words of Dr 
 Schafile. " If socialism is not able to preserve 
 all the good points of the liberal system, such as 
 freedom of labour and of domestic supply, and 
 then to annex to these its own undeniable specific 
 advantages (of reciprocal supervision and control of 
 labour ; a more efficient but free discipline ; a more 
 certain check against over-work, and against the 
 neglect of women and children ; the hindrance of 
 exploitation by private interest ; the removal of 
 
The Relation of Contract to Property 65 
 
 idleness and of unproductive parasitic life ; the pre- 
 vention of corruption, of boundless luxury, of 
 crimes against property, etc.) — if it is not able to 
 accomplish this, it has no prospect of, and no claims 
 to, realisation ; for all the last-named advantages 
 may be converted into their opposite evils, in a polity 
 resting on compulsory labour and only held together 
 by mechanical coercion, if the freedom of individual 
 movement cannot be secured its due and wide scope 
 for action." ^ Such an argument, in its essentials, 
 weighs with all thoughtful men, whether they admit 
 the existence of the " undeniable advantages " above 
 referred to or not, not only with regard to socialism 
 in its popular form as a system, but also with regard 
 to socialistic tendencies. It is of peculiar importance 
 from the contractual point of view. Freedom of indi- 
 vidual movement must be maintained. The onus of 
 proof rests with those advocating the new measures. 
 They may ultimately be able to defend their own 
 theories, but it is certainly the province of the jurist 
 to lodge a caveat, as it were, against undue inter- 
 ference with contract in the manner indicated. 
 
 To go one step further, although it would be 
 beyond our province to refer to the voluminous 
 socialistic literature of the day,^ a glance at an article 
 
 1 Quintessence of Socialism, p. 95. 
 
 2 Eeferences to mucli of the best of it will be found in Mackenzie's 
 Social Philosophy, pp. 63, 64, and 282-336, in wMoh book an able 
 
66 The Theory of Contract 
 
 in favour of scientific socialism by Mr Ball, which 
 recently appeared in the International Journal of 
 Ethics^ may be useful. Mr Ball's article, though we 
 cannot agree with it in the direction of its criticism, 
 is peculiarly felicitous in its statement of opinions 
 which we desire to bring under consideration. He 
 maintains, curious as it may seem to some, that 
 socialism recognises the moral continuity of society, 
 by a consideration of vested interests ; that it 
 recognises remuneration of ability and the utility 
 of capital ; that it is only in a modified way con- 
 cerned with the inequality of property, and that 
 it admits the abiding necessity for contest. Ini fact, 
 he takes the objections ordinarily urged against the 
 movement, and specifically denies them to be sound ; 
 that is to say, he denies them to be applicable to 
 scientific socialism, to socialism in its true idea. 
 What, then, is this socialistic idea ? His answer 
 is, that it implies the improvement of society by 
 society with a clear consciousness of its ideal. 
 Empiric social reform, he says, is unsatisfactory. 
 " As a rule it means the modification of the system 
 by an idea which does not belong to it, with the 
 
 survey of socialism is given : and iu connection Avith this and other 
 points of theory, the attention of the legal student may be directed to 
 Ritchie's Natural Rights. 
 
 1 For April 1896, p. 290. The article is being republished by the 
 Fabian Society. 
 
The Relation of Contract to Property 67 
 
 result that either it is ineffective, or it hampers the 
 working of the system itself." This is an admission 
 of the scrupulous care with which what we have 
 called " restrictions " require to be introduced ; while 
 it is also a denial of the efficiency of that system 
 of guarded modification which we have held to be 
 desirable. But Mr Ball proceeds to point out that 
 the means of collectivism are the collective control, 
 or collective administration, of certain forms of in- 
 dustry. Mere , nationalisation, or mere municipalisa- 
 tion of any industry in this view is not socialism ; 
 it may be only the substitution of corporate for 
 private administration. The State is beginning to 
 realise that it is as deeply concerned in the conditions 
 of industry that determine the type and character 
 of its citizens, and in the standard of life, as it is 
 in good education. This realisation implies the 
 action of the general or collective will and purpose, 
 represented by the social regulation of industry, 
 on behalf of a standard of industrial character and 
 production, which society as such is concerned in 
 maintaining. 
 
 With such views many will have much sympathy, 
 though they may perhaps think they are Utopian. It 
 is only when we get down to details, in which the 
 political element almost necessarily appears, that the 
 conflict really begins ; but when we do get down to 
 
68 The Theory of Contract 
 
 such details, the conflict is very bitter. There are a 
 few points suggested by this excellent summary which 
 may be brought out. The first is that empiric social 
 reforms, being to some extent, as Mr Ball puts it, the 
 rearrangement of a handicap, must, so far as they are 
 restrictions, be watched narrowly, and submitted to 
 competent criticism. The second is that very 
 different views may be taken of the efficacy of these 
 empirical social reforms. They are rejected entirely 
 by many socialists. We, on our side, have tried to 
 argue that they are part of the whole social movement 
 towards a higher organisation, and not merely illogical 
 modifications of a primitive individualism ; and that 
 therefore, not only their existence, but their increase 
 can be justified. The third is, that if scientific 
 collectivism operates primarily in a limited sphere, a 
 region will be left outside of that sphere which will 
 present continual difficulty to the sociaHst, as regards 
 contract, or the tendency towards contract. The 
 fourth, that it is very doubtful if mere nationalisation 
 of the means of production is a remedy for the evils 
 of our competitive industrial spirit. It may shift the 
 centre of gravity of the whole. It may transfer the 
 meeting of contract from the wills of the individuals 
 on each side, to the will of the individual on the one 
 side, and that of the nation on the other ; but will 
 this form of contract (if the form reaches contract) be 
 
The Relation of Contract to Property 69 
 
 an improvement ? A good deal of ethical spirit will 
 have to be infused into the transaction. 
 
 These considerations suggest difficulties that seem 
 to lie in the way. All that we have to do here is to 
 show their relation broadly to contract : and from the 
 legal point of view it is inevitable that the most im- 
 portant should be that to which we previously referred 
 ■ — a suspicion of the thin end of the wedge, and, if we 
 may say so, of the indefinite nature of the wedge. Of 
 course the importance of the maxim, that we should 
 rather bear those ills we have than fly to others that 
 we know not of, may easily be exaggerated. But 
 definition must be insisted on. We must keep asking 
 ourselves whether ideas which are admittedly appro- 
 priate in the ethical sphere are not too vague or too 
 elastic to be introduced into the political sphere. We 
 must be very sure that the economic theory which is 
 to be employed in the revolutionising of society is 
 sound from all points of view — logical,^ practical, 
 moral. We must force the leaders of every school 
 to say whether they propose to work by revolution 
 or evolution. Although these suggestions may be 
 regarded as mere truisms, it seems the appropriate 
 function of law, which is at least supposed to broaden 
 
 1 See for example Prof. Mackenzie's objection to Kirkup's Inquiry 
 into Socialism, that Kirkup appears to regard everything as socialistic 
 which is not individualistic. Social Philosophy, p. 323. 
 
70 The Theory of Contract 
 
 slowly down from precedent to precedent, to emphasise 
 their bearing on social freedom. 
 
 It ought, moreover, to be observed, lest the general 
 doctrine that private property is the means of realising 
 individual freedom in relation to external objects be 
 misunderstood, that all external things are not the 
 appropriate objects of private property. Some things 
 cannot, indeed, be such objects ; and the doctrine 
 does not imply that they are. There is no objection, 
 then, on principle, to withdrawing certain objects 
 from the individualistic sphere ; that is to say, no 
 objection can be based on the idea that all things can 
 be appropriated. This is obvious. It may help to 
 clear our view, if we notice what are the objects 
 which are admittedly and logically beyond the sphere 
 of private appropriation. In the first place, it is very 
 plain that there is a large class of things which either 
 are actually, or are supposed for practical purposes 
 to be, from their very nature — from the constitution 
 of the world in which we live — incapable of being 
 privately owned, in the legal sense of the term. And 
 in this category we may place such things as the air, 
 which is often said to be common to all men, as well 
 as the distant stars, which may be said to belong to 
 no one. All these things are in the same position 
 from our point of view. Apart from this class, most 
 things, provided they are in their natural condition, 
 
The Relation of Contract to Property 71 
 
 can be legally owned either by the State or by private 
 individuals ; though, naturally, we recognise that, if, 
 as a species, they are appropriated by the State for 
 public uses, private ownership is excluded by that 
 very fact. The case, however, is not quite parallel as 
 regards manufactured and constructed articles. Their 
 manufacture or construction fits them for certain 
 definite ends. Some of these things may be recog- 
 nised to be fit to be the property of the State only ; 
 and, if there is a good reason why anything should 
 not be allowed to become the property of individuals, 
 the State can certainly prevent that. A State may 
 thus consider a warship to be not an appropriate object 
 of private property. 
 
 Now this logical principle, if it be in accordance 
 with the theory of Jurisprudence— and it is submitted 
 that it is — places the rights of society above those of 
 individuals, and prevents an a 'priori objection being 
 taken to the withdrawal of certain instruments from 
 the sphere of private ownership. On the other hand 
 it implies that good reason must be shewn for the 
 withdrawal. The burden of proofs rests with those 
 who desire a withdrawal.^ 
 
 1 Some classification of legal " things " is given in almost all books on 
 Jurisprudence, varying of course according to the standpoint of the 
 author, but, generally, bearing a relation, as the above does, to Roman 
 Law. Gf. on the subject generally, Puchta's view of property, referred to 
 in the appendix ; also, Mill's Political Economy, Book II. ohs. i., ii. ; 
 Eae's Gontemporary Socialism ; Laveleye's Primitive, Property. 
 
72 The Theory of Contract 
 
 It may be well to revert for a moment, by way 
 of general retrospect, to tbe idea of the legal person, 
 which is closely connected with the subject just 
 discussed, and indeed with our whole argument. The 
 person undoubtedly represents from one point of 
 view, the legal subject, by, and against, whom rights 
 are exigible. The gradations which are recognised in 
 the capacity of individual classes, however — of chil- 
 dren, women, the insane, aliens, and so forth — are 
 of less interest to us than the fact of the gradual 
 extension, with modern progress, of the area of the 
 person — the more adequate recognition of rationality 
 as a ground of personal capacities. ^ This extension 
 seems to be the necessary consequence of legal science 
 working out its own principles. But personality in 
 its legal aspect is only half understood, if we forget to 
 relate the individual to his specific rights and duties. 
 We must take into consideration his sphere of influ- 
 ence. And, advancing one step further, we must 
 acknowledge that no mere mosaic-work of rights and 
 duties will adequately represent the individual, — we 
 must also regard him as pursuing a rational and moral 
 course of conduct through all his acts. We are thus 
 led to relate him to the external world, and to his 
 fellows. 
 
 We now pass to another, but subordinate point. 
 
 ' Of. supra, ch. iv. 
 
The Relation of Contract to Property 73 
 
 Agency, while in itself a contract, and to be con- 
 sidered among particular contracts, is in another 
 aspect a prominent instrument in the extension of 
 contractual power. Through it the contractor's 
 means of realising rights are much increased. It is 
 a lever which enables the commercial man to move 
 objects at a distance. In the popular use of the term 
 the relation arises where one person is employed to 
 act for another ; to represent him in dealings with 
 third persons. A distinction may be made between a 
 general and a special agent ; but the meaning of these 
 terms varies, and the distinction is of doubtful value. ^ 
 So far as logical consistency is concerned, the distinc- 
 tion appears to be most soundly drawn between an 
 agent whose business possesses a defined character 
 and scope, apart from the particular terms of his 
 agreement with his principal, and an agent who is 
 merely empowered to perform certain specific acts. 
 
 It is often maintained that, as Eoman Law indicates, 
 elaborate formalities in the law operate as an obstacle 
 to the early adoption of agency, in anything like the 
 modern sense of the word, in contract. When solemn 
 
 1 See, R.g. (for Scotland), Dr Guthrie's view in HeWs Principles, sect. 
 219, Note («). On agency generally, cf. his note in liis translation of 
 Savigny's Frivate International Law, p. 234 ; and the passage there 
 referred to from Savigny's ObligationenrecM (II. 55). A criticism of 
 Savigny's doctrine, as regards Eoman Law, will be found in Hunter's 
 work, p. 621. 
 
74 The Theory of Contract 
 
 forms are required for the constitution of a contract, 
 there is a natural tendency to decide that no one who 
 has not taken part in these solemn forms can reap the 
 benefit of the contract. It is only with the freedom 
 which follows the sweeping away of primitive solem- 
 nities that agency asserts its power. The dramatic 
 element and the religious element are opposed to it. 
 
 The main logical point in the law of agency is, 
 undoubtedly, that, when the agent contracts as an 
 agent, he binds his principal, and then, as it were, 
 drops out of the transaction. ^ He does not bind him- 
 self. If he does, then he is something more than a 
 mere agent. The exceptions to this rule are modifica- 
 tions of the logical principle. A developed doctrine 
 of agency implies the power of the agent to act 
 merely as agent ; to bind another in his capacity of 
 instrument ; to act largely as the hand or pen of his 
 principal. Such an idea, at times, may not be clearly 
 realised, or we may consider it inexpedient in certain 
 circumstances to carry it out, but it is the essence of 
 agency notwithstanding. On the other hand, it must 
 be noticed that the agent does not, as a matter of fact, 
 act as a mere instrument in the sense in which we 
 speak of a physical instrument. He does not act 
 entirely as a pen or a hand does ; he is an intelligent 
 instrument. His real usefulness arises from his being 
 
 1 See references in last note, latter part. 
 
The Relation of Contract to Property 75 
 
 allowed some, though it may be very little, discretion. 
 And therefore a reason for the modification of the 
 strict rule in certain instances at once presents itself. 
 A metaphor must not be pressed too far in the actual 
 affairs of life. 
 
 Our attention only needs to be called to the promi- 
 nent facts of modern commercial industry for us to 
 realise how great is the power which agency wields. 
 The increase of the industrial spirit in every quarter 
 of the globe, the means of rapid transit, telegraph 
 and postal communication, have rendered commerce 
 cosmopolitan. Without agency, and analogous forms, 
 much of the task which commerce has undertaken 
 would have been impossible. It has accomplished its 
 triumphs, in no small measure, by using to the utmost 
 the inherent capacities of the idea of representation. ^ 
 
 1 On tlie relation of the germ of agency to the English doctrine of 
 " use,'' see Pollock and Maitland's History of English Law, Vol. II., pp. 
 226 et seq. 
 
CHAPTER VI 
 
 CONCLtJSION 
 
 We can estimate tlie value of that " right-mindedness " 
 which it will be remembered Sir Frederick Pollock 
 makes, implicitly at least, the moral basis of contract,^ 
 only by looking at the whole subject from its various 
 sides, as we have been attempting to do. Why there 
 should be any such right-mindedness in men is a 
 question which concerns Metaphysics or Ethics rather 
 than the theory of contract. Yet we have striven, 
 incidentally, to show that it arises from the nature of 
 society and of the individual, and that it must be ex- 
 plained in relation to these facts. An increase of social 
 life does not imply a decrease of individual life, but 
 it implies an increased recognition of responsibility. 
 
 In speaking of Ethics in relation to this " right- 
 mindedness," and in calling the State, as we did in 
 a previous chapter, an ethical unity, it must be ob- 
 served that we use Ethics in its widest signification, 
 as including the origin of political obligation. In the 
 more restricted sphere of differentiated moral precepts 
 however, there is one point of interest which should 
 
 ^ Supra, ch. i. 
 76 
 
Conclusion 77 
 
 be brought out here. The moral obligation to fulfil 
 contract can hardly be denied ; and obviously, it is 
 closely related to the obligation of good faith in general. 
 The latter, indeed, in its turn, to make a short digres- 
 sion, is often classified with the obligation of veracity, 
 from the apparent similarity between them. But their 
 connection must not be taken for granted. Professor 
 Sidgwick, for example, maintains that the analogy is 
 a superficial one.^ The moral obligation in good faith, 
 he argues, is confined to expectations which we have 
 intentionally raised in others, but does not necessarily 
 imply conformity to our own statements. And in 
 this connection he criticises Mr Stephen's view in the 
 Science of Ethics, that " the rule ' Lie Not ' is the 
 external rule, and corresponds approximately to the 
 internal rule, ' Be trustworthy.' " ^ Neither of these 
 rules, indeed, we may admit, can be regarded as 
 absolute. The qualifications required are, in some 
 cases perhaps, mainly verbal, but they indicate the 
 familiar difiiculties which result from the employment 
 of such maxims. Nevertheless, the general trend of 
 our argument will probably lead us to adopt the 
 statement of Mr Stephen, rather than that of 
 Professor Sidgwick, in this matter. But with 
 veracity, as a precept approved by the ordinary 
 
 1 Methods of Ethics (5th Ed.), p. 304. 
 
 2 Ihid., p. 319. 
 
78 The Theory of Contract 
 
 consciousness, we have not directly to do. Good 
 faith is undoubtedly a moral maxim ; and it is 
 curious to note how clearly the principles of law 
 affect it. Thus Professor Sidgwick gives the weight 
 of his authority to the statement that a promise 
 is commonly accepted as binding if the following 
 conditions are fulfilled : — If the promiser has a clear 
 belief as to the sense in which it was understood by 
 the promisee ; if the promisee is still able to grant 
 release from it, but unwilling to do so ; if it was not 
 obtained by force or fraud ; if it does not conflict 
 with definite prior obligations ; if we do not believe 
 that its fulfilment will be harmful to the promisee, or 
 will inflict a disproportionate sacrifice on the other ; 
 if the circumstances of the case have not materially 
 altered.^ These conditions are obviously drawn from 
 the conclusions of Jurisprudence. About some of 
 them there may be diff"erence of opinion, and they 
 may be studied with advantage in those more intri- 
 cate, but more adequate, doctrines of positive law 
 which developed systems afford. But they may 
 furnish a useful instance of the aid which Jurispru- 
 dence can give to the necessary moral casuistry of 
 every-day life. 
 
 We have now followed out the main lines of our 
 argument. In the general view of contract with 
 
 ^ Methoih of Ethics, p. 31 1. 
 
Conclusion 79 
 
 ■which we began, we included a survey of tlie applica- 
 tion of the principle to the case of services, in order 
 to illustrate the practical issues which it involved. 
 Such questions as those of public health, and of 
 education, which are equally interesting to the 
 legislator, do not affect contract in the same direct 
 way. We then passed from the more general to the 
 particular aspect, and considered the technical view — 
 not that the technical conception is fixed and unalter- 
 able ; for our investigation would itself suffice to 
 refute such a contention- — but because it w^as necessary 
 to come more closely into touch with the generally 
 received notions of modern law, before proceeding. 
 To assign the proper limits to such an investigation 
 was difficult ; and probably these limits are largely a 
 matter of taste. The chief point of all is perhaps the 
 function of the will in contract. For if the will be 
 divorced from the person, then the theory of every 
 branch of the law becomes involved in insuperable 
 difficulties. We next noted, as before explained, the 
 two main organic unities in society, which seemed 
 to stand out against the individualising tendencies 
 of law — the family and the State. It has been 
 attempted at various times to reduce both of these to 
 mere contract. The attempt to reduce marriage is 
 perhaps the most successful of these efforts. We 
 have endeavoured to shew where this attempt has 
 
8o The Theory of Contract 
 
 ultimately failed. Marriage is the basis of the family. 
 Whenever we find an obligation, such as the obligation 
 involved in married life, the character of which is in 
 no real sense determined by the parties, but is fixed 
 by law in all, or in most of, its far-reaching effects, 
 then we pass beyond the domain of true contract. 
 That many-sided unity, the State, could only be 
 considered in those aspects which were associated 
 with our subject ; but we endeavoured to see it in its 
 essential relation to contract. Having corrected the 
 abstract tendency of our principle, we then passed on 
 to consider what may be called the depth and breadth 
 of contract. We noted its content, the material with 
 which it dealt, and attempted to guard ourselves 
 from separating too widely the matter and the form. 
 We noted also its extension — the enlargement of the 
 area of the person's power in modern times ; and we 
 took agency as typical of the ways in which this is 
 accomplished. Before leaving the idea of property, 
 too, we took occasion to mark how the abstract 
 person, as a subject of rights, must be viewed in 
 relation to these rights themselves, and to the whole 
 course of rational conduct pursued through life. 
 Lastly, we emphasised the main fact with which we 
 started, the good faith among men, on which 
 contractual dealings are based. We may now urge, 
 in a few words, the general necessity for the main 
 
Conclusion 8 1 
 
 principles which have animated the law of the 
 civilised world being taken into more direct con- 
 sideration in the prosecution of social philosophy. 
 
 Almost all of us — as we may recapitulate — are 
 deeply impressed with the importance of the indi- 
 vidual, in these modern times. No doubt there are 
 counteracting tendencies at work, the force of which 
 must be acknowledged. But our recognition of the 
 right of criticism in all its aspects, and the strength 
 of our conviction that there is a fundamental sense 
 in which men, as men, stand on the same platform, 
 notwithstanding obvious differences in their capa- 
 bilities and wealth, are prominent illustrations of the 
 modern attitude. Law, by its modified egoism, has 
 largely aided in bringing about this result. Contract, 
 in particular, has helped both to advance and to 
 regulate it. And all suggestions thrown out regard- 
 ing the true functions of law claim attention. In this 
 general movement — a movement which it is admitted 
 may be easily carried too far — Rome, we are often 
 told, has exercised a marvellous influence. As Von 
 Ihering has pointed out, she has thrice dictated laws 
 to the world and given unity to the peoples. But 
 the philosophical criticism of later times, operating on 
 material derived in a large measure from Roman Law, 
 has cleared and widened the view. It has strength- 
 ened our grasp of first principles. It has increased 
 
 p 
 
82 The Theory of Contract 
 
 our knowledge of social problems. And it deserves 
 due recognition.^ 
 
 Perhaps we may appear to emphasise this signifi- 
 cance of law too strongly. Yet every student of the 
 past will understand our defence. In looking at the 
 history of law even in the most perfunctory manner, 
 the conviction is thrust upon us that here one comes 
 into contact with a great system which, as Pater 
 writes of another system, "is rich in the world's 
 experience ; so that, in attaching oneself to it, one 
 lets in a great tide of that experience, and makes, 
 as it were, with a single step, a great experience of 
 one's own. The mere sense," continues Pater, "that 
 one belongs to a system — an imperial system of 
 organisation — has, in itself, the expanding power of 
 a great experience, as some have felt who have been 
 admitted from narrower sects into the communion of 
 the Catholic Church." ^ 
 
 To sum up, contract, as Savigny long ago pointed 
 out, is both a technical notion, appropriated by law, 
 and one of those common ideas which form the inherit- 
 ance of the race. These two aspects must never be 
 forgotten ; the narrower must be interpreted by the 
 broader, the broader defined by reference to the 
 
 1 A r«sMme'— short but notable for its breadth of view — of the main 
 lines of speculative legal thoiight will be found in Prof. Hastie's Intro- 
 duction to his translation of Lioy's Philosophy of Bight. 
 
 ^ Marius, the Epicurean, ii. 28. 
 
Conclusion 83 
 
 narrower. As Kant achieved his philosophy "by 
 reading Leibnitz with the eyes of Hume, and Hume 
 with the eyes of Leibnitz," so we must endeavour to 
 find an adequate theory, by making Philosophy and 
 Jurisprudence criticise each other ; by reading Hegel 
 with the eyes of Savigny and Savigny with the eyes 
 of Hegel ; by interpreting Dr Caird and Sir Frederick 
 Pollock, each in terms of the other ; by following for 
 ourselves, so far as we may be able, all the currents 
 of thought, from whatever side they may come, and 
 striving to determine what is the total result. 
 
APPENDIX 
 
 I. TYPICAL CONTRACTS 
 
 We may notice a few of the nominate contracts, 
 althougli it is probably not advisable at the present 
 stage of the development of contractual law to 
 classify them rigidly, even from a practical stand- 
 point, and what we have to say regarding them 
 will be too trite to be of much interest to the lawyer. 
 One of the most important is that of sale. In 
 any modern conception of the term, it is undoubtedly 
 to be distinguished from barter. The latter consists 
 in the exchanging of commodities. Sale represents 
 a distinct economic advance ; and, if not different 
 in principle, is separated from barter by a legal line 
 which cannot be ignored. The essence of a contract 
 of sale seems to be, in simple language, the giving 
 of something for money. The basis of the idea is 
 "something for money," The law does , not analyse 
 the conception further ; but it demands a money con- 
 sideration. We might distinguish between donation, 
 barter and sale, thus. Donation implies the giving 
 of something for nothing ; barter, of something for 
 something ; sale, of something for money. Donation, 
 however, is held by some to be a generic act, rather 
 than a specific contract; a view for which there is 
 a good deal to be said. But, confining our atten- 
 tion to sale, we must note that the leading conception 
 is variously interpreted. Apart from the peculiarities 
 which almost always attach themselves to the sale 
 of immovables, and are mainly of historical im- 
 
 8s 
 
86 The Theory of Contract 
 
 portance, perhaps the most prominent variation is 
 connected with the transfer of the property sold. 
 In some systems a contract of sale, in the usual case, 
 per se transfers the property. That is to say, the 
 contract has power of transference in itself, and 
 nothing more is required to pass the property. In 
 others, the contract has no such legal consequence ; 
 it remains an agreement to transfer and nothing 
 more. How the general principle is worked out 
 may be gathered from a few phrases of the " Sale 
 of Goods Act, 1893." "A contract of sale of 
 goods," we are told, " is a contract whereby the seller 
 transfers or agrees to transfer the property in goods 
 to the buyer, for a money consideration, called the 
 price " (Sect. 1). Here the definition covers both 
 those instances in which the contract transfers the 
 property, and those in which, for some special reason, 
 it does not. And the price is brought prominently 
 forward, as is necessary. But further, a contract 
 of sale, we are told, may be absolute or conditional. 
 Where, under such a contract, the property is 
 transferred from the seller to the buyer, the contract 
 is called a sale ; but where the transfer is to take 
 place at a future time, or subject to a condition 
 to be afterwards fulfilled, the contract is called an 
 agreement to sell. An agreement to sell, however, 
 becomes a sale, when the time elapses, or the con- 
 ditions are fulfilled, after, or subject to, which the 
 property is to be transferred. The Act thus places 
 in opposition the terms " sale " and " agreement to 
 sell." This analysis shows the variation of which 
 we have been speaking, in a clear light, in different 
 sets of cases within the same legal system. It also 
 directs our attention to the ambiguity which attaches 
 to the word "sale" when used by itself; for "sale" 
 may mean a contract containing an undertaking to 
 sell merely; or a contract effecting a change of 
 
Appendix 87 
 
 property ; or a transaction, like a sale of goods for 
 ready money, which is hardly a contract at all. 
 
 The parties to a contract of sale may have various 
 duties ; but two of them are generally recognised. 
 The duty of the seller is to deliver the goods, and 
 the duty of the purchaser is to accept and pay for 
 them. These, regarded from the opposite points 
 of view, yield the main rights of purchaser and 
 seller respectively. 
 
 Hiring, which haS' largely superseded gratuitous 
 loan, stands in the same relation to sale that 
 temporary use does to ownership. The typical 
 contract occurs where one person agrees to give 
 another person, in return for a fixed sum, the use 
 of something — it may be of his services. Such con- 
 tracts may be divided into those in which things, gene- 
 rally corporeal things, and those in which services, 
 as opposed to things, are hired. The idea of hiring 
 services is a very wide one, and the law of contract 
 in this department has been extended in many 
 directions. Its most important branches in the 
 commercial world are, perhaps, contracts for carriage 
 and agency. In domestic life, it includes the hiring 
 of servants. It has gradually dominated older 
 principles, and placed on a footing of contract, 
 relationships, such as that of master and serf, which 
 were formerly determined by status. As regards 
 immovables, hiring is generally guarded, by specific 
 restrictions. 
 
 Partnership is a contract regarding which, as in 
 the case of sale, the result of recent legal analysis 
 may be consulted with advantage. It is defined 
 by the Partnership Act, 1890, as "the relation which 
 subsists between persons carrying on a business in 
 common, with a view of profit" (Sect. 1). But what 
 are popularly known as Companies are specially 
 excluded from the definition. The difficulty in the 
 
88 The Theory of Contract 
 
 way of definition which this exception indicates 
 seems to be a real one. Companies are in many 
 respects similar to partnerships, though they could 
 not in modern law be treated as such. Apart from 
 this point, the definition is extremely clear ; and 
 if it errs at all, seems to err on the side of simplicity. 
 The rights and duties of partners are necessarily 
 regulated in modern systems by a complicated series 
 of provisions, which deal, more or less fully, with 
 the relations of partners to each other, and with 
 their relations to the outside world. 
 
 The next four contracts — mandate, mutuum, com- 
 modate, and deposit — are engagements of a restricted 
 kind, which as types are perhaps of more historical 
 than philosophical importance. They are so inti- 
 mately connected with Roman Law that the Roman 
 types may be taken as representative. And with 
 them pledge is usually associated. 
 
 In mandate, one person contracts gratuitously to 
 do something at the request of another, who under- 
 takes to keep him free from all loss. This and the 
 other gratuitous contracts, as we have said elsewhere, 
 have largely given place to the corresponding onerous 
 contracts. Mandate has been swallowed up by 
 agency. In mutuum — loan for consumption — such 
 things as wine, corn, money, are lent to a person, 
 who is l)ound to make restoration in kind, but not 
 specifically. . Thus if corn is lent, corn must be 
 restored, but not the same corn. We have, on the 
 other hand, in commodate, a loan for use, not con- 
 sumption. The borrower is bound to restore the 
 actual thing, which is to be returned in as good 
 condition as that in which it was received, with the 
 exception of ordinary tear and wear. In deposit, 
 one gives a thing to another in order that the latter 
 may keep it for him gratuitously, and restore it upon 
 demand. Here, unlike the case of commodate, the 
 
Appendix 89 
 
 recipient is not allowed to use the thing ; it is given 
 him for safe keeping merely. Pledge, in one aspect 
 at any rate, is entitled to be placed among contracts. 
 In principle it implies the giving of a security for a 
 debt or other obligation ; the security being handed 
 over, or held to be handed over, to the creditor. 
 
 In contrast to these, we may observe how the 
 contract to which effect is given in a Bill of Exchange 
 derives its importance from the growth of modern 
 commerce. The contract itself is a complicated 
 one, and the law dealing with such Bills, and with 
 Promissory Notes, exhibits the stress and strain of 
 commercial relations. The principle of importance 
 in such documents is one which arises from the 
 fact of their being " negotiable instruments." That 
 principle — which is not in conformity with older 
 legal notions — is that obligations may be freely 
 transferred. Such documents pass, more or less freely, 
 from hand to hand, by means of indorsation and 
 delivery. It is this which gives them their peculiar 
 value and significance. 
 
 We need hardly extend our survey further. From 
 a logical standpoint, contracts of guarantee may be 
 grouped together, but they differ much in scope. 
 They are nevertheless very important. Contracts 
 of Insurance are in one sense contracts of guarantee, 
 and embody a principle of division of risk which has 
 been very successfully applied to the affairs of life. 
 Contracts of Compromise should also be noted. 
 Maritime contracts are often thrown together as a 
 class by themselves. Of marriage and of agency, 
 we have already treated ; it is sufficient to mention 
 them here. Marriage, however, must be distinguished 
 from an engagement to marry in the future. 
 
90 The Theory of Contract 
 
 II. THE EXTINCTION AND TRANSMISSION OF OBLIGATIONS 
 
 An analysis of the modes of extinguishing obliga- 
 tions, like many other legal analyses, yields results 
 which it is difficult to gather up into a symmetrical 
 scheme. In the first place, however, obligations 
 may clearly be extinguished by performance and by 
 release or discharge of liability. And in the second 
 place they may be extinguished by a group of less 
 direct methods, which may be held to be, from the 
 point of view adopted for the time being, equivalent 
 to the one or the other of these. Erskine, in his 
 Principles, enumerates — performance or implement, 
 consent, compensation, novation and confusion ; a 
 list by no means beyond criticism, though it brings 
 out the main points which it is desirable to present. 
 As regards performance, the most usual case is that 
 of payment of a sum of money, in accordance with 
 the trite but fundamental principle, that payment by 
 the true debtor to the true creditor extinguishes the 
 engagement. The modifications which varying cir- 
 cumstances may introduce, in questions of payment, 
 require to be carefully distinguished. In release or 
 discharge, in the sense in which the terms are used 
 here, as the obligant is voluntarily freed from his 
 undertaking, without performance, the relation comes 
 to an end. But it does not follow, from the principles 
 of law, that the mere consent of the two parties con- 
 cerned to a release necessarily operates as such. We 
 next arrive at a series of minor doctrines— those of 
 compensation, confusion, novation and delegation — 
 the explanations of which, as given in our own text- 
 books, are sufficiently representative. They result 
 from the attempts of the law, in this connection, to 
 fix, by adopting definite types, the movements of 
 
Appendix g i 
 
 legal relations, and are of value on account of the 
 facilities they aflford in further analysis. Com- 
 promise, too, may be regarded as a means whereby 
 obligations are terminated ; it is obviously to be kept 
 distinct from release. Similarly, a discharge in bank- 
 ruptcy, the judicial reduction of a contract, and the 
 like, may put an end to an obligation, previously 
 existing or held to be existing. Legal "tender," 
 though varying in its effects, is also one of the facts 
 which is often noticed. 
 
 Then the doctrine of prescription, unless perhaps it 
 is so construed as to be made merely a matter of pro- 
 cedure, represents an important factor in the dissolu- 
 tion of obligations, when lapse of time affects the 
 relation between the parties. Again, events, accidental 
 or otherwise, may take place, w^hich render the per- 
 formance impossible ; and for such legal provision 
 must be made. Often the result is simply to extin- 
 guish the obligation. Finally, non-performance by 
 one party to a contract may put an end to the 
 obligation of the other. The very nature of contract, 
 indeed, seems to demand that some such principle 
 should hold good. These various methods form a 
 suggestive, though not an exhaustive, group (see e.g. 
 Litis contestatio in Roman Law) ; and in their appli- 
 cation to contract, with which they are all concerned, 
 are of practical importance. A careful consideration 
 of them will do much to impress upon us the useful- 
 ness of the idea of obligation as a broad and practical 
 basis on which to build up detailed doctrine. 
 
 The theory of the transference of obligations is of 
 limited application only. It may be regarded from 
 the side of the obligant, the transmission of a lia- 
 bility ; or from the side of the holder of the right. 
 The most prominent case falls under the latter head, 
 the transmission of the right to a debt. This may 
 take place by the act of the party or the operation of 
 
92 The Theory of Contract 
 
 law. The assignation of a debt by a creditor, with 
 the intimation to the debtor which it usually involves, 
 is perhaps the variety of most consequence. The 
 following words of Professor Amos on this whole 
 subject will help to illustrate what has been said 
 regarding the usefulness of the idea of obligation. 
 "There is one common notion with respect to con- 
 tract which yet remains to be examined — that is, the 
 notion of contracts being transferred in life ; or, in 
 death, descending by intestate succession or testa- 
 mentary deposition. As already explained, a legal 
 contract was seen to be eminently a personal agree- 
 ment ; that is to say, an agreement in which the 
 promisor relied upon his own ability and disposition 
 to keep his promise, and the promisee relied upon the 
 same likewise. . . . What is needed, then, is to under- 
 stand what is meant by a contract being bought or 
 sold, or descending to heirs or executors. At this 
 point the inconvenience is experienced in English 
 law of having no word at hand, like obligatio — 
 signifying the legal relations created by a contract — 
 to oppose to the contract itself out of which the 
 legal relation arises. ... It is quite customary in 
 England to hear of contracts descending to a man's 
 heirs or executors, and of their being assigned and 
 bought or sold. What is really meant is, that the 
 rights and duties which have attached through the 
 making of a contract are the subjects of the several 
 legal operations indicated." [Science of Law, p. 220.) 
 Of course the obligation cannot, from the philosophic 
 standpoint, be absolutely separated from the contract. 
 
Appendix 93 
 
 III. PUCHTAS VIEW OF THE EVOLUTION OF PRIVATE 
 
 EIGHT 
 
 The following extract, wHch. is taken from Professor 
 Hastie's excellent translation of Puchta's Encyclopaedia 
 in the former's Outlines of the Science of Jurispru- 
 dence (p. 10), is introduced here, because Puchta was 
 a master of condensed expression whose work has not 
 received sufficient attention in Britain, and because 
 the view given is representative — allowing for slight 
 modifications — and may be usefully compared with 
 the Idealistic conception of Eight. Puchta's philo- 
 sophical standpoint was that of the school of Schel- 
 ling, and his juridical method was historical. In 
 considering obligation, Dr Hunter's brilliant discussion 
 of the origin of Roman Contracts {Roman Law, p. 
 536) should be used as a supplement. Briefly, Dr 
 Hunter's argument is this. Nearly the whole of the 
 Civil Law, according to Sir Henry Maine (to take 
 him as the most natural example) may be grouped 
 round three ideas — -Property, Contract, Testament. 
 Property comes first, Testament is derived from it. 
 But Contract also, according to Maine, is derived from 
 property (through the uniting idea of the iiexum), and 
 thus property remains as the only primitive element. 
 Now Dr Hunter maintains that the diflference between 
 those contracts which have undoubtedly arisen from 
 the nexum, and the stipulation, is so marked as 
 almost to compel us to assign another origin to the 
 latter. He can find no direct evidence to prove the 
 point in question — the derivation of contract from 
 property; and so, beyond "the inherent fascination" 
 of the idea (which in our view comes from its logical 
 necessity), he will not recognise its cogency. To 
 return, however, to Puchta, his statement is as follows. 
 
94 The Theory of Contract 
 
 " The principle of Eight does not deal with external 
 goods in all their natural multiplicity, but it brings 
 into prominence their universal character as destined 
 for man and his wants. This common characteristic 
 is expressed by the word Thing. . . . These goods 
 are capable of being regarded from a jural and from 
 an economic point of view ; and these two modes of 
 regarding Things are very different. The latter is 
 directed towards the means of procuring them in such 
 quality and quantity as will best correspond to our 
 wants, and therefore it aims at improving and multi- 
 plying these external goods in themselves for our use. 
 Right has only to consider their subjection under the 
 Power of man, as a fact emanating from the operation 
 of our jural freedom ; or, more particularly, it has to 
 take account of their subjection under the Will of a 
 person, and with regard to the position which others, 
 in virtue of their jural freedom, occupy towards them. 
 . . . Man subjects a Thing to himself in order to 
 satisfy the wants of his external life by means of it. 
 He thus acquires power over Things. This power 
 would by itself be a mere accidental fact, but when 
 it is obtained by Right, and is recognised as per- 
 taining to the Person, it becomes a rightful power, 
 and constitutes a Right to the object. This jural 
 Power constitutes Property, which involves the right 
 to demand a Thing from any one who withdraws and 
 withholds the actual power over it, from its proprietor 
 or owner. 
 
 " It may so happen that it is not important for us 
 to have a Thing in that complete power and posses- 
 sion which is indicated by the term 'Property,' as 
 a partial and limited power over it may suffice for 
 our requirements. . . . Thus have arisen Rights to 
 things which are not actually in the proprietary 
 possession of the persons entitled to the benefit of 
 them. A constituent part of the Property is here 
 
Appendix 95 
 
 given to another ; and thus far it is separated from 
 the ownership of it. These Eights have this in 
 common with the property which is their source, that 
 they are effective not merely against the Owner of 
 the property who has granted them, but against all 
 other persons. 
 
 " The rise of these Eights in Things alongside of 
 Ownership proper, as Eights in Things of others, pre- 
 supposes an advanced condition of the human race. 
 It implies that the accumulation of men in the same 
 place has diminished the superabundance of external 
 goods, and induced circumspection in the economic 
 utilisation of them. It is but a further stage of this 
 development which expands the relationships of Eight 
 that relate to man as an individual, beyond the 
 immediate Eights to Things, and carries on this pro- 
 cess of extending Eights through a wider range. 
 
 " A condition of human society may be imagined 
 in which the Eight of Ownership completely suffices 
 by itself for the jural relationships in respect of 
 external goods. Every one lives with his family 
 apart on his separate piece of land, and it supplies 
 him with everything that his simple wants demand. 
 The auxiliary powers which he needs are furnished 
 by his own family, which is perhaps increased by 
 the command of subjugated service. The human 
 race soon advanced beyond these simple conditions. 
 . . . Whoever did not possess certain goods, but had, 
 on the other hand, a superfluity of others, would 
 seek to procure the former by giving the latter in 
 exchange for them. He would enter into relation 
 with those who had what he wanted, and wanted 
 what he had, either dealing directly with those who 
 had a superfluity of what he wanted, or indirectly 
 by means of persons who might undertake the busi- 
 ness of commerce and thus form the medium of this 
 mode of intercourse. Or if this did not sufiice, he 
 
96 The Theory of Contract 
 
 would ask the owner of the goods he needed, or of 
 such as would be the means of procuring them, to 
 entrust them to him on condition of his restoring 
 them again. In this manner obligations arose. They 
 would be Obligations for the performances or for 
 the doing of certain things on demand, giving rise 
 to Eights called Claims. The sphere of Obligations 
 would be further widened by the possibility of in- 
 fringements of Eight among persons independent of 
 each other. The infringer or violator of Eight 
 would be laid under Obligation to give compensa- 
 tion for the damage which his illegitimate act had 
 wTongously inflicted. 
 
 " Jural Eelations of this kind increase in importance 
 as human wants become more varied and refined 
 and the more widely the range of personal Freedom 
 extends. Obligations will thus arise the more fre- 
 quently that the need of the Powers of others is 
 realised, and the more rarely that these powers can 
 be commanded by a control of other Persons. 
 
 " The sum-total of all those Eights of a Person 
 which relate directly to external goods, constitutes 
 the whole Means of his Legal Estate. The Property 
 is the Estate at rest and in stability ; the Obliga- 
 tions are the Estate in movement and change. This 
 distinction explains how, in the progress of the jural 
 development, the Eight of Obligations obtains always 
 greater importance from Property being always drawn 
 more into movement by the social intercourse. And 
 thus there comes a time when it may appear neces- 
 sary to check the advance of this movement by 
 careful maintenance of the principle of Property 
 against the excessive strength of this social ten- 
 dency." 
 
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 Scotch history, and to every one who attempts to meddle with the marriage laws of 
 Scotland in parliamentary or popular discussion.' — Glasgow Herald. 
 
 ' One of the most complete legal monographs that has ever been written.' — Journal of 
 Jurisprudence. 
 
 Fraser on Master and Servant. 
 
 Treatise on Master and Servant, Employer and Workman, and 
 
 Master and Apprentice. Third Edition. By William Campbell, 
 
 M.A., Advocate. In One Volume, royal 8vo, price 36s. 
 
 This Edition embodies the whole changes effected in the law in recent years 
 
 as to Employers' Liability ; Factories ; Miners, Seamen, and other workmen ; 
 
 together with Forms of Procedure in actions relative to Masters and Servants 
 
 at Common Law, and under the various statutes applicable to workmen. It 
 
 also contains the ' Summary Jurisdiction (Scotland) Act, 1881,' and the 
 
 ' Summary Jurisdiction (Process) Act, 1881,' with a Commentary and Notes. 
 
 * There can be no question that Lord Fraser has been very fortunate in his editor, and 
 that Mr. Campbell has given great labour and research to the successful discharge of his 
 task. . . . The book is a good book, which Las been well edited, and its best praise is, 
 that it is worthy in its present form to take the place beside Lord Eraser's own edition 
 of Husband and Wife. There is an excellent general index, as befits a standard work 
 for practical u^se.' — Scotsman. 
 
 Renton's Criminal Procedure. 
 
 Procedure and Appeal in Summary Criminal Cases in Scotland, 
 with Appendix containing Forms of Complaints and Appeals, 
 and Statutes. By E. W. Eenton, S.S.C, Procurator-Fiscal of 
 Fifeshire. In demy 8vo, price 7s. 6d. 
 
 ' This book is a new departure, and supplies a want in the profession. . . . "We heartily 
 recommend it for its clearness, point, and practical usefulness.* — The Juridical Review. 
 
 ' Mr. Renton's book will be welcome to practitioners in the Inferior Courts as a con- 
 cise and well-arranged digest of the rules of the statutes and decisions which regulate 
 the manner of conducting prosecutions.' — Scotsman. 
 
 ' It is a thoroughly good piece of workmanship. Not only is the matter clearly and 
 orderly arranged, but concise digests of " illustrative cases" are sandwiched between 
 the sections of the expository text. The usefulness of such a manual is not confined 
 to those actually engaged in the work of summary criminal courts : it provides also a 
 short cut for the consulting lawyer in cases of difficulty to arrive at the sources of the 
 law on a necessarily technical subject.' — Scots OhseiDer. 
 
Law Boohs puUished by T. & T. Clark, Edinburgh. 7 
 
 Stewart on Fishing. 
 
 A Treatise on the Law of Scotland relating to Eights of Fishing. 
 Comprising the Law affecting Sea Fishing, Salmon Fishing, Trout 
 Fishing, Oyster and Mussel Fishing, etc. With an Appendix of 
 Statutes and Bye-laws. By Charles Stewart, Advocate. 
 Second Edition. Edited by J. C. Shairp, Advocate, Sheriff- 
 Substitute, Inveraray. In demy 8vo, price 20s. 
 
 ' The standard authority on the subject. . . . We cordially recommend the second 
 edition of Mr. Stewart's treatise, as containing a clear, full, and accurate account of the 
 Law of Scotland relating to Eights of Fishing.' — Field. 
 
 ' With so far-reaching and careful a revision, the work will rise high in the estimation 
 of the legal profession and become a standard book of reference on the subject.' — 
 Scotsman. 
 
 Irvine's Game Laws. 
 
 Treatise on the Game Laws of Scotland; with Appendix containing 
 the principal Statutes and Forms. By Alexander Forbes 
 Irvine, Advocate. Third Edition. Price 12s. 6d. 
 
 'This work may well claim to be the authority on the Game Laws of Scotland, not 
 only on account of the exhaustive method in which the subject is treated, but also on 
 account of the clear and learned manner in which the law has been laid down and 
 expounded.' — Glasgow Herald. 
 
 Johnston's Crofters' Act. 
 
 The Crofters' Holdings (Scotland) Acts, 1886, 1887, and 1888. 
 With an Introduction and Notes, and an Appendix containing the 
 Eules of Procedure, Forms for use under the Acts, the Table of 
 Fees, etc. By Christopher N. Johnston, M.A., Advocate- 
 Second Edition. In demy 8vo, price 5s. 
 
 ' The book, which is well indexed, is altogether a very creditable piece of work, and 
 thoroughly analyses our latest " new departure " on the legislative line.' — Scotsman. 
 
 Steele's Landed Estates. 
 
 Handbook on the Management of Landed Estates and the Law 
 relating thereto. With Appendix. By W. H. Steele, Solicitor. 
 In demy 8vo, price 5s. 
 
 'It will, without doubt, prove useful to factors, landlords, and tenants, as bringing 
 them a plain definition of their position in law.' — Scotsman. 
 
 ' In a concise and simple manner the author has produced a i>ade mecum for landlords, 
 their agents and tenants, by the use of which they will be enabled to thoroughly com- 
 prehend the various clauses of an agricultural lease, and their respective rights and 
 privileges under the same.' — Estates Gazette. 
 
8 Law Books published hy T. & T. Clark, Edinburgh. 
 
 Savigny's Private International Law. 
 
 Private International Law and the Eetrospective Operation of 
 Statutes. A Treatise on the ConfJict of Laws, and the Limits of 
 their Operation in respect of Place and Time. By Fribdrich 
 Carl von Savigny. Translated, with Notes, by William 
 Guthrie, Advocate. With an Appendix containing the Treatises 
 of Bartolus, Molineeus, Paul Voet, and Huber. In demy 8vo, 
 Second Edition, price 21s. 
 
 ' Savigny, for the first time in modem days, brought to this subject original thought. 
 In Savigny's system of the Roman Private Law, as at the present time, he devotes a 
 volume to the consideration of Private International Law, in which he exhibits all the 
 genius and power which have placed him at the head of scientific jurists in modem 
 days, and given him a place equal to that occupied in former times by Cujacius.' — FraserU 
 Treatise on the Law of Parent and Child. 
 
 ' Savigny's System of Modern Roman Law is perhaps the greatest work on jurisprudence 
 which our age has produced, and Mr. Guthrie has done good service by introducing one 
 section of it in an English dress to English lawyers and students.' — Law Times. 
 
 'This second edition will obtain, as it deserves, the same favourable reception as the 
 first; and Mr. Guthrie is entitled to no small thanks for the care wliich he has bestowed 
 on the book.' — Scotsman. 
 
 Guthrie's Select Cases. (First and Second Series : Two Vols.) 
 
 Select Cases deciiled in the Sheriff Courts of Scotland. Collected 
 by William Guthrie, Advocate, Sheriff-Substitute of Lanark- 
 shire. In Two Volumes, in demy 8vo. 
 
 First Series, price 20s.; Second Series, price 18s. net. 
 
 ■ Mr. Guthrie Las done his work of editing with his usual exemplary care and skill. He 
 has printed no rubbish, he has wasted no words, he has fished with a long net, but 
 classified judiciously ; and he has always given the necessary information at the right 
 place, keeping a steady eye to the readability and utility of his compendious compilation.' 
 — Scotsman. 
 
 ' We trust the present volume may have the wide circulation amongst Sheriffs and 
 Sheriff Court practitioners which it unquestionably deserves.' — Journal of Jui-isprudeiice 
 
 Bell on Arbitration. 
 
 Treatise on the Law of Arbitration in Scotland. By John 
 Montgomery Bell, Esq., Advocate. With an Appendix of 
 Forms. In royal 8vo, Second Edition, price 21s. 
 
 ' One of the most honest, accurate, and thorough of law books.' — Scotsman. 
 
 ' III this work is contained every information at all connected with arbitration. . . . 
 We have much pleasure in recommending the second edition of this useful work to the 
 attention of the profession.' — Journal of Jurispi'ud^nce. 
 
Law Books published hy T. & T. Clark, Edinburgh. 9 
 
 Mackintosh on the Roman Law of Sale. 
 
 The Eoman Law of Sale. With Modern Illustrations. Digest 
 XVIII. 1 and XIX. 1 Translated. With Notes and References 
 to Cases and the Sale of Goods Bill. By James Mackintosh, 
 B.A., Advocate, Professor of Civil Law in the University of 
 Edinburgh; late Scholar of Exeter College, Oxford. In demy 
 8vo, price 10s. 6d. 
 
 ' The care, thoroughness, and clearness which characterise this part of the work 
 reflect the highest credit on Mr. Macliintosh's learning. . . . The book as a whole may 
 be recommended to every one interested in its subject as a serviceable exposition of 
 that branch of the law of Rome which is of most importance to a modern lawyer.' — 
 Scotsman. 
 
 ' The notes are extremely well done, and the Scotch law is everywhere clearly stated. 
 The volume should fulfil its main object, to enable candidates for legal examinations to 
 get up two important titles of the digest in an intelligent manner.' — Glasgow Herald, 
 
 Watt's Legal Philosophy. 
 
 An Outline of Legal Philosophy. By W. A. Watt, M.A., LL.B., 
 Member of the Faculty of Procurators in Glasgow. In post 8vo, 
 price 5s. 
 
 ' Mr. Watt never writes abstrusely, and his book shows far more acquaintance 
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 * We cordially welcome Mr. Watt's book. It is throughout well reasoned and well 
 written ; it is never superficial, and it is never abstruse, and we venture to predict 
 that it will be found of great service by all who are engaged in the study of legal 
 science.' — The Scots Law Times. 
 
 ' Mr. Watt discusses with admirable lucidity the nature and external development 
 of law, the contents of modern law, — private, public, international, and scientific, — 
 and the fundamental legal notions and their expression in a code. ' — The Speaker. 
 
 Brunner's Sources of the Law. 
 
 The Sources of the Law of England. An Historical Introduction 
 to the Study of English Law. By Dr. H. Brunner, Professor 
 in the University of Berlin. Translated from the German by 
 W. Hastie, D.D. In crown 8vo, price 2s. 6d. 
 
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 ... It forms an attractive and instructive means of passing from the study of general 
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10 Law Books published hy T. & T. Clark, Edinhurgh. 
 
 Smith on the Poor Law. 
 
 A Digest of the Law of Scotland, relating to the Poor, the 
 Public Health, and other Matters managed by Parochial Boards. 
 By John Guthrie Smith, Advocate. In demy 8vo, Third 
 Edition, price 18s. 
 
 ' The value of the work as an epitome of all the etatutory provisions with respect to 
 the powers and duties of parochial boards has long been recognised.' — Scotsman, 
 
 * The book has become in its former editions so well known and so much of a trusted 
 guide and authority, and its author stands so high as one of the most efficient sheriffs in 
 Scotland, and one of the most skilful, judicious lawyers at the bar, that it needs no 
 commendation of ours.' — Glasgow Herald. 
 
 *This volume will be found very useful, not only by the professional lawyers, but by 
 laymen, to whom, as members of parochial boards and inspectors, the administration of 
 the Poor and Public Health Law is entrusted.' — Journal of Jurispi'udence. 
 
 Irons' Police Law. 
 
 Manual of Police Law and Practice, comprising an Analysis of 
 the General Police and Improvement (Scotland) Act, 1862, with 
 Notes of Decided Cases and Eelative Statutes, etc. By James 
 Campbell Irons, M.A., S.S.C. One large Volume, 8vo, price 
 31s. 6d. 
 
 ' To members of Local Authorities, Burgh Magistrates, and indeed to almost all who 
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 Neill's Maritime Causes. 
 
 Forms of Proceedings in Maritime Causes before the Sheriff 
 Courts in Scotland. By Egbert Neill, Solicitor and Notary 
 Public, Greenock. In demy 8vo, price 8s. 6d. 
 
 ' Mr. Neill's manual will be found to be of extreme value to lawyers in every mercantile 
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 'It is impossible to fail to recognise in every page the observations of a good lawyer, 
 who knows the theory as well as the practice in this branch of law with a completeness 
 and accuracy much beyond what is common.' — Scotsman. 
 
 Adam's Procedure Acts. 
 
 An Abridgement of the Procedure Acts passed by the Supreme 
 Courts in Scotland ; containing the Acts of Sederunt of the Lords 
 of Council and Session, from January 1852 to October 1886, and 
 the Acts of Adjournal of the High Court of Justiciary at present 
 in force. With Notes and Eeferences. By Edwin Adam, M.A., 
 LL.B., Advocate. 8vo, price 7s. 6d. 
 
 ' These Acts are here collected for the first time. They deal with a number of points 
 of great interest which constantly arise in criminal practice, and the authorities on 
 which it is often difficult to find at a moment's notice. The present compilation will 
 supply a felt want.' — Aberdeen Journal. 
 
Law Books published by T. & T. Clark, Edinbiorgh. 1 1 
 
 Shaw's Digest. 
 
 Digest of Cases decided in the Supreme Courts of Scotland 
 from 1800 to 1868; and, on Appeal, by the House of Lords, 
 from 1726 to 1868. Being a New Edition of the Digest from 
 1800 to 1852, by Mr. Shaw ; and from 1862 to 1862, by 
 Messrs. Macphekson, Bell, and Lamond, Advocates. Revised, 
 Consolidated, and Continued to 1868 by Andrew Beatson 
 Bell and William Lamond, Advocates. In Three Volumes, 
 imperial 8vo, price £9, 9s. 
 
 'As this excellently designed and excellently executed handbook has already been 
 the theme of a paper in the leading journal of Scotland, as remarkable for its great 
 literary power as for its appreciation of the value of the book which it reviews, it is less 
 necessary for us to encroach on our scanty space for the purpose of criticising the labours 
 of Messrs. Bell and Lamond. No procurator-fiscal can do without it, and every lawyer 
 engaged in criminal practice must constantly refer to it. No book can be compared to it 
 for utility in its own branch of the law.' — Journal of Jurisprudence. 
 
 The Article ' Crime ' in the above Digest may be had separately, price 5s. 
 
 An Analytical Digest of Cases decided in the Supreme 
 
 Courts of Scotland ; and, on Appeal, by the House of Lords, from 
 July 20, 1867, to July 20, 1877. Compiled from the Session 
 Cases, with References to the Scottish Jurist and Justiciary 
 Reports, by A. E. Henderson, David Gillespie, and Henry 
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 Advocates. In One Volume, imperial 8vo, price 38s. 
 
 And in continuation of the above, from July 20, 1877, to July 
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 In One Volume, imperial 8vo, price 38s. 
 
 ' We congratulate the compilers upon having produced, and the legal profession upon 
 now possessing, through their honest labour, an elaborate and complete Digest of 
 Cases. ' — Scotsman. 
 
 Muirhead's Gains. 
 
 The Institutes of Gains and Rules of Ulpian. The former from 
 Studemund's Apograph of the Verona Codex. With Translation 
 and Notes, and a Copious Alphabetical Digest. By the late 
 James Muirhead, Professor of Roman Law in the University 
 of Edinburgh. In demy 8vo, price 21s. 
 
 ' a thoroughly careful and scholarly work, aiming at the right sort nf ends, and 
 successfully accomplishing them. The Editor lias taken in its full and simple sense the 
 duty of editing a classical text of Roman Law, ami has performed it with constant 
 diligence, and with judgment seldom at fault.' — Saturday Review. 
 
 'The framing of such a compendium must have been a task involving much irksome 
 labour. The result is, so far as we are aware, uuique. It will be invaluable to the 
 student of civil law.' — Journal of Jurisprudence. 
 
 'A most valuable contribution to ttie study of Roman law. ... A work like this 
 should be peculiarly acceptable to all students of our race and country whose aim is to 
 acquire a practical grasp of legal ideas.' — Scotsman. 
 
1 2 Law Books published hy T. & T. Glark, Edinlurgh. 
 
 Whyte's Law Students' Manual. 
 
 Law Examination Manual for Students ; Containing Conveyancing, 
 Scots Law, and Court Practice, in the form of Tables and 
 Abstracts ; the Latin Maxims in Bell's and Erskine's Principles ; 
 and Numerous Examples of the Examination Questions. Com- 
 piled by William Whyte, S.S.C. In demy 8vo, price 5s. 
 
 ' There can be no question of its usefulness as a means of mastering the contents of 
 the text-books.' — Scotsman. 
 
 ' The student will find here, without the waste of many laborious days, a much more 
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 sufficiently exhaustive to furnish a pretty effective test of his fitness for the ''final."' — 
 Aberdeen Journal. 
 
 ' The pages devoted to giving outlines of Court of Session and Sheriff Court practice ; 
 the table of less familiar Latin maxims ; the selections of questions from examination 
 papers ; and a copious index, add greatly to the ability of a manual which is evidently 
 carefully compiled, and should be of great service to those for whom it is intended.' — 
 Fifeshire Journal. 
 
 Kant's Philosophy of Law. 
 
 The Philosophy of Law. An Exposition of the Fundamental 
 Principles of Jurisprudence as the Science of Right. By Immanuel 
 Kant. Translated from the German by W. Hastie, D.D. In 
 crown 8vo, price 5s. 
 
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 tion of this work. His translation is admirably done, and his introductory chapter gives 
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 with sympathy and intelligence. The work supplies a defect hitherto regretted in the 
 literature of jurisprudence in this country.' — Scotsman. 
 
 'An epoch-making book in the history of Continental jurisprudence.' — Litci^ary World. 
 
 Puchta's Science of Jurisprudence. 
 
 Outlines of the Science of Jurisprudence. An Introduction to the 
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 By W. Hastie, D.D. In crown 8vo, price 6s. 
 
 ' It ought to be useful, and I shall have pleasure in recommending it. The translator 
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 " Puchta" he has been extraordinarily successful.' — Professor J. Muirhead. 
 
 ' We had occasion some time ago to notice favourably Mr. Hastie's excellent ti-ansla- 
 tion of Kant's " Philosophy of Law." .... He has now followed this up by a 
 companion volume, entitled " Outlines of the Science of Jurisprudence," and made up of 
 translations from the works of the chief German scientific jurists since the time of Kant. 
 These two books are likely to exercise a considerable influence on the study of juris- 
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 carefully, for it is calculated to exercise a profound infiuence in enlarging and modifying 
 his views.' — Literary World. 
 
Law Boohs puhlislied hy T. & T. Clark, Edinburgh. 1 3 
 
 Barclay's Public-Houses Statutes. 
 
 Public-Houses Statutes, with Notes, Decided Cases in England and 
 Scotland, and Extracts from Commissioners' Report. Arranged 
 by Hugh Barclay, IjIi.D., Sheriff-Substitute of Perthshire. In 
 demy 8yo, Second Edition, with Additions, price 4s. (per post, 4s. 3d.). 
 
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 Irons' Public-Houses Acts. 
 
 Manual of the Public-Houses (Scotland) Acts, with Decisions thereon, 
 References to Cases under the English Public-Houses Statutes, 
 Notes relative to Appeal and Review in Scotland, and Appendix 
 containing the Acts and Relative Forms. By James Campbell 
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 Cook's Church Styles. 
 
 Styles of Writs, Forms of Procedure, and Practice of the Church 
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 Revised and adapted to the present state of the Law of the Church 
 (1882). By Rev. George Cook, B.D., Minister of Longformacus. 
 In demy, 8vo, price 12s. 
 
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 Local GoYernment Manual. 
 
 Manual of the Local Government (Scotland) Act, 1889. By John 
 Chisholm and Hat Shennan, Advocates. In demy 8vo, price 6s. 
 
 CONTENTS; — Introduction. — Text of the Act, with Notes. — Appendices: First, 
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 the last Census Keturns ; Fifth, County Councillors for Scotland. — Index. 
 
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 and the same terseness and precision distinguish their commentary on the text, and 
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 ' The first place for good workmanship must certainly be given to the book of Messrs. 
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14 Law Boohs 2')uhlished hy T. & T. Clark, Edinburgh. 
 
 Clark on Partnership. 
 
 A Treatise on the Law of Partnership and Joint-Stock Companies, 
 according to the Law of Scotland ; including Private Copartneries, 
 Common Law Companies, Kegistered Companies, Chartered Com- 
 panies, Railway Companies, and others, formed under the Con- 
 solidation Acts. By Francis William Clark, Sheriff of 
 Lanarkshire. In Two Volumes, royal 8vo, price £2, os. 
 
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 him as a book of reference. The author's own ability and accuracy require no 
 guarantee.' — Scotsman. 
 
 Renton on Monomanie. 
 
 Monomanie Sans D61ire. An Examination of ' The Irresistible 
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 of Gray's Inn, and of the Oxford Circuit, Barrister-at-Law. In 
 demy 8vo, price 3s. 6d. 
 
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 p7~udence. 
 
 The Land Rights of Scotland : Being a CoUectioa of 
 
 the Entail, Conveyancing, and other Statutes relating to Land ; 
 with Introductory Observations and Notes. By Hugh Cowan, 
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 and brought down to date by the Author. In demy 8vo, price 
 12s. 
 
 Sheriff Court Practice. 
 
 Practical Notes on the Jurisdiction and Forms of Process in Civil 
 Causes of the Sheriff Courts of Scotland. By John M'Glashan, 
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 an Appendix containing relative Enactments, Legislative and 
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 A Treatise on the Law of Bills of Exchange, Pro- 
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 ' The subject is treated in this handsome volume with severe legal accuracy. Industry, 
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Law Books published ly T. & T. Clark, Edinburgh. 1 5 
 The Erection of Parishes Quoad Sacra ; and the Feuing 
 
 of Glebes, under Authority of the Court of Teinds. By Nenion 
 Elliot, S.S.C, Clerk and Extractor of the Court of Teinds. In 
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 _' A thoroughly practical book on a little-known subject; and we have no doubt that it 
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 Poor-Law Decisions. 
 
 Decisions on the Poor Law of Scotland in the Court of Session, 
 and Awards by Arbitration. Condensed by William Hay, 
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 The Law of Highways in Scotland. 
 
 By Hugh Barclay, LL.D., Sheriff-Substitute of Perthshire. In 
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 Decisions of the Supreme Courts of England and 
 
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 CABINET LIBRARY OF SCARCE AND CELEBRATED TRACTS. 
 
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 2. Hon. Justice Story's Discourse on the Past History, Present State, and 
 
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1 6 Law Books published hy T. & T. Clark, Edinburgh. 
 
 REPORTS. 
 
 REPORTS OF CASES DECIDED IN THE COURT OF SESSION, 
 
 TEIND COURT, COURT OF EXCHEQUER, AND 
 
 HOUSE OF LORDS. 
 
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 House of Lords Ebports from 1726 to 1821 Eeported by John Ceaigie, J. S. 
 
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 THE JUSTICIARY COURTS. 
 
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 From May 1893 to July 1895. By Edwin Adam, Esq., Advocate. Vol.1. £2, 3s. 
 
 INDEX. 
 
 PAGE 
 10 
 5 
 13 
 15 
 S 
 4 
 4 
 
 Adam's Acts of Sederunt, . 
 Barclay's Justice's Digest, . 
 
 Public-Houses Statutes, . 
 
 Law of Hlgliways, . 
 
 Bell's Arbitration, 
 
 Commentaries, . 
 
 Principles, 
 
 Brown's Criminal Jurisdiction, 3 
 
 Conveyancing, 3 
 
 Brunner's Sources of the Law, . 9 
 
 Cabinet Library of Scarce Tracts, . 15 
 Oliisholm and Shennan's Local Govern- 
 ment Act, . . .13 
 
 Clark on Partnership, 14 
 
 Coldstream's Procedure, ... 3 
 
 Cook's Church Styles, ... 13 
 
 Cowan's Land Rights, ... 14 
 
 Dickson on Evidence, .... 4 
 
 Digest of Decisions, 1867-85, . H 
 
 Elliot's Erection of Parishes, ... 15 
 
 Eraser's Husband and Wife, ... 6 
 
 Master and Servant, . . 6 
 
 Goudy's Bankruptcy, . . . . 1 
 Grierson on Evidence, . . .4 
 
 Guthrie's Select Cases, . . . S 
 
 Hay's Liability, . . ... 15 
 
 Poor Law Decisions, ... 15 
 
 Howden on Trusts, . . . 2 
 
 Irons' Police Law, 
 
 Public-Houses Acts, 
 
 Irvine's Game Laws, . 
 Johnston's Crofters' Act, . 
 Kant's Philosophy of Law, 
 Leading Ecclesiastical Cases, 
 Lorimer's Handbook, .... 
 M'Glashan's Sheriff Court Pi^actiee, . 
 Mackintosh's Roman Law of Sale, 
 Muirhead's Institutes of Gains, . 
 Nasmyth's Public Health Manual, . 
 Neill's Maritime Causes, 
 Puclita's Science of Jurisprudence, . 
 Renton's Monomanie, .... 
 
 Criminal Procedtire and Appeal, 
 
 Reports :— Court of Session, House of 
 
 Lords, Justiciary, etc., 
 Savigny's Private International Law, 
 Shaw's Digest, ... 
 Smith's (J. G.) Law of Damages, 
 
 Poor Law, 
 
 (R. E. M.) Expenses, 
 
 Steele on Landed Estates, . 
 
 Stewart on Fishing, . 
 
 Thomson on Bills, 
 
 Watt's Legal Philosophy, . 
 
 Whyte's Law Examination Manual, . 
 
 PAGE 
 
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