eral late statutes particularly 11 Geo. II. c. 19. in case of irregularity in the method of distreining; and 24 Geo. II. c. 24. in case of mistakes committed by justices of the peace; even tender of sufficient amends to the party injured is a bar of all actions, whether he thinks proper to accept such amends or no.

II. * Arbitration is where the parties, injuring and injured, submit all matters in dispute, concerning any personal chattels or personal wrong, to the judgment of two or more arbitrators; who are to decide the controversy: and if they do not agree, it is usual to add, that another person be called in as umpire (imperator 1or imparx1), to whose sole judgment it is then referred:† or frequently there is only one arbitrator originally appointed. This decision, in any of these cases, is called an award. And thereby the question is as fully determined, and the right transferred or settled, as it could have been by the agreement of the parties or the judgment of a court of justice. But the right of real property cannot thus pass by a mere award: which subtilty in point of form (for it is now reduced to nothing else) had its rise from feodal principles; for, if this had been permitted, the land might have been aliened collusively without the consent of the superior. [See note 5, page 27.] Yet doubtless an arbitrator may now award a conveyance or a release of land; and it will be a breach of the arbitrationbond to refuse compliance. For, though originally the submission to arbitration used to be by word, or by

x Whart. Angl. sacr. I. 772. Nicols. Scot. hist. libr. ch. 1. prope fincm.

- Quoted, 36 Ark. 327; 37 Ark. 354. Cited, 9 Ala. 766; Addis. 224.

2- Quoted, 16 Vt. 457. Cited, Addis. 226.

T-T Quoted, 16 Vt. 457; Addis. 229. Cited, 1 Har. & McH. 271.

deed, yet both of these being revocable in their nature, it is now become the practice to enter into mutual bonds, with condition to stand to the award or arbitration of the arbitrators [17] or umpire therein named.a* And experience having shewn the great use of these peaceable and domestic tribunals, especially in settling matters of account, and other mercantile transactions, which are difficult and almost impossible to be adjusted on a trial at law; the legislature has now established the use of them, as well in controversies where causes are depending, as in those where no action is brought, and which still depend upon the rules of the common law enacting, by statute 9 & 10 W. III. c. 15. that all merchants and others, who desire to end any controversy (for which there is no other remedy but by personal action or suit in equity), may agree, that their submission of the suit to arbitration or umpirage shall be made a rule of any of the king's courts of record: and, after such rule made, the parties disobeying the award shall be liable to be punished, as for a contempt of the court; unless such award shall be set aside, for corruption or other misbehaviour in the arbitrators or umpire, proved on oath to the court, within one term after the award is made. And, in consequence of this statute, it is now become a considerable part of the business of the superior courts, to set aside such awards when partially or illegally made; or to enforce their execution, when legal, by the same process of contempt, as is awarded for disobedience to those rules and orders which are issued by the courts themselves.††

a Append. No. III. ? 6.

4 Previously, "such, as." *Cited, 3 Tex. 166.

+ Cited, Addis. 222, 225; 1 Yeates, 358,

In many states arbitrations have been carefully regulated by statute: yet in most of them it is held that such statutes do not take away the validity of a common-law arbitration and its award, complying with the rules here laid down.

NOTES OF THE AMERICAN EDITOR TO CHAPTER I.

(1) Jus being necessarily prior to what may be termed injuria, and the definition of fas precedent to that of nefas, page 2.

It has frequently been said by Bentham and his followers that the classification of law should be based on wrongs, not on rights, as it usually has been. "The fundamental idea, the idea which serves to explain all the others, is that of an offense. It is only by creating offenses, that is to say by erecting certain actions into offenses, that the law confers rights. If it confer a right it is by giving the quality of offenses to the different actions by which the enjoyment of this right might be interrupted or opposed. The division of rights ought therefore to correspond with the division of offenses." (Bentham, View of a Complete Code of Laws, ch. 2; Works, vol. 3, p. 159.)

This implies the view of laws common to Bentham and Blackstone composed entirely of restraints on natural liberty. Freedom consists in the powers of doing anything at random without the slightest check or determinition to one course rather than another, and law only takes away a certain number of the possible acts that are comprehended in this natural liberty, or as Bentham says, "erects them into offenses." Rights are the residuum of unforbidden acts, with perhaps a cannotation of some benefit resulting or expected to result to the action. "To assure to individuals the possession of a certain good is to confer a right upon them." But "the distinction between rights and offenses is therefore strictly verbal; there is no difference in the ideas. It is not possible to form the idea of a right without forming the idea of an offense."

Now, it is questionable whether the idea of a right is so completely dependent on that of an offense. I am willing to admit that such has been the origin of many of our rights, e. g, such as have grown up in equity

from the use of certain remedies for wrongs. But a right is not necessarily a negative idea. Such rights as property, the right of a husband or father, have their basis in certain acts which would take place and be the subject regulation even though never infringed. This is shown by the fact that the offenses corresponding to them have never been exhaustively defined or imagined. New offenses against property and other rights make their appearance even now, and are instantly recognized as offenses, which they could not be if they had no idea of the right except one formed from the offenses against it. The idea of government is at least as positive and definite as that of rebellion or treason; so of property and larceny, embezzlement, etc. And it may be questioned whether Blackstone has not mistaken the chronological for the logical sequence. Wrongs no doubt first attracted attention; but the very idea of a wrong or offense presupposed that of a right, while the converse can hardly be said. Therefore, it seems to me that right should still be the basis of classification even on Blackstone's own theory. But the argument is much stronger if we form a just conception of law (jus) as a science of right or direction, positive not negative in its precepts, guiding the will, not merely thwarting and repressing it.

The first suggestion of Bentham's notion may be fairly attributed to Horace, who said that laws (or rights) must be confessed to have been invented from the fear of wrong. Jura inventa metu injusti, fateare necesse est. (I. Serm. 3.)

This was strictly in keeping with the 'doctrine of the Epicureans (at least as represented by their opponents), and of Carneades, who denied the natural character of the distinction between right and wrong, and reduced law to a mere fortification against injury.

But it is surprising to find how weakly it was opposed to the natural lawyers of the eighteenth century, who

could only get rid of it by taking refuge in pure ethics, e. g., by showing that if there were nobody to injure, man would be bound by the law of nature to worship God to attend to self-preservation. (Heinecii Prolect in Grotium, Procem, 219, op. omnia [id. Gen. 1748], tem. ix. pp. 16, 17.)

Professor Amos, in his English Code, pages 39, 40, gives Mr. J. S. Mill credit for the first suggestion of "making rights take the lead in certain portions, and duties take the lead in other portions," as if that were an invention of the nineteenth century!

(2) Master and servant, page 3.

The master's right to justify an assault in defense of his servant has been denied on the weak ground that he might have an action for the loss of service: citing an anonymous dictum per curiam in Leward v. Basely, 1 Raym. Ld. 62; Salk. 407. But this is equally applicable to the cases of husband and wife, parent and child, where the right to defend by force, if necessary, has never been doubted. And the dictum is overruled by Tickell v. Read, Lofft, 215. See, also, 2 Kent, 261, who is mistaken, however, in saying that the point was "adjudged " in Leward v. Basely. That case was on a wife's assault in defense of her husband. (Rev. Dom. Rel. p. 488 of 4th ed.)

It hardly need be said that the rule grows out of the status of the parties, and has no meaning when applied to principal and agent, so often confounded with that relation. (See note to book 1.)

(3) The owner of the goods may lawfully claim and retake them wherever he happens to find them, page 4.

Whether the owner may justify a trespass on another's land for this purpose, is not clearly said either in this passage or by the decisions. But it seems that where they are on the land of the wrong-doer, and by

3 BLACKST.-3.