to those who are difpofed to attend to the investigation of legal principles. I am aware that such difcuffions are by no means a favourite branch of study, and I do not indulge the idea that the prefent attempt will be admitted as an exception. To the charge of prefumption in queftioning the conclufions of judicial authority, may be added that of afcribing a difproportionate importance to the queftions examined. I certainly feel a different impression upon that fubject, and hope that the importance of the questions themselves, confidered with relation to their confequences and effects, has at least had some co-operation with the wish to fupport former opinions, not hazarded upon the impreffion of the moment, but founded upon deliberate though perhaps erroneous confideration. In thus endeavouring to promote a familiarity with other laws, I am fure that I fhall not, deservedly at leaft, incur the imputation of indifference to our own, but in this difcuffion as in all others, I am defirous of witneffing fuch a uniformity between different fyftems of jurifprudence, as refults from correct and proper application of the general principles of natural reafon, and univerfal justice,

DISSERTATION

ON

MISTAKES OF LAW.

By M. D'AGUESSEAU.

1. EVERY man may be contemplated with relation either to the public order of fociety, or to the particular engagements which he contracts with other men; from this twofold idea, refults the dif tinction which the Roman jurists seem to have established between the public ftate and the private.

II. In the first of thefe afpects, a man is committed with the law itfelf; it is with the law alone that he contracts, that he engages, that he binds himself, with refpect to every thing which regards the general police, and the exterior order of fociety; it is to the law alone that he is accountable for his infractions of it.

III. In the fecond afpect, on the contrary, a man has only to regard the perfon with whom he contracts; the law does not punish an ignorance which relates only to a matter of private right; although it establishes this right in the fame manner as the public law; it only regulates it with reference to the intereft of indivi duals, and the lofs of the rights which might have belonged to them is the only penalty which the law attaches to those who, by their imprudence, have merely infringed (blessé) the maxims of pri

vate order.

IV. As the public order regards the public utility directly, while the order of private right only regards it indirectly, the first ought always to be confidered as more important and inviolable than the laft.

V. As public law only regulates the most exterior actions of men, it is more cafily to be conceived and obferved than private.

Of

Of the fifty books of which the digeft is compofed, there are more than forty entirely devoted to the explication of the rules of private right; and there is almost the same proportion in the code of Juftinian.

VI. From all these differences we may deduce this general confequence, that although ignorance of legal obligation is always reprehenfible, it is however much more criminal, when it violates the maxims of public order, than when it merely affects fome rule of private right.

ift, Because the law is always in the right, and as in matters of public order, a man only treats with the law, there can never be that compenfation of mutual faults, which often ferves as an excufe to thofe who treat with other men upon any thing which relates to private order (a).

2d, Because the perfon who by mistake contravenes a private law, does no injury to any one but himfelf; while he who through ignorance violates a public law, or rather a law of public order, attacks as much as in him lies the whole ftate of civil society, and directly offends against the general utility of the community.

3d, Because the public law (by which I mean that which ought to be practifed by all the citizens) being much more fimple, the perfon who is ignorant of it is much more inexcufable.

VII. Then by a neceffary confequence of this principle, ignorance of public order ought always to be punished, although the quality of the perfons, the nature of the laws, and the variety of circumftances may very much increase, or diminish the degree of punishment.

VIII. Then, that which is loft by an ignorance of the public law, is loft without refource, fince this ignorance, fo far from ferving as an excufe, ftands in need of one itself.

IX. Much less then can an ignorance of public order be a sufficient reason for recovering an advantage, which a party has failed to acquire; for how can that ever be the object of recompence which may be deemed fortunate in efcaping punish

ment?

But as these rigid maxims cannot always be observed with regard to private right, it is neceffary to premise fome general notions, which may serve to discover the real principles that are applicable to this fubject.

(•) This reason must be acknowledged to be rather fanciful than folid.

I. It is naturally just that one man shall not be enriched by the detriment and injury of another (a).

II. That which is ours cannot, without our own act, be transferred to another (b).

But confent or even neglect is here understood by the name of an act. Vi. Jac. Gothof. ad hancce regulam.

III. There is no obligation without a caufe ;-a confequence of the preceding principle.

The principles of equity and juftice give a right to reclaim what belong to one perfon and is without any caufe, in the pol feffion of another (c).

IV. That which is null in itself produces no effect; then, if there is no obligation in the beginning, because the promise is made without a caufe, the obligation before payment may be refcinded, after payment the thing paid may be reclaimed (d).

Hence arise the actions condictio indebiti, condictio fine caufa, con ditio caufa data, caufa non fecuta—and condictio ob turpem vel injuftam caufam. Tot. Tit. ff. & Cod.

V. It is the fame whether there is no caufe, or an unjust cause (e) at first, or whether the cause for which the obligation was contracted has failed.

Whether the promife was from the beginning without any caufe; or whether there was a caufe which ceafed, or failed, there is a right of repetition. (f) L. 1. § 2. ff. de Cond. fine Caufa.

It it evident that whatever has been received by any perfon without a just cause, or for a cause which is no longer just (g), may be reclaimed.

If a payment be made by error on account of any of those

(4) Jure naturæ æquum eft, neminem cum alterius detrimento et injuria fieri locuple. tiorem. L. 206. ff. de R. J. L. 14. ff. de Cond. Indeb.

(b) Id quod noftrum eft, fine noftro facto ad alterum transferri non poteft. L, 11. ff. de R. J.

(c) Hæc condictio ex bono et æquo introducta, quod alterius apud alterum fine caufâ deprehenditur, revocare confuevit. L. 66. ff. de Cond. Indeb.

(d) Si ab initio non confiftit obligatio quia fine caufâ promiffum eft, ante folutionem ipfa obligatio, poft folutionem quantitas foluta condicetur. L. 1. ff. de Condic. fine caufâ.

(e) This does not mean an illegal contract, for in refpect to that it is an established principle that both parties being in equal turpitude there is no repetition.

(ƒ) Sive ab initio fine caufâ promiffum eft, five fuit caufa promittendi, quæ finita eft, vel fecuta non eft, dicendum eft conditioni locum effe.

(g) Conftat id demum condici poffe alicui, quod vel non ex justâ caufâ ad eum pervenit, vel redit ad non juftam mufam. Dict. Leg. § 3. ibid.

caufes,

causes, which are of no avail or effect in law, there is a right of repetition (a).

VI. It is of little importance whether the obligation be entirely without any cause at all, or whether there be only a caufe as to part: what is ufeful is not vitiated by what is useless, neither can what is useless be confirmed by what is useful; but the obligation is deftroyed (b). Such are the very words of Julian, in L. 3.ff. de Cond. fine Caufa.

Neither does it fignify, whether a person undertakes an obligation entirely without cause, or whether he undertakes a greater obligation than he should have done, except that he must proceed in a different manner, to be liberated from the whole or from the excefs.

VII. The fame obligation may arise from several causes, one of which may fail while the others remain, but as long as any one caufe remains the obligation is fuftained; for fuch an interpretation ought always to be made, that the act may rather stand than fall.

VIII. A thing may be said to be not due, in several different ways.

1. If it is not due by any law, that is, neither by the law of nature, nor by the civil law.

2. If it is due by the law of nature, or as it is called by jurifts the law of nations. L. 47. (c). ff. de Cond. Indeb. but is not due by the civil law. V. C. 64. ff. de Cond. Indeb. (d)

3. If it is due by the civil law, but not by the law of nature.

4. If it is due both by natural and civil law, but the debtor may protect himself by a perpetual exception.

Exceptions may be diftinguished into two kinds; for they differ with respect to their duration, and their effect.

With respect to duration, they are either temporary, or perpetual, or ambiguous, that is, it is doubtful whether they are temporary or perpetual, which commonly depends upon an uncertain

(a) Ex his omnibus caufis, quæ jure non valuerunt, vel non habuerunt effectum, fecutâ per errorem folutione, conditioni locus erit. L. 54. ff. de Condic. Indeb.

(6) Utile ab inutili non vitiatur, nec inutile ab utili confirmari poteft : Sed fcinditur obligatio.

(c) Indebitam pecuniam per errorem promifisti; eam qui pro te fidejufferat, solvit : Ego exiftimo fi nomine tuo folverit fidejuffor, te fidejuffori, ftipulatorem tibi obligatum fore, nec expectandum eft ut ratum habeas; quoniam potes videri id ipfum mand.ffe, ut tuo pomine folveretur; fin autem fidejuffor fuo nomine folverit quod non debebat, ipsum a Atipu atore repetere poffe: quoniam indebitam jure gentium pecuniam folvit, quo minus autem confequi poterit ab eo, cui solvit, a te mandati judicio confecuturum; fi modo per ignorantiam, petentem exceptione non fummoverit,

(4) Vi. infra, in the text.